The power of Congress to pass laws for the navigation of public
rivers and to prevent any and all obstructions therein cannot be
questioned.
When the Attorney General acts under the authority conferred by
the River and Harbor Act of September 19, 1890, c. 907, he has the
right to call upon the court, upon proper proofs' being made, to
enjoin the continuance of any obstruction not authorized by
statute, and the court has jurisdiction, and it is its duty to
decide whether the existing obstruction is or is not affirmatively
authorized by law.
In such inquiry, the court is bound to decide whether the boom,
as existing, is authorized by any law of the state, when such law
is claimed to be a justification for its creation or
continuance.
There is no doubt that the boom in question in this case
violates the statute under which it was built, because it does not
allow free passage between the boom and the opposite shore for
boats or vessels as provided for in the state law.
The case is stated in the opinion.
MR. JUSTICE PECKHAM delivered the opinion of the Court.
This suit was commenced in the Circuit Court of the United
States for the State of Washington, Northern Division. The
government brought it under the direction of the Attorney General,
to obtain an injunction enjoining the defendant from further
continuing a certain boom which it had constructed across the
Nooksack River in that state, and to obtain the removal of the same
as an obstruction to the navigation of that river.
The defendant is a corporation organized under the laws of the
State of Washington, and in its answer it denied that the boom was
an obstruction to the navigation of the river, and
Page 176 U. S. 212
alleged that it was duly authorized to construct and maintain it
by virtue of an act of the legislature of the state, and that it
had completed the structure prior to the enactment of the federal
river and harbor bill on the 19th of September, in the year
1890.
The authority under which this suit was commenced is the River
and Harbor Act of 1890, approved September 19 of that year, 26
Stat. 426, 454, c. 907, the tenth section of which reads as
follows:
"SEC. 10. That the creation of any obstruction, not
affirmatively authorized by law, to the navigable capacity of any
waters, in respect of which the United States has jurisdiction, is
hereby prohibited. The continuance of any such obstruction, except
bridges, piers, docks, and wharves, and similar structures erected
for business purposes, whether heretofore or hereafter created,
shall constitute an offense, and each week's continuance of any
such obstruction shall be deemed a separate offense. Every person
and every corporation which shall be guilty of creating or
continuing any such unlawful obstruction in this act mentioned, or
who shall violate the provisions of the last four preceding
sections of this act, shall be deemed guilty of a misdemeanor, and
on conviction thereof shall be punished by a fine not exceeding
five thousand dollars, or by imprisonment (in the case of a natural
person) not exceeding one year, or by both such punishments, in the
discretion of the court, the creating or continuing of any unlawful
obstruction in this act mentioned may be prevented and such
obstruction may be caused to be removed by the injunction of any
circuit court exercising jurisdiction in any district in which such
obstruction may be threatened or may exist, and proper proceedings
in equity to this end may be instituted under the direction of the
Attorney General of the United States."
On the trial, it appeared that the Nooksack River is a navigable
stream having its source in Whatcom County, State of Washington,
and runs through Whatcom County to Bellingham bay, emptying into
that bay, and thence into the Pacific Ocean. The waters of the
river lie wholly within Whatcom County, and they are navigable from
its mouth for a distance
Page 176 U. S. 213
of several miles towards its source by light watercraft. The
boom in question, built by the defendant company at a point just
above where the river empties into the bay, is frequently an
obstruction to the navigation of the river by steamboats and other
craft, as the boom crosses the channel of the river and entirely
fills it, excepting that there is what is termed a "trip," which
may be opened and vessels pass through the same on their way up and
down the river. This "trip" is, however, frequently so choked and
blocked up by logs and driftwood coming down the river as to render
it impossible to open it.
The defendant, during the continuance of the boom, has from time
to time expended moneys for the improvement of the navigation of
the river by removing brush, trees, and drift from the mouth
thereof, and it has removed trees, snags, and drift from the
channel for a distance of from fifteen to twenty miles from the
mouth of the river. Navigation for boats and watercraft has thereby
been considerably facilitated, but at the same time the obstruction
to the navigation of the river by reason of the existence of the
boom is material and at times total. The river is used for
navigation by steamboats and small craft for a distance of some
miles from its mouth. One of the chief purposes for which the river
is used is as an outlet for floating saw logs and timber products
to the mills and to market.
The circuit court was of opinion that as the chief value of the
Nooksack River as a highway is for the floating of saw logs, that
persons and corporations having to use it for that purpose have
rights equal to the rights of others to use the river for a highway
for boats and vessels, and that a boom at the mouth of the river,
being necessary for gathering and holding logs, is to be regarded
as an aid to the use of the river for a lawful purpose, and
entitled to protection, the same as a wharf or pier constructed at
a place for the convenience of vessels; that the boom was
constructed under the authority of the state legislature, and it
was for that reason excepted from the provisions of the tenth
section of the act of Congress. The court therefore dismissed the
bill. 72 F. 585.
Page 176 U. S. 214
The government appealed to the Circuit Court of Appeals for the
Ninth Circuit, and that court held that as, at the time of the
building of the boom, there was no act of Congress on the subject,
and a state statute authorized the building, it was affirmatively
authorized by law within the meaning of the tenth section of the
act of Congress. It also held that whether or not the boom was
constructed in strict accordance with the terms and provisions of
the state statute could not be considered, as that was a question
to be determined by the state, and not by the federal court. On
these grounds, it affirmed the judgment. 81 F. 658.
It is evident that the first sentence of the tenth section of
the federal act refers to an obstruction created after the passage
of the act. The obstruction prohibited is one that is "not
affirmatively authorized by law," and the section then provides
that "the continuance of any such obstruction, . . . whether
heretofore or hereafter created, shall constitute an offense," and
authority is given to the Attorney General to cause a suit of this
character to be commenced.
At the time when the boom was constructed, Congress had not by
any legislation asserted its authority over nor taken into its own
jurisdiction the subject of obstructions to the navigation of this
river. The appropriations made by Congress in different years since
1884, for improvements in the Nooksack, among other rivers in the
Territory of Washington, did not constitute such an assumption of
jurisdiction over the navigation of the Nooksack River as to
prevent the state from legislating upon the subject.
Willamette
Iron Bridge Company v. Hatch, 125 U. S.
1. As Congress had not assumed such jurisdiction either
at the time of the passage of the act by the Legislature of
Washington permitting the construction of a boom by the defendant,
nor at the time of its actual construction, then, if it were
constructed in a manner conformable to the state statute, it was
affirmatively authorized by law at the time of the passage of the
act of Congress. It is contended by the government that this term
refers to a law of Congress, and does not include any law of a
state legislature. We do not so construe section 10.
Page 176 U. S. 215
Congress, it must be assumed, was aware of the fact that, until
it acted upon the subject of navigable streams, which were entirely
within the confines of a single state, although connecting with
waters beyond its boundaries, that such state had plenary power
over the subject of that navigation, and it knew that when, in the
absence of any statute of Congress on the subject, an obstruction
to such a navigable river had been built under the authority of an
act of the legislature of the state, such obstruction was legal and
affirmatively authorized by law, because it was so authorized by
the law of a state at a time when Congress had passed no act upon
the subject. When Congress, in 1890, passed the River and Harbor
Bill, we think the expression contained in section 10 in regard to
obstructions "not affirmatively authorized law," meant not only a
law of Congress, but a law of the state in which the river was
situated, which had been passed before Congress had itself
legislated upon the subject. An obstruction created under the
authority of a state statute under such circumstances, we cannot
doubt, was an obstruction "affirmatively authorized by law." When,
therefore, the section continues, and provides that "any such
obstruction, . . . whether heretofore or hereafter created" shall
constitute an offense, it referred to an obstruction as described
in the first sentence of the section, namely, an "obstruction not
affirmatively authorized by law." If the obstruction were
affirmatively authorized by a law of the state, it did not come
within the condemnation of the section, and its continuance was
therefore valid.
The power of Congress to pass laws for the regulation of the
navigation of public rivers and to prevent any and all obstructions
therein cannot be questioned. When Congress chooses to act, it is
not concluded by anything that the states or that individuals by
their authority or acquiescence have done from assuming entire
control of the matter, and abating any obstructions that may have
been made and preventing any others from being made except in
conformity with such regulations as it may impose. The ultimate
power of Congress over the whole subject is undoubted. This has
been
Page 176 U. S. 216
decided in numerous cases, and in the case of
Willamette
Iron Bridge Co. v. Hatch, 125 U. S. 1, many of
them are referred to by Mr. Justice Bradley in delivering the
opinion of the Court. If, however, in exercising its right in
regard to the regulation and control of commerce, private property
must be taken, the government is obliged to make compensation to
the owner.
Monongahela Navigation Co. v. United States,
148 U. S. 312,
148 U. S. 336.
Whether ordering the removal of the obstruction, unaccompanied by
the actual taking of the property, would under other circumstances
affect the question of compensation it is not necessary to here
decide, as, for the reason hereafter given, the boom was an
unauthorized obstruction, and subject to abatement as such under
the act of Congress.
As this defendant claims that the obstruction in the river was
affirmatively authorized by an act of the state legislature, we
must look at that act for the purpose of determining the validity
of the claim. The act under which the boom was created is entitled
"An Act to Declare and Regulate the Powers, Rights, and Duties of
Corporations Organized to Build Booms and to Catch Logs and Timber
Products Therein." The third section provides:
"Such corporations shall have the power, and are hereby
authorized, in any of the waters of this state, or the dividing
waters thereof, to construct, maintain, and use all necessary sheer
or receiving booms, dolphins, piers, piles, or other structure
necessary or convenient for carrying on the business of such
corporations:
Provided, That such boom or booms, sheer
booms or receiving booms, shall be so constructed as to allow the
free passage between any of such booms and the opposite shore for
all boats, vessels, or steam crafts of any kind whatsoever, or for
ordinary purposes of navigation."
1 Hill, Ann.Stat.Washington, c. 7, ยง 1592.
The reading of this section shows that the boom authorized to be
constructed was one which should allow the free passage between the
boom and the opposite shore of boats, vessels, etc. The evidence
shows that this boom was not so constructed, because it crossed the
channel of the river, completely blocking it, and left no space for
the free passage of
Page 176 U. S. 217
boats and vessels between the end of the boom and the opposite
shore. The building of the so-called "trip" was no compliance with
the act. By the passage of the River and Harbor Bill containing the
above-mentioned tenth section, Congress had acted upon the subject,
and has provided for the removal of any obstruction to a navigable
river with the exceptions named in the section. When the Attorney
General, therefore, acts under the authority conferred by this
statute, he has the right to call upon the court, upon proper
proofs being made, to enjoin the continuance of any obstruction not
authorized by the statute, and the court has jurisdiction, and it
is its duty, to decide the question whether the existing
obstruction is or is not affirmatively authorized by law. In such
inquiry, the court is bound to decide whether the boom as existing
is authorized by any law of the state, when such law is claimed to
be a justification for its creation or continuance. That question
is not for the state alone, but must necessarily be decided by the
federal court in the course of exercising the jurisdiction
conferred upon it by the federal statute. We therefore cannot
concur with the views of the circuit court of appeals upon this
subject.
The authority cited by that court for its position was
Willamette Iron Bridge Company v. Hatch, 125 U. S.
1. In that case, however, there had been no act of
Congress upon the subject of the navigation of the Willamette
River, and without such statute, it was held that the United States
could not bring within the scope of its laws, obstructions and
nuisances in navigable streams within a state, such obstructions
and nuisances being offenses against the laws of the state within
which the navigable waters lie, and constitute no offense against
the United States in the absence of a statute. The court used the
following language:
"There must be a direct statute of the United States in order to
bring within the scope of its laws, as administered by the courts
of law and equity, obstructions and nuisances in navigable streams
within the states. Such obstructions and nuisances are offenses
against the laws of the states within which the navigable waters
lie, and may be indicted or prohibited
Page 176 U. S. 218
as such; but they are not offenses against the United States
laws which do not exist, and none such exist except what are to be
found on the statute book. . . . The usual case, of course, is that
in which the acts complained of are clearly supported by a state
statute; but that really makes no difference. Whether they are
conformable or not conformable to the state law relied on is a
state question, not a federal one. The failure of the state
functionaries to prosecute for breaches of the state law does not
confer power upon United States functionaries to prosecute under a
United States law, when there is no such law in existence."
If there were here no federal law in existence, then the
question whether the boom was authorized by a state law, or
complied with its provisions, would be a state question, as is
clearly set forth in the above extract. But, the federal law having
been passed, the question then is whether the structure is
permitted by that law, and when that law says it may continue, if
affirmatively authorized by a state law, the question whether it is
so authorized becomes in effect a question whether the federal law
does or does not permit it. If it is authorized by the state law,
then the federal law provides that it may continue, and whether it
is or is not becomes a question for the federal court to
decide.
There is no doubt that the boom in question in this case
violates the statute under which it was built, because it does not
allow free passage between the boom and the opposite shore for
boats or vessels as provided for in the state law. For this reason,
the government was entitled to a decision in its favor, and
We therefore reverse the decrees of the Circuit Court of
Appeals for the Ninth Circuit and of the Circuit Court of the
United States for the District of Washington, Northern Division,
and remand the case to the Circuit Court for further proceedings in
accordance with this opinion.