1. The compact between South Carolina and Georgia, made in 1787,
by which it was agreed that the boundary between the two states
should be the northern branch or stream of the Savannah River, and
that the navigation of the river along a specified channel should
forever be equally free to the citizens of both states and exempt
from hindrance, interruption, or molestation attempted to be
enforced by one state on the citizens of the other, has no effect
upon the subsequent constitutional provision that Congress shall
have power to regulate commerce with foreign nations and among the
several states.
2. Congress has the same power over the Savannah River that it
has over the other navigable waters of the United States.
3. The right to regulate commerce includes the right to regulate
navigation, and hence to regulate and improve navigable rivers and
ports on such rivers.
4. Congress has power to close one of several channels in a
navigable stream if in its judgment the navigation of the river
will be thereby improved. It may declare that an actual obstruction
is not, in the view of the law, an illegal one.
5. An appropriation for the improvement of a harbor on a
navigable river, "to be expended under the direction of the
Secretary of War," confers upon that officer the discretion to
determine the mode of improvement, and
Page 93 U. S. 5
authorizes the diversion of the water from one channel into
another if in his judgment such is the best mode. By such diversion
preference is not given to tire ports of one state over those of
another.
Quaere whether a state suing for the prevention
of a nuisance in a navigable river which is one of its boundaries
must not aver and show that she sustains some special and peculiar
injury thereby such as would enable a private person to maintain a
similar action.
This is a bill in equity filed in this Court by the State of
South Carolina, praying for an injunction restraining the State of
Georgia, Alonzo Taft (Secretary of War), A. A. Humphries (Chief of
the Corps of Engineers United States Army), Q. A. Gilmore
(lieutenant-colonel of that corps), and their agents and
subordinates, from "obstructing or interrupting" the navigation of
the Savannah River in violation of the compact entered into between
the States of South Carolina and Georgia on the twenty-fourth day
of April, 1787. The first and second articles of that compact are
as follows:
"ARTICLE 1. The most northern branch or stream of the River
Savannah, from the sea or mouth of such stream to the fork or
confluence of the Rivers now called Tugoloo and Keowee, and from
thence, the most northern branch or stream of the said River
Tugoloo till it intersects the northern boundary line of South
Carolina, if the said branch or stream extends so far north,
reserving all the islands in the said Rivers Tugoloo and Savannah
to Georgia; but if the head spring or source of any branch or
stream of the said River Tugoloo does not extend to the north
boundary line of South Carolina, then a west line to the
Mississippi, to be drawn from the head spring or source of the said
branch or stream of Tugoloo River which extends to the highest
northern latitude, shall forever hereafter form the separation,
limit, and boundary between the States of South Carolina and
Georgia."
"ART. 2. The navigation of the River Savannah, at and from the
bar and mouth, along the northeast side of Cockspur Island, and up
the direct course of the main northern channel, along the northern
side of Hutchinson's Island, opposite the Town of Savannah, to the
upper end of the said island, and from thence up the bed or
principal stream of the said river to the confluence of the Rivers
Tugoloo and Keowee, and from the confluence up the channel of the
most northern stream of Tugoloo River to its source, and back again
by the same channel to the Atlantic Ocean, is hereby declared to be
henceforth equally free to the citizens of
Page 93 U. S. 6
both states and exempt from all duties, tolls, hindrance,
interruption, or molestation whatsoever attempted to be enforced by
one state on the citizens of the other, and all the rest of the
River Savannah to the southward of the foregoing description is
acknowledged to be the exclusive right of the State of
Georgia."
Congress enacted June 23, 1874:
"That the following sums of money be, and are hereby,
appropriated to be paid out of any money in the Treasury not
otherwise appropriated, to be expended under the direction of the
Secretary of War for the repair, preservation, and completion of
the following public works hereinafter named."
"For continuing the improvement of the harbor at Savannah,
$50,000."
18 Stat. 240.
The Act of March 3, 1875, 18
id. 459, contains the
following appropriation: "For the improvement of the harbor at
Savannah, Ga., $70,000."
The work which the bill seeks to arrest is doing pursuant to the
authority conferred by these acts.
The Savannah River, where it flows past the City of Savannah, is
divided into two channels by Hutchinson's Island, which extends
above and below the city, with a length of about six miles and a
width, where widest, of one mile or more. Of these channels, the
more northerly is known as Back River, whilst that which passes
immediately by the City of Savannah is called Front River.
The improvement consists in the construction of a crib dam at a
point known as the "Cross Tides," for the purpose, by diverting a
sufficient quantity of the water passing through the Back River
into the Front River channel, of securing to the city a depth of
fifteen feet at low water.
Page 93 U. S. 8
MR. JUSTICE STRONG delivered the opinion of the Court.
We do not perceive that in this suit the State of South Carolina
stands in any better position than that which she would occupy if
the compact of 1787 between herself and Georgia had never been
made. That compact defined the boundary between the two states as
the most northern branch
Page 93 U. S. 9
or stream of the River Savannah from the sea, or mouth of the
stream, to the fork or confluence of the rivers then called Tugoloo
and Keowee. The second article declared that the navigation of the
River Savannah at and from the bar and mouth along the northeast
side of Cockspur Island and up the direct course of the main
northern channel along the northern side of Hutchinson's Island,
opposite the town of Savannah, to the upper end of said island, and
from thence up the bed or principal stream of the said river to the
confluence of the Rivers Tugoloo and Keowee, should thenceforth be
equally free to the citizens of both states, and exempt from all
duties, tolls, hindrance, interruption, or molestation whatsoever,
attempted to be enforced by one state on the citizens of the other.
Undoubtedly this assured to the citizens of the two states the free
and unobstructed navigation of the channel described, precisely the
same right which they would have possessed had the original
charters of the two provinces, Georgia and South Carolina, fixed
the Savannah River as the boundary between them. It needed no
compact to give to the citizens of adjoining states a right to the
free and unobstructed navigation of a navigable river which was the
boundary between them. But it matters not to this case how the
right was acquired, whether under the compact or not, or what the
extent of the right of South Carolina was in 1787. After the treaty
between the two states was made, both the parties to it became
members of the United States. Both adopted the federal
Constitution, and thereby joined in delegating to the general
government the right to "regulate commerce with foreign nations,
and among the several states." Whatever, therefore, may have been
their rights in the navigation of the Savannah River before they
entered the Union, either as between themselves or against others,
they both agreed that Congress might thereafter do everything which
is within the power thus delegated. That the power to regulate
interstate commerce and commerce with foreign nations, conferred
upon Congress by the Constitution, extends to the control of
navigable rivers between states -- rivers that are accessible from
other states, at least to the extent of improving their
navigability -- has not been questioned during the argument, nor
could it be with any show of
Page 93 U. S. 10
reason. From an early period in the history of the government,
it has been so understood and determined. Prior to the adoption of
the federal Constitution, the States of South Carolina and Georgia
together had complete dominion over the navigation of the Savannah
River. By mutual agreement they might have regulated it as they
pleased. It was in their power to prescribe not merely on what
conditions commerce might be conducted upon the stream, but also
how the river might be navigated and whether it might be navigated
at all. They could have determined that all vessels passing up and
down the stream should pursue a defined course, and that they
should pass along one channel rather than another where there were
two. They had plenary authority to make improvements in the bed of
the river, to divert the water from one channel to another, and to
plant obstructions therein at their will. This will not be denied,
but the power to "regulate commerce," conferred by the Constitution
upon Congress, is that which previously existed in the states. As
was said in
Gilman v.
Philadelphia, 3 Wall. 724,
"Commerce includes navigation. The power to regulate commerce
comprehends the control for that purpose, and to the extent
necessary, of all the navigable rivers 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 by Congress. This
necessarily includes the power to keep these open and free from any
obstruction to their navigation interposed by the states or
otherwise, to remove such obstructions where they exist, and to
provide by such sanctions as they may deem proper against the
occurrence of the evil and for the punishment of the offenders. For
these purposes Congress possesses all the powers which existed in
the states before the adoption of the national Constitution, and
which have always existed in the Parliament in England."
Such has uniformly been the construction given to that clause of
the Constitution which confers upon Congress the power to regulate
commerce.
But it is insisted on behalf of the complainant that though
Congress may have the power to remove obstructions in the navigable
waters of the United States, it has no right to
Page 93 U. S. 11
authorize placing obstructions therein; that while it may
improve navigation, it may not impede or destroy it. Were this
conceded, it could not affect our judgment of the present case. The
record exhibits that immediately above the City of Savannah, the
river is divided by Hutchinson's Island, and that there is a
natural channel on each side of the island, both uniting at the
head. The obstruction complained of is at the point of divergence
of the two channels, and its purpose and probable effect are to
improve the southern channel at the expense of the northern by
increasing the flow of the water through the former, thus
increasing its depth and waterway, as also the scouring effects of
the current. The action of the defendants is not, therefore, the
destruction of the navigation of the river. True, it is obstructing
the waterway of one of its channels and compelling navigation to
use the other channel; but it is a means employed to render
navigation of the river more convenient -- a mode of improvement
not uncommon. The two channels are not two rivers, and closing one
for the improvement of the other is in no just or legal sense
destroying or impeding the navigation. If it were, every structure
erected in the bed of the river, whether in the channel or not,
would be an obstruction. It might be a lighthouse erected on a
submerged sand bank or a jetty pushed out into the stream to narrow
the waterway and increase the depth of water and the direction and
the force of the current, or the pier of a bridge standing where
vessels now pass and where they can pass only at very high water.
The impediments to navigation caused by such structures are, it is
true, in one sense obstructions to navigation; but so far as they
tend to facilitate commerce, it is not claimed that they are
unlawful. In what respect except in degree do they differ from the
acts and constructions of which the plaintiff complains? All of
them are obstructions to the natural flow of the river, yet all
except the pier are improvements to its navigability, and
consequently they add new facilities to the conduct of commerce. It
is not, however, to be conceded that Congress has no power to order
obstructions to be placed in the navigable waters of the United
States, either to assist navigation or to change its direction by
forcing it into one channel of a river rather than the other. It
may build
Page 93 U. S. 12
lighthouses in the bed of the stream. It may construct jetties.
It may require all navigators to pass along a prescribed channel,
and may close any other channel to their passage. If, as we have
said, the United States have succeeded to the power and rights of
the several states so far as control over interstate and foreign
commerce is concerned, this is not to be doubted. Might not the
States of South Carolina and Georgia, by mutual agreement, have
constructed a dam across the cross-tides between Hutchinson and
Argyle Islands, and thus have confined the navigation of the
Savannah River to the southern channel? Might they not have done
this before they surrendered to the federal government a portion of
their sovereignty? Might they not have constructed jetties or
manipulated the river so that commerce could have been carried on
exclusively through the southern channel on the south side of
Hutchinson's Island? It is not thought that these questions can be
answered in the negative. Then why may not Congress, succeeding, as
it has done, to the authority of the states, do the same thing? Why
may it not confine the navigation of the river to the channel south
of Hutchinson's Island, and why is this not a regulation of
commerce, if commerce includes navigation? We think it is such a
regulation.
Upon this subject, the case of
Pennsylvania v. Wheeling &
Belmont Bridge Co., 18 How. 421, is instructive.
There it was ruled that the power of Congress to regulate commerce
includes the regulation of intercourse and navigation, and
consequently the power to determine what shall or shall not be
deemed in the judgment of law an obstruction of navigation. It was
therefore decided that an act of Congress declaring a bridge over
the Ohio River which in fact did impede steamboat navigation to be
a lawful structure, and requiring the officers and crews of vessels
navigating the river to regulate their vessels so as not to
interfere with the elevation and construction of the bridge, was a
legitimate exercise of the power of Congress to regulate
commerce.
It was further ruled that the act was not in conflict with the
provision of the Constitution which declares that no preference
shall be given by any regulation of commerce or revenue
Page 93 U. S. 13
to the ports of one state over those of another. The judgment in
that case is also a sufficient answer to the claim made by the
present complainant that closing the channel on the South Carolina
side of Hutchinson's Island is a preference given to the ports of
Georgia forbidden by this clause of the Constitution. It was there
said that the prohibition of such a preference does not extend to
acts which may directly benefit the ports of one state and only
incidentally injuriously affect those of another, such as the
improvement of rivers and harbors, the erection of lighthouses and
other facilities of commerce. "It will not do," said the Court,
"to say that the exercise of an admitted power of Congress
conferred by the Constitution is to be withheld if it appears or
can be shown that the effect and operation of the law may
incidentally extend beyond the limitation of the power."
The case of
The Clinton
Bridge, 10 Wall. 454, is in full accord with this
decision. It asserts plainly the power of Congress to declare what
is and what is not an illegal obstruction in a navigable
stream.
The plaintiff next contends that if Congress has the power to
authorize the construction of the work in contemplation and in
progress, whereby the water will be diverted from the northern into
the southern channel of the river, no such authority has been
given. With this we cannot concur. By an Act of Congress of June
23, 1874, an appropriation was made of $50,000, to be expended
under the direction of the Secretary of War for the repairs,
preservation, and completion of certain public works, and,
inter alia, "for the improvement of the harbor of
Savannah." The Act of March 3, 1875, made an additional
appropriation of $70,000, "for the improvement of the harbor of
Savannah, Georgia." It is true that neither of these acts directed
the manner in which these appropriations should be expended. The
mode of improving the harbor was left to the discretion of the
Secretary of War, and the mode adopted under his supervision
plainly tends to the improvement contemplated. We know judicially
the fact that the harbor is the river in front of the city, and the
case, as exhibited by the pleadings, reveals that the acts of which
the plaintiff complains tend directly to increase the volume of
water in the channel opposite the city, as well as the width of the
waterway. Without
Page 93 U. S. 14
relying at all upon the report of the engineers, which was
before Congress and which recommended precisely what was done, we
can come to no other conclusion than that the defendants are acting
within the authority of the statutes and that the structure at the
cross-tides intended to divert the water from the northern channel
into the southern is, in the judgment of the law, no illegal
obstruction. The plaintiff has therefore made no case sufficient to
justify an injunction even if the state is in a position to ask for
it.
But in resting our judgment upon this ground, we are not to be
understood as admitting that a state, when suing in this Court for
the prevention of a nuisance in a navigable river of the United
States, must not aver and show that it will sustain some special
and peculiar injury therefrom such as would enable a private person
to maintain a similar action in another court. Upon that subject we
express no opinion. It is sufficient for the present case to hold,
as we do, that the acts of the defendants of which South Carolina
complains are not unlawful, and consequently that there is no
nuisance against which an injunction should be granted.
The special injunction heretofore ordered is dissolved, and
the
Bill dismissed.
