(Oircuit Oo'Urt, D. CaUfornia.March 8. 1884.)
NAVIGABLE RIVEREl-UNBETTLED QUESTION 011' STATE AND FEDERAL POWERS.
the bounda of a state "is· held by the legislature thereof,until the con· gress of the United· States paBBes some act assumillg control for the national government. In the Wheeling Bridge.()a.e, 13 Row. the same court held that .the mere confirmation bycongreBB of a compact theretofore made between Kentucky and Virginia, relative .tokeeping open the Ohio river. was tantamount to an act assuming such control. Under these two deCisions, whether such navigable rivers of California are within the control of that state. or have been removed therefrom by the act 1)f congress admitting it into the Union, which act COntains these -words: .. All Jlavigable rivers within the state of shall be common highways and forever free, as well to the inhabitants of that state 88 to the citizens of the United States, without any tax, dhty. or impost Deoided (pro!lWma) the latter. Escanaba Co. v. (Jhicago,2 Sup. L't.Rep. 187, and other reflectintt OR the matter in discussion, noted and commented upon, and their varloU8 distlDguish. lug points mentioned.
The supreme court of the United States, in the case of ElCanaba Co. v. (Jhtcago, 2 Sup. Ct. Rep. 187, determines that the control of .. rivers wholly
In Equity. Scrivener d: McKinney, for complainant. H. O. et W. H. Beatt.lJ and J. B. ,Haggin, for defendant. SAWYER,J. This case is clearly within the rule as laid down in the Wallamet Bridge Case, 7 Sawy. 127; S. C. 6 FED. REP. 326,780. If that case can be sustained in tae broad terms of the rule stated, then the demurrer in this case should be overruled. Since that decision was rendered, the supreme court of the United States has decided the case of Escanaba Co.- v. Chicago, 107 U. S. 679, S. C. 2 Sup. Ct. Rep. 185, which defendant insists overrules the principle announced in the Wallamet Bridge Case; that, under the clause of the act. admitting Oregon into the Union, the state has no power to authorize -the construction of bridges over the navigable waters of the state which shall materially obstruet their navigation. It must be admitted, I think, that there is language in the opinion that favors that view i and I am by no means'certain that the court did not intend to go as far as its broadest language indicates. It is sought to distinguish this case from the Chicago B1idge O(($e. If it can be distinguished, it must be on the following grounds: In the BldckbirdCreek Case, 2 Pet. 245, arising in Delaware, the Schuylkill Bridge Gas.e, 14 Wall. 442, in Pennsylvania, and all other.s sinc6 uecided, followi:pgthe,decisions in those cases, it was held that congress, under its anthority to regulate commerce and establish post·roads, had power to, control, ,for those purposes, the internal navigable waters of the yari0tls states; that a,s soon as congresslegislatef,'l in. regard to any such navigable waters, afterwards authorits power becomes exclusive and the states ize any material obstruction to their navigation; but, till congress acts, the legislature of any state has the pOW£f to authorize the ob-
(lARDWELL· .t!. AMERICAN RIVl!lR BRIDGE (lO.
struction of any navigable waters within its borders, ,by the erection of bridges, dams, or other structures for the convenience and advantage of commercial intercourse. It was held, with respect to the navigable waters of Delaware and Pennsylvania,tbat congress had never acted, and,consequently, the legislation of these. states authorizing the obstructions complained of was valid. The question, therefore, is, has congress acted, with reference to the navigable waters of California, by legislating upon the subject, in such sense that its control has superseded the power of the state legislature and become exclusive? If so, then the case is distinguishable from any of the cases, other than the Case, before decided by the supreme conrt. If congJ:ess has soaated, that legislation is found in the act admitting California into the Union, which aat provides "that all the navigable waters within the state shall be common highways, and forever free, as well to the inhabitants of said state as to the citizens of the United States, without any tax, impost, or duty therefor." 9 St. 452, 453. Bow can the American river be a "common highway," or how can it be "free" to "the citizens of the United States," or "the inhabitants of the state," with 8 low bridge across it, without a draw, and so constructed as to preclude all navigation by steamers or vessels? To be a common highway, or to be free to all to use as such, involves a capacity to be practicall.1f used as a highway, and such capacity is wanting where there is an impassable barrier or obstruction. This provision is a law of congress, and it is valid, not asa compact between the United States and the state of California, but as a law of congress, passed by Virtue of the constitutional power of congress to regulate commerce among the states 'and witb foreign nations, and to establish post·roads. Pollard's Lcssee v. Hagan, 3 Bow. 224, 225, 229, 230;' Wheeling Bridge Case, 13 How. 566; Mining Debris Case, 18 FED. REP. 753. What does this provision of the statute. mean? Can there be any reason to suppose that congress in. tended anything else than to make or continue waters of the state, by virtue of its power to regulate commerce, practical free highways, and to take away the power of the state to destroy or wholly Obstruct their navigability? Had nothing been said upon the sub· ject in the act of admission, but subsequently, after the admission of California into the Union "on an equal footing with the original statt\s in all respects whatever," congress had passed tI. sepatate, independent act, with no other provision in it, providing "that all the navigable waters within the state of California shall be. common highways, and forever free, as well to the inhabitants of said state as to the citizens of the United States, without any tax, impost, or dn:ty therefor," would anybody suppose that congress, by the passage of such an act, under the ciroumstances indicated,could have any other purpose than to take control of the navigable waters of the stata for the purpose of preventing any interference with, or obstruction' to,their navigability, or "so far as might be necessary to insure their free .navigatioll"r-
Or would it be seriously doubted that congress had acted opon the subject-matter within the meaning of the terms of the decisions in the Blackbird Creek and Schuylkill Bridge Cases mentioned? If such would be the construction in an independent act passed subsequently to the admission of the state, it must be the construction of the same language as found in the act of admission. If such is not the purpose of this provision, it would be difficult, I think, to determine what the purpose is. . Following the direct decision upon this point in the Wheeling Bridge Case, 13 How. 565, I had no difficulty in concur· ring with the district judge in the rnling that a similar provision in the act admitting Oregon into the Union constituted legislative action by congress upon the subject-matter, of such a character as to with. draw it from the jurisdiction of state legislation. In the Chicago Bridge Case, supra, the court still recognizes the power of the national government to control the waters of the several states. It says: "The power vested in the general government to regulate interstate and foreign commerce involves the control of the waters of the United States, which are naVigable in fact, safar as it may be necessary to insure free navigation, where, by themselves or their connection with other waters, they form 11 continuous channel for commerce among the states or with foreign cOllutries." 107 U. S. 682; S. C. 2 Sup. Ct. Rep. 185. The question, then, is whether the provision quoted from the act of admission is legislation by which congress takes control of the navigable waters of the state, "so far 8S it may be necessary to insure their free navigation;" and whether there can be a "common high,way," or "free navigation," where the passage of steamers or other vessels is absolutely obstructed by barriers thrown across the channels of waters otherwise navigable, in fact. In the case of the state of Illinois, neither the act authorizing .the inhabi· tants to form a state government, (3 St. 428,) nor the resolution admitting the state into the Union, (Id. 526,) conta.ins the provision, or any provision of a· character similar to that, found in the acts admitting California and Oregon into the Union. Both the act and. the res. olution relating to Illinois are silent upon the subject, and Lam not aware that there is any sllbsequent legislation on the subjeot affect. ing the status of Illinois. In the Chicago Bridge Case, the supreme oourt seems to regard the provision of the ordinance of 1787 as in· operative after the admission of Illinois as a state. Says the court: "Whatever limitation upon its powers as a government, while in a terricondition. whether from the ordinance of 1787 or the legislativn of congress, it ceased to have any operative force, except as voluntarily adopted by her, after she became a state of the Union. On her admission she became entitled to and possessed all the and dominion and sovereignty which belonged to the original states. She was admitted, and could be admitted, only on the same footing with them. The language of the resolution admitting her is ' on .an equal footing with the original states in aU respects whatever.' 3 St. 536. Equality of constitutional right and power is a condition of all the states of the Union, old and new. Illinois, therefore, lUI was well ob-
CA.RDWELL V. AMERICAN'BI'tER BRIDGE CO.
served by counsel, could afterwards exercise the same power over rivers within her limits that Delaware exercised over Blackbird creek,' and Pennsylvania over the Schuylkill river."· 107 U. S. 688, 689; S..C. 2 Sup. Ct. Hep.185.
There being no legislation by congress, then, assuming the control
of the navigable waters of Illinois, there was nothing more to pre-
to the navigable waters of Illivent legislation by the state in nois than tllere was to prevent legislation by the. states of Delaware and Pennsylvania. But I do not understand it to be held, or intimated, that congress cannot, by legislation in the interest of interstate commerce, take control of anyone, or all, of the navigable waters, either of Illinois, Delaware, or Pennsylvania. Only it has not yet done so. I suppose congress might take control of any 'one navigable river by n!tme, as the Sacramento, fat the purpose of facil. itating interstate commerce, or it might take control, generally, of all the navigable waters of any particular state, without reference to the waters of other states, and there might well be special reasons, making it desirable with reference to some particular waters, or sonie particular states, which are not applicable to other waters, or other states. I do not understand that special legislation as to particular rivers or, particular states, not applicable to others, would affect the "constitutional right or power," or the equality, of the states in any particular. All of the states are alike equally subject, at any and all times, when congress sees fit to act, to the power of congress to "regulate commerce among the states" and with foreign nations, and the power to "establish post':roads" within their several borders and over their several navigable waters. But the regulation of commerce on the waters of, and establishment of post-roads in, some states, before it is done on the waters of or in other states, does not affect their constitutionitl status of eqllali;y. Congress may take ,its own time and occasion to regulate the navigable waters of a state without affecting its constitutional condition of equality. I suppose congress might now, by an act duly passed, apply the provision in the acts of admission of Oregon and California to Illinois, Delaware, and Pennsylvania--:-to anyone or all of them; and. if it shduld do so, it would seem that there ought not to be any doubt that the object would be to take exclusive control for the benefit of commerce, and to suspenq the power of regulation, or at least of obstruction and destruction, by the states. But until some legislation of the kind is had, those states concerning whose waters congress has not legislated, under the decisions referred to, may themselves legislate upon the subject. If the provision in the California act of admission is legislation taking control of the navigable waters of the state for the benefit of commerce, then congress has legislated in reference to the navigable waters of California, while it has not done so with reference to the navigable waters of DelawaTe, Pennsylvania, arid Illinois; 'and, in this respect, California and Oregon stand upon a footing
entirely different from that of those states, and the decisions as to them are tnapplicable. The foregoing ohservations indicate the distinction, if any 'Sonnd distinction there be, and it seems to me that there is, between this case, the Wallamet Iron Bridge Case, and the Wheeling Bridge Case, and those other caaes cited, already decided by the supreme court. If the distinction is not sound, then it appears to me that the Wheeling Br,idge Case must also be regarded as overruled, although the supreme court does not expressly indicate any intention to ovel'l:ule it. There is an intimation, however, in the opinion of the Chicago Bridge C(,I.se, not necessary to the decision of the case upon the other views expressed by the cQurt, that the provision of the ordinance of 1'l87, corresponding to the provision in queBtion in the acts of admission of California and Oregon, if in force, would not affect the question. 107 U. S. 689; S. C. 2 Sup. Ct. Rep. 185. If this be so, then the distinction referred to is of no practical consequence. But the bridges, and other obstructions referred to as illustrations following this intimation, were all dra,w-bridges, or other partial obstructions, while the bridge now in question is an absolute, unqualified, entire obstruction to the navigation of the river. In view of these intimatlOns, and other general observation in the opinion of the court, and not how far the supreme court intended to go feeling quite certain as on these questions, and not wisping even to seem to disregard the decisions of the' supreme court, I shall, for the purposes of this case, sustain the demurrer and dism,issthe bill. The bill pl"eSlmts the case fully, and it will be much better for all parties to have the effect of the provision of the act of admission determined now before going to the expense of a trial. As the complainant has already submitted to the obstruction for many years, the right, I think, should be finally determined on appeal, before an injunction should be decreed. The supreme court does not appear to me to have considered carefully, or finally determined, what the purpose and effect vision in question in the act of admission is. It must have some object, and if that object be not to protect and preserve the navigability of those waters against obstructions equivalent to destruction by authority of the state, what was the purpose? The fact that the provision is in the act of admission, instead of in subsequent independent legislation, cannot affect its confltruction, or its force and effect. But'for the .observations in the Chicago Bridge Case, which I think unnecessary to the decision, and believing that congress had acted upon the subject, I should have followed the ruling of the circuit CQurt in the WaUamet Bridge Case, and what I understand to be the decision in the Wheeling Bridge Case, and overruled the demurrer. I do not wiah to bl'l rEJgarded as having changed my own views upon the rulings in the WalZamet Bridge Case. I still think it similar to. the Wheeling Bridge Case, and distinguishable from any other cases hitherto decided by the supreme court bro,ught to my attentien. I
still think the decree intha.t ca,,3 correct, ort ground that has acted upon the subject, also on othet grounds than the point dis-: cussed in this case; But the' case and if·the circuit court was wrong, the rights' of the parties will be finally settled by the supreme court. I ouly write this opird6nto indicate upon what distinction, if any, the case I suppose should be taken out of the decisionof the Ghica.qo Bridge Gase, with the hope that the attention of the supreme court will be specially directed to that supposed distinction.
((hrcuit (Jourt,n:D. WiBCtmIlin.
When, after a bond had been signed by two sureties with the understanding between them and the obligor and obligee th,at it was to be sip;ned bya third surety wbose name was written in the bond, the name of the third sutetywall altered in the body of the instrument, with the knowledge of the obligee; by the substitution of a different surety, who then signed the bond, held, that the two sureties were discharged. ' , INTERNAL REVENUE-CONSTRUl1TION 011' REV: ST. t 3182. Under section 3182 of the RiJvised Statutes, the commissioner, in maldnga 'reassessment upon distilled for the purpose of rectifying an error, is noc confined to a period of 15, moilths last past. . , A statute took. effect March 3d,cba'nging the rate of duty upon spirituous liquors from 70 cents .to 90 ,An assessment was made fora period previous to and including March 3d at 70 cents. Held, that though the statute waii in force during the whole of March 3d, so that the rate for that dliy'should .have been 90 cents, the could not on that account dispute the .validity of the assessment. Two assessments, covering partially the same period, will for d,ifferentliquors till the-contrary is shown. .
BURETYSJDP-ALTERATION 011' INSTRUMENT-DISCHARGE.
3. BTATUTE-TIME 011' TAKING'E!rFEOT-ASSEBSMENT-VALIDITY.
ASSESS¥gNTS FOR SAMl<] PERIOD-VALIDITY 'PRESUMED.
be presumed to be
6. ACTfON UPON BOND..,....ALLEGATIONS OF. COMPLAINT.
An action upon a bond, conditioned upon the payment of an assessment, will not fail because the complaint does not set forth· the whole of the 'assessment.
This was a suit on a distiller's bond. .The bond was executed by the defendant O'Neill !is principal, and by two of the other defendants as sureties; April 30,1874, and covered the period from' May 1, 1874, to May 1, 1875. The complaint setout the conditions of the bond, 'und then alleged' that .these conditions were broken, in this: that O'Neill failed to pay the internal revenue tax dueartd payable on 15,344 gallons of distilled spirits, distilled by him at his.distillery from the first day of May, 1874, to and iIlCluding the thirty-first day of December, 1874,. amonnting to $10, 740.80, and art 29,440.40 gallons of distilled spirits distilled by him from December 1, 1874, to and including March 3, 1875, amounting to $20,608.28, and also on' 30,873.36 gallons of distilled spirits, distilled from March 4, 1.f'l5, tOl