1. The doctrine of the common law as to the navigability of
waters has no application in this country. Here the ebb and flow of
the tide do not constitute the usual test, as in England, or any
test at all of the navigability of waters.
2. The test by which to determine the navigability of our rivers
is found in their navigable capacity. Those rivers are public
navigable rivers in law which are navigable in fact.
3. Rivers 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.
4. And they constitute navigable waters of the United States
within the meaning of the acts of Congress, in contradistinction
from the navigable waters of the states, when they form in their
ordinary condition, by themselves or by uniting with other waters,
a continued highway over which commerce is or may be carried on
with other states or foreign countries in the customary modes in
which such commerce is conducted by water.
5. Grand River in Michigan held to be a navigable water of the
United States from its mouth in Lake Michigan to Grand Rapids, a
distance of forty miles, being a stream capable of bearing for that
distance a steamer of one hundred and twenty-three tons burden
laden with merchandise and passengers and forming by its junction
with the lake a continued highway for commerce both with other
states and with foreign countries.
6. The limitation of the power of Congress over commerce to
commerce among the several states, with foreign nations, and with
the Indian tribes necessarily excludes from federal control all
that commerce which is carried on entirely within the limits of a
state and does not extend to or affect other states.
7. The steamer in this case, being employed in transporting
goods on Grand River within the State of Michigan destined for
other states and goods brought from without the limits of Michigan
and destined to places within that state, was engaged in commerce
between the states, and however limited that commerce, was, so far
as it went, subject to the legislation of Congress. She was
employed as an instrument of that commerce, for whenever a
commodity has begun to move its an article of trade from one state
to another, commerce in that commodity between the states has
commenced. The fact that several different and independent agencies
are employed in transporting the commodity, some acting entirely in
one state and some acting through two or more states, does not
affect the character of the transaction. To the extent to which
each agency acts in that transportation, it is subject to the
regulation of Congress.
Page 77 U. S. 558
The act of July 7, 1838, [
Footnote 1] provides in its second section that it shall
not be lawful for the owner, master, or captain of any vessel
propelled in whole or in part by steam to transport any merchandise
or passengers upon "the bays, lakes, rivers, or other navigable
waters of the United States" after the 1st of October of that year
without having first obtained from the proper officer a license
under existing laws, that for every violation of this enactment the
owner or owners of the vessel shall forfeit and pay to the United
States the sum of five hundred dollars, and that for this sum the
vessel engaged shall be liable and may be seized and proceeded
against summarily by libel in the District Court of the United
States.
The act of August 30, 1852, [
Footnote 2] which is amendatory of the act of July 7,
1838, provides for the inspection of vessels propelled in whole or
in part by steam and carrying passengers and the delivery to the
collector of the district of a certificate of such inspection
before a license, register, or enrollment, under either of the acts
can be granted, and declares that if any vessel of this kind is
navigated with passengers on board, without complying with the
terms of the act, the owners and the vessel shall be subject to the
penalties prescribed by the second section of the act of 1838.
In March, 1868, the
Daniel Ball, a vessel propelled by
steam, of one hundred and twenty-three tons burden, was engaged in
navigating Grand River, in the State of Michigan, between the
Cities of Grand Rapids and Grand Haven, and in the transportation
of merchandise and passengers between those places without having
been inspected or licensed under the laws of the United States, and
to recover the penalty provided for want of such inspection and
license, the United States filed a libel in the District Court for
the Western District of Michigan.
Page 77 U. S. 559
The libel, as amended, described Grand River as a navigable
water of the United States, and in addition to the employment
stated above, alleged that in such employment the steamer
transported merchandise shipped on board of her destined for ports
and places in states other than the State of Michigan, and was thus
engaged in commerce between the states.
The answer of the owners, who appeared in the case, admitted
substantially the employment of the steamer as alleged, but set up
as a defense that Grand River was not a navigable water of the
United States, and that the steamer was engaged solely in domestic
trade and commerce, and was not engaged in trade or commerce
between two or more states or in any trade by reason of which she
was subject to the navigation laws of the United States or was
required to be inspected and licensed.
It was admitted by stipulation of the parties that the steamer
was employed in the navigation of Grand River between the Cities of
Grand Rapids and Grand Haven and in the transportation of
merchandise and passengers between those places; that she was not
enrolled and licensed for the coasting trade; that some of the
goods that she shipped at Grand Rapids and carried to Grand Haven
were destined and marked for places in other states than Michigan,
and that some of the goods which she shipped at Grand Haven came
from other states and were destined for places within that
state.
It was also admitted that the steamer was so constructed as to
draw only two feet of water, and was incapable of navigating the
waters of Lake Michigan; that she was a common carrier between the
cities named, but did not run in connection with or in continuation
of any line of steamers or vessels on the lake or any line of
railway in the state, although there were various lines of steamers
and other vessels running from places in other states to Grand
Haven carrying merchandise, and a line of railway was running from
Detroit which touched at both of the cities named.
The district court dismissed the libel. The circuit court
Page 77 U. S. 560
reversed this decision, and gave a decree for the penalty
demanded.
From this decree the case was brought by appeal to this
Court.
Page 77 U. S. 562
MR. JUSTICE FIELD, after stating the case, delivered the opinion
of the Court as follows:
Two questions are presented in this case for our
determination.
First, whether the steamer was at the time designated in the
libel engaged in transporting merchandise and passengers on a
navigable water of the United States within the meaning of the acts
of Congress, and
Page 77 U. S. 563
Second, whether those acts are applicable to a steamer engaged
as a common carrier between places in the same state when a portion
of the merchandise transported by her is destined to places in
other states or comes from places without the state, she not
running in connection with or in continuation of any line of
steamers or other vessels or any railway line leading to or from
another state.
Upon the first of these questions we entertain no doubt. The
doctrine of the common law as to the navigability of waters has no
application in this country. Here, the ebb and flow of the tide do
not constitute the usual test, as in England, or any test at all of
the navigability of waters. There, no waters are navigable in fact,
or at least to any considerable extent, which are not subject to
the tide, and from this circumstance tidewater and navigable water
there signify substantially the same thing. But in this country,
the case is widely different. 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. [
Footnote 3] A different test must therefore be applied to
determine the navigability of our rivers, and that is found in
their 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. And they constitute navigable
waters of the United States within the meaning of the acts of
Congress, in contradistinction from the navigable waters of the
states, when they form in their ordinary condition by themselves,
or by uniting with other waters, a continued highway over which
commerce is or may be carried on with other states or foreign
countries in the customary modes in which such commerce is
conducted by water.
Page 77 U. S. 564
If we apply this test to Grand River, the conclusion follows
that it must be regarded as a navigable water of the United States.
From the conceded facts in the case, the stream is capable of
bearing a steamer of one hundred and twenty-three tons burden,
laden with merchandise and passengers, as far as Grand Rapids, a
distance of forty miles from its mouth in Lake Michigan. And by its
junction with the lake it forms a continued highway for commerce
both with other states and with foreign countries, and is thus
brought under the direct control of Congress in the exercise of its
commercial power.
That power authorizes all appropriate legislation for the
protection or advancement of either interstate or foreign commerce,
and for that purpose such legislation as will insure the convenient
and safe navigation of all the navigable waters of the United
States, whether that legislation consists in requiring the removal
of obstructions to their use, in prescribing the form and size of
the vessels employed upon them, or in subjecting the vessels to
inspection and license in order to insure their proper construction
and equipment. "The power to regulate commerce," this Court said in
Gilman v. Philadelphia, [
Footnote 4]
"comprehends the control for that purpose, and to the extent
necessary, of all navigable waters of the United States which are
accessible from a state other than those in which they lie. For
this purpose, they are the public property of the nation and
subject to all the requisite legislation of Congress."
But it is contended that the steamer
Daniel Ball was
only engaged in the internal commerce of the State of Michigan, and
was not, therefore, required to be inspected or licensed even if it
be conceded that Grand River is a navigable water of the United
States, and this brings us to the consideration of the second
question presented.
There is undoubtedly an internal commerce which is subject to
the control of the states. The power delegated to Congress is
limited to commerce "among the several states,"
Page 77 U. S. 565
with foreign nations, and with the Indian tribes. This
limitation necessarily excludes from federal control all commerce
not thus designated, and of course that commerce which is carried
on entirely within the limits of a state and does not extend to or
affect other states. [
Footnote
5] In this case, it is admitted that the steamer was engaged in
shipping and transporting down Grand River goods destined and
marked for other states than Michigan, and in receiving and
transporting up the river goods brought within the state from
without its limits, but inasmuch as her agency in the
transportation was entirely within the limits of the state and she
did not run in connection with or in continuation of any line of
vessels or railway leading to other states, it is contended that
she was engaged entirely in domestic commerce. But this conclusion
does not follow. So far as she was employed in transporting goods
destined for other states or goods brought from without the limits
of Michigan and destined to places within that state, she was
engaged in commerce between the states, and however limited that
commerce may have been, she was, so far as it went, subject to the
legislation of Congress. She was employed as an instrument of that
commerce, for whenever a commodity has begun to move as an article
of trade from one state to another, commerce in that commodity
between the states has commenced. The fact that several different
and independent agencies are employed in transporting the
commodity, some acting entirely in one state and some acting
through two or more states, does in no respect affect the character
of the transaction. To the extent in which each agency acts in that
transportation, it is subject to the regulation of Congress.
It is said that if the position here asserted be sustained,
there is no such thing as the domestic trade of a state; that
Congress may take the entire control of the commerce of the country
and extend its regulations to the railroads within a state on which
grain or fruit is transported to a distant market.
Page 77 U. S. 566
We answer that the present case relates to transportation on the
navigable waters of the United States, and we are not called upon
to express an opinion upon the power of Congress over interstate
commerce when carried on by land transportation. And we answer
further that we are unable to draw any clear and distinct line
between the authority of Congress to regulate an agency employed in
commerce between the states when that agency extends through two or
more states and when it is confined in its action entirely within
the limits of a single state. If its authority does not extend to
an agency in such commerce when that agency is confined within the
limits of a state, its entire authority over interstate commerce
may be defeated. Several agencies combining, each taking up the
commodity transported at the boundary line at one end of a state
and leaving it at the boundary line at the other end, the federal
jurisdiction would be entirely ousted and the constitutional
provision would become a dead letter.
We perceive no error in the record, and the decree of the
circuit court must be
Affirmed.
[
Footnote 1]
5 Stat. at Large 304.
[
Footnote 2]
10
id. 61.
[
Footnote 3]
The Genesee
Chief, 12 How. 457;
The Hine
v. Trevor, 4 Wall. 555
[
Footnote 4]
70 U. S. 3
Wall. 724.
[
Footnote 5]
Gibbons v.
Ogden, 9 Wheat. 194,
22 U. S. 195.
