Subject to the paramount jurisdiction of Congress over the
navigable waters of the United States, the State of Louisiana had,
under the Act of March 2, 1849, c. 87, and the other statutes
referred to in the opinion of the Court, full power to authorize
the construction and maintenance of levees, drains and other
structures necessary and suitable to reclaim swamp and overflowed
lands within its limits.
The dam constructed by the plaintiff in error at Red Pass was
constructed under the police power of the state, and within the
terms and purpose of the grant by Congress.
The decision of the jury, to whom it had been left to determine
whether the plaintiff in error was guilty, that the pass was in
fact navigable, is not binding upon this Court.
The term "navigable waters of the United States" has reference
to commerce of a substantial and permanent character to be
conducted thereon.
The defendant below was entitled to the instruction asked for,
but refused, that the jury should be satisfied from the evidence
that Red Pass was, at the time it was closed, substantially useful
to some purpose of interstate commerce, as alleged in the
indictment.
Upon the record now before the Court, it is held that Red Pass,
in the condition it was when the dam was built, was not shown by
adequate evidence to have been a navigable water of the United
States actually used in interstate commerce, and that the court
should have charged the jury, as requested; that, upon the whole
evidence adduced, the defendants were entitled to a verdict of
acquittal.
Page 177 U. S. 622
At the April term of the Circuit Court of the United States for
the Eastern District of Louisiana, an indictment was found charging
Augustus F. Leovy and Robert S. Leovy, both of the Parish of
Plaquemines, State of Louisiana, with, on the 16th of November,
1895, unlawfully, willfully, knowingly, and without permission of
the Secretary of War, building and causing to be built a dam in and
across a certain navigable stream of the United States known as Red
Pass, and outside of any established harbor lines, which said Red
Pass flows in the Gulf of Mexico from a certain navigable stream of
the United States, known as the Jump, which said Jump is an outlet
of the Mississippi River into the Gulf of Mexico; that said dam has
been continued by the defendants since the same was built, and
still remains in and across said Red Pass, whereby the navigation
of and commerce over and through Red Pass was then and there, and
has been ever since, impaired and obstructed; they, the said
defendants, well knowing the said Red Pass to be a navigable stream
of the United States, in respect of which the United States then
and there had jurisdiction, contrary to the form of the statute of
the United States in such case made and provided, and against the
peace and dignity of the United States.
The defendants entered a plea of not guilty, and the cause was
tried before the district judge and a jury. The trial resulted,
June 6, 1891, in a verdict of not guilty as to Augusts F. Leovy,
and of guilty as to Robert S. Leovy, whereupon it was adjudged that
said Robert S. Leovy pay a fine of two hundred dollars and costs of
prosecution.
Several bills of exception on behalf of Robert S. Leovy were
seasonably presented, and signed and allowed by the trial judge,
who likewise, on June 16, 1898, allowed a writ of error, and the
cause was taken to the United States Circuit Court of Appeals for
the Fifth District, which court, on February 28, 1899, affirmed the
judgment of the circuit court.
The case was then brought to this Court on a writ of certiorari
to the United States Circuit Court of Appeals for the Fifth
Circuit.
Page 177 U. S. 623
MR. JUSTICE SHIRAS delivered the opinion of the Court.
On March 2, 1849, the Congress of the United States, by an act
of that date entitled "An Act to Aid the Louisiana in Draining the
Swamp Lands therein," enacted:
"That to aid the State of Louisiana in constructing the
necessary levees and drains to reclaim the swamp and overflowed
lands therein, the whole of those swamp and overflowed lands which
may be or are found unfit for cultivation shall be and the same are
hereby granted to that state."
9 Stat. 352.
Similar grants have been made by Congress to other states within
whose boundaries were undrained swamp and overflowed lands
belonging to the United States. Act of September 28, 1850, 9 Stat.
519, c. 84. This legislation declares a public policy on the part
of the government to aid the states in reclaiming swamp and
overflowed lands unfit for cultivation in their natural state, and
is a recognition of the right and duty of the respective states, in
consideration of such grants, to make and maintain the necessary
improvements.
By the Act of September 19, 1890, 26 Stat. 454, c. 907, it is
provided:
"That it shall not be lawful to build any wharf, pier, dolphin,
boom, dam, weir, breakwater, bulkhead, jetty, or structure of any
kind outside established harbor lines, or in any navigable waters
of the United States where no harbor lines are or may be
established, without the permission of the Secretary of War, in any
port, roadstead, haven, harbor, navigable river, or other waters of
the United States, in such manner as shall obstruct or impair
navigation, commerce, or anchorage of said waters, and it shall not
be lawful hereafter to commence the construction of any bridge,
bridge draw, bridge piers, and abutments, causeway, or other works
over or in any port, road, roadstead,
Page 177 U. S. 624
haven, harbor, navigable river, or navigable waters of the
United States, under any act of the legislative assembly of any
state, until the location and plan of such bridge or other works
have been submitted to and approved by the Secretary of War, or to
excavate or fill, or in any manner to alter or modify the course,
location, condition, or capacity of, the channel of said navigable
water of the United States, unless approved and authorized by the
Secretary of War:
Provided, That this section shall not
apply to any bridge, bridge draw, bridge piers, and abutments, the
construction of which has been heretofore duly authorized by law,
or be so construed as to authorize the construction of any bridge,
draw bridge, bridge piers, and abutments, or other works, under an
act of the legislature of any state, over or in any stream, port,
roadstead, haven, or harbor, or other navigable water not wholly
within the limits of such state."
The tenth section of the same act provided as follows:
"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 $5,000 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."
In the River and Harbor Act of 1892, 27 Stat. pp. 88, 110, c.
158, section 7 of the act of 1890 was amended and reenacted so as
to read as follows:
"That it shall not be lawful to build any wharf, pier, dolphin,
boom, dam, weir, breakwater, bulkhead, jetty, or structure of any
kind outside established harbor lines, or in any navigable waters
of the United States where no harbor lines are or may
Page 177 U. S. 625
be established, without the permission of the Secretary of War,
in any port, roadstead, haven, harbor, navigable river, or other
waters of the United States, in such manner as shall obstruct or
impair navigation, commerce, or anchorage of said waters, and it
shall not be lawful hereafter to commence the construction of any
bridge, bridge draw, bridge piers, and abutments, causeway, or
other works over or in any port, road, roadstead, haven, harbor,
navigable river, or navigable waters of the United States under any
act of the legislative assembly of any state until the location and
plan of such bridge or other works have been submitted to and
approved by the Secretary of War, or to excavate or fill, or in any
manner to alter or modify the course, location, condition, or
capacity of any port, roadstead, haven, harbor, harbor of refuge,
or enclosure within the limits of any breakwater, or of the channel
of any navigable water of the United States, unless approved and
authorized by the Secretary of War:
Provided, That this
section shall not apply to any bridge, bridge draw, bridge piers,
and abutments the construction of which has been heretofore duly
authorized by law, or be so construed as to authorize the
construction of any bridge, drawbridge, bridge piers, and
abutments, or other works, under an act of the legislature of any
state, over or in any stream, port, roadstead, haven, or harbor, or
other navigable water not wholly within the limits of such
state."
Subject, then, to the paramount jurisdiction of Congress over
the navigable waters of the United States, the State of Louisiana
has full power to authorize the construction and maintenance of
levees, drains, and other structures necessary and suitable to
reclaim swamp and overflowed lands within her limits. The pivotal
question in the present case is whether Red Pass is a navigable
water of the United States in such a sense that a dam erected
therein for the purpose, and with the effect, of reclaiming
overflowed lands and rendering them fit for cultivation, could be
constructed without the previous authorization of the Secretary of
War, it being admitted that no such authority was ever applied for
or procured.
Evidence was tendered on behalf of the defendants tending to
show that the dam in question was built by Robert S. Leovy,
Page 177 U. S. 626
who was the syndic or official of the contiguous ward, in
pursuance of a resolution of the police jury of the Parish of
Plaquemines, dated July 1, 1890, directing such syndic to have Red
Pass closed, and also tending to show an approval and ratification
of the work by the levee board of the district and by the policy
jury at a meeting held February 8, 1898, and a direction to the
attorney of the board to take such steps as should be necessary to
prevent said Red Pass from being reopened. Some of these offers
were rejected by the trial court, and exceptions were taken by the
defendants. It is evident, however, that the court rejected the
offers only because it was the opinion of the court that such
evidence was immaterial, inasmuch as if Red Pass was not a
navigable water of the United States within the meaning of the
statutes, the defendants would be entitled to a verdict of not
guilty, regardless of the action of the police jury and of the
levee board, and if Red Pass was such a navigable stream, the
action of the state or parish authorities, unauthorized by the
Secretary of War, would not avail the defendants. Indeed, the trial
judge, in his charge, instructed the jury as if the evidence had
been admitted, in the following terms:
"I charge you gentlemen that the police jury of the parish had
no right to authorize Mr. Robert S. Leovy to dam Red Pass if Red
Pass was a navigable water of the United States. I say that it had
no authority because, in the year 1890, the Congress of the United
States passed the law under which this indictment has been brought,
forbidding the damming of any navigable stream of the United States
without the previous authorization of the Secretary of War.
Therefore, as it was not contended in this case that there was any
authority from the secretary, but, on the contrary, there is proof
tending to show there was no such authority, then it results that
it is no defense for Mr. Robert S. Leovy to show his pretended or
alleged authority from the police jury of the Parish of
Plaquemines. The police jury of the Parish of Plaquemines could not
legally have dammed it. Therefore Mr. Leovy could not."
We think, therefore, that we are warranted in regarding the dam
in question as constructed under the police power of the state, and
within the terms and purpose of the grant by Congress. There was
evidence tending to show the character of
Page 177 U. S. 627
the country affected by floods from Red Pass -- that it was
swamp land and sea marsh from the Mississippi River to the Gulf.
The testimony enclosed in the record, of Shoenberger, president of
the police jury and of the levee board, of Lewis, of the state
board of engineers, of Wilkerson, ex-president of levee board, and
of De Armas showed that the closing of this pass has resulted in
the redemption of large tracts of land, greatly increasing their
value; that the property in the fifth ward, before Red Pass and
Spanish Pass were closed, was valued at $5,000, and at this time it
is valued at $100,000, and that if those passes are kept closed for
five years more, it will be three times as much, and that if this
pass be opened again by the removal of the dam the orange property
will be ruined.
It is conceded that Red Pass is not a natural stream, but is in
the nature of a crevasse caused by the overflow of water from the
Mississippi River. This crevasse seems to have been formed some
time before the grant by the United States to Louisiana, and the
fact that, by this and similar breaks through the banks of the
river, large tracts of land were rendered worthless was, it may be
assumed, well known to Congress, and was indeed the actuating cause
of the grant.
As respects navigation through Red Pass, there was some evidence
on the part of the government that small luggers or yawls, chiefly
used by fishermen to carry oysters to and from their beds,
sometimes went through this pass; but it was not shown that
passengers were ever carried through it, or that freight destined
to any other state than Louisiana, or, indeed, destined for any
market in Louisiana, was ever, much less habitually, carried
through it.
The evidence on the part of the defendants showed that, for many
years, these crevasses or passes have been steadily growing
shallower and narrower, and that, at the time of closing Red Pass,
few of the smallest craft attempted to pass through it, and that
the so-called mouth, or end of Red Pass next the Gulf, had closed
up and become a mere marsh. The trifling use that was made of that
pass was restricted to the river end of the crevasse.
We cannot accept the contention of the government's counsel
Page 177 U. S. 628
that, because the jury was left to determine whether the pass
was in fact navigable, and found the defendant guilty, the decision
of the jury is binding upon the appellate court. We have a right to
consider under what instructions and definitions given by the trial
court the jury found their verdict.
Before we examine the charge of the court, we shall briefly
review some of the cases from which may be derived a definition of
"navigable waters of the United States" within the meaning of the
statutes under which this indictment was brought.
In the case of
Boykin v. Shaffer, 13 La.Ann. 131, it
was said by the Supreme Court of the State of Louisiana:
"Were the mere fact that a steamboat or flatboat had been a
short distance up a stream or bayou in high water a sufficient
ground for declaring it a navigable stream, every slight depression
of the soil on the banks of the Mississippi would then become a
navigable stream, and should be opened for the benefit of rafts and
boats and the convenience of a few persons, to the total
destruction of the planting interests on the banks of the river. It
is well known that the state has for a number of years been closing
the small bayous making out of the principal rivers and bayous, and
thus redeeming large and valuable tracts of land."
In the case of
Egan v. Hart, 45 La.Ann. 1358, there was
considered the right of the Board of State Engineers of the State
of Louisiana to build a dam across an alleged stream designated as
Bayou Pierre. It was alleged that it was a purely private
undertaking which the board of state engineers was not authorized
to do at public expense, and that the dam would obstruct the
navigation of Bayou Pierre and would therefore violate the statute
of Congress which forbade the construction of any bridge or other
works over or in any navigable waters of the United States unless
approved by the Secretary of War. The trial judge, as to the
contention that Bayou Pierre was a navigable stream, said:
"From Grande Ecore, where Bayou Pierre enters Red River, to a
point some miles below its junction with Tonre's Bayou -- a stream
flowing out of the river -- Bayou Pierre has been frequently
navigated by steamboats. But from the point of junction to the dam
in question it has never been navigated, and is
Page 177 U. S. 629
unnavigable. Between these two points, it is nothing but a high
water outlet, going dry every summer at many places, choked with
rafts, and filled with sand, reefs, etc. It has no channel; in
various localities it spreads out into shallow lakes and over a
wide expanse of country, and is susceptible of being made navigable
just as a ditch could be if it were dug deep and wide enough and
kept supplied with a sufficiency of water."
And accordingly it was found by the trial court that Bayou
Pierre was not a navigable water of the United States. Its judgment
was affirmed by the Supreme Court of Louisiana, and the case was
brought to this Court and the judgment of the court below affirmed.
Egan v. Hart, 165 U. S. 188.
In
Lake Shore & Michigan Southern Railway v. Ohio,
165 U. S. 365, a
judgment of the Supreme Court of Ohio, affirming a judgment of a
trial court, ordering the defendant, an Ohio corporation, to
absolutely remove a bridge or modify its structure over the
Ashtabula River, a stream wholly within the State of Ohio, was
brought to and affirmed by this Court. The case was thus stated in
the opinion delivered by MR. JUSTICE WHITE:
"Both the pleadings and the errors here assigned deny the
jurisdiction of the State of Ohio or its courts to control the
subject matter of the controversy on the theory that the
determination of whether the defendant possessed the right to erect
the bridge and to continue it, although constructed without
authority, is a federal, and not a state, question. This contention
is predicated on the Act of Congress of September 19, 1890, 26
Stat. 423."
"The contention is that the statute in question manifests the
purpose of Congress to deprive the several states of all authority
to control and regulate any and every structure over all navigable
streams, although they be wholly situated within their territory.
That full power resides in the states as to the erection of bridges
and other works in navigable streams wholly within their
jurisdiction, in the absence of the exercise by Congress of
authority to the contrary, is conclusively determined."
Willson v. Blackbird
Creek, 2 Pet. 245;
Withers v.
Buckley, 20 How. 84;
Cardwell v. American
Bridge Co., 113 U. S. 205;
Page 177 U. S. 630
Willamette Iron Bridge Co. v. Hatch, 125 U. S.
1;
Shively v. Bowlby, 152 U.
S. 33, and cases there cited.
"Indeed, the argument at bar does not assail the rule settled by
the foregoing cases, but asserts that as the power which it
recognizes as existing in the states is predicated solely upon the
failure of Congress to exert its paramount authority, therefore the
rule no longer obtains, since the act of 1890, relied on,
substantially amounts to an express assumption by Congress of
entire control over all and every navigable stream, whether or not
situated wholly within a state."
After quoting the language of the statute, the opinion
proceeded:
"On the face of this statute, it is obvious that it does not
support the claim based upon it. Conceding, without deciding, that
the words 'waterways of the United States,' therein used, apply to
all navigable waters, even though they be wholly situated within a
state, and passing, also without deciding, the contention that
Congress can lawfully delegate to the Secretary of War all its
power to authorize structures of every kind over all navigable
waters, nothing in the statute gives rise even to the implication
that it was intended to confer such power on the Secretary of War.
. . . It follows, therefore, that even conceding
arguendo
that the words 'navigable waters,' as used in the act, were
intended to apply to streams wholly within a state, its obvious
purpose was not to deprive the states of authority to grant power
to bridge such streams, or to render lawful all bridges previously
built without authority, but simply to create an additional and
cumulative remedy to prevent such structures, although lawfully
authorized, from interfering with commerce."
In the case of
The Daniel
Ball, 10 Wall. 563, the following definition of the
term "navigable waters" was expressed:
"Some of our rivers are as navigable for many hundreds of miles
above as they are below the limits of tidewater, and some of them
are navigable for great distances by large vessels which are not
even affected by the tide at any point during their entire length.
. . . A different test must therefore be applied to determine the
navigability of our rivers and that is found in their
Page 177 U. S. 631
navigable capacity. Those rivers must be regarded as public
navigable rivers in law which are navigable in fact. And they are
navigable in fact when they are used, or are susceptible of being
used, in their ordinary condition, as highways for commerce, over
which trade and travel are, or may be conducted in the customary
modes of trade and travel on water."
In the case of
The
Montello, 20 Wall. 441, the following language was
used:
"The capability of use by the public for purposes of
transportation and commerce affords the true criterion of the
navigability of a river, rather than the extent and manner of that
use. If it be capable in its natural state of being used for
purposes of commerce, no matter in what mode the commerce may be
conducted, it is navigable in fact, and becomes in law a public
river or highway. Vessels of any kind that can float upon the
water, whether propelled by animal power, by the wind, or by the
agency of steam, are, or may become, the mode by which a vast
commerce can be conducted, and it would be a mischievous rule that
would exclude either in determining the navigability of a
river."
In
Withers v.
Buckley, 20 How. 84, this Court said:
"The Act of Congress of March 1, 1817, in prescribing the free
navigation of the Mississippi and the navigable waters flowing into
this river, could not have been designed to inhibit the power
inseparable from every sovereign or efficient government, to devise
and to execute measures for the improvement of the state, although
such measures might induce or render necessary changes in the
channels or courses of rivers within the interior of the state, or
might be productive of a change in the value of private
property."
"Neither the [Fourteenth] Amendment, broad and comprehensive as
it is, nor any other amendment was designed to interfere with the
power of the state, sometimes termed its police power, . . . to
legislate so as to increase the industries of the state, develop
its resources, and add to its wealth and prosperity. From the very
necessities of society, legislation of a special character, having
these objects in view, must often be had in certain districts, such
as for draining marshes and irrigating arid plains."
Barbier v. Connolly, 113 U. S. 27.
Page 177 U. S. 632
It is a safe inference from these and other cases to the same
effect which might be cited that the term "navigable waters of the
United States" has reference to commerce of a substantial and
permanent character to be conducted thereon. The power of Congress
to regulate such waters is not expressly granted in the
Constitution, but is a power incidental to the express "power to
regulate commerce with foreign nations, and among the several
states, and with the Indian tribes," and with reference to which
the observation was made by Chief Justice Marshall that
"it is not intended to say that these words comprehend that
commerce which is completely internal, which is carried on between
man and man in a state, or between different parts of the same
state, and which does not extend to or affect other states."
Gibbons v.
Ogden, 9 Wheat. 194.
While, therefore, it may not be easy for a court to define the
size and character of a stream which would place it within the
category of "navigable waters of the United States," or to define
what traffic shall constitute "commerce among the states," so as to
make such questions sheer matters of law, yet, in construing the
legislation involved in the case before us, we may be permitted to
see that it was not the intention of Congress to interfere with or
prevent the exercise by the State of Louisiana of its power to
reclaim swamp and overflowed lands by regulating and controlling
the current of small streams not used habitually as arteries of
interstate commerce.
The trial judge instructed the jury as follows:
"What is a navigable water of the United States? It is a
navigable water which, either of itself or in connection with other
water, permits a continuous journey to another state. If a stream
is navigable, and from that stream you can make a journey by water,
by boat, by one of the principal methods used in ordinary commerce,
to another state from the state in which you start on that journey,
that is a navigable water of the United States. It is so called in
contradistinction to waters which arise and come to an end within
the boundaries of the state. . . . But if from the water in one
state you can travel by water continuously to another state, and
the water is a navigable water, then it is a navigable stream of
the United
Page 177 U. S. 633
States. . . . If it was navigable and connected with waters that
permitted a journey to another state, then it is a navigable water
of the United States."
And again:
"But the fact I wish to impress upon you is this -- that it is
not absolutely necessary that you should find that there was
navigability all the way from the Jump out to the Gulf, because if,
from some point beyond the place where Mr. Robert S. Leovy built
this dam, towards the Mississippi River, the stream was navigable,
then it would be a navigable stream of the United States, because
it would connect with the Mississippi River."
If these instructions were correct, then there is scarcely a
creek or stream in the entire country which is not a navigable
water of the United States. Nearly all the streams on which a skiff
or small lugger can float discharge themselves into other streams
or waters flowing into a river which traverses more than one state,
and the mere capacity to pass in a boat of any size, however small,
from one stream or rivulet to another, the jury is informed, is
sufficient to constitute a navigable water of the United
States.
Such a view would extend the paramount jurisdiction of the
United States over all the flowing waters in the states, and would
subject the officers and agents of a state, engaged in constructing
levees to restrain overflowing rivers within their banks or in
regulating the channels of small streams for the purposes of
internal commerce, to fine and imprisonment unless permission be
first obtained from the Secretary of War. If such were the
necessary construction of the statutes here involved, their
validity might well be questioned. But we do not so understand the
legislation of Congress. When it is remembered that the source of
the power of the general government to act at all in this matter
arises out of its power to regulate commerce with foreign countries
and among the states, it is obvious that what the Constitution and
the acts of Congress have in view is the promotion and protection
of commerce in its international and interstate aspect, and a
practical construction must be put on these enactments, as intended
for such large and important purposes.
We also think that these instructions are open to the
further
Page 177 U. S. 634
criticism that they contain no reference to the nature or extent
of the traffic or trade carried on in Red Pass before the erection
of the dam. Indeed, the charge necessarily implies that the
defendant was guilty if there was merely a capacity for passing
from Red Pass into the Mississippi River on any sort of a boat.
Very different was the view expressed by Chief Justice Shaw when he
said it is not
"every small creek in which a fishing skiff or gunning canoe can
be made to float at high water which is deemed navigable, but in
order to give it the character of a navigable stream, it must be
generally and commonly useful to some purpose of trade or
agriculture."
21 Pick. 344.
We have read the testimony offered on behalf of the United
States to show the kind and extent of the navigation of the Red
Pass, and there is no view we can take of it that warranted the
jury in finding that interstate commerce was ever transacted
thereon. A few fishermen testified that they occasionally went
through this pass with small vessels, carrying oysters for
planting, and one or two cargoes of willows and timber were spoken
of. None of these witnesses pretended to have carried produce or
oysters out of the state. Nor can it be contended that the Red
Pass, at the time the dam was built, was open to the Gulf. It was
shown that the Gulf end of the pass had closed up, so that to get
to the sea, it was necessary to go out of Red Pass into Tiger Pass,
Tontine Pass, and Grand Pass, which are open to the Gulf. And
accordingly the trial judge instructed the jury that it was not
necessary, in order to find Red Pass to be a navigable water of the
United States, that they should find that it was navigable out to
the Gulf; that it was sufficient if boats could reach the
Mississippi River.
We think the defendant was entitled to the instruction asked
for, but refused, that the jury should be satisfied from the
evidence that Red Pass was, at the time it was closed, as alleged
in the indictment, substantially useful to some purpose of
interstate commerce. The instrument actually given was as
follows:
"If Tontine Pass and Red Pass are available for commerce and
navigation by means of luggers and oyster boats for the purpose of
useful commerce, it would be a navigable stream, and if you find
that it connected with other waters over which
Page 177 U. S. 635
a continuous journey could be made to other states, then it
would be a navigable water of the United States."
"I repeat to you that, under my view of the case, all you have
to decide is whether Red Pass was a navigable water of the United
States, and as you decide that the case will go, because it is
conceded that Mr. Leovy dammed it."
It is plain therefore that the attention of the jury was not
directed at all to the question of any existing interstate
commerce, and that the learned judge was of opinion, and so ruled,
that the physical possibility of passing by a boat out of Red Pass
into the Mississippi River constituted the pass a navigable water
of the United States.
The court refused to give the following instruction:
"If the jury shall find that Red Pass was a crevasse, or
outbreak, of the Mississippi River from its natural channel, the
result of which was to overflow a large portion of Plaquemines
Parish, to the detriment of the inhabitants thereof, by the
destruction of their property, and prejudicial to their health, the
state, in the exercise of its police power delegated to the Police
Jury of the Parish of Plaquemines, had a right to close it."
Perhaps this instruction ought to have been qualified or
accompanied by a prayer that the acts of Congress relied on by the
government were not applicable to the case suggested in the
instruction asked for. But we think, in the circumstances disclosed
by the evidence, the instruction should have been given at least as
so qualified.
The circuit court of appeals, in dealing with the error assigned
for the refusal of the trial judge to so charge, said:
"There is no legitimate evidence in the record tending to show
that the Police Jury of the Parish of Plaquemines ordered Red Pass
closed for the purpose of affecting or promoting the peace, morals,
education, health, or good order of the people; but the case does
show that the pass was ordered closed, and was closed, for the sole
purpose of reclaiming swamp lands. Under the power to regulate
commerce, Congress having forbidden the closing of any navigable
river without the consent of the United States, it is very doubtful
whether any navigable water of the United States, although wholly
within the limits
Page 177 U. S. 636
of the state, can be closed under the exercise of the police
power of the state for any purpose whatever, but where the purpose
only is the reclamation of swamp lands, there is no doubt the
police power of the state must give way to the authority of
Congress."
We think that the trial court might well take judicial notice
that the public health is deeply concerned in the reclamation of
swamp and overflowed lands. If there is any fact which may be
supposed to be known by everybody, and therefore by courts, it is
that swamps and stagnant waters are the cause of malarial and
malignant fevers, and that the police power is never more
legitimately exercised than in removing such nuisances. The
defendant was not deprived of the defense that the act which he was
charged with was performed in order to promote the health of the
community by the fact, if fact it was, that the order under which
he acted did not say anything about the subject of health, but
simply authorized the erection of the dam so as to exclude the
overflow from the river.
Nor are we disposed to concur in the doubt expressed whether any
navigable water wholly within the limits of a state can be closed
under the exercise of the police power for any purpose whatever.
Such a doubt might be justified if there was express legislation of
the United States forbidding the act proposed. But, as we have
seen, in the present case, the reclamation of swamp and overflowed
lands was not only not forbidden, but was recognized as the duty of
the state in consideration of the grant of the public lands. And,
for the reasons already given, we do not construe the acts of
Congress under which this indictment was brought as intended to
apply to the case of a stream of the history and character
disclosed in this record. Hence the state authorities were left
free to act in such a manner as they thought fit to promote the
health and prosperity of the people concerned.
It can scarcely be contended that if, by a sudden breach of the
banks of the Mississippi River in the lowlands of Louisiana, a
stream of water across agricultural lands was created, endangering
the health and welfare of the inhabitants, the case
Page 177 U. S. 637
would be within the meaning and operation of the acts of
Congress relied on in this case. It may be that in such a case, if
the state declines to act, or rather permits such a stream to
become a highway of commerce among the states, the federal control
over it might attach. Thus, Grand Pass, of which Red Pass is a
branch, might, in view of the volume of its water and of the nature
and amount of the commerce carried on it, be held to be a navigable
water of the United States. However that may be, our conclusion,
upon the record now before us, is that Red Pass, in the condition
it was at the time when this dam was built, was not shown by
adequate evidence to have been a navigable water of the United
States actually used in interstate commerce, and that the court
should have charged the jury as requested that, upon the whole
evidence adduced, the defendants were entitled to a verdict of
acquittal.
It is claimed by the counsel for the plaintiff in error that the
Act of July 13, 1892, so far amended and repealed the Act of
September 19, 1890, that the penal section of the latter was
repealed, and that hence, as no penalty is provided in the act of
1892, the indictment and conviction of the plaintiff in error was
without authority of law. It is also contended that the policy of
Congress in respect to the authority of the Secretary of War in the
matter of obstruction to navigation has been greatly changed and
modified by the Act of March 3, 1889. Fifty-fifth Cong., Session 3,
c. 425, sec. 9, p. 1151.
It is also suggested that whatever may be the powers of Congress
over streams wholly within a state, they cannot be legitimately
enforced by criminal prosecution of officers and agents of the
state for acts done under state authority, but that, in such cases,
the proper remedy would be found in bills in equity.
But in the view we take of the case in hand, we are not called
upon to express any opinion on such questions.
The judgment of the circuit court of appeals is reversed,
the judgment of the circuit court is likewise reversed, and the
cause is remanded to that court with directions to award a new
trial.