Each state owns the beds of all tidewaters within its
jurisdiction unless they have been granted away; also the
tidewaters themselves and the fish in them so far as they are
capable of ownership while running.
McCready v. Virginia,
94 U. S. 391.
Congress has no control over sponges growing on the land beneath
tidewater within the jurisdiction of a state.
Where two interpretations of a statute are admissible, one of
which makes the statute constitutional and the other
unconstitutional, the former must be adopted.
United States v.
Delaware & Hudson Co., 213 U. S.
366,407.
The Act of June 20, 1906, 34 Stat. 313, c. 3442, regulating the
landing of sponges at ports of the United States, relates only to
sponges taken outside of the territory of any state.
The power of Congress over foreign commerce is complete; no one
has a vested right to carry on foreign commerce with the United
States.
Buttfield v. Stranahan, 192 U.
S. 470.
Congress can, by exertion of its power to regulate foreign
commerce,
Page 223 U. S. 167
forbid the importation of sponges gathered under conditions
expressed in the Act of June 20, 1906.
Where the Act of Congress under which forfeiture is sought does
not apply to territorial waters, the libel must aver that he act
were done outside of the territorial limits of any state. When
Congress, under its power to regulate foreign commerce, prohibits
the importation of certain merchandise, it may cast on the one
seeking to bring merchandise in the burden of establishing that it
is exempt from the operation of the statute. Under the
circumstances of this case, it is proper to allow the Government to
amend the libel to present a case within the statute as construed
in this opinion.
The Mary
Ann, 8 Wheat. 389.
The facts, which involve the constitutionality and construction
of the Act of Congress of June 20, 1906, relating to landing of
sponges in ports of the United States, are stated in the
opinion.
Page 223 U. S. 172
MR. CHIEF JUSTICE WHITE delivered the opinion of the Court.
By libel of the vessel
Abby Dodge, either her
forfeiture or the enforcement of a money penalty was sought because
of an alleged violation of the Act of June 20, 1906, 34 Stat. 313,
c. 3442, entitled, "An Act to Regulate the Landing, Delivery, Cure,
and Sale of Sponges." The specific violation alleged was
"that there was at the port of Tarpon Springs, within the
Southern District of Florida, on the 28th day of September, A.D.
1908, landed from the said vessel,
Abby Dodge, 1,229
bunches of sponges, taken by means of diving and apparatus from the
waters of the Gulf of Mexico and the Straits of Florida, . . . at a
time other than between October 1st and May 1st of any year, and at
a time subsequent to May 1st, A.D.1907."
The owner of the vessel appeared and filed exceptions which,
although urged in various forms, were all, as stated by counsel,
"directed to and based upon the alleged unconstitutionality of the
said Act of June 20, 1906." The exceptions were overruled, and, the
claimant declining further to plead, a decree was entered assessing
a fine of $100 against the vessel. This appeal was then taken.
For the purposes of the questions upon which this case turns, we
need only consider the first section of the Act of June 20, 1906,
which is as follows:
"That from and after May first, anno Domini nineteen hundred and
seven, it shall be unlawful to land, deliver, cure, or offer for
sale at any port or place in the United States any sponges taken by
means of diving or diving
Page 223 U. S. 173
apparatus from the waters of the Gulf of Mexico or Straits of
Florida:
Provided, That sponges taken or gathered by such
process between October first and May first of each year in a
greater depth of water than fifty feet shall not be subject to the
provisions of this act:
And provided further, That no
sponges taken from said waters shall be landed, delivered, cured,
or offered for sale at any port or place in the United States of a
smaller size than four inches in diameter."
Broadly, the act, it is insisted, is repugnant to the
Constitution because, in one aspect, it deals with a matter
exclusively within the authority of the states, and in another
because, irrespective of the question of state authority, the
statute regulates a subject not within the national grasp, and
hence not embraced within the legislative power of Congress. The
first proceeds upon the assumption that the act regulates the
taking or gathering of sponges attached to the land under water,
within the territorial limits of the State of Florida, and it may
be of other states bordering on the Gulf of Mexico, prohibits
internal commerce in sponges so taken or gathered, and is therefore
plainly an unauthorized exercise of power by Congress. The second
is based on the theory that, even if the act be construed as
concerned only with sponges taken or gathered from land under water
outside of the jurisdiction of any state, then its provisions are
in excess of the power of Congress, because, under such hypothesis,
the act can only apply to sponges taken from the bed of the ocean,
which the national government has no power to deal with.
We briefly consider the two propositions. If the premise upon
which the first rests be correct -- that is to say, the assumption
that the act, when rightly construed, applies to sponges taken or
gathered from land under water within the territorial limits of the
State of Florida or other states, the repugnancy of the act to the
Constitution would plainly be established by the decisions of this
Court. In
Page 223 U. S. 174
McCready v. Virginia, 94 U. S. 391, the
question for decision was whether the State of Virginia had such
exclusive authority over the planting and gathering of oysters upon
the soil in tidewaters within the territorial limits of the state
as not only to give the state the power to control that subject,
but to confer the right to exclude the citizens of other states
from participating. In upholding a statute exerting such powers,
the doctrine was declared to be as follows:
"The principle has long been settled in this Court that each
state owns the beds of all tidewaters within its jurisdiction,
unless they have been granted away.
Pollard v.
Hagan, 3 How. 212;
Smith v.
Maryland, 18 How. 74;
Mumford v.
Wardwell, 6 Wall. 436;
Weber v. State Harbor
Commissioners, 18 Wall. 66. In like manner, the
states own the tidewaters themselves, and the fish in them, so far
as they are capable of ownership while running. For this purpose,
the state represents its people, and the ownership is that of the
people in their united sovereignty.
Martin v.
Waddell, 16 Pet. 410,. . . . The right which the
people of the state thus acquire comes not from their citizenship
alone, but from their citizenship and property combined. It is, in
fact a property right, and not a mere privilege or immunity of
citizenship."
True it is that the rights which were thus held to exist in the
states were declared to be
"subject to the paramount right of navigation, the regulation of
which, in respect to foreign and interstate commerce, has been
granted to the United States,"
but with that dominant right we are not here concerned.
Again, in
Manchester v. Massachusetts, 139 U.
S. 240, in upholding a statute of the State of
Massachusetts regulating the taking of menhaden in Buzzard's Bay,
the doctrine of the case just cited was expressly reiterated. True,
further in that case, probably having in mind the declaration made
in the opinion in the
McCready case, that fish running
within the tidewaters of the several
Page 223 U. S. 175
states were subject to state ownership "so far as they are
capable of ownership while so running," the question was reserved
as to whether or not Congress would have the right to control the
menhaden fisheries. But here also, for the reason that the question
arising relates only to sponges growing on the soil covered by
water, we are not concerned with the subject of running fish and
the extent of state and national power over such subject.
The obvious correctness of the deduction which the proposition
embodies, that the statute is repugnant to the Constitution when
applied to sponges taken or gathered within state territorial
limits, however, establishes the want of merit in the contention as
a whole. In other words, the premise that the statute is to be
construed as applying to sponges taken within the territorial
jurisdiction of a state is demonstrated to be unfounded by the
deduction of unconstitutionality to which such premise inevitably
and plainly leads. This follows because of the elementary rule of
construction that, where two interpretations of a statute are in
reason admissible, one of which creates a repugnancy to the
Constitution and the other avoids such repugnancy, the one which
makes the statute harmonize with the Constitution must be adopted.
United States v. Delaware & Hudson Co., 213 U.
S. 366,
213 U. S. 407,
and cases cited.
While it is true that it would be possible to interpret the
statute as applying to sponges taken in local waters, it is equally
certain that it is susceptible of being confined to sponges taken
outside of such waters. In view of the clear distinction between
state and national power on the subject, long settled at the time
the act was passed, and the rule of construction just stated, we
are of opinion that its provisions must be construed as alone
applicable to the subject within the authority of Congress to
regulate, and therefore be held not to embrace that which was not
within such power.
Page 223 U. S. 176
In substance, the argument is that this case does not come
within the rule, since it is insisted to confine the statute to
sponges taken or gathered outside of state territorial limits would
also, although for a different reason, cause it to be plainly
unconstitutional. This but assumes that the second proposition,
denying all power in Congress to exert authority in respect to the
landing of sponges taken outside of the territorial jurisdiction of
a state, is well founded, and we come therefore to the
consideration of that proposition. For the sake of brevity, we do
not stop to review the general considerations which the proposition
involves for the purpose of demonstrating its inherent inaccuracy,
or to point out its conflict with the law of nations, and its
inconsistency with the practices of the government from the
beginning. We thus refrain, since there is a simpler and yet more
comprehensive point of view disposing of the whole subject.
Undoubtedly (
Lord v. Steamship Co., 102 U.
S. 541), whether the
Abby Dodge was a vessel of
the United States or of a foreign nation, even although it be
conceded that she was solely engaged in taking or gathering sponges
in the waters which, by the law of nations, would be regarded as
the common property of all, and was transporting the sponges so
gathered to the United States, the vessel was engaged in foreign
commerce, and was therefore amenable to the regulating power of
Congress over that subject. This being not open to discussion, the
want of merit of the contention is shown, since the practices from
the beginning, sanctioned by the decisions of this Court, establish
that Congress, by an exertion of its power to regulate foreign
commerce, has the authority to forbid merchandise carried in such
commerce from entering the United States.
Buttfield v.
Stranahan, 192 U. S. 470,
192 U. S.
492-493, and authorities there collected. Indeed, as
pointed out in the
Buttfield case, so complete is the
authority of Congress over the subject that no one can be said to
have a vested
Page 223 U. S. 177
right to carry on foreign commerce with the United States.
Although, for the reason stated, we think the statute, limited
by the construction which we have given it, is not repugnant to the
Constitution, we are nevertheless of opinion that, as thus
construed, the averments of the libel were not sufficient to
authorize the imposition of the penalty which the court below
decreed against the vessel. As, by the interpretation which we have
given the statute, its operation is confined to the landing of
sponges taken outside of the territorial limits of a state, and the
libel does not so charge -- that is, its averments do not negative
the fact that the sponges may have been taken from waters within
the territorial limits of a state -- it follows that the libel
failed to charge an element essential to be alleged and proved in
order to establish a violation of the statute.
United States v.
Britton, 107 U. S. 655,
107 U. S.
661-662, and cases cited.
As we deem that it has no relevancy to the power of Congress to
deal with a subject not within its constitutional authority -- that
is, the taking of sponges within the exclusive jurisdiction of a
state -- we have not considered it necessary to refer to a
statement made by the district judge concerning legislation of the
State of Florida making it unlawful to gather or catch sponges
"in and upon any of the grounds known as sponging grounds along
the coast of Florida from Pensacola to Cape Florida, by diving
either with or without a diving suit and armor."
Equally, also, have we refrained from attempting to reconcile
the enactment of this state law with some reference made by the
government in argument to certain statements in testimony given
before a committee of the House when the act which is before us was
in process of adoption, to the effect that there were no sponge
beds within the jurisdiction of Florida because "the sponge beds
were from fifteen to sixty and sixty-five miles out."
Page 223 U. S. 178
In view of the paramount authority of Congress over foreign
commerce, through abundance of precaution, we say that nothing in
this opinion implies a want of power in Congress, when exerting its
absolute authority, to prohibit the bringing of merchandise, the
subject of such commerce, into the United States, to cast upon one
seeking to bring in the merchandise the burden, if an exemption
from the operation of the statute is claimed, of establishing a
right to the exemption.
While it necessarily follows from what we have said that the
decree must be reversed, we are of opinion that, under the
circumstances of the case, it should be accompanied with directions
to permit the government, if desired, to amend the libel so as to
present a case within the statutes as construed.
The
Mary Ann, 8 Wheat. 389.
Reversed.
*The docket title of this case is The vessel "
Abby
Dodge," A. Kalimeris, Claimant, Appellant v. The United
States.