OPINION
AS TO THE POWERS OF THE
CITY OF CHICAGO
OVER THE CHICAGO RIVER,
RENDERED TO THE
COMMITTEE ON RIVER | HARBOR
OF THE
CITIZENS' ASSOCIATION OF CHICAGO.
DECEMBER, 1881.
CHICAGO:
GEO. K. HAZLITT & CO., PRINTERS, 172 AND 174 CLARK STREET.
1881.
OPINION
AS TO THE POWERS OF THE
CITY OF CHICAGO
OVER THE CHICAGO RIVER.
RENDERED TO THE
COMMITTEE ON RIVER | HARBOR
CITIZENS' ASSOCIATION OF CHICAGO.
COMMITTEE:
Julian S. Rumsey, Chairman.
Henry W. King. Monroe Heath.
John M. Clark, Robert Law.
Arthur Ryerson.
chicago:
GEO. K. HAZLITT & CO., PRINTERS, 172 AND 174 CLARK STREET,
1881.
TO THE COMMITTEE ON RIVER AND HARBOR
OF THE
CITIZENS' ASSOCIATION OF CHICAGO
Our opinion being requested as to the power of the
City of Chicago to bridge the Chicago Eiver, and to estab¬
lish regulations regarding the bridges over that stream—as
to their opening and closing, and incidentally as to the
general powers of the city over the river—the matter hav¬
ing especial reference to the pending litigation in regard to
the same, we respectfully submit the following:
We shall, in treating the question, consider:
1st, Whether the Chicago Eiver is a navigable water
of the United States;
2d; Whether it is within the jurisdiction, control and
police power of the State of Illinois and City of Chicago,
or is subject, in part or entirely, to the power of Congress.
We shall consider the above, together with certain sub¬
ordinate questions connected with them, in their order,
and add our conclusions thereto.
I.
The question as to what constitutes a navigable stream,
has received much consideration from the courts. By the
common law no stream was navigable unless subject to the
ebb and flow of the tide. De Jure Maris, etc And al¬
though this rule was subjected to some modification, it
4
nevertheless remains the rule of the common law at pres¬
ent, and is cited and approved by the Supreme Court of
Illinois as the law of this state. See City of Chicago v.
McGinn, 51 111. 272, citing:
Midclleton v. Pritchard, 3 Scam. 510; and
Evjsminger v. People, 47 111. 384.
And even when rivers originally actually unnavigable
became navigable through improvements, the public gained
nothing but an easement, and the title of adjacent owners
(ad filum aquae) remains intact.
Ball v. Hubert, 3 Taunt. R 267.
It may be granted that the strict rule of the common
law lias been, to some extent, modified in its application to the
great inland waters of the United States. Many, however,
of the cases commonly cited as overruling the common law
doctrine of navigability, are those in which the points raised
involved only the question of where the jurisdiction of the
United States, as to control of inter-state and international
•commerce, extended. Such are
Genesee Chief v. Fitz Hugh, 12 How. 443.
The Magnolia, 20 How. 296.
Steamboat v. Trevor, 4 Wall. 555.
The foregoing cases overruled a previous current of de¬
cisions, which restricted such control, to commerce navigat¬
ing tide waters; viz.: The Thomas Jefferson, 10 Wheat.
428, and other cases/ a rule which the new-born and in¬
creasing commerce of the great lakes and rivers rendered
obviously unjust. But it will be manifest, that extending
the définition of navigability, ás regards the jurisdiction of
admiralty law, is quite another thing to extending it as to
Ownership and control of the water itself.
Theré is great divergence of opinion in the courts
of various - states, as to what constitutes- a navigable
5
stream j ; the courts of Virginia, New Hampshire, Ver¬
mont, Massachusetts, Connecticut, Maine,, New York,
Illinois, Michigan, Mississippi, and other states seeming
to follow the rule of the common law, while other states,
Pennsylvania, Missouri, South Carolina, Alabama, and
others, modify or repudiate it.
The Supreme Court of Illinois, in the case of Middle-
ton v. Pritchard, 3 Scam. 510, distinctly apply the common
law rule, even to the Mississippi and other like rivers. It
would be useless to cite all the decisions on this subject;
they may be found in IloueJds Navigable Rivers, Chapter
III.; but it may be said, that the result of the decisions in
this country is to the effect, that while rivers not subject
to the ebb and flow of the tide, are not in law navigable,
and the property in their bed is not in the public, but in
the adjacent owners; yet the public may have an easement
of flotage, and of highway, upon the same, either primarily,
from the original character of the stream, or acquired in a
secondary way, through improvements in it. See Angelí on
Water Courses, Sec. 535 {and cases in note 2). It may there¬
fore be assumed, that the inland waters of this country,
when navigable in fact, become subject to an easement of
the nature referred to. This is no doubt true of the great
inland waters, such as the Mississippi, the Ohio, etc., and
also of such streams as the Chicago River, which although
not originally navigable, even in fact, have, by improve¬
ments, become so. That river, therefore, while not legally,
navigable at common law, so as to divert the title to its bed,
is de facto navigable, and subject to a public easement of
passage, the title to its bed remaining, adfilum aguce, in the
adjacent proprietoi's; and this rule is adopted by the Su¬
preme Court of this State, in:
City of Chicago v. McGinn, 51 111. 272.
As to what waters are to be deemed navigable waters
of the Uni ted States, and for what purpose, the case of the
Daniel Ball, 11 Wall. 557, is usually considered as in point.
In that case the question arose; whether a steamer-plying
6
upon Grand Ei ver, in the state of Michigan, was subject to
the inspection and enrollment laws of the United States.
The Supreme Court of the United States (Field J.) Feld,
that for the purposes of that case, Grand Kiver was a navi¬
gable stream, being de facto navigable, and also that,
as that river, by its connection with Lake Michigan, was
accessible to vessels of other states coming upon the lake,
it was therefore a navigable water of the United States,
although lying within the state of Michigan ; and the ves¬
sels plying upon it were subject to the rules and regulations
prescribed by Congress for the enrollment and inspection of
such shipping. Of the same general nature was the case of
the Montello, 11 Wall. 411, in which case the same issue
was presented i. e. whether a vessel plying upon the naviga¬
ble waters tributary to Lake Michigan, was subject to the
enrollment and inspection laws of Congress, and the same
conclusion reached. There is no doubt therefore, that the
power of Congress to control and regulate commerce, ex¬
tends to all vessels, plying upon any waters actually navi¬
gable, which from their nature, or their connection with
other waters, afford a passage to vessels coming from other
states or countries; and such waters are for that purpose to
be considered as navigable waters of the United States.
But it will be observed that such an assumption has
nothing to do with the power of a state to control such waters
themselves, being entirely within its borders. The preceding
cases deal with the inherent power in Congress,under the con¬
stitution, and exercised by Congress, in the way of enrollment
inspection and similar enactments, to regulate commerce be¬
tween the states. Of entirely a different nature are the
cases, in which the powers of the states to regulate streams
(navigable or not) entirely within their borders, are con¬
sidered, with reference to the powers delegated by the
constitution to Congress.
It is one question whether Congress has power, and has
exercised it, to make rules governing vessels navigating
waters of the kind referred to, in the states of Michigan and
Illinois; but it is quite another as to whether Congress has
7
the power, and if so, as to whether snch power has hem ex-
excised, to prevent those states from doing as they please,
i. e. what their inherent sovereignty may authorize, as to
such waters as lie entirely within the borders of the states
themselves. This question will be considered under the
next division of our subject.
II.
It is a matter of common notoriety that the Chicago
river lies entirely within the boundaries of the State of
Illinois. Originally a mere creek meandering through
prairies, whose surface water it sluggishly drained into the
lake—without depth sufficient to bear aught but the canoe
of the Indian, or the dug-out of the voyagent, with its
entrance closed by sand-bars; it has by the enterprise of
the great municipality upon its banks, and through the
exigencies of trade, been converted, by dredging and dock¬
ing, into a stream (almost a canal), able to bear vessels of
considerable size and burden. Unless therefore the powers
of the State of Illinois over the Chicago river were origi¬
nally curtailed, before its jurisdiction over this stream
accrued, at the formation of the State—or unless they have
been since curtailed by some power competent to do so,
they remain entire and in full force to-day.
Were they then so originally curtailed?
The argument has been advanced that the ordinance
of 1787 did abridge the powers of States formed under it,
and the provision of article 4 of that ordinance is cited, viz. :
" The navigable waters leading into the Mississippi, the
St. Lawrence, and the carrying places between the same,
shall be common highways, and forever free, as well to the
inhabitants of the said territory, as to the citizens of the
United States, i. e. without any tax, impost, or duty,
therefor."
As was remarked by Breese, C. J., in III. Packet Co.-
v. Peoria Bridge Co., 38 111., 469, it is manifest, that this
ordinance, even if binding upon the States carved out of
8'
the Northwestern - Territory, does no more than ..prohibit;
the levy of tax, impost or duty upon the traffic of the.
waters referred to. Its reference to navigable waters mani¬
festly refers to these navigable de facto, for of these navi¬
gable de jure there were none. At that time the Chi¬
cago river was navigable neither -de facto nor de-jure. ■
A passing notice may also be made to the quaint protection
afforded carrying places. The great divide, now furrowed
with canals and crossed with railways, has little to remind
one of the protection'needed to the pathway of the fur
trader, as he wearily carried his boat from the Aux Plains
to the Chicago.
But all discussion of the effect of the ordinance of
1787 has now become unnecessary. The Supreme Court
of the United States has expressly decided that no part of
the ordinance of 1787 remains in force in the States formed
out of the territory therein organized; see:
Pollard''s Lessees v. Hagan, 3 How., 212.
Perrnoliv. First Municipality, 3 .How., 589.
Strader v. Graham, 10 How., 82.
In Pollard''s Lessees v. jHagan, supra, the court said:
"To Alabama belong the navigable waters, and soils
under them, subject to the rights surrendered by the con¬
stitution to the United States, and no compact that might
be made between her and the United States could diminish
or enlarge these rights." . rtatT"
And the court further said: ' ■**"*-
"That the States formed under the ordinance of 1787
stand upon precisely the same ground as the original States
as to these powers."
The same rule applies of course to the acts of 1809
and to any like legislation of Congress enacted, before the
admission of States. By the admission of the State such
legislation became functus officio, and the State became a
9
member of the Union, with all the powers of a sovereign
State, subject only to those powers delegated to the Federal -
Government by the constitution.
! The ordinance of 1787, and like antecedent legis¬
lation, being thus disposed of, as affecting this ques¬
tion, we now direct attention "to the power to control
navigable waters, i. e. the waters themselves and , the
bridges or obstructions over or in them, with reference
to the powers and rights of the several States, taken in con-,
nection with the powers of Congress under the reservations
of the Federal Constitution. The earliest authority upon
the subject is the case of,
The Commonwealth v. Breed, 4 Pick, 460.
It was there directly held that the State had power to
authorize a positive interruption to a navigable arm of the
sea lying within the State, even to the extent of authorizing
a bridge with a draw too small to admit the passage of some
boats which had been in the habit of navigating such
waters. And it was held that the power to do this was
inherent in the State, whenever public convenience com¬
manded its exercise. To the same effect is the case of
The People v. Rensselaer <& S. R. R. Co., 15'
Wend., 113.
" A number of decisions based upon a mistaken view of
the application of the ordinance of 1787 were subsequently,
decided in the western States, (Ilogg v. Zanesville Carnal
Co., 5 Ohio, 410, and similar cases) all of which are how¬
ever now rendered obsolete by the opinion of the Supreme
Court of the United States before referred to.
The case of Gibbons v. Ogden, 9 Wheat., 1, decided in
1824, touched only the right of the State to create a monopoly,
of the navigation of its waters; although of great interest as to
the general question of the rights of the States. In 1824 the
first case directly in point came to the Supreme Court of the
.United States, and it was then held that the State of Delà-
10
warecould entirely dam upa navigable arm of the sea lying
within the State.
Wilson v. Blackbird Creek Marsh Co., 2 Peters,
245.
In that case the court (Marshall, G. J.), said:
"This abridgement (the dam referred to) unless it
comes in conflict with the constitution of the United States
is an affair between the government of Delaware and its
citizens." * * * " We do not think the act
referred to can, under the circumstances of the case, be con¬
sidered as repugnant to the power to regulate commerce."
This was a case where the waters in question were
legally navigable waters, and hence subject to all the condi¬
tions belonging to the same. The inlet was however en¬
tirely within the State of Delaware. In 1831 the same
court (U. S. Supreme) had another question before it in
the case of
Pennsylvania v. Wheeling Bridge Co., 13 How.,
518.
In that case the State of Pennsylvania exhibited an
original bill, to have a bridge across the Ohio river declared
a nuisance. It appeared that the Ohio, where bridged, was
between the joint jurisdiction and within the borders of the
States of Pennsylvania and Yirginia, the latter of which
States had alone authorized the erection of the bridge in
question; that furthermore the States bordering upon the
Ohio river and who possessed supra riparian rights over it,
had entered into a compact regarding its navigation, to the
effect that it should be forever free to the citizens of each
State; and that Congress had legislated upon the subject to
the same effect; the State of Pennsylvania also showed
special damage resulting to it, as a State, from the bridge in
question. The decision of the court (McLean, J.) holding
that Yirginia did not have entire authority to empower the
erection of the bridge, was placed directly upon the pre-
ceeding grounds, and because of them was distinguished'
11
from Wilson v. Blackbird Creek Marsh Co. supra.
See also U. 8. v. New Bedford Bridge Co., 1 Woodb.,
Minn. 401.
Yet it is upon this slender foundation, that a super¬
structure has arisen in the minds of many,, to the effect,
that a State has no power to control navigable waters
entirely within its own borders.
But all doubts upon this question were settled by the
important case of Gilman v. City of Philadelphia, 3 Wall.,
713, in which the precise question was discussed, in all its
bearings, and the law regarding it settled by the Supreme
Court of the United States. That case arose upon a
bill filed by an owner of property, and dockage, situated
upon the Schuylkill river, to prevent the city from erecting
a bridge without draws over that stream. It appeared that
the Schuylkill up to and beyond complainant's property,
was tide water, and had long been navigable, and navigated
by ships of from eighteen to twenty feet draft, and of all
kinds, both coasting and foreign. That the proposed bridge
would prevent all vessels with masts from proceeding be¬
yond it, or from reaching complainant's property and docks.
It appeared that the Schuylkill was situated entirely within
the State of Pennsylvania, but of course, by its joinder with
the Delaware, was open to vessels coming from other States
or countries, and was besides a portion of the U. S. collec¬
tion district of Philadelphia. The act of the city in build¬
ing the bridge was under the delegated power of the State,
and was called for by the convenience of the public. The
court (Swayne, J.) after stating the case as above, refer to
the case of the Wheeling Bridge, supra, and distinguish it,
as hereinbefore distinguished.
The court then, after considering to some extent the
relations of the state and federal governments, as set forth
in Gibbons v. Ogden supra, and other cases, allude to the
case of Wilson v. The Blackbird Creek Marsh Co. supra, as
the case most in point, and cite the passages heretofore being
cited from that case; the court then proceeded to say:
12;
" This opinion came from the same " expounder of the
constitution " who delivered the earlier and more elaborate
judgment in Gibbons v. Ogden. "We are riot aware that the
soundness of the principle upon which the court proceeded'
has been questioned in any later case. "We can see no dif¬
ference in principle between that case and the one before
us. Both streams are affluents of the same larger river.
Each is entirely within the state which authorized the ob¬
struction. The dissimilarities are in facts which do not
affect the legal question. Blackbird Creek is the less im¬
portant water, but it had been navigable, and the obstruc¬
tion was complete. If the Schuylkill is larger and its com¬
merce greater, on the other hand the obstruction will be
only partial, and the public conveyance to be promoted is
more imperative. In neither case is a law of Congress, for¬
bidding the obstruction, an element to be considered. The
point that the vessel was enrolled and licensed for the coasting
trade was relied upon in that case by the counsel for defend-.
ant. The court was silent upon this subject. A distinct denial
of its materiality would not have been more significant. It
seems to have been deemed of too little consequence to re¬
quire notice. Without overruling the authority of that
adjucation we cannot, by our judgment, annul the law of
Pennsylvania."
. " It must not be forgotten that bridges which are connect¬
ing parts of turnpikes, streets, and railroads, are means of
commercial transportation, as well as navigable waters, and
that the commerce which passes over a bridge may be
much greater than would ever be transported on the water
it obstructs."
" It is for the municipal power to weigh the considerations
which belong to the subject,'and to decide which shall be
preferred, and how far either shall be made subservient to the
other. The states have always exercised this power, and
from the nature and objects of the two systems of govern¬
ment they must always continue to exercise them, subject,
however, in all cases, to the paramount authority of con¬
gress, whenever the power of the state shall be exerted
within the sphere of the commercial power which belongs
to the nation. The state may exercise concurrent or inde¬
pendent power in all cases but three."
"1. Where the power is lodged in the federal constitu¬
tion. -
2. Where it is given to the United States and prohib¬
ited to the states.
13
3. Where, from the nature and subjects of the power
it must necessarily be exercised by the national government
exclusively."
(Houston v. Moore, 5 Wheat, 49; Federalist No.
32). .
" The power here in question does not, in our judgment,
fall within either of these exceptions.
" It is no objection to distinct substantive powers that
tliey may be exercised upon the same subject. It is not
possible to fix definitely their respective boundaries. In
some instances their action becomes blended; in some
the action of the state limits or displaces the action of the
nation. In other the action of the state is void, because it
seeks to reach objects beyond the limits of state authority."
"A state law requiring an importer to pay for, and take
out a license, before he should be permitted to sell a. bale of
imported goods is void {Brown v. Maryland, 12 Wheat,
419), and a state law, which requires a master of a vessel,
engaged in foreign commerce, to pay a certain sum to à
state officer on account of each passenger brought from a
foreign country into the state, is also void."
{Passengers' casés, 7 How, 273).
" But, a state in the exercise of its police power may
forbid spirituous liquor imported from abroad, or from
another state, to be sold by retail, or to be sold at all, without
a license; and it may visit the violation of the prohibition
with such punishment as it may deem proper."
{License cases 5, How 504).
"Under quarantine laws, a vessel registered, or enrolled,
may be stopped before entering her port of destination, or
removed and detained elsewhere, for an indefinite period;
and a bale of goods, upon which the duties have, or not,
been paid, laden with infection, may be seized under
"health laws," and if it cannot be purged of its poison,
may be committed to the flames."
"The inconsistency between the powers of the states
and the nation, as thus exhibited, is quite as great as in tlie
•case before us; but it does not necessarily involve collision
■ or any other evil. None has hitherto been found to ensue.
The public good is the end and aim of both."
"If it be objected that the conclusion we have
•reached will arm the states with authority potent for
'evil, and-liable .to be abused, there are several answers
14
worthy of consideration. The possible abuse of any power
is no proof that it does not exist. Many abuses may arise
in the legislation of the states which are wholly beyond the
reach of the government of the nation. The safeguard and
remedy are to be found in the virtue and intelligence of
the people. They can make and unmake constitutions and
laws; and from that tribune there is no appeal. If a state
exercises unwisely the power here in question the evil con¬
sequences will fall chiefly upon her own citizens. They
liafve more at stake than the citizens of any other state.
Hence there is as little danger of the abuse of this power
as of any other reserved to the states. Whenever it shall
be exercised openly, or covertly, for a purpose in conflict
with the Constitution or laws of the United States, it will
be within the power, and it will be the duty, of this court,
to interpose with a vigor adequate to the correction of the
evil The defendants are pro¬
ceeding in no wanton or aggressive spirit. The authority
on which they rely was given, and afterwards deliberately
renewed by the state. The case stands before us as if the
parties were the state of Pennsylvania and the United
States. The river being wholly within her limits, we can¬
not say that the state has exceeded the hounds of her
authority. Until the dormant power of the Constitution
is awakened, and made effective by appropriate legislation,
the reserved power of the states is plenary, and its exercise
in good faith cannot he made the subject of review by this
court. It is not denied that the defendants are justified it
the law is valid. We find nothing in the record which
would warrant us in disturbing the decree of the Circuit
court, which is therefore aflirmed with costs."
( Gilman v. City of Philadelphia, 2 Wall., 713.
The principles declared in the preceding case
are final and conclusive as to the matter in hand,
and gain additional strength in their application to the
Chicago river. For if the state of Pennsylvania, by its
delegated power could authorize the partial blockade of
a navigable tide water stream, open to and used by the com¬
merce of other states and nations; it hardly needs parity of
reasoning to assert, that the state of Illinois, acting through
its delegated authority to the City of Chicago. (vide City
Charter, article V. section 28-39 ind.) may do the like as to
15
the Chicago River. Both streams lie entirely within the
limits of the respective states; both are navigable waters of
the United States, although the case of the Chicago River
is much the stronger, the application to it of the principles
declared being, if anything, more forcible. In neither
case has Congress acted upon this question, or by any legis¬
lation restricted, or attempted to restrict, the power of the
state in the premises.
As the case of Gilrnan v. Philadelphia contains
a full and complete statement of the law, as it is, it
will not be necessary to go into any very extended ex¬
amination of further authorities. "We refer, however, to
the case of " The Passaic Bridges," from MS of 3 Wall jr.
(to be found at page 782 of 3 Wall.) in which case the same
question was before Mr. Justice Grier, as Circuit Judge, in
regard to a bridge over the Passaic river, and was decided
in exactly the same way. The opinion of the learned judge
is referred to by the court in Gilrnan v. Philadelphia, and
approved. The court said (referring to the Wheeling bridge
case):
" It is evident from this statement that the Supreme
Court, in denying the right of Virginia to exercise this ab¬
solute control over the Ohio river, and in deciding that as
a riparian proprietor she was not entitled, either by the
compact, or by constitutional law, to obstruct the commerce
of a supra-riparian state, had before them questions not in¬
volved in these cases, and which cannot affect their decision.
The Passaic river, though navigable for a few miles within
the state of New Jersey, and therefore a public river, be¬
longs wholly to that state ******* Consti¬
tuting a town, or city, a port of entry; is an act for the con¬
venience and profit of such place; but, for the sake of this
benefit, the constitution does not require the state to sur¬
render her control over the harbor or highways leading to
it, either by land or water."
(The Passaic river was within the limits of the port of
entry and collection district of Newark).
16
The Court went on to say further, and we cite its re¬
marks because they carry the rule to its logical extent.
" "Whether a bridge over the Passaic will injuriously
affect the harbor of Newark, is a question which the people
of New Jersey can best determine, and have a right to de¬
termine for themselves. If tlie bridge be an inconvenience
to sloops and schooners navigating their port, it is no more
so to others than to them. 1 see no reason why the state
of New Jersey in her absolute sovereignty over the river,
may not stop it up altogether, and establish the harbor and
wharves of Newark at the mouth of the river. It would
affect the rights of no other state; it would still be a port
of entry, if Congress chose to continue it so. Such action
would not be in conflict with any power vested in Congress.
A state may, in the exercise of its reserved powers, inci¬
dentally affect subjects intrusted to Congress, without any
necessary collision. All railroads, canals, harbors or bridges,
necessarily affect the commerce, not only within a state, but
between the states. Congress, by conferring the privilege
of a port of entry upon a town or city, does not come in
conflict with the police power of a state, exercised in bridg¬
ing her own ri vers below such port. If the power to make
a town a port of entry includes the right to regulate the
means by which its commerce is carried on, why does it not
extend to its turn-pikes, railroads and canals—to land as
well as water? Assuming the right (which I neither affirm
or deny) of Congress, to regulate bridges over navigable
rivers below ports of entry, yet not having done so, the
courts cannot assume to themselves such a power. There
is no act of Congress, or rule of law which courts could apply
to such a case. It is possible that courts might exercise
this discretionary poweras judiciously as a legislative body,
yet the praise of being a " good judge " could hardly be
given to one who would endeavor to " enlarge his jurisdic¬
tion " by the assumption, or rather usurpation, of such an
undefined and discretionary power."
" The police power to make bridges over its public riv¬
ers is as absolutely and exclusively vested in a state as the
commercial power is in congress; and no question can arise
as to which is bound to give way, when exercised over the
same subject matter till a case of actual collision occurs.
This is all that was decided in "
" Wilson v. The Blackbird Creek cbe.
17
" That case has been the subject of much Comment
and some misconstruction. It was never intended as
a retraction or modification of anything decided in Gibbons
v. Ogden, or to the exclusive power of Congress to regulate
commerce. Nor does the Wheeling Bridge case at all con¬
flict with either. The case of Wilson v. The Blackbird
Creek governs this, while it has nothing in common with
that of the Wheeling bridge."
" The view taken by the court of this point dispenses
with the necessity of an expression of opinion on the ques¬
tions on which so much testiomny has been accumulated:
what is the proper width of draws on bridges over the Pas¬
saic? How far the public necessity requires them? What
is the comparative value of the commerce passing over or
under them? What the amount of inconvenience such
draws may be to the navigation, and whether it is for the
public interest that this should be encountered, rather than
the greater one consequent on the want of such bridges?
And finally the comparative merits of curved and straight
lines in the construction of railroads. These questions have
all been ruled by the Legislature of New Jersey, having, as
we believe, the sole jurisdiction in the matter. They have
used their discretion in a matter properly submitted to it,
and this court has neither the power to decide, nor the dis¬
position to say, that it has been injudiciously exercised."
In addition to the preceding we refer the following
cases which are confirmatory of the rule, as laid down in
Oilman v. Philadelphia, viz :
Crandall v. Nevada, 6 Wall., 35.
The Lottawanna, 21 Wall., 558.
Ex Parte McNeil, 13 Wall., 236.
Case of the State Freight Tax, 15 Wall., 232, (page
249, opinion of Court.)
Railroad Co. v. Fuller., 17 Wall., 560.
Osborne v. Mobile, 16 Wall., 479.
Foster A Master v. The Port of New Orleans, 94
IT. S. 248.
18
111 view of the foregoing it may be observed, that if
the State of Illinois, by the exercise of such powers over its
waters, which powers are not restricted by the constitution
or laws of the State, and are in the nature of eminent
domain; actually tabes away the property of any one, it
of course is liable to pay the owners of such property for
the same; but that is a question between the State and
them, and one with which the question under consideration
has nothing whatever to do.
Although the question is not now presented, we are
also of the opinion that the rule in Gilman v. Philadelphia
and other cases cited, would apply to the power of the
State and city to regulate the inordinate use of steain
whistles or any other nuisance upon the river and vessels
navigating it. It is a part of the inherent police power of
the State, and does not conflict with any other authority.
It is said by the Supreme Court of the United States:
" The State may nevertheless, for the safety or conveni¬
ence of trade, or for the protection of the health of its citi¬
zens, make regulations of commerce for its own ports and
harbors.
License Cases, 5 How, 579.
This was held in the case of a tide water harbor, and
gains additional force in the case of a river like ours.
Again,
•" Under quarantine laws, a vessel registered, or enrolled,
or licensed may be stopped upon entering her port of des¬
tination, or be afterwards removed and detained elsewhere,
for an indefinite period, and a bale of goods upon which the
duties have, or have not, been paid, laden with infection,
may be seized under health laws, and if it cannot be purged
of its poison, may be committed to the flames."
Gilman v. City of Philadelphia, Supra,
Certainly the quarantine power above defined, is at
least as inconsistent witn the power and legislation of the
United States, in regard to the regulation of commerce; as
19
are any, or all, of the ordinances of the city of Chicago,
touching steam whistles and the like, with the same, or
with the admiralty rules upon the subject. Hence if one is
valid the others must be.
Our conclusions therefore are as follows:
1st. The Chicago river is not legally a navigable
stream, in the sense of its bed being the property of the
public, but is actually navigable, and subject to the public
easement of navigation, and it is, as to the regulation of the
commerce engaged upon it by the Federal Government, a
•navigable xoater of the United States, because accessible to
vessels of other States and countries.
2d. The entire power to regulate and control the
Chicago river, including the right of bridging it with such
bridges as may be seen fit and authorized, and of regulat¬
ing the use of such bridges, and of exercising police powers
upon it, is in the State of Illinois, or in such municipal
or other authority as the State may delegate, i. e. the City
of Chicago. Congress might, by affirmative legislation,
restrict the State in the exercise of such powers, but it has
not, done so.
ARTHUR RYERSON,
For Committee.
Chicago, December, 1881.
I concur in the foregoing opinion, and I see no reason
to doubt, that the power to bridge the Chicago river, in¬
cluding the right to determine what manner and number
of bridges are required by the public convenience, and to
regulate the use of the same, as well as the power to exer¬
cise general police powers upon the river, are in the State
oí Illinois or its delegated representative, there being no
affirmative legislation by Congress upon the subject.
EDWARD S. ISHAM.
I do not doubt that Congress may legislate, so as to
keep open and free the navigable waters of the United States,
20
nor but that in the absence of such legislation affecting
the Chicago river, the State of Illinois may make such regu¬
lations respecting the use of such river for commerce and
navigation (which includes as well the construction and
maintenance of bridges, as navigation by steam boats)
as to the State shall seem expedient, it acting in good faith;,
and I concur in the above opinion.
E. B. M'CAGG.
I concur in the above opinion.
EDWIN C. EARNED.
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