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York, New Jersey Port and
Harbor Development
Commission


Appointed under Chapter 426, Laws of 1917, State of New York
Appointed under Chapter 130, Laws of 1917, State of New Jersey
PRELIMINARY REPORT OF COUNSEL TO
ACCOMPANY THE TENTATIVE DRAFT OF
PROPOSED TREATY AMENDATORY AND
SUPPLEMENTARY TO THE NEW YORKNEW JERSEY TREATY OF 1834


WILLIAM R. WILLCOX, Chairman
EUGENE H. OUTERBRIDGE
ARTHUR CURTISS JAMES
GEORGE W. GOETHALS
Chief Consulting Engineer
JULIUS HENRY COHEN, Counsel


J. SPENCER SMITH, Vice-Chairman
DE W1TT VAN BUSKIRK
FRANK R. FORD
WILLIAM LEARY, Secretary
B. F. CRESSON, JR., Consulting Engineer
C. A. RUHLMANN, Asst. Secretary




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PRELIMINARY REPORT OF COUNSEL TO ACCOMPANY
THE TENTATIVE DRAFT OF PROPOSED TREATY
AMENDATORY AND SUPPLEMENTARY TO THE
NEW YORK-NEW JERSEY TREATY OF 1834.
Introduction
The need for enlarging the port and terminal facilities of our
country, including those of New York, is no longer the subject of
debate. In a public announcement by the United States Shipping
Board, made August 4th last, that body says:
"A doubling, and perhaps trebling, of docks, piers, marine railways, and -terminal facilities in general of Atlantic, Gulf, and
Pacific ports will probably be called for by the swiftly increasing
American merchant marine. To provide for the fullest possible
service of the ships, once they are released from traffic, even new
ports may become necessary.
"The survey of port facilities undertaken shows them taxed to
capacity by the present shipping-in many instances overtaxed,
and in nearly all instances, unless they are speedily expanded,
facing serious congestion. This is especially true of the facilities of
New York Harbor, the greatest problem of port development in
the world to-day."
United States Interstate Commerce Commissioner James S. Harlan, in a report to the Director General of Railroads (March 30th,
1918), says, referring to the Port of New York: "Wholly aside
from the extraordinary volume of the traffic, to and through the
port, of the allied and our own military and naval establishments
at this time, new and enlarged terminal facilities must be provided,
apparently on a liberal scale and on both sides of the river, if the
port of New York is to hold its commanding place in our domestic
and foreign commerce."
"The Iron Age" for June 20th last reports that there has already
been established a "red-flag zone" covering an area comprising
the New England States, eastern and southern New York, eastern
Pennsylvania, New Jersey, Delaware, and eastern Maryland, ex.
elusive of Baltimore, making a line roughly bounded by Albany,




4


Altoona, Shippensburg, Rutherford Yards, Baltimore and the balance of Maryland, and the Atlantic Ocean, into which zone, by
action of the War Industries Board and the Fuel and Railroad
Administrations no new factories may be established until
further notice "because it is already so congested with steel-works,
munition plants, factories of all kinds, and shipyards that it is
practically impossible to secure adequate supplies of labor, coal,
and satisfactory transportation facilities for existing concerns."
In the Joint Report made to the Legislature of the State of New
York, January 3rd, 1917, by the Governor's Market Commission,
the Food Supply Committee appointed by the Mayor of the city,
and the Wicks Legislative Committee, approved also by the Food
and Market Committee of the New York State Mayors' Conference,
it is stated: "The improvement and enlargement of existing terminal facilities and the addition, where necessary, of further terminal market facilities, at points convenient for distribution, would
reduce the cost of handling foodstuffs. * * * Improved terminal facilities would not only reduce the ultimate cost of food
to the consumer but would permit dealers to do business more
economically and would provide them with facilities for doing a
much larger business."
Governor Whitman, in transmitting the Preliminary Report of
the New York, New Jersey Port and Harbor Development Commission under date of February 18th, 1918, said: "The time has
come to look forward and to plan in advance for the future demands
that will be made upon the port. Haphazard, piecemeal attempts
to solve the terminal problem at the port will hinder, not hasten,
the desired solution. * * * This [work of planning] cannot
be done by any commission representing either state alone. The
task must be a joint task." Indeed, the New York, New Jersey
Port and Harbor Development Commission itself represents the
registered will and purpose of the two states to engage in this joint
and common undertaking.
The problem presented to the Commission has many facets. The
engineering, economical, commercial and financial phases of the
problem are being thoroughly studied and are to be treated in a
separate report. In the Preliminary Report of the Commission
(January 26th, 1918) it was stated that in addition to the engineering and commercial phases of the problem, there must be worked
out "a sound and practicable legal plan." This report deals with
the legal phases of the problem only and with the tentative solution




5


to be offered for public discussion. For this purpose it is assumed
that the Commission wil conclude from its study that comprehensive development of the port facilities must come about through
the co-operation of the two states, joining, where necessary, with
the federal and municipal authorities, acting through some form
of agency which shall be vested with broad legal powers to build,
maintain and operate port facilities, to improve commerce. and
navigation at the port, to borrow money for such purposes,
and vested with adequate power to deal with all phases of the
matter whether such facilities be under public or private ownership or operation, or both.
At the threshold, we face the fact of dual political sovereignty.
The port lies in two states, each an independent sovereignty in its
own land. The legal problem, therefore, cannot so easily be stated
or solved as it might be for New Orleans, Philadelphia, Boston or
Baltimore.  Again, traffic between two states across boundary
waters is interstate commerce. Neither one state nor the other can
wholly regulate the port. Yet in its recent decision in the New
York Harbor Case, No. 8994, the Interstate Commerce Commission
held (p. 713) that "Historically, commercially and industrially the
cities of northern New Jersey within the metropolitan district constitute a part of New York," and that this fact is true is shown by
the most casual inspection of the charts annexed to the opinion,
indicating the growth in population and assessed valuation, in the
number of persons engaged in manufacturing, in the capital invested in manufacture and the value of manufactured products in
the northern counties of New Jersey, as well as in greater and lesser
New York. These show that the progress of the northern counties
of New Jersey parallels the progress of the communities on the
corresponding New York side of the port. The progress is interrelated and the progress of each part reacts upon the other.
The Federal Census Bureau issues a compilation of what is
called "The New York City Metropolitan District." It takes in not
only Greater New York City (comprising Bronx, Kings, New York,
Queens and Richmond counties), but the whole of Westchester
county (with such cities as New Rochelle, Mount Vernon and Yonkers) besides Bergen, Essex, Hudson, Middlesex, Nassau and Union
counties in New Jersey (including such cities as Jersey City,
Hoboken, Harrison, Elizabeth, Rahway, Newark, Orange, Montclair, Paterson, etc.). This district embraces 616,928 acres of
territory, of which but 183,555 acres constitute the area of New




York, and 433,373 acres constitute the area of the outlying territory.
The estimated population of the city in 1914 was 5,333,539, and
that of the outlying territory but 1,936,568, the total for the district
being 7,270,107. As defined in the census of 1910, the "New York
City Metropolitan District" includes, in addition to the central
city, fifteen cities, forty-one boroughs, two villages, seventeen towns
and'seventeen townships.
The Interstate Commerce Commission refers to the great and
valuable results that may be expected to follow from the creation
of the New York, New Jersey Commission.
The problem presented to the Port Commission is, how shall this
interstate relationship-now  politically divided-be effectively
united to promote the welfare of the two states and the nation?
No constructive solution, in our opinion, can be found which fails
to take full account of the historical factors and the legal questions
involved.
The Early Commercial Relations Between New York and
New Jersey
In 1798, Robert Livingston secured from the state of New York
a monopoly for the operation of steamboats upon the waters of
the state. With Livingston's support and on the basis of the
state monopoly, Robert Fulton built the "Clermont."  On the
7th of August, 1807, she traversed the one hundred and fifty miles
between New York and Albany in thirty-two hours and thereby
won for her owners "the sole right to use steam on the lakes and
rivers of New York State for twenty years to come." (McMaster's
History of the People of the United States, Vol. 3, pp. 490-491).
In 1808, John Cox Stevens at Hoboken built the "Phoenix," intended to ply as a passenger boat between New Brunswick and
New York, but the monopoly held by Fulton and Livingston prevented that vessel from entering the waters subject to the jurisdiction of New York State. Accordingly Stevens sent her by sea
to the Delaware and ran her between Philadelphia and Trenton.
A year later Fulton built another boat called the "Raritan." The
"Raritan" made three trips a week between New Brunswick and
New York.   McMaster tells us: "The route between the two chief
cities of the country was thus partly by land and partly by water,
and was strongly recommended to such as wished to avoid dust,




7


mosquitoes, and a dangerous ferry. The traveller could leave
Philadelphia at seven o'clock on any Monday, Wednesday, or
Friday morning by the Phoenix, enjoy a cool and pleasant sail up
the Delaware, breakfast and dine on board, and reach Bordentown
at one. From Bordentown he went by stage to New Brunswick,
where he must spend the night. At six the next morning the
steamboat Raritan carried him to New York." By 1810 the
"Raritan" and the " Phoenix" ran in connection with each other as
parts of one route. It was then possible at a cost of $5.00 in money
and twenty-six hours in time to cover the ninety miles which
separated Philadelphia from New York, three times a week. The
profits of the " Raritan" trade, twelve shillings for each passenger,
went to the Fulton and Livingston Company. This provoked the
wrath of the people of New Jersey and in the legislature the monopoly of Fulton and Livingston was boldly attacked. New Jersey
demanded that if its citizens could not build a steamboat and send
it across the Hudson to New York without the permission of Fulton
and Livingston, then no boat having the Fulton and Livingston
license should enter the waters of New Jersey. In consequence of
this demand, New Jersey passed an act which (says McMaster)
"greatly enraged the monopolists." In the New York statute it
was provided that if anyone should navigate a steamboat within
the jurisdiction of the state of New York without a license, the
party aggrieved might "seize the boat, engine, tackle, and apparel."
New Jersey referring to this New York law, passed a statute which
provided that if anyone did seize such a boat belonging to a citizen
of New Jersey and lying on the waters between the two states,
the owners might seize in return any boat belong to any citizen of
New York found in any waters of New Jersey. The New York
company thereupon threatened to withdraw their boat, place it on
the Sound, grant no licenses to run steamboats to New Jersey, stop
the ferry at Paulus Hook and ruin New Brunswick. This unhappy
controversy, however, was settled by the courts. A rival of the
New York company sprang up and a boat called the "Hope" was
soon running between New York and Albany without a license.
Fulton and Livingston applied for an injunction which the New
York Court of Appeals sustained but which the United States Supreme Court reversed. Thereby was established the great authority
of Gibbons v. Ogden, 9 Wheat. 1; 6 L. ed. 23 (see also Gibbons v.
Ogden, 17 Johns. (N. Y.) 488), holding that the legislature of the
state of New York had no power to grant a monopoly upon navi



8


gable waters and that since traffic between the two states constituted interstate commerce the power to regulate such commerce lay
with Congress.
The Boundary Dispute
The history of the boundary dispute between the two states has
been well told by two judges-by Judge Garrison in the case of
Central Railroad of New Jersey v. Jersey City, 70 N. J. L., 41
Vroom 81, and Judge Lucius Q. C. Elmer in State v. Babcock, 30
N. J. L. 29. (Judge Elmer was in fact one of the Commissioners
representing New Jersey in the negotiations that finally brought
into existence the treaty of 1833-4.)
The lands and territory now constituting the states of New York
and New Jersey, including the Hudson River, were originally
granted by Charles II in 1664 to James, Duke of York, who
became vested by reason of this grant with both governmental and
proprietary rights on each side of the waters that separated the
two colonies. The Duke granted to Lord Berkeley and Sir George
Carteret the territory now known as the State of New Jersey, describing it as
"All that tract of land adjacent to New England and lying and
being to the west of Long Island and Manhitas Island, and bounded
on the east by the main sea, and part of Hudson's river, and hath
upon the west the Delaware Bay and to the northward as far as the
northernmost branch of said bay or the river of Delaware, which
is forty-one degrees and forty minutes of latitude, and crosses
over thence in a straight line to Hudson's river in forty-one degrees of latitude."
Between the date of this grant and the Revolutionary War, the
charters of New York City and the proceedings of the New York
authorities indicate that it had always been claimed by New York
that the whole of the Hudson River, up to the low water mark on
the westerly shore belonged to that state. The war of the Revolution resulted in New York and New Jersey emerging as free and
sovereign states. After the Revolution, when it appeared that if
New York's claim were acquiesced in, all the wharves and improvements on the Jersey shore would be subject to the control of New
York, New Jersey claimed that by conquest from the Crown the
right of New Jersey was extended to the middle of the river. Thus,




9


in 1806 New Jersey passed a statute in which it recited that it had
become "invested with full right and lawful authority to exercise
jurisdiction in and over the Hudson river and the main sea and
all the ports, harbors and havens lying adjacent to and along the
Jersey shore and coast in such manner as belongs to a sovereign
and independent state to use and exercise."
Judge Washington decided, however, that the grant to New
Jersey limited its territory to the eastern shore of the Delaware
River and Bay, a decision acknowledged by the courts of New
Jersey to be correct. (See State v. Davis, 1 Dutcher 386) and,
what was still more adverse to the claim of New Jersey in reference
to the Hudson, the Supreme Court of the United States laid down
the doctrine that "When a great river is the boundary between
two nations or states, if the original property is in neither, and
there be no convention respecting it, each holds to the middle of
the stream," "when, as in this case," said the court, "one state
is the original proprietor, and grants the territory on one side only,
it retains the river within its own domain, and the newly created
state extends to the river only;" and upon this principle the United
States Supreme Court held that the Ohio River was exclusively
within the territorial limits of Kentucky, and that Indiana had no
jurisdiction over or right to the river. Handly's Lessee v.
Anthony, 5 Wheat 374.
This controversy over the boundaries was a sore spot in the relations between the two states, which the statesmen on both sides of
the Hudson tried to remove. In 1806, New Jersey appointed a
commission to meet with a similar commission appointed by New
York to make an agreement to settle and determine this boundary
dispute. Such a commission met in 1807 but reached no agreement.
In 1826, the Deputy Sheriff of Richmond County of New York was
arrested and indicted by the New Jersey authorities for serving
process within the jurisdiction of New Jersey. In 1828, Governor
Williamson of New Jersey addressed the Legislative Council and
General Assembly, summarizing the history of the boundary dispute, pointing out that both in 1806 and in 1818, New Jersey had
made attempts to put an end to the dispute and that nothing had
been accomplished. In 1829, the states having still failed to agree,
New Jersey filed a bill against New York in the Supreme Court
of the United States, a summary of which is to be found in 108 U. S.
406-410. No appearance in this suit was ever entered by the




10


State of New York, although various attempts were made to compel
her to appear. 3 Pet. 461; 5 Id. 283; 6 Id. 323. (The bill was
finally dismissed on February 15th, 1836, two years after the
confirmation by each state of the treaty of 1834, see below.)
In 1833, Governor Marcy of New York wrote to Governor Southard of New Jersey, expressing great regret over this unfortunate
boundary controversy and suggesting that another effort be made
toward an amicable adjustment. Accordingly, in 1833 an act
was passed by each state giving each of the Governors power to
appoint three commissioners to confer. These commissioners were
to meet, and if possible, to adjust the controversy between the two
states. The names of the New Jersey commissioners were:
Hon. Theodore Frelinghuysen
James Parker
Lucius Q. C. Elmer
and the New York Commissioners were:
Benjamin F. Butler
Peter A. Jay
Henry Seymour.
They were entirely successful and the result of their discussion
was the adoption of the New York-New Jersey Treaty of 1833-4.
(Ch. 8, Laws of New York, 1834; Laws of New Jersey, 1833-34,
p. 118.) The two acts were confirmed by the Congress of the United
States June 28th, 1834. (U. S. 23 Cong. 1 sess. Sen. doc. No. 239).
This treaty is very brief. It is as follows:
The New York-New Jersey Treaty of 1834
ARTICLE I. The boundary line between the two states of New
York and New Jersey, from a point in the middle of Hudsoh River,
opposite the point on the west shore thereof, in the forty-first
degree of north latitude, as heretofore ascertained and marked, to
the main sea, shall be the middle of the said river, of the bay of New
York, of the waters between Staten Island and New Jersey, and of
Raritan Bay, to the main sea, except as hereinafter otherwise particularly mentioned.
ARTICLE II. The state of New York shall retain its present
jurisdiction of and over Bedlow's and Ellis' Islands, and shall




11


also retain exclusive jurisdiction of and over the other islands
lying in the waters above mentioned, and now under the jurisdiction of that state.
ARTICLE III. The state of New York shall have and enjoy exclusive jurisdiction of and over all the waters of the Bay of New
York, and of and over all the waters of Iudson River, lying.west
of Manhattan Island, and to the south of the mouth of Spuyten
Duyvel Creek, and of and over the lands covered by the said waters
to the low water mark on the westerly or New Jersey side thereof;
subject to the following rights of property and of jurisdiction of
the State of New Jersey, that is to say:
1. The state of New Jersey shall have the exclusive right of
property in and to the land under water, lying west of the middle
of the bay of New York and west of the middle of that part of
the Hudson River, which lies between Manhattan Island and New
Jersey.
2. The state of New Jersey shall have the exclusive jurisdiction
of and over the wharves, docks and improvements made and to be
made on the shore of the said state, and of and over all vessels
aground on said shore, or fastened to any such wharf or dock;
except that the said vessels shall be subject to the quarantine or
health laws, and laws in relation to passengers, of the state of New
York, which now exist or which may hereafter be passed.
3. The state of New Jersey shall have the exclusive right of
regulating the fisheries on the westerly side of the middle of the
said waters; Provided, that the navigation be not obstructed or
hindered.
ARTICLE IV. The state of New York shall have exclusive jurisdiction of and over the waters of the Kill Van Kull, between
Staten Island and New Jersey, to the westernmost end of Shooter's
Island, in respect to such quarantine laws and laws relating to
passengers as now exist or may hereafter be passed under the
authority of that state, and for executing the same; and the said
state shall also have exclusive jurisdiction, for the like purposes,
of and over the waters of the Sound, from the westernmost end of
Shooter's Island to Woodbridge Creek, as to all vessels bound to
any port in the said state of New York.




12


ARTICLE V. The state of New Jersey shall have and enjoy
exclusive jurisdiction of and over all the waters of the Sound
between Staten Island and New Jersey, lying south of Woodbridge
Creek and of and over all the water of Raritan Bay, lying westward of a line drawn from the lighthouse at Prince's Bay, to the
mouth of Matavan Creek, subject to the following rights of property
and of jurisdiction of the State of New York:
1. The state of New York shall have the exclusive right of
property in and to the land under water, lying between the middle
of the said waters and Staten Island.
2. The state of New York shall have the exclusive jurisdiction
of and over the wharves, docks and improvements made and to be
made, on the shore of Staten Island; and of and over all vessels
aground on said shore, or fastened to any such wharf or dock,
except that the said vessels shall be subject to the quarantine or
health laws, and laws in relation to passengers of the state of New
Jersey, which now exist or which may hereafter be passed.
3. The state of New York shall have the exclusive right of
regulating the fisheries between the shore of Staten Island and
the middle of the said waters, provided that the navigation of the
said waters be not obstructed or hindered.
ARTICLE VI. Criminal process issued under the authority of the
state of New Jersey, against any person accused of an offense
committed within that state, or committed on board of any vessel
being under the exclusive jurisdiction of that state as aforesaid,
or committed against the regulations made, or to be made, by
that state in relation to the fisheries mentioned in the third article;
and also civil process issued under the authority of the state of
New Jersey, against any person domiciled in that state, or against
property taken out of that state to evade the laws thereof; may be
served upon any of the said waters within the exclusive jurisdiction
of the state of New York, unless such person or property shall be
on board a vessel aground upon, or fastened to the shore of the
state of New York, or fastened to a wharf adjoining thereto; or
unless such person shall be under arrest, or such property shall
be under seizure, by virtue of process or authority of the state
of New York.
ARTICLE VII. Criminal process issued under the authority of
the state of New York, against any person accused of an offense




13


committed within that state, or committed on board of any vessel
being under the exclusive jurisdiction of that state as aforesaid;
or committed against the regulations made or to be made by that
state, in relation to the fisheries mentioned in the fifth article;
and also civil process issued under the authority of the state of
New York, against any person domiciled in that state, or against
property taken out of that state to evade the laws thereof; may be
served upon any of the said waters within the exclusive jurisdiction of the state of New Jersey, unless such person or property
shall be on board a vessel aground upon, or fastened to, the shore of
the state of New Jersey, or fastened to a wharf adjoining thereto,
or unless such person shall be under arrest, or such property shall
be under seizure, by virtue of process or authority of the state of
New Jersey.
ARTICLE VIII. This agreement shall become binding on the
two states when confirmed by the legislatures thereof respectively,
and when approved by the Congress of the United States.
The Purpose and Meaning of the Treaty
The treaty has been frequently passed upon by the courts both
of New York and New Jersey. In State v. Babcock, 1 Vroom 29,
the New Jersey Court held that an indictment for a nuisance by
placing wrecks in the Hudson River below low water mark on the
New Jersey shore would not lie in the state of New Jersey, upon
the ground that by the compact of 1834 exclusive jurisdiction over
offences in or upon the water or lands under them resided in the
state of New York. In Central Railroad of New Jersey v. Jersey
City, 41 Vroom 81, Judge Garrison quotes with approval (p. 96)
the statement of Judge Andrews of the New York Court of Appeals
as follows: "The purpose of vesting exclusive jurisdiction over
these waters in the state of New York was to promote the interests
of commerce and navigation, which would, as supposed, be best
subserved by giving to this state the exclusive control and regulation of the waters of the bay and harbor of New York." Judge
Garrison held that what was granted over these waters was not
"sovereignty" but jurisdiction as "distinct from sovereignty" and
that in consequence the power to tax the property under water
still remained with New Jersey. On appeal to the United States
Supreme Court (209 U. S. 472), decided April 27th, 1908, Justice




14


Holmes delivered the opinion, saying: (p. 479) "But we agree with
the state courts that have been called on to construe that part of the
agreement, that the purpose was to promote the interests of commerce and navigation, not to take back the sovereignty that otherwise was the consequence of article 1. This is the view of the New
York as well as of the New Jersey court of errors and appeals,
and it would be a strange result if this court should be driven to
a different conclusion from that reached by both the parties concerned."
Judge Elmer, reviewing the history resulting in the Treaty of
1834, says in State v. Babcock, 1 Vroom 29, pp. 33 and 34:
"When the commissioners of New Jersey and New York again
met, in 1833, and it was found that those of the latter state appeared
to be desirous of arranging the dispute upon fair and liberal terms,
but deemed it indispensable that their great commercial emporium
should have the exclusive control of the police on the surrounding
waters, and full power to establish such quarantine regulations
as should be found necessary, the commissioners of this state deemed
it wise to secure the exclusive property in the soil to the middle
of the river, and exclusive jurisdiction over the wharves, docks,
and other improvements made or to be made on the Jersey shore,
and of the vessels fastened thereto, and the right to regulate the
adjacent fisheries, leaving to New York, which was thought to be
quite as much a burthen as a privilege, the exclusive jurisdiction
over offences in or upon the waters or the land covered by the
water outside of the low water mark. As it was thought possible
that the time might come when Perth Amboy should be an important city, like exclusive jurisdiction over the adjacent waters
to low water mark on Staten Island was secured to this state.
Nothing has since occurred to make the propriety of this arrangement doubtful; on the contrary, there is every reason to believe
that it has secured important rights to this state, which otherwise
might have been lost.
'"In further elucidation of this subject, it is to be noticed that
the river Delaware was never within the jurisdiction either of
this state or of Pennsylvania until, by the Revolution, the rights of
the crown were extinguished, and each state then held to the
middle. Under these circumstances, the agreement between the
two states, adopted in 1783, Nix. Dig. 824, provided that the two
states should have concurrent jurisdiction in and upon the water




15


of that river. Of so little importance, however, was this regulation, that it was not until so lately as 1856 that any law of this
state was passed providing for the punishment of offenses committed on the river."
In People v. Central Railroad of New Jersey, 42 N. Y. 283, at
p. 295, June 1870, Judge Smith said: "It is quite apparent, I
think, that they [the Commissioners] well and wisely considered
that the necessities of the case, the welfare of these states, the
exigencies of commerce, and the interests of the city and port of
New York in particular, in whose prosperity, as the commercial
metropolis of the country, New Jersey had, in a large degree, a
common interest, required that there should be a unity of control
over said waters, and a single and exclusive jurisdiction exercised
over them by one of the said states."
In the same case Judge Earl said:
"At the date of this agreement [1833], certain docks and
wharves had already been made on the New Jersey side, and it
was foreseen that others might thereafter be needed and be made.
New Jersey had but little commerce and no important city or
seaport upon these waters. New York City then controlled by far
the largest share of the commerce of this country, and these
waters were mainly important as her seaport. It was important
that this port should be subject to but one state jurisdiction, and
that its jurisdiction should be of the state possessing the city of
New York, and having by far the largest interest in regulating,
protecting and governing the port. It was clearly the intention
of the commissioners, as gathered from the whole agreement, to
place that port under the exclusive jurisdiction of the State of
New York, so that she could control and regulate it in the interest
of her great commerce and her great commercial city.
"At the time this agreement was made, New York was a large
and flourishing commercial city, with the finest port, and destined
to be one of the largest commercial emporiums in the world, while
New Jersey had no commerce, no commercial port, and no brilliant
commercial prospects."
Under an act passed in 1886, a suit was brought in the courts
of New York against one Ross to recover a penalty for depositing
dredgings from a slip in the city of New York into the waters
of the North River. Ross and his associate, in December, 1887,




16


dumped a scow-load of material which they dredged from a slip
in the city of New York into the river opposite New York City,
but on the Jersey side at a point about one-quarter of a mile from
the News Jersey shore. It was claimed that since the deposit had
been made within the territorial limits of New Jersey, the state of
New York had no jurisdiction to enact a law subjecting persons
to liability for an act done within the territory of that state. The
Court of Appeals held that the compact of 1834 settled the matter
and gave to New York jurisdiction over such matters to low water
mark on the Jersey side, Judge Andrews saying:
"The purpose of vesting exclusive jurisdiction over these waters,
in the state of New York, was to promote the interests of commerce and navigation, which would, as supposed, be best subserved by giving to this state the exclusive control and regulation
of the waters of the bay and harbor of New York. * * *
"The 8th section of the act of 1886 was manifestly enacted for
the protection of the harbor of New York in the interest of commerce and navigation. The citizens of New York City may possibly have a greater stake in the matter than citizens in other
localities, but the destruction or serious impairment of the harbor
of New York would directly affect the prosperity of the state.
It would impair its revenues, imperil its system of river, canal and
railroad transportation, and it is not too much to say that every
industrial interest, agricultural or mechanical, would feel its blighting influence."  (June, 1891. Ferguson v. Ross, 126 N. Y. 459,
at p. 463 and p. 465.)
Our Commission has concluded-tentatively-that the structure
of a Port Authority for the Port of New York should be built
upon the firm foundation of the New York-New Jersey treaty of
1834. It has concluded, further, that in such an amendment of
the treaty account should be taken of what is now known as the
"Metropolitan District" and that commercially, as well as historically, the district is in fact, if not in law, one district. The
difficulties that arise in the erection of such an authority at once
suggest themselves: To what extent can power be vested in such
an authority? To what extent should such power be vested? What
power shall such a port authority possess over municipalities and
communities embraced within the territory? How shall it deal
with property, title to which is now vested in such localities?
What shall become of the bonded indebtednesses of these various




17


communities and of their constitutional debt limitations, especially in the case of New York City? On the one side are all the
municipalities and townships now embraced in Greater New York,
organized into one large single political unit; on the other are
various small units still unorganized. How, if at all, shall these
units be represented and how shall their authority be balanced?
These questions are not entirely legal questions. They do, however, present legal phases. They are in the main political questions. They must take account of the habits of thinking and feelings of all of these communities, as well as of the legal principles
involved.
Interstate Commerce and Navigation-The Federal Power
"Commerce    *  *  *," said Chief Justice Marshall in Gibbons v. Ogden, 9 Wheat. 189, "is intercourse."  The power to
regulate commerce extends to the regulation of navigation.
In Gilman v. Philadelphia, 3 Wall. 713, Mr. Justice Swayne,
speaking for the Court, said: "Commerce includes navigation.
The power to regulate commerce comprehends the control for that
purpose, and to the extent necessary, of all the 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
by Congress. This necessarily includes the power to keep them
open and free from any obstruction to their navigation, interposed
by the states or otherwise; to remove such obstructions when they
exist; and to provide, by such sanctions as they may deem proper,
against the occurrence of the evil and the punishment of offenders.
"It is for Congress to determine when its full power shall be
brought into activity, and as to the regulations and sanctions
which shall be provided."
Congress has vested the Secretary of War with power to determine when bridges constitute obstructions to navigation.  The
Secretary of War may go so far that if at any time he find a
bridge constructed over any of the navigable waters of the United
States to be an unreasonable obstruction to the free navigation of
such waters either on account of insufficient height, width of span,
or otherwise, he may direct the removal or alteration of the bridge
so as to render navigation through or under it free, easy, and




18


unobstructed. This same power may be applied to other structures on, over or under navigable waters.  The United States
Supreme Court has repeatedly held that this is not an unconstitutional delegation of legislative or judicial power to the Secretary.
Only recently has it been held by the United States Supreme Court,
Judge Pitney writing the opinion, that even though a bridge span
be constructed at great expense pursuant to a franchise granted
by Congress, nevertheless the Secretary of War may decide that
the bridge was of insufficient horizontal clearance of the channel
span and order the alteration of the bridge (as occurred in the
case of the Ohio Falls bridge, a bridge built across the Ohio River,
at Louisville, Ky., under the authority of an Act of Congress
approved in 1865). Judge Pitney said:
"It is true that Congress must have contemplated that a large
investment of private capital would be necessary, and that the
bridge when once constructed could not be abandoned or materially
changed without a total or partial loss of value. [It was claimed
that it would cost over $400,000, to comply with the order of the
Secretary of War.] This is a very grave consideration, and we
have not at all overlooked it; but we cannot deem it controlling
of the question presented."  (Louisville Bridge Co. v. United
States,.242 U. S. 409, 61 L. ed. 395, 37 Sup. Ct. Rep. 158.)
Accordingly, the court held that the authority of Congress to
compel changes was precisely the same as if the bridge had been
constructed under state legislation without license from Congress,
as in Union Bridge Co. v. United States, 204 U. S. 364, 388, 400,
51 L. ed. 523, 534, 539, 27 Sup. Ct. Rep. 367; Monongahela Bridge
Co. v. United States, 216 U. S. 177, 193, 54 L. ed. 435, 442, 30 Sup.
Ct. Rep. 356; or had been constructed under Congressional consent
or authorization, coupled with an express reservation of the right
of revocation or amendment, as in Newport & C. Bridge Co. v.
United States, 105 U. S. 470, 481, 26 L. ed. 1143, 1147; Hannibal
Bridge Co. v. United States, 221 U. S. 194, 207, 55 L. ed. 699, 704,
31 Sup. Ct. Rep. 603.
The paramount power of Congress is illustrated by the decision
in Stockton v. Baltimore & N. Y. R. Co., 32 Fed. Rep. 9. In this
case the Staten Island Railroad Company was organized under
the laws of the state of New York to operate a railroad in Staten
Island. It procured from Congress the supplementary power to
build a bridge across the Arthur Kill, between Staten Island and




19


New Jersey, and proceeded to lay the foundation of the bridge
upon the shore and land under waters of the Kill within the state
of New Jersey. By the Act of April 6, 1886, New Jersey had
prohibited any person or corporation from erecting any bridge,
etc., over or in any part of the navigable waters where the tide
ebbs and flows, and separating that state from other states, without
permission from the legislature of that state. The Attorney General of New Jersey sought to restrain the railroad company from
building its bridge across the Kill. Judge Bradley held that the
statute of New Jersey was unconstitutional in that it was in conflict with the paramount power of Congress to deal with commerce and navigation.   Judge Bradley afterwards, as is well
known, became a judge of the United States Supreme Court. This
opinion of his has been frequently cited with approval, especially
in the United States Supreme Court. See Scranton v. Wheeler,
179 U. S. 141, at p. 159 and p. 186; Illinois Central R. Co. v. People
of the State of Illinois, 146 U. S. 387; Liuxton v. North River
Bridge Co., 153 U. S. 525.
Judge Bradley said concerning the paramount powers of Congress: "It matters little whether the United States had or has
not the theoretical ownership and dominion in the waters, or the
land under them; it has, what is more, the regulation and control
of them for the purposes of commerce. So wide and extensive is
the operation of this power that no state can place any obstruction
in or upon any navigable waters against the will of Congress,
and Congress may summarily remove such obstructions at its
pleasure. And all this power is derived from the power to 'regulate commerce.' Is this power stayed when it comes to the question of erecting a bridge for the purposes of commerce across a
navigable stream? We think not. We think that the power to
regulate commerce between the states extends, not only to the
control of the navigable waters of the country, and the lands
under them, for the purposes of navigation, but for the purpose
of erecting piers, bridges, and all other instrumentalities of commerce which, in the judgment of Congress, may be necessary or
expedient."  (pp. 20, 21.)
Further, as a part of the decision, Judge Bradley held that the
power which Congress thus possesses may be delegated to a New
York railroad corporation. Thus the land under water of New
Jersey which, as it happened in the Stockton case, was leased for




20


oyster culture, from which the State of New Jersey derived a
revenue, was taken for the construction of the bridge without compensation to the state or to the private owners.
The same question came up before the Circuit Court for the
Southern District of New York before the late Judge Wallace
(Decker v. Baltimore & N. Y. R. Co., 30 Fed. Rep. 723). Judge
Wallace held as did Judge Bradley, in the course of his opinion
saying:
"Whether the waters are wholly within the boundaries of a
state, or, as here, lie between two states, is not material. They
are navigable waters of the United States, if they form by themselves, or by uniting with others, a continuous highway for commerce with other states or countries. The Daniel Ball, 10 Wall.
557; Escanaba Co. v. Chicago, 107 U. S. 682, 2 Sup. Ct. Rep. 185.
"The power of control over such waters necessarily includes
the power of deciding what structures are impediments to commerce; and, by an unbroken line of decisions, it is settled that
the paramount authority regulating bridges that affect the navigation of the navigable waters of the United States is in Congress.
" So long as this authority lies dormant, the states may authorize
the erection of bridges over navigable waters within their limits,
which may to some extent obstruct navigation, or, by concurrent
action, may bridge the waters lying between them; but, so soon
as Congress intervenes and exercises its power of regulation, what
has been done by state authority must give way to the paramount
authority of Congress. The power of the state ends where that
of the nation begins.  *   *
"The lands under the water on the New Jersey side of Arthur
Kill belong to the state of New Jersey, or to those who have
derived title from the state. The shores of navigable waters, and
the soil under them, were not granted by the constitution to the
United States, but were reserved to the states respectively. Pollard
v. Hagan, 3 How. 212. The right of eminent domain over such
lands, for all municipal purposes, resides in the state within the
boundaries of which they lie, and within the legitimate limitations
of this right the power of the state to appropriate the shores of
navigable waters, and the lands under them, is absolute. Ormerod
v. New York, W. S. & B. R. Co., 21 Blatchf. 106, 13 Fed. Rep. 370."
In People v. Rensselaer & S. R. Co., 15 Wend. 113, Chief Justice
Savage, after asserting that the power to erect bridges over such




21


waters existed in the state legislature before the adoption of the
federal constitution, says:
"It is not pretended that such power has been delegated to the
general government as is conveyed under the power to regulate
commerce and navigation. It remains, then, in the state legislature, or it exists nowhere. It does exist because it has not been
surrendered any further than such surrender may be qualifiedly
implied; that is, the power to erect bridges over navigable streams
must be considered so far surrendered as may be necessary for a
free navigation upon those streams."
Judge Wallace in the Decker case says further:
"The argument that the rights of the State of New Jersey are
ignored or invaded by permitting such a bridge to be built without her consent is purely a sentimental one. She has no control
of the water-way for the purposes of navigation which is not
subordinate to the will of Congress. She can make no use of it
against the will of Congress. The act of Congress does not attempt
to appropriate any of the property of her citizens, or to interfere
with her power of eminent domain.
"If the constitutional power of Congress over the navigable
waters of the United States is confined to a mere negation of state
authority over them, if Congress can only ratify and prohibit what
the state proposes, if it has no faculty of independent action, and
no vigor to originate, then, instead of being paramount, the power
is practically subordinate to the power of the state. Yet it has
never been doubted that, within the scope of its powers, the
government of the United States is supreme, or that its authority,
when asserted, is, to the extent asserted, of necessity exclusive."
(pp. 724, 725, 727, 728.)
More recently, in the state of New York (People v. Hudson River
Connecting Railroad Corporation, 104 Misc. 19), the same federal
authorities have been applied by Mr. Justice Chester in the Supreme Court of Albany County (June, 1918) in a suit brought by
the state to restrain the Hudson River Connecting Railroad Corporation from constructing a bridge across the Hudson River between a point near Castleton in Columbia County and a point
near Selkirk in Albany County. This is to be the "federal cut-off."
By an Act of Congress approved by the President on March 13,
1914, the railroad was granted power "to construct, maintain and




22


operate a bridge, together with the necessary approaches thereto,
across the Hudson River, at a point suitable to the interests of
navigation, between Castleton and Schodack Landing.. " and
by subsequent Act of Congress (August 9, 1916) the time for the
commencement of the construction' of the bridge was extended to
March 30, 1918, as to commencement and to March 30, 1920, as
to the completion. Under the various Acts of Congress vesting
the Secretary of War with power, plans for the bridge were submitted to and approved by him, and on May 2, 1917, he made and
filed his certificate, approving the revised plan and permitting the
building of the bridge under regulations and conditions specified
in the certificate. By Chapter 166 of the Laws of New York of
1918 (approved by the Governor on April 9th of that year), the
proposed bridge was forbidden and the Attorney General was
authorized to bring proceedings to enjoin its construction and also
to forfeit the charter of the defendant. Judge Chester holds that
Congress, under the constitutional power to regulate commerce,
"has the paramount right to regulate such commerce over highways, railroads and bridges as well as upon navigable waters,"
and '.'that the Hudson River in part forms the boundary line
between two states, and with the enlarged Erie Canal forms a
navigable waterway for commerce to Canada and to several western
states," and the bridge in question is "a connecting link from the
east to the west which will carry commerce from and to foreign
countries and between the states." Although the sentiment behind the passage of the law in the state of New York was unusually strong, Judge Chester says "there is but one answer which
can be given to this question, and this answer should not be given
by yielding to public sentiment or to the desires of influential
public bodies who have spoken on the subject, but must be responsive to the controlling power of the supreme law of the land.
"It has been settled by a long line of authorities from the time
of the decision of the Supreme Court of the United States in the
earty and leading case of Gibbons v. Ogden (9 Wheaton 1) to the
present day, that under the clause of the Federal Constitution which
vests in Congress power 'to regulate commerce with foreign nations
and among the several states' (U. S. Const. Art: 1, Sec. 8, Clause
3), Congress has paramount authority under such clause over all
navigable waters of the United States."
In Erie Railroad Company v. People of the State of New York,




23


233 U. S. 671, at p. 681, it is said: "The relative supremacy
of the state and national power over interstate commerce need not
be commented upon. Where there is conflict, the state legislation
must give way. Indeed, when Congress acts in such a way as to
manifest its purpose to exercise its constitutional authority, the
regulating power of the state ceases to exist."
In the Hudson River Connecting Railroad Corporation case, as
in the Stockton case, the state owned the land under water on
which it was proposed to erect the ends of the defendant's bridge.
Judge Chester follows Judge Bradley's decision.
The Powers of the State
Notwithstanding these declarations, there is a broad field in
which the states may still exercise power. In the first place, as
Chief Justice Marshall in Gibbons v. Ogden said: "The completely
internal commerce of a state... may be considered as reserved
for the state itself." This language, quoted by Mr. Justice Hughes,
speaking for the United States Supreme Court in the Minnesota
Rate Case (230 U. S. 352 (1912) at p. 398), is the basis for holding that in the absence of federal action effect may not be denied
to the laws of the state enacted in the field which it is entitled to
occupy till its authority is limited through the exertion by Congress of its paramount constitutional power. (p. 400.) "But within
these limitations," says Mr. Justice Hughes, "there necessarily
remains to the states until Congress acts, a wide range for the permissible exercise of power appropriate to their territorial jurisdiction, although interstate commerce may be affected. It extends
to those matters of a local nature as to which it is impossible to
derive from the constitutional grant an intention that they should
go uncontrolled pending federal intervention. Thus, there are
certain subjects having the most obvious and direct relation to
interstate commerce, which nevertheless, with the acquiescence of
Congress, have been controlled by state legislation from the foundation of the government because of the necessity that they should
not remain unregulated, and that their regulation should be
adapted to varying local exigencies; hence, the absence of regulation by Congress in such matters has not imported that there should
be no restriction, but rather that the states should continue to
supply the needed rules until Congress should decide to supersede
them. Further, it is competent for a state to govern its internal




24


commerce, to provide local improvements, to create and regulate
local facilities, to adopt protective measures of a reasonable character in the interest of the health, safety, morals, and welfare of
its people, although interstate commerce may incidentally or indirectly be involved. Our system of government is a practical adjustment by which the national authority as conferred by the Constitution is maintained in its full scope without unnecessary loss of
local efficiency. Where the subject is peculiarly one of local concern, and from its nature belongs to the class with which the state
appropriately deals in making reasonable provision for local needs,
it cannot be regarded as left to the unrestrained will of individuals
because Congress has not acted, although it may have such a relation to interstate commerce as to be within the reach of the federal
power."
The United States Supreme Court held in the Minnesota Rate
Case, 230 U. S. 352, at p. 403, that "A state is entitled to protect
its coasts, to improve its harbors, bays, and streams, and to construct dams and bridges across navigable rivers within its limits,
unless there is conflict with some act of Congress. Plainly, in
the case of dams and bridges, interference with the accustomed
right of navigation may result. But this exercise of the important
power to provide local improvements has not been regarded as
constituting such a direct burden upon intercourse or interchange
of traffic as to be repugnant to the federal authority in its dormant
state."
In the most recent utterance of the United States Supreme Court
on the matter of the power of Congress over interstate commerce
(Hammer v. Dagenhart, -    U. S. 660, Advance Sheets No. 15,
July 1, 1918, Child Labor Law), Mr. Justice Day, writing the
prevailing opinion of the Court, repeats Chief Justice Marshall's
reference in Gibbons v. Ogden, 9 Wheat. 1, 6 L. ed. 23, to "that
immense mass of legislation which embraces everything within the
territory of a state, not surrendered to the general government,all of which can be most advantageously exercised by the states
themselves. Inspection laws, quarantine laws, health laws of every
description, as well as laws for regulating the internal commerce
of a state, and those which respect turnpike roads, ferries, etc.,
are component parts of this mass." Mr. Justice Day quotes also
from the same great judge's decision in the Dartmouth College




25


case (4 Wheat. 518, 629): "That the framers of the Constitution
did not intend to restrain the states in the regulation of their civil
institutions, adopted for internal government, and that the instrument they have given us is not to be so construed, may be admitted." Judge Day reminds us that "In interpreting the Constitution it must never be forgotten that the nation is made up
of states, to which are intrusted the powers of local government.
And to them and to the people the powers not expressly delegated
to the national government are reserved."
In dealing with matters affecting navigation and interstate commerce, the United States Supreme Court has had opportunity many
times to mark the line of delimitation between state and federal
power. Thus, in the prevailing opinion in the recent case of
Southern Pacific Co. v. Jensen, 244 U. S. 205, it is said: " 'Where
the subject is national in its character, and admits and requires
uniformity of regtulation, affecting alike all the states, such as
transportation between the states, including the importation of
goods from one state to another, Congress can alone act upon it
and provide the needed regulations. The absence of any law of
Congress on the subject is equivalent to its declaration that commerce in that matter shall be free.' " But whether or not the
subject "is national in its character, and admits and requires uniformity of regulation, affecting alike all the states," of course
depends upon the particular statute in question. Thus, in the
Passenger Cases, 7 How. 283, the United States Supreme Court
held unconstitutional a New York statute which authorized the
Health Commissioner of the state to demand, and, if not paid, to
sue for and to recover from the master arriving in the Port of
New York from a foreign port $1.50 for each cabin passenger and
$1.00 for each steerage passenger, mate, sailor or mariner, etc.,
which moneys were to be appropriated to the support of the marine
hospital on Staten Island. Following this decision of the United
States Supreme Court, the State of New York modified this statute
so as to require the master or owner, etc., to make a report, and
upon this report the Mayor was required to endorse a demand
upon the master or owner that he give a bond for every passenger
landed in the city in the penal sum of $300, conditioned to indemnify the Commissioners of Immigration and every county, city
and town in the state against any expense for the relief or support
of the person named in the bond for four years thereafter; but the




26


owner or consignee might compute for such bond and be relieved
from giving it by paying, within 24 hours after landing of the
passengers, the sum of $1.50 for each passenger. It was held,
however, in Henderson v. Mayor of New York, 92 U. S. 259 (1876)
that while the state could require the master or owner of every
vessel landing passengers from a foreign port to make a report in
writing, under oath, within 24 hours after arriving, to the mayor
of the city of the name, date of birth, last legal settlement, age
and occupation of every passenger brought from any country
out of the United States, etc., nevertheless, the imposition of the
dollar and a half for each passenger was unconstitutional and
void, as being one of the subjects which "are in their nature
national, or admit of one uniform system or plan of regulation."
"The laws which govern the right to land passengers in the United
States from other countries ought to be the same in New York,
Boston, New Orleans and San Francisco."
Nevertheless, the United States Supreme Court has repeatedly
sustained those state laws which provide for improvements of
rivers, bays and harbors of states. The act of February 16, 1867,
of the State of Alabama was an act to provide for the improvement
of the river, bay and harbor of Mobile. A commission was created
for this purpose, with power to issue bonds up to one million dollars
and to apply the proceeds to the cleaning out, deepening and
widening of the river, harbor and bay of Mobile, or the construction of an artificial harbor in addition to such improvement. Pursuant to this power, it arranged to cut a channel in the harbor of
Mobile. Mr. Justice Field, writing for the Court in County of
Mobile v. Kimball, 102 U. S. 691, said: "Of the class of subjects
local in their nature, or intended as mere aids to commerce, which
are best provided for by special regulations, may be mentioned
harbor pilotage, buoys and beacons to guide mariners to the proper
channel in which to direct their vessels.
"The rules to govern harbor pilotage must depend in a great
degree upon the peculiarities of the ports where they are to be
enforced."  It is quite obvious that the improvement of harbor
facilities and the making of local regulations facilitating commerce
and navigation do not fall within that group of cases over which
Congress exercises exclusive control. "The improvement of harbors, bays and navigable rivers within the states," says Mr. Justice
Field, "falls within this last category of cases. The control of




27


Congress over them is to insure freedom in their navigation, so
far as that is essential to the exercise of its commercial power.
Such freedom is not encroached upon by the removal of obstructions
to their navigability or by other legitimate improvement. The states
have as full control over their purely internal commerce as Congress has over commerce among the several states and with foreign
nations; and to promote the growth of that internal commerce
and insure its safety they have an undoubted right to remove
obstructions from their harbors and rivers, deepen their channels
and improve them generally, if they do not impair their free navigation as permitted under the laws of the United States, or defeat
any system for the improvement of their navigation provided by
the general government. Legislation of the states for the purposes
and within the limits mentioned do not infringe upon the commercial power of Congress..."  Mr. Justice Field gives us the key
to an understanding of "some of the divergence of views upon
this question among former judges." He says they "have arisen
from not always bearing in mind the distinction between commerce
as strictly defined, and its local aids or instruments, or measures
taken for its improvement. Commerce with foreign countries and
among the states, strictly considered, consists in intercourse and
traffic, including in these terms navigation and the transportation and transit of persons and property, as well as the purchase,
sale and exchange of commodities. For the regulation of commerce as thus defined, there can be only one system of rules applicable alike to the whole country; and the authority which can
act for the whole country can alone adopt such a system. Action
upon it by separate states is not, therefore, permissible. Language
affirming the exclusiveness of the grant of power over commerce
as thus defined may not be inaccurate, when it would be so if
applied to legislation upon subjects which are merely auxiliary to
commerce. "
Thus the same judge, writing the opinion in Hamilton v. Vicksburg, Shreveport and Pacific R. R. Co., 119 U. S. 280, held that the
grant of authority to the Vicksburg, Shreveport and Texas Railroad
Company by the Louisiana legislature to construct a railroad in
the State of Louisiana and to build all the necessary bridges for the
crossing of navigable streams was valid. "Until Congress intervenes in such cases," says he, "and exercises its authority, the
power of the state is plenary. When the state provides for the form




28


and character of the structure, its directions will control, except as
against the action of Congress, whether the bridge be with or without draws, and irrespective of its effect upon navigation." The
same principle has been applied by the United States Supreme
Court to the building of dams across interior streams. See Manigault v. Springs, 199 U. S. 473. The right of states or municipalities to build improved terminal facilities and to charge for their
use has been repeatedly established by the United States Supreme
Court. In Packet Co. v. St. Louis, 100 U. S. 423, it is held that
a municipal corporation, owning improved wharves which it maintained at its own cost, although engaged in commerce upon the
navigable waters of the United States, is not prohibited by the
Constitution of the United States from charging and collecting
from parties using its wharves and facilities such reasonable fees
as will fairly remunerate it for the use of its property. Of course,
this is subject to the limitation that there must not be any discrimination. Thus, in Guy v. Baltimore, 100 U. S. 434, an ordinance of Baltimore, while requiring vessels laden with the products
of other states to pay for the use of public wharves of that city,
relieved all vessels containing the products of Maryland from the
payment of any fee. The United States Supreme Court held that
the City of Baltimore could, if it chose, permit the public wharves
which it owned to be used without charge. Under the authority
of the state, it might also exact wharfage fees equally "from all
who use its improved wharves, provided such charges do not exceed zwhat is fair remuneration for the use of its property. But it
cannot employ the property it thus holds for public use so as to
hineder, obstruct, or burden interstate commerce in the interest of
commerce wholly internal to that state."  Exactions of this sort
"in the name of wharfage, must be regarded as taxation upon
interstate commerce." Again, state laws regulating pilotage, although regulations of commerce, fall within that class of powers
which may be exercised by the states until Congress has seen fit
to act upon the subject. Olsen v. Smith, 195 U. S. 332. See also
Cooley v. Board of Wardens of Port of Philadelphia, 12 How. 299.
In the absence of legislation by Congress, a state may authorize
a navigable stream within its limits to be obstructed by a bridge
or highway. Cardwell v. American River Bridge Co., 113 U. S.
205. The cases cited in the opinion, says Mr. Justice Field, "recognize the full power of the states to regulate within their limits
matters of internal police, which embraces. among other things, the




29


construction, repair and maintenance of roads and bridges, and
the establishment of ferries."  The reason for distinguishing between local regulations and national regulations is given by Mr.
Justice Field at page 208. "The states," he says, "are more
likely to apprecicate the importance of these means of internal
communication and to provide for their proper management, than
a government at a distance."
In the recent case of Arkansas v. Tennessee, decided March 4,
1918, 246 U. S. 158, 62 L ed., Judge Pitney, writing for the Court,
says: "How the land that emerges on either side of an interstate boundary stream shall be disposed of as between public and
private ownership is a matter to be determined according to the
law of each State, under the familiar doctrine that it is for
the States to establish for themselves such rules of property as
they deem expedient with respect to the navigable waters within
their borders and the riparian lands adjacent to them." Thus,
in the case before him, Arkansas may, by its law, limit riparian
ownership by the ordinary high water mark, and Tennessee, while
extending riparian ownership upon navigable streams to ordinary
low water mark and reserving as public the lands constituting
the bed below that mark, may nevertheless, in the case of an avulsion, followed by a drying up of the old channel of the river,
recognize the right of former riparian owners to be restored to
that which they had lost by gradual erosion in times preceding the
avulsion.
(In the final report of the National Waterways Commission, 1912,
(62d Congress, 2nd Session, Sen. Doc. 469) there is a very carefully prepared brief on the law of waters by G. W. Mooney, wherein
it will be found that the common law rule of riparian rights is
modified and in many cases to a greater or less extent superseded
by local common law, constitutional and statutory provisions.)
The railroad bridges across the Passaic River at Newark, New
Jersey, and the plank road bridges across the same river, constructed under the authority of the State of New Jersey, were held
to be within the powers of the state and not in violation of the
federal constitution, notwithstanding the fact that Congress had
made Newark a port of entry. (See Passaic Bridge Cases, 3 Wall.
782, 793, September, 1857), Mr. Justice Grier saying: "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




30


in bridging her own rivers 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 turnpikes, railroads, and canals,-to land as well as water?"
Thus, too, in dealing with the Chicago River (Escanaba Co. v.
Chicago, 107 U. S. 678), although the United States Supreme Court
held that the Chicago River and its branches are navigable waters
of the United States over which Congress may exercise control
to the extent necessary to protect and improve their free navigation, until that body acts the State of Illinois has plenary powers
over bridges across them within the limits of the state, and may
vest in Chicago jurisdiction over the construction, repair and use
of these bridges within the city, Mr. Justice Field saying:  (683)
"But the states have full power to regulate within their limits
matters of internal police, including in that general designation
whatever will promote the peace, comfort, convenience and prosperity of their people. This power embraces the construction of
roads, canals and bridges, and the establishment of ferries, and it
can generally be exercised more wisely by the states than by a
distant authority. They are the first to see the importance of such
means of internal communication, and are more deeply concerned
than others in their wise management... When its power [the
state's] is exercised so as to unnecessarily obstruct the navigation
of the river or its branches, Congress may interfere and remove
the obstruction. If the power of the state and that of the federal
government come in conflict, the latter must control and the former
yield... Butt Until Congress acts on the subject, the power of
the state over bridges across its navigable streams is plenary."
(p. 687) "The doctrine declared in these several decisions [after
reviewing many cases] is in accordance with the more general
doctrine now firmly established, that the commercial power of Congress is exclusive of state authority only when the subjects upon
which it is exercised are national in their character and admit
and require uniformity of regulation affecting alike all the states.
Upon such subjects only that authority can act which can speak
for the whole country. Its non-action is. therefore, a declaration
that they shall remain free from all regulation."* (Citing Welton
v. Missouri, 91 U. S. 275; Henderson v. Mayor of New York, 92 Id.
259; Mobile Co. v. Kimball, 102 Id. 691.)
"The uniformity of commercial regulations, which the grant to




31


Congress was designed to secure against conflicting state provisions," says Mr. Justice Field, speaking for the Court in the
County of Mobile v. Kimball, 102 U. S. 691, 698, "was necessarily
intended only for cases where such uniformity is practicable.
Where, from its nature or the sphere of its operation, the subject
is local and limited, special regulations adapted to the immediate
locality could only have been contemplated. State action upon
such subjects can constitute no interference with the commercial
power of Congress, for when that acts the state authority is superseded. Inaction of Congress upon these subjects of a local nature
or operation, unlike its inaction upon matters affecting all the
states and requiring uniformity of regulation, is not to be taken
as a declaration that nothing shall be done with respect to them,
but is rather to be deemed a declaration that for the time being,
and until it sees fit to act, they may be regulated by state authority. "
Mr. Justice Swayne, in Ex parte McNiel, 13 Wall. 236, 240, passing upon the New York statute providing for pilotage of the channel of the East River (Hell Gate), gave a very clear definition of
the division of power in this field of legislation:
"In the complex system of polity which prevails in this country
the powers of government may be divided into four classes. Those
which belong exclusively to the States. Those which belong exclusively to the National government. Those which may be exercised
concurrently and independently by both. Those which may be
exercised by the States, but only until Congress shall see fit to act
upon the subject. The authority of the State then retires and lies
in abeyance until the occasion for its exercise shall recur. The
commercial power lodged by the Constitution in Congress is, in
part, of this character. Some of the rules prescribed in the exercise
of that power must, from the nature of things, be uniform
throughout the country. To that extent the power itself must,
necessarily, be exclusive; as much so as if it had been so declared
to be, by the organic law, in express terms. Others may well vary
with the varying circumstances of different localities. In the latter
contingency the States may prescribe the rules to be observed until
Congress shall supersede them; the Constitution and laws of the
United States in such case, as in all others to which they apply,
being the supreme law of the land."




32


In Huse v. Glover, 119 U. S. 543 (1886), the State of Illinois
adopted measures for improving the navigation of the Illinois
River, including the construction of a lock and dam at Henry and
at Copperas Creek on the river. She created a Board of Canal
Commissioners and invested it with authority to supervise the construction of the locks and dams, and to control and manage them
after their construction, and to prescribe reasonable rates of tolls
for vessels. The works were constructed at an expense of several
hundred thousand dollars, principally borne by the state. The
United States Supreme Court refused to sustain the contention
that the charging of tolls was in violation of the constitutional and
federal statutes, distinguishing Gibbons v. Ogden (where, as we
have seen, the state of New York endeavored to confer upon Livingston and Fulton the exclusive right to navigate on waters within
its jurisdiction vessels operated by steam) and said: "The exaction of tolls for passage through the locks is as compensation for
the use of artificial facilities constructed, not as an impost upon
the navigation of the stream. The provision of the clause that the
navigable streams should be highways without any tax, impost or
duty, has reference to their navigation in their natural state. It did
not contemplate that such navigation might not be improved by
artificial means, by the removal of obstructions, or by the making
of dams for deepening the waters, or by turning into the rivers
waters from other streams to increase their depth. For outlays
caused by such works the state may exact reasonable tolls. They
are like charges for the use of wharves and docks constructed to
facilitate the landing of persons and freight, and the taking them
on board, or for the repair of vessels." In other words, the State
of New York and the State of New Jersey, each within its own
territory, may build and construct improved warehouses, docks,
piers, wharves and every known agency for the improvement of
commerce, and so long as the charges therefor are reasonable,
may make charges for the use thereof. As Mr. Justice Field said
in Huse v. Glover, at p. 548: "The state is interested in the domestic as well as in the interstate and foreign commerce conducted
on the Illinois River [Port of New York], and to increase its facilities and thus augment its growth, it has full power. It is only
when, in the judgment of Congress, its action is deemed to encroach upon the navigation of the river as a means of interstate
and foreign commerce, that that body may interfere and control
or supersede it." To improve a port, of course, is not to impede




33


its navigation. "If, in the opinion of the state, greater benefit
would result to her commerce by the improvements made than by
leaving the river in its natural state-and on that point the state
must necessarily determine for itself-it may authorize them,
although increased inconvenience and expense may thereby result
to the business of individuals.  The private inconvenience must
yield to the public good. The opening of a new highway, or the
improvement of an old one, the building of a railroad and many
other works in which the public is interested, may materially diminish business in certain quarters and increase it in others; yet, for
the loss resulting, the sufferers have no legal ground of complaint."
See Transportationl Co. v. Parkersbiurg, 107 U. S. 691, 696, 698,
distinguishing between a charge of wharfage according to the tonnage of a vessel and a duty of tonnage prohibited by the Constitution, the Court saying: "They are not the same thing; a duty of
tonnage is a charge for the privilege of entering or trading or lying
in a port or harbor; wharfage is a charge for the use of a wharf."
In Packet Co. v. Keokuk, 95 IT. S. 80 (1877), the Legislature of
Ohio granted a charter to the City of Keokuk, under which it was
given power to establish and regulate wharves and fix rates of
wharfage for the use of wharves. The constitutionality of this act
was sustained, Mr. Justice Strong saying: "... a charge for
services rendered or for conveniences provided is in no sense a tax
or a duty. It is not a hindrance or impediment to free navigation.
The prohibition to the State against the imposition of a duty of
tonnage was designed to guard against local hindrances to trade
and carriage by vessels, not to relieve them from liability to claims
for assistance rendered and facilities furnished for trade and comnmerce. It is a tax or a duty that is prohibited; something imposed
by virtue of sovereignty, not claimed in right of proprietorship.
Wharfage is of the latter character. Providing a wharf to which
vessels may make fast, or at which they may conveniently load or
unload, is rendering them a service. The character of the service
is the same whether the wharf is built and offered for use by a
State, a municipal corporation or a private individual; and when
compensation is demanded for the use of the wharf, the demand
is an assertion, not of sovereignty, but of a right of property."
In Sands v. Manistee River Improvement Co., 123 U. S. 288
(1887) under a Michigan statute a corporation was authorized to




34


improve the Manistee River, a stream wholly within that State.
The improvements consisted in the removal of obstacles to the
floating of logs and lumber down the stream, principally by cutting
new channels at different points and by confining the waters at
other points by embankments. It was held that the exaction of
tolls for the use of the improvement of the natural waterway was
not within the prohibition of the Constitution, Mr. Justice Field
saying: "The internal commerce of a State-that is, the commerce
which is wholly confined within its limits-is as much under its
control as foreign or interstate commerce is under the control of
the General Government; and, to encourage the growth of this commerce and render it safe, the States may provide for the removal
of obstructions from their rivers and harbors, and deepen their
channels, and improve them in other ways, if, as is said in Mobile
County v. Kimball, the free navigation of those waters, as permitted under the Laws of the United States, is not impaired, or
any system for the improvement of their navigation provided by
the General Government is not defeated."
The principles which we have here been discussing have been
extended to cover ferries operating between two States. In the
Port Richmond Ferry Case (234 U. S. 317), it appeared that the
Port Richmond & Bergen Point Ferry Company was incorporated
in 1848 by Chapter 306 of the Laws of the State of New York for
the purpose of maintaining a ferry across the Kill von Kull
from Port Richmond, Staten Island, to Bergen Point, Hudson
County, New Jersey. The United States Supreme Court held, Mr.
Justice Hughes speaking for the court, after a careful review of
all the authorities, that both New York and New Jersey had
the right to fix tolls for this ferry and the fact that rates were fixed
by New York did not preclude New Jersey from establishing reasonable rates with respect to the ferry establishment maintained
on its side. The possibility of conflict between the two states is
clearly recognized by Mr. Justice Hughes in this opinion. (pp.
332-3). "If the state," says he, "may exercise this power, it
necessarily follows that it may not, in its exercise, derogate from
the similar authority of another state. The state power can extend
only to the transactions within its own territory and the ferriage
from its own shore. It follows that the fact that rates were fixed
by New York did not preclude New Jersey from establishing reasonable rates with respect to the ferry establishment maintained




35


on its side." But the important fact in the Port Richmond Ferry
Case is, as stated by Mr. Justice Hughes at page 320 of the opinion,
that "The ferry is not operated in connection with any railroad."
Where the ferry is operated in connection with a railroad, a different question is presented. This latter question has received most
careful study on the part of the New Jersey judges and finally by
the United States Supreme Court. It was involved in the consideration of the validity of the ordinance of New Jersey regulating
the rates of ferriage for foot passengers on the Weehawken Ferry
connected with the West Shore Railroad. The New Jersey Supreme Court (New York Central Case, 74 N. J. L. 367), Mr. Justice Swayze writing the opinion, held that since the ferries were
used in connection with railroads, the ordinance was unconstitutional. The Court of Errors and Appeals (76 N. J. L. 664) held
that the ordinance was valid in so far as it related to the operation
of the ferry between New York and New Jersey and did not relate
to the transportation of freight. The United States Supreme Court,
however, in 227 U. S. 248, Chief Justice White writing the opinion,
said: (p. 263) "to dispose of the case we are called upon only
to determine the single and simple question whether there
has been such action by Congress as to destroy the preslumption as
to the existence in the state of vicarious and revocable authority
over the subject."  This "vicarious and revocable authority"
Judge White finds to have been taken away by Congress in the
enactment of the Interstate Commerce Commission Act (Act of
February 4, 1887, Chapter 104, 24 Stat. at L. 379), in which
it is declared that "the term 'railroad,' as used in this act, shall
include all bridges and ferries used or operated in connection
with any railroad, and also all the road in use by any corporation
operating a railroad, whether owned or operated under a contract,
agreement or lease... 
It must be apparent from a study of these cases that to steer
safely through the legally established channels for such a course
as our Commission proposes to follow, we shall need to take careful
soundings as we go, lest we break upon the rocks or get caught
upon the shoals where navigation is not yet free. We must bear in
mind that the exercise of federal power under war authority is a
different matter than the exercise of federal power under the interstate commerce clause of the Constitution. The places at which
the states still continue to exercise "vicarious and revocable author



36


ity" are exceedingly numerous. They already cover, as we see,
pilotage regulations, construction of wharves, piers, bridges, dams,
tunnels, operation of ferries (not connected with interstate railroads), quarantine and policing regulations. The political philosophy underlying the distinction between the exercise of state and
federal power in these questions has nowhere been caught or defined more effectively than it was in the address by ex-Justice
Charles E. Hughes before the New York State Bar Association in
January, 1916, made while he was still a justice of the United
States Supreme Court. Speaking to the subject "Our Dual System," he said: "Our recent reports abundantly show that questions
of utmost nicety are constantly being presented in the application
of new statutes, and evidence the extreme difficulty of the work
of carrying out the will of Congress over the activities within its
control while at the same time avoiding encroachment upon the
State field..
"But in the face of the difficulties already upon us, and destined
to increase in number and gravity, we remain convinced of the
necessity of autonomous local governments.  Ant over-centralized
government 7ould break down of its ownt wveight. It is almost
impossible even now for Congress in well-nigh continuous session
to keep up with its duties, and we can readily imagine what the
future may have in store in legislative concerns. If there were
centered in WVashingtonl a single source of authority from which
proceeded all the governmental forces of the country-created an(l
subject to change at its will —uponl ihose permission all legislative
and administrative action depended thro ugholut the length and
breadth of the land, I thinlk we should swiftly demand and set up a
differe lt system. If we did not have states we should speedily have
to create them."
In the Minnesota Rate Case (230 IJ. S. 352) Mr. Justice Hughes
had to consider to what extent state public service or public utility
commissions might act in the fixing of intrastate rates upon railroads engaged in interstate commerce. In his opinion are many
illustrations of the field in which the states may act until Congress
has acted. "In the intimacy of commercial relations," said he,
"much that is done in the superintendence of local matters may
have an indirect bearing upon interstate commerce. The development of local resources and the extension of local facilities may
have a very important effect upont communities less favored, and




37


to an appreciable degree alter the course of trade. The freedom
of local trade may stimulate interstate commerce, while restrictive
measures wtithil the police potwer of the state, enacted exclusively
uith respect to internal btlsiniess, as distinguished from interstate
traffic, may in their reflex or indirect influenece diminish the latter
and reduce the volume of articles transported into or out of the
state."  (pp. 410, 411.)
Again: "The interblending of operations in the conduct of interstate and local business by interstate carriers is strongly pressed
upon our attention. It is urged that the same right of way, terminals, rails, bridges, and stations are provided for both classes
of traffic; that the proportion of each sort of business varies from
year to year, and, indeed, from day to day; that no division of the
plant, no apportionment of it between interstate and local traffic,
can be made today, which will hold tomorrow; that terminals,
facilities, and connections in one state aid the carrier's entire
business, and are an element of value with respect to the whole
property and the business in other states; that securities are issued
against the entire line of the carrier and cannot be divided by
states; that tariffs should be made with a view to all the traffic
of the road, and should be fair as between through and short-haul
business; and that, in substance, no regulation of rates can be just
which does not take into consideration the whole field of the carrier's operations, irrespective of state lines.  The force of these
contentions is emphasized in these cases, and in others of like
nature, by the extreme difficulty and intricacy of the calculations
which must be made in the effort to establish a segregation of
intrastate business for the purpose of determining the return to
which the carrier is properly entitled therefrom."  (p. 432.)
Notwithstanding these considerations, the United States Supreme
Court sustained the power of the states to regulate intrastate
traffic on railroads doing an interstate business.
In the recent case of Wilmington Transportation Co. v. Railroad
Commission of California, 236 U. S. 151 (1914), it is held, exJustice Iughes writing the opinion, that Congress may regulate
interstate transportation by ferry as well as other interstate commercial intercourse, but until it does do so a state may prevent
an unreasonable charge for ferriage from a point of departure
within its borders. In this case the limitations of the power of the
Interstate Commerce Commission over ferries was developed, and it




38


was apparent that the subject presented was "of a local nature,
admitting of diversity of treatment according to local necessities,
and it could not be supposed that it was the intention to deny to
the states the exercise of their protective power, in the absence of
Federal action.... The rule which the plaintiff in error invokes is not an arbitrary rule, with arbitrary exceptions, but it is
one that has its basis in a rational construction of the commerce
clause. As repeatedly stated, it denies authority to the state in all
cases where the subject is of such a nature as to demand that, if
regulated at all, its regulation should be through a general or
national system, and that it should be free from restraint or direct
burdens save as it is constitutionally governed by Congress; and
on the other hand, as to those matters which are distinctively local
in character, although embraced within the Federal authority, the
rule recognizes the propriety of the reasonable exercise of the power
of the states, in order to meet the needs of suitable local protection,
until Congress intervenes."  (pp. 154, 155.)  In the case under
discussion, the transportation by ferry was between San Pedro on
the mainland and Avalon on Santa Catalina Island, both places
being within the County of Los Angeles in the State of California.
The Court "assumed upon this record that the state claims the
right to exercise its authority only as to transportation between the
mainland and the island, and solely with respect to such shipments
over this route as are local to the state, both as to the beginning
and the end of the transportation. There is no passage through
the territory of another state; the transportation, in its entire
course, is subject to a single authority,-either that of Congress
or that of the state,-and the latter would yield to the exercise
of the former."  (p. 156.)
Thus, clearly as to ferries operated wholly within the State of
New York, in the absence of Congressional regulation the State
of New York can act, and similarly, as to ferries operated wholly
within the State of New Jersey, the State of New Jersey can act.
As we have seen, this applies also to bridges. It is important to
keep in mind, however, that in the matter of lighterage and car
floatage between the two states, the Interstate Commerce Commission has jurisdiction. In United States v. Baltimore & Ohio Railroad Co., 231 U. S. 274, at pages 288 and 289: " 'The mere fact
that the physical rails stop at Jersey City does not mean that the
railroad transportation there ends. It continues over to Brooklyn
by means of car floats, upon which further rails are laid and on




39


which empty and loaded freight cars stand and are transported, so
that the rails upon the car floats are brought into contact with the
rail ends at Jersey City, and the continuation thereof at Brooklyn,
and in this way the transportation by railroad is carried on without
interruption from the western points directly to Brooklyn.'" That
this phase of transportation is one over which the Interstate Cominerce Commission has jurisdiction appears clearly from the briefs
and decision in the New York Harbor Case, No. 8994. In the case
of Sault Ste. Marie v. International Transit Co., 234 U. S. 333
(1913), it was held that a ferry that ran between the City of Sault
Ste. Marie, Michigan and Canada was subject to the protection of
Congress and that the State of Michigan could not pass a law requiring a Canadian corporation operating ferryboats to one of its
own wharves at Sault Ste. Marie to obtain a license.
In St. Clair County v. Interstate Sand & Car Transfer Co., 192
U. S. 454, it was held that the business of transporting railroad
cars was not a ferry business in the proper sense, and that an ordinance passed by a county of Illinois requiring a ferry license for
the transporting of cars across the Mississippi between points il
Illinois and Missouri was invalid, the Court holding that the requirements of the ordinance made it a direct burden on interstate
commerce.
It is by virtue of powers still remaining in the States
that the Public Service Commission of New York and the Public
Utility Commission of New Jersey are acting with reference to the
regulation of public utilities within the two States respectively. It
is quite obvious that an agency of both states which can appear
before the Commissions of both states upon occasions when the
circumstances justify, and present such considerations as are conmon to the interests of both States, can bring about a harmony of
action tending ultimately to the benefit of the port as a whole. As
ex-Justice Hughes said in the address to which we have referred:
"It would seem to be clear that bodies of intelligent men dealing
as experts, for example, with the interstate and intrastate phases
of traffic situations, should be in practical accord, or that at least
such differences as may appear to exist should be put to the test
of mutual statement, analysis and consultation under plans more
definitely designed to prevent unnecessary divergencies.... I
should think that many of our difficulties might be solved by per



40


fecting the machinery of administration with the direct purpose
of promoting harmony of action in dealing with those activities
which are conducted in the world of affairs as parts of the same
enterprises. It should not be deemed impracticable to secure the
protective purposes of state and Nation without injury or needless
embarrassment to the honest undertakings upon which both
depend."
In the dissenting opinion of Mr. Justice Pitney in Southern
Pacific Co. v. Jensenc, 244 IJ. S. 205, at page 244, and in the dissenting opinion of Mr. Justice Brandeis in New York Central Railroad Co. v. Winfield, 244 U. S. 147, at p. 156, will be found a long
series of cases in which the exercise of state power has been sustained where Congress has acted only generally. The following
quotation from Gould on the Law of Waters, 3rd Edition, Section
35, is a good summary of the legal situation:
"Under the Constitution of the United States a state has the
right, if its legislation does not conflict with the action of Congress upon the same subject, to authorize bridges and dams across
the navigable waters within its limits; to license wharves, piers
and docks intruding upon such waters; to establish harbor lines
to which wharves may be extended; to prescribe the places and
manner in which vessels may lie in a harbor; what lights they are
to carry at night, or what course they shall pursue in navigating
a river; to pass reasonable quarantine and inspection laws, and
pilotage, or port regulations; to regulate harbor beacons, buoys,
salvage, and similar matters of a local and limited nature; to improve the navigability of its waters, and to authorize the collection
of tolls in consideration of such improvements."
See also the recent case of People v. Inlternational Bridge Co.,
223 N. Y. 137.
The Title to, Shore Front Property Upon Navigable Rivers
In Lewis Blute Point Oyster Clltivation Co. v. Briggs, 198 N. Y.
287, affirmed by the United States Supreme Court in 229 U. S. 82.
57 L. ed. 1083, the rights of private owners as against the State
and the Nation of land under navigable waters was very carefully
considered by both the New York Court of Appeals and the United
States Supreme Court. The Lewis Blue Point Oyster Cultivation
Co. held a grant under Colonial patents from the King of England,




41


under which it cultivated oyster beds in the waters of the Great
South Ba y. A contractor employed by the United States Governillent proceeded to dredge a channel over the land in question for
the purpose of increasing the depth of the water in aid of conimerce and navigation, and his work, if successful, would have destroyed the oyster beds planted by the lessees. The latter sought
to enjoin the contractor from doing the work. The New York
courts held (and were later sustained by the United States Suprelme Court): The shores of navigable rivers and streams and the
lands under the waters thereof belong to the state within whose
territorial limits they lie and the state may authorize the construction of bridges, piers, wharves or other obstructions in navigable waters, and when such obstructions are not obnoxious to the
regulation of Congress and do not come in conflict with the paramount authority of the United States, they are not nuisances even
though they cut the access of riparian owners to the channels of
substreams or bodies of water. While a non-navigable stream is
the private property of riparian owners and cannot be invaded
without compensation, a non-navigable stream being a stream incapable, continuously or at periodic intervals, "in its natural state
and its ordinary volume of water, of transporting, in a condition
fit for market, the products of the forests or mines, or of the tillage
of the soil upon its banks" (Morgan v. King, 35 N. Y. 454, 459),
no such rule applies to navigable streams; and "In patents from
sovereign to subject the rule of construction which controls
deeds between individuals is reversed and the terms are taken
most strongly against the grantee, because the public interest is
involved." (198 N. Y. 287, at p. 292.) And "For the same reason
it is held that from grants of water land there is impliedly reserved
the right of navigation, and, as a necessary part of so important a
subject, the right to improve navigation for the benefit of commerce."  (Idem) "... in every grant of lands bounded by
navigable waters where the tide ebbs and flows, made by the crown
or the state as trustee for the public, there is reserved by implication the right to so improve the water front as to aid navigation
for the benefit of the general public, without compensation to the
riparian owner. The implication springs from the title to the tideway, the nature of the subject of the grant and its relation to navigable tidewater, which has been aptly called the highway of the
world. The common law recognizes navigation as an interest of
paramount importance to the public." Consequently, if the grant




42


from the king be silent upon the subject, nevertheless, "when any
public authority conveys lands bounded by tidewater, it is impliedly subject to those paramount uses to which government, as
trustee for the public, may be called upon to apply the water front
for the promotion of commerce and the general welfare.
We think... that the conveyance of the uplands in question
to a subject should, from public considerations of the highest importance, be held to have been made with the implied reservation
of the right to freely improve the navigation of the great seaport,
within the general limits of which said uplands were situated."
(Sage v. Mayor, etc. of N. Y., 154 N. Y. 61, 79; quoted in Lewis
Blue Point Oyster Co. case, 198 N. Y., 287, 293, 294.) Accordingly,
Judge Vann, writing the opinion in the Oyster Co. case,
says concerning  the  oyster cultivation  company:  "It ran
the risk when it planted its oysters that the crop might be interfered with whenever Congress decided to dig a channel, or otherwise improve navigation in Great South Bay for the benefit of
commerce. Its loss may be severe, but Congress is not apt to deal
ungenerously with those who have good grounds for relief."  In
the United States Supreme Court (Judge Lurton writing the
opinion), the decision is rendered almost simultaneously with the
decision of United States v. Chandler-Dunbar Water Power Company, 229 TJ. S. 53, 57 L. ed. 1063. The Chandler-Dunbar Co.
claimed compensation by virtue of its control of the water power
capacity of the rapids and falls of the St. Marys River, upon whose
foreshore it operated. Congress, by the Act of March 3, 1909,
provided that the entire St. Marys River between the American
bank and the international line, as well as all of the upland north
of the present ship canal, was necessary and should be taken. Judge
Lurton says:
"This title of the owner of fast land upon the shore of a navigable river to the bed of the river is, at best, a qualified one. It is
a title which inheres in the ownership of the shore; and, unless
reserved or excluded by implication, passed with it as a shadow
follows a substance, although capable of distinct ownership. It is
subordinate to the public right of navigation, and however helpful
in protecting the owner against the acts of third parties, is of no
avail against the exercise of the great and absolute power of Congress over the improvement of navigable rivers. That power of use
and control comes from the power to regulate commerce between
the states and with foreign nations. It includes navigation and




43


subjects every navigable river to the control of Congress.  All
means having some positive relation to the end in view which are
not forbidden by some other provision of the Constitution are admissible. If, in the judgment of Congress, the use of the bottom
of the river is proper for the purpose of placing therein structures
in aid of navigation, it is not thereby taking private property for
a public use, for the owner's title was in its very nature subject
to that use in the interest of public navigation. If its judgment be
that structures placed in the river and upon such submerged land
are an obstruction or hindrance to the proper use of the river for
purposes of navigation, it may require their removal and forbid
the use of the bed of the river by the owner in any way which, in
its judgment, is injurious to the dominant right of navigation. So,
also, it may permit the construction and maintenance of tunnels
under or bridges over the river, and may require the removal of
every such structure placed there with or without its license, the
element of contract out of the way, which it shall require to be
removed or altered as an obstruction to navigation."
It must not be assumed, however, from the foregoing statement
that either Congress or the two states, in their respective
territories or combined, are wholly free to deal with the waterfront
in and about the Port of New York. The principle is subject to
qualifications requiring careful statement. In this respect, it is
important to bear in mind that the United States Supreme Court,
in dealing with the rights of riparian owners upon a navigable
stream, is governed by the law of the State in which the stream
is situated (see Weems Steamboat Co. v. People's Steamboat Co.,
214 U. S. 345 and St. Anthony Falls Water Power Co. v. St. Paul
Water Comymissioners, 168 U. S. 349), and that the extent of the
authority conferred upon a city by its charter, the construction of
the charter, and the validity, the scope and effect of ordinances and
proceedings thereunder and rights of parties thereto under state
law, are regarded by the United States Supreme Court as matters
of state law as to which the decisions of the state courts are controlling. St. Louis & Kansas City Land Co. v. Kansas City, 241
U. S. 419.
A: New Jersey
Chancellor Zabriskie, in the leading New Jersey case of Stevens
v. P. & N. R. R. Co., at page 554 (34 N. J. L. 532 (1870), says:
"The question [of the rights of private riparian owners] is an im



44


portant one, and its consequences of great moment. On the one
hand, every owner of lands on such waters who has purchased and
held them in the belief that this adjacency to the water added to
their value, and was an incident that could not be taken from him,
must lose this supposed right without compensation.  And the
owner of docks and wharves built by permission of the state, and
only valuable for purposes of commerce, may have their value
destroyed by a grant to a stranger of ten feet under water adjacent
to them. On the other hand, the state will be entitled to the profits
and advantages of a sale of all the fisheries the water fronts in its
bounds, which, in front of the lands on the Hudlson river and bay of
New York, and especially of the docks and wharves erected there,
will be of immense value and contribute greatly to the financial
prosperity of the state, to the advantage of all the inhabitants, and
inflict injury on no one except those who have purchased rights,
and built wharves, piers, or docks, with indiscreet confidence in the
opinions of lawyers and judges, the declarations of legislators as to
the rights of the riparian owner, the legislation of the state seemingly conferring certain rights, and in the apparent current of
public opinion."
One of the leading cases in New Jersey is Gough' v. Bell, 22
N. J. L. (2 Zab.) 441. "The ancient rule of the common law,"
said Green, C. J., "is, that the title of owners of land bounded by
the sea, or by navigable rivers where the tide ebbs and flows, extends to ordinary high water mark only. The title to the shore
between ordinary high and low water mark, as well as the title
to the soil under the water, belongs prima facie, to the sovereign."
This title, which by the common law of England is vested in the
king, upon the Revolution, became vested in the people of the state
of New Jersey. "In such lands," says Depue in American Dock
and Improvemeiet Co. v. Trtstees of Public Schools, 39 N. J. Eq.
(12 Stew.) 409, 411, 412, "the king had a double right-a right of
jurisdiction for the purposes of government, and a right of property and ownership-the former as part of the prerogatives of the
king as sovereign, the latter as part of the jura regalia of the
crown." In the province of East Jersey the rights in lands under
tidewaters were granted by Charles II to the Duke of York by the
charters of 1664 and 1674, and thereby the land or soil under such
waters became vested in the Duke of York and were held by him
in the same manner as title to the soil under the navigable waters




45


of England was held by the crown. All these rights, including the
right of property in the land under tidal waters as the right of
sovereignty, were transferred by the Duke of York to the proprietors of East Jersey, and by tile surrender of 1702 were restored
to the crown. When the people of New Jersey took possession of
the government and assumed the powers of sovereignty, the prerogatives and jura regalia which had previously belonged to the
Crown or to Parliament thereupon became immediately vested in
the State. Accordingly, among the rights to which the State succeeded was the right formerly vested in the Crown, of property
in the soil under tidal waters, "and the title of the state in such
lands," says Depue, idein, "is proprietary in its fullest sense,
including the power to grant and convey them to individuals, to
ble held in private ownership."
In Steveuss v. P. & N. R. R. Co., supra, Bea.sley, C. J., carefully
reviewed tile history of these water rights and came to the position
'that all navigable waters within the territorial limits of the state,
and the soil under such waters, belong in actual propriety to the
public; that the riparian owner, by the common law, has no peculiar
rights in this public domain as incidents of his estate." Nevertheless, in Gough v. Bell it was decided, after extensive examination of
the law of the state of New Jersey, that there existed in New Jersey
a modification of the common law.. This modification is the right or
license to "wharf out," by which right, "when the land was reclaimed, or the wharf erected by the tacit or express consent of the
legislature, it became private property, and divested of its public
character. And the owner has the same absolute dominion over it,
the same exclusive right of enjoyment in it, that he has in and over
other private property."  (See O'Neill v. Annett, 27 N. J. L. (3
Dutch.) 290, 293, 294, per Chief Justice Green.)
In Marcus Sayre Co. v. Newark, 60 N. J. Eq. (15 Dick. Ch. 361;
13 Dick. Ch. Rep. 136), Judge Depue says: "Property in a wharf
or dock on a navigable stream consists in the ability of the owner
to use the structure in connection with the navigable water." (p.
375.) "But this right of acquiring property in lands under tidal
waters by improvement or reclamation was restrained within the
limit of the ordinary low-water mark," per Depue in American
Dock and Improvement Co. v. Trutstees of Public Schools, 39 N. J.
Eq. 409, 412. This right to wharf out is "a mere license, revocable




46


at the will of the legislature" which becomes irrevocable only when
the license has been executed and the riparian owner has effected
the reclamation. Before the reclamation is actually made, the state
may convey its lands to any one, either for public or private use,
without making compensation to the riparian owner in front of
whose lands the conveyance is made. (p. 413.) Stevens v. P. & N.
R. R. Co., 5 Vr. 532, 34 N. J. L. 532. The history of the evolution
of the law of New Jersey upon this subject is succinctly stated by
Judge Depue in the American Dock and Improvement Co. case.
In New Jersey, accordingly, the common law is modified to the
extent of tie existence of this license to "wharf out," which, when
exercised, takes the form of a grant from the state irrevocable in
its nature. Nothing short of a complete survey of all the grants
of lands on the waterfront of New Jersey, therefore, will establish
to what extent the control of the waterfront has passed from the
state into the hands of private owners. Thus in New York, Lake
Erie & Western R. R. Co. v. Yard, 43 N. J. L. 632, the Court of
Errors and Appeals of New Jersey considered the rights of the railroad to land under water at Weehawken, title to which was derived
through the "Weehawken Docks," a corporation which was created
by an act of the legislature of New Jersey passed March 22, 1867.
Passing upon all of the statutes and grants through which the railroad company claimed title to the waterfront, New Jersey's highest
court held: "Neither of the incorporating acts referred to contains
any grant of lands the title to which was in the state. They operated only as grants of corporate franchises; and such grants, by
the settled law of this state, will not be construed to give by implication, any title to lands of the state below the high-water line."
(p. 636.) "As riparian owners," says the Court, "these corporations respectively would have annexed to their title to the upland
a privilege, incident to the ownership of lands on tide water, of
reclamation, and the acquisition thereby of title to the lands reclaimed. Power to erect and construct the works necessary to the
execution of this privilege is enumerated among the franchises
granted by their charters. But the inchoate right which the owner
of the upland has to acquire an exclusive title to lands under water
by wharfing out or otherwise improving the same, gives him no
property in the land before it is reclaimed; he has a mere license,
revocable by the legislature at any time before it shall be executed."
(Idem) So, too, in Stevens v. P. & N. R. R. Co. (supra) the license
had not been executed. On the other hand, in Hoboken Land and




47


Improvement Co. v. Mayor of Hobokenl, 36 N. J. L. (7 Vroom)
540, the Court held that the land had been reclaimed and that the
license was, therefore, executed and title to the company was good.
In Marcus Sayre v. Newark, 60 N. J. Eq. 361 (1900), the Court
clearly holds: "The legislature had the power to grant lands in a
navigable river below high-water mark, without regard to the
owner of the adjacent upland". The Court quotes Chief Justice
Beasley in the Stevens v. P. & N. R. R. Co. case: " 'that all navigable waters within the territorial limits of the state, and the soil
under such waters, belong in actual propriety to the public; that
the riparian owner, by the common law, has no peculiar rights
in this public domain, as incidents of his estate;... that,
as a general rule, the public domain is subject altogether to the
control of the legislature;... that, unless in certain particulars protected by the federal constitution, the public rights in
navigable rivers can, to any extent, be modified or absolutely destroyed by statute;... that the dominion of the legislature
over the jura publica appears to be unlimited. By this power
they can be regulated, abridged or vacated.' " "These explicit
declarations of the judgment of this court," says Dixon, J. (p. 366 -367), "seem to place beyond question the power of the legislature
to authorize the municipalities of the state to use the tidal navigable streams within our borders for sewerage purposes. The
federal constitution interposes no obstacle to the exercise of such
a power, provided the availability of the stream for interstate and
foreign commerce be not impaired; and as no private property
exists in such waters, there remain only the jura publica, over
which, in the words of the chief-justice, the dominion of the legislature appears to be unlimited."  On the other hand, by the local
common law of this state, "the owner of riparian lands acquires
a property in his reclamations by wharfing out or otherwise improving, and the state cannot appropriate the shore so recovered
to public use without adequate compensation. Consequently, for
any invasion of his property or use of it without lawful authority
such owner is entitled to the same remedies as the owner of property is entitled to under the general law of the state. Among the
rights of a riparian owner who has made his improvements between high and low-water mark is the right to the use of his wharf
and of access to the navigable waters." (p. 372). Thus in the
late case (1900) of Palen v. Ocean City, 64 N. J. L. (35 Vroom)
669, the Court of Errors and Appeals, per Collins, J., says at




48


p. 673: "It is lastly urged by the defendant that... the
nonsuit was right because the title of the land on which the wharf
stands is not in the plaintiff, but in the State of New Jersey. This
contention ignores the local usage declared in Gouigh v. Bell, 2 Zab.
441, and upheld in this court in Stcvens v. Paterson and Newlark
Railroad Co., 5 Vroom 532, that the shore owner has a license,
irrevocable after execution, to build wharves, or reclaim, in front
of his lands down to low water mark. This right is confirmed by
the Wharf act of 1851. Gent. Stat., p. 3753. A uwharf so built becomes private property."
In Morris Canal and Banlkiing Co. v. Cenltral Railroad Co., 16
N. J. Eq. 419, the claim of the Associates of the Jersey Company
was not sustained, but it appeared that their charter merely gave
them a privilege to build wharves, docks and piers and when so
built to appropriate them to their own use and conferred upon
them no power to transfer or convey the privilege to any other
corporation. In this'case the Master said, at p. 431: "When we
take into consideration the extent and value of those lands under
water, their situation in relation to our own state and to the city
of New York, with its extensive and valuable trade and commerce,
and forming, as those waters do, an important part of the harbor
of New York, the best, not only in this country but upon this
continent, it is most reasonable to conclude that, if the legislature
intended to grant and convey the fee in said lands, or such right
over them as is contended for by the complainants, that their intention would be made plainly to appear, and that the grant
itself would be made in clear, direct, and explicit terms." See
also Newark Aqueduct Board v. Passaic, 45 N. J. Eq. (18 Stew.)
393.
B: New York
A similar, though not identical, legal situation is presented with
reference to the shore front property on the New York side. In
the recent case of First Construction Co. v. State of New York, 221
N. Y. 295, Judge Hiscock writing the opinion, the Court considered
and interpreted grants from the state, including rights to "wharf
out."  The Referee in this case, Ex-Judge Haight reported (See
Vol. 106, 1916, Court of Appeals Cases, Bar Association Cases on
Appeal, p. 98 et seq.): "Under the Common Law of England the




49


title of lands under tide waters vested in the King, who could grant
and convey the sale; but the dominion and control of the waters in
the interests of commerce and navigation was exercised by Parlianient for the benefit of all the subjects of the Kingdom. After the
Revolution and the separation of the Colonies from the Kingdom,
the title of lands under tide waters, in and surrounding this State,
under the constitution adopted, vested in the people, who, through
their Executive and Legislature, exercised the powers that were
formerly vested in the crown and Parliament, in trust, however,
for the benefit of the public. The Legislature of the State have,
therefore, from time to time enacted laws creating a land board
of commissioners of the sinking fund empowered to grant lands
under water to the upland owners; and in addition thereto the
Legislature has from time to time by special acts, made grants to
individuals designed to be in aid of commerce and not inconsistent
with public rights. These grants, however, were all subject to the
consent of Congress, who, under the Commerce Clause of the Federal Constitution, is empowered to regulate interstate commerce.
This power is now exercised by the Secretary of War under the
provisions of an act of Congress approved March 3, 1899.
"The owners of uplands abutting upon tideways are entitled
to privileges or easements in excess of those possessed by the public.
Such owners are not only riparian proprietors who may pass to
and from their own uplands across the tideway to the navigable
waters, thus having access to all of their frontage, but in addition
thereto they may load and unload boats, receive and ship goods, and
thus engage in the commerce of the country. Such upland owners
may, with the consent of the Legislature and the approval of the
Secretary of War, erect wharves, piers and bulkheads and fill in the
lowlands so as to afford ways and means for the shipping and
landing of articles of commerce and thus facilitate navigation.
When such improvements have been so made and the filling and
structures, to the extent made, become a part of the realty and
vests in the riparian owners a right of use in the nature of a grant,
thus creating a right of property of which they cannot be deprived
without consent except by due process of law or under the powers
of eminent domains."  The grant in this case contained the following: "that it shall be lawful for William Beard and others,
owners of real estate fronting upon the waters of the bay, their
heirs, and assigns, to erect, construct, build and maintain a sea



50


wall or breakwater pier, docks, wharves, bulkheads, piers and warehouses and a basin for commercial purposes on the lands under
water in front of their premises and to fill in the same." This,
the Court of Appeals said, "is not a grant of a fee to such land;
but is a permit by which, in so far as such owners of uplands have
under the authority of the statute entered upon and improved the
same by filling in, or the construction of piers, docks, wharves,
bulkheads, etc." The state of New York sought to take the property for the construction of the Barge Canal without compensation
for this particular property. Judge Hiscock, writing for the Court
of Appeals, held that the statutory grant constituted a privilege
to fill in and erect wharves and piers. Differing with the courts
of New Jersey, Judge Hiscock said that it was not "a mere
license, revocable by the state at will and without payment of
compensation"; but "the privilege amounts to more than this
and.. an act granting the right to fill in lands under
water, and thereby acquire title to the same, gives an inchoate,
vested interest in the lands described which is a property right and
of which, unless forfeited or lost in some way, the grantee cannot
be deprived without compensation." (p. 316). He says further
(317, 318): "Grants like the one under consideration are not nude
pacts, but rest upon obligations expressly or impliedly assumed
to carry on the undertaking to which they relate... They are
made and received with the understanding that the recipient is
protected by a contractual right from the moment the grant is
accepted and during the course of performance as contemplated, as
well as after that performance." And that, being in their nature
franchises, under the principles established by the United States
Supreme Court in New York Electric Lines Co. v. Empire City
Subway Co., 235 U. S. 179, 193, they cannot be revoked. In Town
of Brookhaven v. Smith, 188 N. Y. 74, it was held that the Town of
Brookhaven could not deprive a riparian owner whose land is
bounded by navigable water from access thereto from the front of
his lot. Judge Gray carefully reviews the English common law
and refuses to accept its doctrine, saying: "Different political and
geographical conditions may justify modifications and whether
common-law rules will be followed strictly by our courts will,
necessarily, where no vested rights are actually concerned, depend
upon the extent to which they are reasonable and in accord with
our public policy and sentiment." "It is a matter of general
observation," said Judge Gray, "of which judicial notice may




51


wisely be taken, that riparian owners everywhere upon the numerous navigable bodies of waters within the territorial limits of this
state have made their easement, or right of access, practical and
available by the construction of docks, piers or wharfs, and have
done so without interference by the state, where superior public
rights have not been obstructed. These interests must be very large
and if we shall hold with the English common-law doctrine, that
they are purprestures, or unlawful encroachments upon the proprietary rights of the state, as would follow, if we affirm this
judgment, and that they are removable at pleasure, it would result
in causing a very grave loss. Such a decision would be to ignore
what has been believed to be a common right, within numerous
adjudications of our courts."
"The right of access is conceded to be a valuable one and, unless
the foreshore has been appropriated by the general government
to some superior, and lawful, public use, as for example, by grant
to a municipality, or for navigation purposes, it is entitled to the
protection of the law. It has recognition in the statutory provisions which confer upon the owner of the upland the primary right
to a grant of the land under water. It is not objected that these
defendants have erected a nuisance, in itself, or in some obstruction to public navigation. If it were that, the exercise of the right
would be unreasonable; for such ownership is qualified and is subordinate to the public right of navigation, and must be subject to
such rules as the legislature may impose for the protection of the
public rights in the navigable waters. The courts of this state
have been careful, in all cases, while sustaining the rights of the
riparian owner, to declare them subordinate to the exercise of the
power of the legislature, or of the Congress, for the improvement
of navigation, or for the regulation of commerce. They must yield
to the demands of public commercial necessities. This structure
is conceded to be proper enough for the purpose intended by the
defendants and it is no appropriation of the land under water;
other than as the soil is used to hold the piles. The defendants
have, simply, made their right of access practical. It is a general
rule that when the use of a thing is granted, everything is granted
by which the grantee may enjoy such use. By analogy, we may
reason that the riparian owner's right of access to the navigable
waters in front of his upland comprehends, necessarily and justly,
whatever is needed for the complete and innocent enjoyment of
that right."




52


On the other hand, at p. 317 of his opinion in First Construtction
Co. v. State of New York, 221 N. Y. 295, Judge HIiscock points
out that it is an implied condition of all the grants, like the implied
condition of the grant of a franchise to a railroad, that for failure
to exercise it or to comply with its conditions, it can be forfeited
by the state. "Although the franchise is property, 'it is subject
to defeasance or forfeiture by failure to exercise it, or by subsequent abandonment after it has been exercised.' If 'no time is prescribed, tle franchise must be exercised within a reasonable time.' "
(Quoted by Judge IIiscock at p. 319, from New York Electric Lines
Co. v. Empire City Siubway Co., 235 U. S. 179, 194, 195.) Following
this decision, the Attorney General procured an amendment to the
Public Lands Law of the state (~77, Chapter 308, Laws of 1917),
which imposes the duty upon the Secretary of State and the State
Engineer and Surveyor to search out defaults of compliance with
such grants, and imposes upon the Attorney General the duty to
bring appropriate action to annul such grants in which there is
default.
Accordingly, as in the case of New Jersey, a most careful survey
of the titles to the waterfront property vested in private individuals
is necessary before we can determine the extent to which the state
may take over waterfront property without making compensation.
The particularity with which such an examination must be made
is illustrated in the very excellent report made by Harold G. Aron,
Special Counsel to the Public Service Commission, examining the
titles of the New York Central Railroad to waterfront property
along the west side of Manhattan.
C: The City of New York
Under the Dongan charter, in 1686, the Crown of England
granted to the city of New York so much of the land around
the Island of Manhattan as lay between high and low water mark,
with jurisdiction over the same, coupled with power "to take in,
fill, and make up and lay out all and singular the lands and grounds
in and about said city and island Manhattan, and the same to build
upon or make use of in any other manner or way as to them shall
seem fit, as far into the rivers thereof and that encompass the
same as low-water mark aforesaid." In 1730, the city received a
further grant by the Montgomerie charter. This strip, four hundred feet in width, lies immediately outside of low water mark
and extends from Corlear's Hook, on the East River, around the




53


southern extremity of the island to Bestaver's rivulet, excepting,
however, the space in front of the Battery, with full authority at
any time thereafter "to fill, make up, wharf, and lay out all and
every part thereof."  In 1798, the Common Council presented a
petition to the Legislature in which they represented "that as well
for the ornament and improvement of the city, as for the enlargemnent of the trade and commerce of the state, and the safety of the
shipping at the wharves of the city, they had lately 'directed a
permanent street, seventy feet wide, to be laid out and completed
at and on the extremity of their grants already made, and hereafter
to be made, to individuals on the East River, called South street,
and on the North River, called West street, south and west of which
streets, no buildings of any description' were to be permitted to
be erected; that by reason of the curving, and otherwise irregular
state of the shore at low-water mark in the two rivers, at the time
of the making of the grants by their predecessors, a general map
of which, if ever made, could not then be found, such grants were
deemed to extend to unequal distances into both rivers, which
occasioned difficulties in making the two permanent streets regular; that in many instances, although they were willing gratuitously
to give the soil under water, on which the two streets, seventy feet
wide, were to be made, yet doubts were entertained whether they
could compel any of the proprietors of the lots fronting on such
streets and who might be willing, to make those streets for public
use in any given reasonable time to be appointed by the common
council; that part of their plan was to extend piers at right angles
from those 'permanent streets' into the rivers, but that doubts had
also arisen whether they could compel the individual proprietors
of the wharves to sink and lay out such piers, or, if they should
refuse, whether they would be authorized to sink and build the
piers at the expense of the city, and receive the wharfage, without
incurring a breach of the conditions and covenants contained in
their grants to individuals; that some adequate remedy was essentially necessary in the premises, as well to secure the health of
the citizens as to effect ornament and regularity in the fronts of
the city, and convenience and safety to the trade and commerce
thereof; and they prayed that the legislature would confer such
power and authority upon them as would be proper to remove the
difficulties and doubts stated, or make such provision as to the legislature should seem meet." In compliance with this petition, in
the same year the legislature passed an act under which West




54


Street was laid out, and by ~2, provision was made for the erection
of wharves adjoining the streets, and by ~5, for the erection of piers.
By Chapter 126 of the Laws of 1806, the legislature further confirmed the rights of those who had erected piers by the direction
of the city. In April, 1807, by Chapter 115 of the laws of that
year, the commissioners of the land office were authorized to grant
by letters-patent to the city of New York all the right and title of
the people of the state to the lands covered with water along the
easterly shore of the North River, as described in the grant, and
also along the westerly shore of the East River, and in December,
1807, the commissioners of the land office by letters-patent granted
to the city all the right and title of the people of the state of New
York to the lands covered by water along the North and East
Rivers.
John Jacob Astor, as the owner of certain uplands, pursuant to
a grant from the city under the foregoing statutes, built wharves
and streets and claimed to have acquired access to piers at the foot
of King street. The right of his grantees came before the Court
of Appeals in Langdon v. Mayor, 93 N. Y. 129, in which, after
reviewing the foregoing history, Earl, J., writing the opinion
for the Court, held: "... taking the language of the
charters and grants, the course of legislation, and all the statutes
in pari materia, the situation of the lands granted and the use to
which many portions of them had, with the knowledge and consent
of the legislature, been from time to time devoted, it is very clear
that the lands under water around the city were conveyed to it
in fee, to enable it to fill them up as the interest of the city might
require, and to regulate and control the wharves and wharfage."
Thus, having the power and the title, the city could transfer and
convey it to individuals. "Having the power to extend the ripa
around the city, and thus make dry land, it could authorize any
individual to do it. Whatever wharves and docks it could build,
it could authorize individuals to build, and whatever wharfage it
could take, it could authorize individuals to take." Accordingly,
it was held that Astor's grantees could not be deprived of their
rights, even when the property was needed for a public use,, except
under the right of eminent domain, and upon making compensation; that the legislature could not authorize a destruction or impairment of these property rights without compensation. In the
course of the opinion, Judge Earl said that the common law rule
requiring both that "all grants by the sovereign of exclusive privi



55


leges and franchises, and all gratuitous grants of land should be
strictly construed against the grantee... should not be applied
to grants of land made for a valuable and adequate consideration
paid or agreed to be paid by the grantee." He said: "The Federal
government annually makes numerous grants of lands for value
paid, and so do some of the states and cities, and it would be quite
absurd and perhaps alarming to apply to such grants, usually
made by intelligent public officers, with deliberation, in language
carefully chosen, under the advice of counsel, the strict rule of
construction which at common law was applied to the grants of the
English sovereigns." In discussing the power of the city, Judge
Earl said:
"It is, however, further contended by the appellants that the
city did not have the power to grant the permanent easement
claimed by the plaintiff; that the legislature had not conferred
upon it the power, by creating an easement over land yet covered
by water, forever to preclude either the city or state from exercising that public dominion over navigable waters which was necessary to enable it to discharge the trust of furnishing to the commerce of a great seaport those accommodations which, in the judgment of the city or the state, such commerce may, from time to
time, require; that even if the state could delegate the power to
the city to grant such an easement, applying the strict rule of
interpretation which they invoke for the construction of public
grants, there is no language in the act of April 3, 1807, from which
any power to create ssuch an easement can be inferred; that the
control over the waterfront of the city is a public right pertaining
to the sovereignty of the state, and that any surrender of it, even to
a subordinate governmental agency, such as municipal corporation, can be proved only by the most indubitable evidence; and that
the corporate authorities of the city at any particular time could
not bind their successors and prevent a further extension of the
water-front in the future.
"These views have at least in part been answered by what has
already been written. As we think we have shown, the state could
have made the grant to Astor as broad as the plaintiff claims it
to be. It could make the same grant to the city, and it could
authorize it to make the grant to an individual. Under its old
charters and the acts of 1798 and 1807, the city had the right to
build wharves along its water-fronts, and to take the wharfage




56


accruing therefrom.  The land under water with the right of
wharfage was property belonging to it as proprietor, which it is
believed, the state could not take without making compensation.
(Dill on Mun. Corp. [2d ed.], ~40; Cooley's Const. Lim. [4th ed.]
292). It is property which it could lease and sell to individuals,
and which it has always been accustomed to lease and sell, and its
right to do so is provided for or recognized in various acts of the
legislature. "
Judge Earl said further: "The views we have expressed leave
the city and the state with ample power to improve the harbor of
the city in the interest of commerce. The right of eminent domain
is not impaired and has not been surrendered. The legislature
cannot surrender it, and it may be exercised whenever the public
exigencies call for its exercise. It would doubtless be less expensive
for the city arbitrarily to take this easement and thus appropriate
the wharfage to its own use. But a constitutional barrier stands
in the way. It, however, imposes no burden upon the city, in requiring it to make compensation for what it takes, as it gets a dollar
of value for every dollar it is obliged to pay."
The same subject received consideration by the Court of Appeals
in Williams v. Mayor, 105 N. Y. 419, where Judge Finch wrote
the opinion. He again reviews the grants under the Dongan and
Montgomerie charters and the statutes by which the city was authorized to erect piers, wharves and bulkheads, and reaches the conclusion "that the state did by its earlier acts and their recognition
in 1857, permit solid filling on its lands under water within the
bulkhead lines, and by that process part with its title and transfer
it to him who lawfully made the new land as an approach to the
docks. And this view is further strengthened by the two facts
that the State has seen this process going on for about half a century without once interfering or asserting a hostile right, but, on the
contrary has given to the city, whenever requested, formal conveyances of its lands so occupied." The following observations of
Judge Finch seem pertinent:   "It seems only necessary to add
that we do not view the grant by the State to the city as without
consideration, and purely and simply a gift. The state owned but
a single seaport open to commerce and touched by tide water, and
that one a harbor of remarkable size and convenience. Its interest
to concentrate there ships and cargoes from all parts of the world,
by protecting the harbor and lining it with docks and piers, was




57


very great, and took on the character of a diuty dlue to the prosperity of the commonwealth. It carly imposed that idlty tpon the
city and the citizens by whom it has been steadily performeld, at
very great cost, and one in the fluture to be largcly ilncreased.
Every grant the state made was in aid of the expendliture ilnvolved
in the performancec by the city of that duty, and in consideration
of that performance. Little enough of its own dutty has been borne
by the state, and to call that little a pure grattity amountits almost
to a sarcasm."
Again, in the Matter of Mayor, etc. of New York, 182 N. Y. 361,
where the question arose concerning property abutting upon Riverside Drive between 72nd and 129th streets, Judge Haight writes
the opinion for the Court:
"The rights of the sovereign, whether crown or state, to land
under water in navigable streams and arms of the sea are doubtless
twofold, proprietary and governmental. As proprietor, the sovereign may sell or convey to others, but as to the power to govern,
the sovereign holds as trustee for the use of the public, under
such laws, rules and regulations as may from time to time be
adopted and which shall be deemed to best serve the interests of
commerce and the state. These powers may be transferred by the
sovereign to local subordinate governments which have been established, constituting such governments the trustees of the public
and the guardians of the rights and privileges of the people. The
king of England, therefore, during our colonial period had the
power to grant a charter to the mayor, aldermen and commonalty
of the city of New York, constituting it a body corporate and politic
with powers of local government, and to convey to it the lands
under water surrounding Manhattan island, on which the city is
located. This power the king exercised through his colonial governors, who from time to time have enlarged the powers and jurisdiction of the city. While the king had the power to convey the
tideway on the shores of the high seas and navigable rivers, he will
not be presumed to have done so by merely bounding the conveyance upon the sea or the river; such conveyance will carry title
only to high-water mark. Other words must be employed in the
conveyance which would clearly indicate his purpose and intent to
convey the lands under water in order to pass the title thereto.
(Trustees of Brookhaven v. Strong, 60 N. Y. 56; Sage v. Mayor, etc.
of N. Y., 154 N. Y. 61; Mayor etc. of N. Y. v. Hart, 95 N. Y. 443.)




58


At page 366, Judge Haight reviews the grant of powers in the
Dongan charter of 1686, italicizing the words "dockage or wharfage" in the phrase which granted "their rights and appurtenances, together with all the profits, benefits and advantages which
shall or may accrue and arise at all times hereafter, for dockage
or wharfage..." and says: (pp. 368-9)
"It is quite apparent from a reading of the charter that a local
subordinate municipal government was here established, to which
the sovereign delegated the powers of local government, not inconsistent with the laws of England or of the province of New York,
and to which he conveyed the tideway surrounding the island.
While we have no express provision of the charter delegating to the
municipality the sovereign power to hold the tideway as trustee
for the use of the public and for commerce, and to make laws, rules
and regulations with reference thereto, we think this power was
intended to be delegated to the municipality, and that such intent
is clearly inferable from the provisions of the charter growing out
of the general powers given to its common council to make laws,
ordinances and constitutions, and to amend the same from time
to time as may be deemed necessary, and from the fact that he
conveyed to the city the land between high and low-water mark.
The conveyance of the tideway to the city interposed a barrier
between the body of the river and the uplands which would prevent
the sovereign from erecting docks, piers or wharves thereon for
the accommodation of commerce, and is inconsistent with the purpose of the sovereign to longer retain jurisdiction, control and
management thereof for the interest of the public. We, therefore,
are of the opinion that it was the intention of the sovereign to
delegate to the municipality the power to hold and control the tideway in the interest of commerce and of the public; and that this is
apparent from the fact that the charter not only conveyed to the
city the tideway, but also granted to it the bridge, docks and piers
already constructed, with the right to collect wharfage therefrom.
If we are right in this conclusion, it follows that the officers of the
city, in conveying to De Kay in 1701, did so as the representatives
of the sovereign power delegated to it as a municipal government;
and it is deemed, therefore, to have intended only to have included
in the conveyance the uplands to high-water mark, retaining the
tideway and lands under water as trustee of the public domain in
the interests of commerce and of the state."




59


On the other hand in Sage v. The Mayor, 154 N. Y. 61, the plaintiff traced his title back to a grant by Governor Nichols in 1667,
whereby the inhabitants and freeholders of the village of New
Harlaem acquired certain lands bounded on one side by the Iarlem
River, together with "all the soils, creeks..  " etc. Under
a plan adopted in 1887 for the improvement of the Harlem River
between 94th and 95th streets, the city began building a sea-wall
behind which it was filling in. This improvement was made pursuant to prior legislation for the improvement of the waterfront of
the city of New York, and was in accordance with plans adopted
by the Dock Department. The outer portion of the improvement
consisted of bulkheads, docks and piers, traversed by a marginal
street 125 feet wide, running parallel with the river and situate
below the old low-water mark. The plaintiff claimed that his grant
ran to low-water mark and covered the lands under water to the
bulkhead line established by the Harbor Commission, and sought
to restrain the defendants from continuing with the improvement;
The opinion of Judge Vann in this case is cited with approval
by the United States Supreme Court in Scranton v. Wheeler, 179
U. S. 161, 45 L. ed. 137, 21 Sup. Ct. Rep. 48. "As against the
general public," says Judge Vann, "as organized and represented
by government, they [riparian owners] have no rights that do not
yield to commercial necessities, except the right of pre-emption,
when conferred by statute, and the right to wharfage, when protected by a grant and covenant on the part of the state, as in the
Langdon and Williams cases."
The right of riparian owners bordering on the old city of Brooklyn, however, rests upon a different set of facts, as appears from
Steers v. City of Brooklyn, 101 N. Y. 51, which the Court distinguished in Sage v. Mayor at p. 83. In Bedlow v. N. Y. Floating Dry Dock Co., 112 N. Y. 263, 273, the Court of Appeals said
that certain grants made to the city of New York of land under
water "were obviously made to extend municipal control over said
lands, and enable the city to regulate the erection of necessary
structures upon the land under water around the island, with
a view of promoting facilities for the growing commerce and trade
of the port of New York and to regulate and preserve the rights
of riparian owners in such lands, and the navigable waters covering them."
The origin of the rights of the old city of New York to ferry




60


charters is told by Earl, J., writing the opinion for the Court of
Appeals in Mayor v. Starin, 106 N. Y. 1. In this case it was held
that the city of New York had the exclusive right to maintain and
operate ferries between New York and Staten Island, and that
having that right, it could lease to the Staten Island Ferry Co.;
that the grant by the Montgomerie charter to the city of New York
of ferry franchises from the "Island Manhattan's to any of the
opposite shores all around the same island" was intended to
secure to the city all the ferry franchises to and from it. Judge
Earl said: "The sovereign was competent to grant and the city to
receive these ferry franchises. Such a franchise is property, and
the sovereign power is just as able to make an irrevocable grant
of it as of any other property. If it can grant a ferry franchise
for a term of years, it can do so forever. By so doing, it does not
part with any political or governmental function. It still may
regulate the conduct of the ferry for the public good and control
the tolls to be charged; and it can resume the proprietary right in
the franchise only by exercising the right of eminent domain or
by forfeiture enforced through regular judicial proceedings. By
this grant the city (lid not merely receive the political right to
establish and regulate ferries, but it received the property in the
ferry franchises as it received the other property granted to it by
its various charters; and we do not find any evidence in the record
that what it so received it has ever lost or been deprived of."
The New York Court of Appeals, therefore, has treated the
grants of wharf and ferry rights to the city of New York, and,
through the city to private individuals, as in their nature franchises, and has applied the same principle as it has applied in
the grant of street railway franchises by the city of New York.
"The title to streets in New York," said Ruger, Chief Justice,
in People v. O'Brien, 111 N. Y. 1, at p. 38, "is vested in the city
in trust for the people of the state, but under the Constitution and
statutes it had authority to convey such title as was necessary for
the purpose, to corporations desiring to acquire the same for use
as a street railroad. The city had authority to limit the estate
granted either as to the extent of its use or the time of its enjoyment, and also had power to grant an interest in its streets for a
public use in perpetuity, which should be irrevocable."




61


In the most recent utterance upon this subject, the New York
Court of Appeals has said: (April, 1918-Matter of Quiinby v. Public Service Commission, 223 N. Y. 244, at pages 261, 262, Pound,
J.):... our Constituitionl, by requliring the consent of the
local authorities, recognizes that our munlicipalities are pro tanrto
independent of legislative control, exercising some fragmeilt of
power, otherwise legislative in character, lwhich has been th us
irrevocably transferred by the fnluldamental law from the legislatnre to the locality. The grant by the municipality of authority
to use the streets is not a mere privilege or gratuity. Onlce accepted,
it becomes a contract zwhich neither the state nor its agencies can
impair."
While recognizing fully, therefore, the limitations in private
grants of waterfront property (as the Court did in the Sage case
and the Blue Point Oyster case), and recognizing fully the reserved
federal and state power to regulate commerce and navigation, it
still remains true that by "the right to wharf out" in New Jersey,
by express grants from the states, and by grants from the city of
New York, in rights in the nature of franchises are outstanding,
irrevocable in their nature and to be acquired only by the exercise
of the power of eminent domain. In the case of the city of New
York there are at present outstanding bonds for dock improvements
amounting to $122,872,036, the proceeds of which as issued were
applied to dock and ferry improvements. The waterfront property which the city owns forms part of the assets pledged to secure
these bond issues. By the Constitution of the state of New York,
Article VIII, ~10, the city is forbidden to borrow more than ten
per cent. of the assessed valuation of the real estate within the
city limits, but in the computation of the indebtedness, property
which is self supporting, that is, pays the interest and sufficient to
create a sinking fund to amortize the principal of the debt is
excepted. It would seem, therefore, as though the city's dock and
ferry property involved not merely the rights of the city itself,
but also the rights of those holders of municipal securities which
have been issued upon the basis of the ownership of the docks and
ferries by the city.
We shall presently consider the power of the state to alter or
destroy municipal corporations; but in Graham v. Folsom (1905).
200 IT. S. 248, recognizing this power of the state to change
municipal boundaries, the United States Supreme Court held,




62


nevertheless, that, so far as the impairment of the obligation clause
of the Federal Constitution is concerned, the power of the state
to alter or destroy its municipal corporation is not greater
than the power to repeal its legislation, and the alteration
or destruction of subordinate governmental divisions is not
the proper exercise of legislative power when it impairs the obligations of contracts previously entered into. In that case a municipal
corporation had incurred substantial indebtedness. The legislation by which its organization was destroyed and its territory added
to other municipalities was held to be unconstitutional. Likewise,
in Mount Pleasant v. Beckwith, 100 U. S. 514, and Mobile v. Watson, 116 U. S. 289, where, similarly, municipal corporations had
incurred indebtedness and state legislators later sought to destroy
the municipal corporation and. to add their territory to other
municipalities, the legislation by which this was sought to
be accomplished was held to be in impairment of the obligation  clause of the Federal Constitution.   In  Graham   v.
Folsom, at pages 253, 254, Mr. Justice McKenna, speaking for
the Court, said: "It was argued in those cases, as it is argued
in this, that such alteration or destruction of the subordinate governmental divisions was a proper exercise of legislative power, to
which creditors had to submit. The argument did not prevail.
It was answered, as we now answer it, that such power, extensive
though it is, is met and overcome by the provision of the Constitution of the United States which forbids a state from passing
any law impairing the obligation of contracts. See also Shapleigh
v. San Angelo, 167 U. S. 646, 42 L. ed. 310, 17 Sup. Ct. Rep. 957.
And this is not a limitation, as plaintiffs in error seem to think
it is, of the legislative power over subordinate municipalities,
either over their change or destruction.  It only prevents the
exercise of that power being used to defeat contracts previously
entered into."
"The repeal of a law may be more readily undertaken than the
abolition of townships, or the change of their boundaries or the
boundaries of counties. The latter may put on the form of a
different purpose than the violation of a contract. But courts
cannot permit themselves to be deceived. They will not inquire
too closely into the motives of the state, but they will not ignore
the effect of its action." (p. 253).
"The city," says Judge O'Brien speaking for the Court of




63


Appeals in People ex rel. Rodgers, 166 N. Y. 1, at p. 11, "is a
corporation possessing all the powers of corporations generally
and cannot be deprived of its property without its consent or due
process of law any more than a private corporation can, and since
its revenues must be used for municipal purposes, it is difficult
to see how the legislature can make contracts for it which involve
the expenditure of these revenues without its consent."
And in passing upon such statutes the United States Supreme
Court will follow the rule laid down by it in the case of Henderson
v. Mayor of New York, 92 U. S. 259 (1875), namely, that it will
examine the statute and determine its real purpose and effect
regardless of the form in which it may be couched. "The contention that securities representing a large part of the world's
wealth," says Ruger, C. J., in People v. O'Brien, 111 N. Y. 1, at
p. 36, "are beyond the reach of the protection which the Constitution gives to property, and are subject to the arbitrary will of
successive legislatures, to sanction or destroy at their pleasure or
discretion, is a proposition so repugnant to reason and justice as
well as the traditions of the Anglo-Saxon race in respect to the
security of rights of property, that there is little reason to suppose
that it will ever receive the sanction of the judiciary, and we
desire in unqualified terms to express our disapprobation of such
a doctrine."  The policy of the state, so far as the city of New
York is concerned, is reflected also in the provisions of the Public
Lands Law. Subdivision 5 of ~75 of that law provides, first, that
"The commissioners of the land office may grant in perpetuity or
otherwise, to the owners of the lands adjacent to the lands under
water specified in this section, to promote the commerce of this
state or for the purpose of beneficial enjoyment thereof by such
owners, or for agricultural purposes, so much of said lands under
water as they deem necessary for that purpose. No such grant
shall be made to any person other than the proprietor of the
adjacent lands, and any such grant made to any other person
shall be void."  And second: "No such grant shall be made of
any lands belonging to the city of New York, or so as to interfere
with the rights of that city... "  And in the Act for the
construction of the Barge Canal (Chapter 746, Laws of 1911, ~6)
it is provided that "Lands under water and uplands now belonging to the city of New York shall not be taken by condemnation
for terminal purposes, but by agreement between the city of New
York, acting through its board of estimate and apportionment,




64


and the state, acting through the canal board, with the approval
of the governor; and such agreement may fix the compensation
to be paid to the city, if any, fix the respective rights of the city
and state to income derived from the use of the docks and the
rates to be charged for such use, but the state shall have sole title
to the terminals, lands under water and uplands and the sole right
to the management, regulation, construction and maintenance
thereof."  The state may, therefore, acquire title to any property
owned by the city, but it must do so under terms which recognize
the  city's obligations to  holders of the city's bonds, and
recognize the city's interest in the revenue derived from such
property.  That the views herein expressed with regard to the
state's power over the city's waterfront and the rights of private
owners acquiring grants from the state or from the city are likely
to be sustained by the United States Supreme Court, appears from
an examination of both the prevailing and dissenting opinions in
the recent case of Long Sault Development Co. v. Call, 212 N. Y. 1,
affirmed in the United States Supreme Court, 242 U. S. 272. In
this case it appeared that by Chapter 35 of the Laws of 1907, the
state created a corporation to construct and maintain dams in connection with the St. Lawrence River. The Court of Appeals held
that this act was unconstitutional. The prevailing opinion, written
by Chief Justice Willard Bartlett, distinguishes the case from the
Lan gdon, Williams and other cases cited upon the ground that
the Act of 1907 of the legislature "virtually turns over to the
corporation entire control of navigation at the Long Sault Rapids."
In setting aside the grant from the state as unconstitutional, however, he clearly says, quoting from Coxe v. State of N. Y., 144 N. Y.
396, 407: " 'For every purpose which may be useful, convenient
or necessary to the public, the state has the unquestionable right
to make grants in fee or conditionally for the beneficial use of the
grantee, or to promote commerce according to their terms. The
extensive grant to the city of New York of the lands tunder water
below the shore line arountd Manhtattan Island clearly comes within
this principle, since it was a grant to a municipality, constittting
a political division of the state, for the promotion of the commercial
prosperity of the city, anld, consequently, of the people of the
state. ' "
Again, at page 8: "The power of the legislature to grant land
under navigable waters to private persons or corporations for
beneficial enjoyment has been exercised too long and has been




65


affirmed by this court too often to be open to serious question at
this late day." The dissenting opinion in the Court of Appeals by
Judge Collin is a compendious digest of the law upon the subject,
with which the prevailing opinion is in complete accord except
with reference to the single matter of the effect of the grant in the
case then before it, Judge Bartlett saying (p. 10): "The point
that I desire to emphasize is that the legislature cannot authorize
the conveyance of a navigable portion of the St. Lawrence to a
private company to maintain and control navigation thereon,
thereby parting for all time with its own power to improve such
navigation. The privilege of the state to control the St. Lawrence
as a navigable river (subject to the direction of Congress) cannot
be assigned to others in the manner attempted by this legislation."
Notwithstanding this, in the United States Supreme Court both
Mr. Justice McKenna and Mr. Justice Pitney dissent upon the
ground that "chapter 355 of the Laws of 1907 of the state of New
York, creating the Long Sault Development Company and conferring upon it certain rights and franchises, when accepted, as it was,
by the company, constituted a contract between the state and the
company; that the repealing act and accompanying legislation
passed in 1913 (chaps. 452 and 453) had the effect of impairing
the obligation of that contract, in contravention of ~10 of article
1 of the Federal Constitution." The prevailing opinion in the
United States Supreme Court, by Mr. Justice Clarke, holds only
that the United States Supreme Court will not review the decision
of a state court when the claim of contractual rights under
a state statute is denied by the state court purely upon
the ground that the attempted grant was in conflict with the state
Constitution and therefore void ab initio. No such question is
presented with regard to state grants in and about the Port of
New York as was presented in the Long Sault case (above) or in
the case of Illinois Central R. Co. v. People of the State of Illinois,
146 U. S. 387. In that case, the grant to the Illinois Central
Railroad of a substantial part of the waterfront of Lake Michigan
was held to be invalid. The title which the States hold to lands
under navigable water, says the United States Supreme Court, "is
a title held in trust for the people of the state that they may
enjoy the navigation of the waters, carry on commerce over them,
and have liberty of fishing therein freed from the obstruction or
interference of private parties. The interest of the people in the
navigation of the waters and in commerce over them may be im



66


proved in many instances by the erection of wharves, docks and
piers therein, for which purpose the state may grant parcels of
the submerged lands; and, so long as their disposition is made for
such purposes, no valid objections can be made to the grants."
The Court expressly differentiates "grants of parcels of land under
navigable waters, that may afford foundation for wharves, piers,
docks, and other structures in aid of commerce, and grants of
parcels which, being occupied, do not substantally impair the public
interest in the lands and water remaining, that are chiefly considered and sustained in the adjudged cases as a valid exercise
of legislative power consistently with the trust to the public upon
which such lands are held by the state." But this, says the Court,
"is a very different doctrine from the one which would sanction the
abdication of the general control of the state over lands under the
navigable waters of an entire harbor or bay, or of a sea or lake.
Such abdication is not consistent with the exercise of that trust
which requires the government of the state to preserve such waters
for the use of the public. The trust devolving upon the state for
the public, and which can only be discharged by the management
and control of property in which the public has an interest, cannot
be relinquished by a transfer of the property. The control of
the State for the purposes of the trust can never be lost, except
as to such parcels as are used in promoting the interests of the
public therein, or can be disposed of without any substantial
impairment of the public interest in the lands and waters remaining. It is only by observing the distinction between a grant of
such parcels for the improvement of the public interest, or which
when occupied do not substantially impair the public interest in
the lands and waters remaining, and a grant of the whole property
in which the public is interested, that the language of the adjudged
cases can be reconciled." Accordingly, the Court holds that since
the harbor of Chicago is of immense value to the people of the
state of Illinois in the facilities it affords to its vast and constantly
increasing commerce, and "the area of the submerged lands proposed to be ceded... [is] more than a thousand acres. 
more than three times the area of the outer harbor... as
large as that embraced by all the merchandise docks along the
Thames at London... much larger than that included in
the famous docks and basins at Liverpool... twice that of
the port of Marseilles, and nearly if not quite equal to the pier
area along the waterfront of the city of New York," a grant of such




67


kind "is necessarily revocable, and the exercise of the trust by
which the property was held by the state can be resumed at any
time." Whether or not the state of New Jersey or the United
States Supreme Court would hold that the grants to railroad corporations along the eastern shore of New Jersey were so extensive
as to involve an impairment of' the navigability of the river and
thus come within the two decisions just referred to (the Chicago
and the Long Sault cases) is, of course, difficult to say. Many
of these grants were made for the promotion of commerce and the
operation of these facilities is, in large measure, necessary for the
conduct of the commerce of the port. That they substantially
interfere, however, with the further development of the facilities
of commerce at the port is clear. It would be rash to assert, however, that there is clear and undoubted authority for the state
of New Jersey to resume possession of this waterfront without
compensation to the present owners.
The Regulation of Waterfront Franchises
But starting with the assumption that the grants we have been
considering are franchises in aid of commerce, the reserved power
of the States to regulate may in itself be adequate to serve the
needs of both States and the Natiof.  In all of the cases the
"trust" relationship of the State to its lands under water is nearly
everywhere emphasized, and the grants, when sustained, are sustained upon the basis of the fact that they are in performance
and in aid of the execution of the trust.
A Chicago municipal ordinance gave permission to a street
railway company to construct a tunnel under the Chicago river,
a navigable stream. Later the increased demands of navigation
justified the lowering of the tunnel. Accordingly, the city passed
an ordinance increasing the channel depth of the river to 21 feet
and requiring the lowering of the tunnel under the river of the
West Chicago Street Railroad Company.. "It is indisputable, on
this record," says Harlan, J., (West Chicago Street R. Co. v.
Illinois, 201 U. S. 506, 522) "that the depth of water over the
present tunnel is not sufficient to accommodate many boats and
vessels now commonly employed in commerce between Chicago
and other cities and towns on the Lakes."  The United States
Supreme Court held that in a navigable stream the public right is
paramount, and the owner of the soil under the bed can only use
it so far as consistent with the public right. Accordingly, the




68


municipality through which a navigable stream flows cannot grant
a right to obstruct navigation thereof nor bind itself to permit
the continuance of an obstruction, and this rule is not affected
by the fact that the person claiming the right to continue such an
obstruction is the owner in fee of the bed of the stream. The duty
of not obstructing the navigation is a continuing one; and if the
increasing demands of navigation require a deeper channel than
when the tunnel was originally constructed, it is within the power
of the municipality to compel the railroad company, at the latter's
own expense, either to remove the tunnel or lower it to conform
with the necessity of commerce. (See also the recent case of New
York Dock Co. v. City of New York, decided by the New York
Court of Appeals July 12, 1918, New York Law Journal, August
8, 1918.)  See also People v. International Bridge Co., 223 N. Y.
137.
Thus, too, in United States v. Mission Rock Co., 189 U. S. 391,
wherein the Illinois Central Railroad case is referred to with approval, the doctrine and its limitations, as expressed in Heckman
v. Swtett, 99 Cal. 309, is repeated: (p. 407) " 'Navigable streams
and the shores to ordinary high water mark are held by the State
in trust for the public; but qualified rights therein may be granted,
so far as they are not inconsistent with, or are in aid of the principal use, viz., for the purposes of navigation.' In other words,
the rights granted must be in aid of commerce; and it is recognized,
as we have seen, in judicial decisions and established by practical
examples that the conveyance by the State of its title to tide lands
to be held in private ownership free from any easement of the
upland proprietor, is in aid of commerce, and therefore in strict
performance of the State's trust." See also Morris v. United States,
174 IT. S. 196 and Shively v. Bowlby, 152 U. S. 1; also Oakland v.
Oakland Water Front Co., 118 Cal. 160.
In People v. N. Y. and Staten Island Ferry Co., 68 N. Y. 71, 76,
the Court of Appeals held that the soil under navigable waters,
being held by the people of the State in trust for the common use
and as a portion of their inherent sovereignty, any act of legislation
concerning their use affects the public welfare. It is, therefore,
appropriately within the exercise of the police power of the State.
In Union Bridge Co. v. United States, 204 U. S. 364, the United
States Supreme Court held: "Although a bridge erected over a
navigable water of the United States under the authority of a state




69


charter may have been lawful when erected atnd not anl obstruction
to commerce as thein carried on, the owners erected it with khiowiledge of the paramount authority of Congress over navigation and
subject to the power of Conlgress to exercise its authority to protect navigation by forbidding maintenance when it became all
obstruction thereto."  So, also, in New Orleans Gas Light Co. v.
Drainage Commissioners, 197 U. S. 453, 461, where the question
related to a franchise to a gas company: "The gas company did not
acquire any specific location in the streets; it was content with
the general right to use them, and when it located its pipes it
was at the risk that they might be, at some future time, disturbed,
when the State might require for a necessary public use that
changes in location be made...We think whatever right
the gas company acquired was subject in so far as the location
of its pipes was concerned, to such future regulations as might
be required in the interest of the public health and welfare."
This is the principle recognized also by Judge Cullen in the New
York Central Case, 202 N. Y. 212. In the Union Bridge Co. case
the Court quotes with approval the statement of the Indiana court
in Lake Erie & TW. R. Co. v. Cluggish, 143 Ind. 347, which, in
turn, is a quotation from Lake Erie &  V. R. Co. v. Smith, 61 Fed.
885: " 'The duty of a railroad to restore a stream or highway which
is crossed by the line of its road is a continuing duty; and if, by
the increase of population or other causes the crossing becomes
inadequate to meet the new and altered conditions of the country,
it is the duty of the railroad to make such alterations as will meet
the present needs of the public.' " Again, in the same case: " 'If,
by the growth of population or otherwise, the crossing has become
inadequate to meet the present needs of the public, it is the duty
of the railroad company to remedy the defect by restoring the
crossing so that it will not unnecessarily impair the usefulness of
the highway.' " (Idiana ex rel. Muncie v. Lake Erie & W. R. Co.,
83 Fed. 284, 287, quoted at p. 402 of Union Bridge Co. case.) Judge
Harlan in the Union Bridge Co. case at p. 393 quotes from his owil
opinion in Scranton v. Wheeler: "If the riparian owner cannot
enjoy access to navigability because of the improvement of navigation by the construction away from the shore line of works in a
public navigable river or water, and if such right of access ceases
alone for that reason to be of value, there is not, within the meaning
of the Constitution, a taking of private property for public use,
but only a consequential injury to a right which must be enjoyed,




70


as was said" in Yates v. Mlilwaukee, 10 Wall. 497, 504, 505, 19 L. ed.
984, 986, 987, " 'in due subjection to the rights of the public'-an
injury resulting incidentally from the exercise of a governmental
power for the benefit of the general public, and from which no
duty arises to make or secure compensation to the riparian owner.
The riparian owner acquired the right of access to navigability
subject to the contingency that such right might become valueless
in consequence of the erection under competent authority of structures on the submerged lands in front of his property for the
purpose of improving navigation." However, this power must
not be exercised arbitrarily. If the means employed have no real
substantial relation to public objects which!Government may
legally accomplish, if they are arbitrary and unreasonable beyond
the necessities of the case, the judiciary will disregard mere form
and interfere for the protection of rights injuriously affected
by such illegal action. The authority of the courts to interfere
in such cases is beyond all dispute.
The principle is the same as that applied to railroads crossing
public highways. Their franchises are valid, but subject to the
superior rights of the public. In Cooke v. Boston & Lowell R. Corp.,
133 Mass. 185, (quoted with approval in Union Bridge Co. v.
United States, 204 U. S. 402) the Court said: "The legislature
intended to provide against any obstruction of the safe and convenient use of the highway for all time; and if, by the increase of
population in the neighborhood, or by an increasing use of the
highway, the crossing which at the outset was adequate is no longer
so, it is the duty of the railroad corporation to make such alteration
as will meet the present needs of the public who have occasion to
use the highway."
In Erie Railroad Co. v. Public Utility Commissioners, decided by
the New Jersey Supreme Court in 1916 (89 N. J. L. 57), it is held
that the orders of the Public Utility Commissioners to abolish grade
crossings "constitute a regulation adopted by the legislature for
public safety under the police power of the state, and hence are not
a taking of private property without just compensation, although
conformity to such regulation involves expense."
In Public Service Railway v. Pcblic Utility Commissioners, 89
N. J. L. 24 (1916), it is held that the provisions of the Fielder Act,
~2, by which ten per cent. of the cost of eliminating grade crossings of steam railroads used by a street railway may be imposed




71


upon the street railway is within the legitimate sphere of legislation under the police power of the State. Judge Garrison, writing
the opinion of the Court, said:
"We agree that this imposition of a part of the expense of abolishing dangerous grade crossings is neither a tax nor an assessment
for a public improvement, but, we think, that it is a legitimate
exercise of the police power. The contention of counsel for the
prosecutor is placed squarely upon the proposition that the police
power is not legitimately exercised in the present case 'unless the
property (of the prosecutor) has become a public nuisance, and so
lost its right to protection'; and he then proceeds to demonstrate
that a street railway is not a public nuisance. We, of course, agree
to this, but we entirely dissent from the narrow definition of the
police power which would restrain its exercise to the case of property that had become in a legal sense a nuisance.
"If such a narrow definition has any place in the doctrine of the
police power (it is confined to the appropriatory aspect of that
power), i. e., to such appropriation as is incidental to the destruction of property as a nuisance and has no place in the vastly wider
scope of such power that is regulative of energies that are curbed,
not that they may be impaired or destroyed, but, on the contrary,
that they may be of greater service and beneficence to the public."
The United States Supreme Court, in the case of Chicago, Milwaunkee & St. Paul Railway Co. v. Minneapolis, 232 TJ. S. 430, speaking through Mr. Justice Hughes, said: "It is well settled that railroad corporations may be required, at their own expense, not only
to abolish existing grade crossings but also to build and maintain
suitable bridges or viaducts to carry highways, newly laid out, over
their tracks or to carry their tracks over such highways" (p. 438).
And as to other public utilities, the doctrine of their subservience to
the police power of the State is held to be the same. See Jersey
City v. City of Hudson, 13 N. J. Eq. 420; Stillwater Co. v. Stillwater, 50 Mo. 498; Detroit v. Fort Wayne & Elmwood Railway Co.,
90 Mich. 646; Columbia Gas & Coke Co. v. Columbus, 50 Ohio St.
65; Natick Gas Co. v. Natick, 175 Mass. 246; New England Telegraph & Telephone Co. v. Boston Terminal Co., 182 Mass. 397; New
Orleans Gas Light Co. v. Drailage Commissioners, 197 U. S. 453.
The distinction between the regulatory power of Congress and
the States and the conscription of a franchise is made clear from a
study of the two cases of Monongahela Navigation Co. v. United




72


States, 148 IT. S. 312, 341, 343, and the recent decision in Louisville
Bridge Co. v. United States, 242 U. S. 409. In the Louisville
Bridge Co. case, the Secretary of War required the alteration of the
Ohio Falls Bridge within three years, so as to provide an enlarged
horizontal opening for the main navigable channel and to change
the swing-span across the canal to a lift-span having a prescribed
horizontal clearance and a prescribed vertical clearance when open.
The Ohio Falls Bridge was constructed by Act of Congress following the Civil War. In the Monongahela Navigation Co. case
there was an actual taking of certain locks and dams which had
been constructed and maintained by State authority by a navigation company. The United States Supreme Court held that "the
franchise is a vested right. The State has power to grant it. It
may retake it, as it may take other private property, for public
uses, upon the payment of just compensation. A like, though a
superior, power exists in the national government. It may take
it for public purposes, and take it even against the will of the State;
but it can no more take the franchise which the State has given
than it can any private property belonging to an individual" (p.
341). In the Louisville Bridge Co. case, Judge Pitney, speaking
for the United States Supreme Court, says (referring to the Monongahela Navigation Co. case): "But it will be observed that this was
not a case of removing a structure from the river on the ground
that it interfered with navigation, but a taking over of a structure
and employing it in the public use as an instrumentality of navigation. In short, there was a clear taking of the property of the company for public use as property, and an attempt at the same time
to exclude from consideration an essential element of its value when
ascertaining the compensation to be paid" (pp. 422, 423).
We have already considered (see supra, page 29 et seq.) the power
of the State to act in the absence of federal action in matters relating to the improvement of navigation and commerce. Mr. Justice
Gray, delivering the opinion of the United States Supreme Court
in Chicago, Milaukaee & St. Paul R. Co. v. Solan, 169 U. S. 133,
137, said: "The rules prescribed for the construction of railroads,
and for their management and operation, designed to protect persons and property, otherwise endangered by their use, are strictly
within the scope of the local law. They are not, in themselves,
regulations of interstate commerce, although they control, in some
degree, the conduct and the liability of those engaged in such commerce. So long as Congress has not legislated upon the particular




73


subject, they are rather to be regarded as legislation in aid of such
commerce, and as a rightful exercise of the police power of the
State to regulate the relative rights and duties of all persons and
corporations within its limits."'
Broad potwers of regulation in the interest of improtvig the navigability of those waterways which constitute the great public high*ways of the Port of New York still remain with the two States as
part of the police power. In the establishment of such regulations
there is no interference either with contract or property rights.
Through What Agencies the State May Act
A: Corporations
Both the State and the federal authority may be exercised through
the medium of a private corporation. In the Stockton case, the
State of New York had granted a franchise to operate a railroad
and to construct a bridge across the Arthur Kill (Stockton v. Baltimore & N. Y. R. Co., 32 Fed. 9). Discussing the matter of the
grant of power to a private corporation, Judge Bradley said: "At
all events, if congress, in the execution of its powers, chooses to
employ the intervention of a proper corporation, whether of the
state, or out of the state, we see no reason why it should not do
so. There is nothing in the constitution to prevent it from making
contracts with or conferring powers upon, state corporations, for
carrying out its own legitimate purposes. What right of the State
would be invaded? The corporation thus employed, or empowered,
in executing the will of congress, could do nothing which the state
could rightfully oppose or object to. It may be added that no state
corporation more suitable than the defendant could be empowered
to build the bridge in question in this case, since one-half of the
bridge is in the state of New York, and the railroad of the defendant is to connect with it on the New York side.
"In our judgment, if congress itself has the power to construct
a bridge across a navigable stream for the furtherance of commerce
among the states, it may authorize the same to be done by agents,
whether individuals, or a corporation created by itself, or a state
corporation already existing and concerned in the enterprise. The
objection that congress cannot confer powers on a state corporation is untenable. It has used their agency for carrying on its
own purposes from an early period."




74


In Wilson v. Shaw, 204 U. S. 24, the power of Congress to create
corporations for the purpose of building interstate highways is
considered. Brewer, J., speaking for the Court, said (quoting
from California v. Central Pacific R. R. Co., 127 U. S. 1): "The
power to construct, or to authorize individuals or corporations
to construct, national highways and bridges from State to
State, is essential to the complete control and regulation
of interstate  commerce.  Without authority in   Congress to
establish and maintain such highways and bridges, it would be
without authority to regulate one of the most important adjuncts
of commerce. This power in former times was exerted to a very
limited extent, the Cumberland or National road being the most
notable instance. Its exertion was but little called for, as commerce
was then mostly conducted by water, and many of our statesmen
entertained doubts as to the existence of the power to establish
ways of communication by land. But since, in consequence of the
expansion of the country, the multiplication of its products, and
the invention of railroads and locomotion by steam, land transportation has so vastly increased, a sounder consideration of the subject
has prevailed and led to the conclusion that Congress has plenary
power over the whole subject." In the creation of the vast system
of railroads which connects the East with the Pacific, that traverses
States as well as Territories, and which employs the agency of
State as well as Federal corporations, this wider power was freely
exercised, as Judge Brewer points out in Wilson v. Shaw. It is
in the exercise of this power that Congress created the Panama
Railroad Corporation and has created the United States Shipping
Board Emergency Fleet Corporation. Mr. Justice Gray, speaking
for the Court in Luxton v. North River Bridge Co., 153 U. S. 525,
529, said: "Congress, therefore, may create corporations as appropriate means of executing the powers of government, as, for
instance, a bank for the purpose of carrying on the fiscal operations
of the United States, or a railroad corporation for the purpose of
promoting commerce among the States." Mr. Justice Gray in the
same case refers to the power of Congress "exercised early in this
century by successive acts in the Cumberland or National road,
from the Potomac across the Alleghanies to the Ohio, to authorize
the construction of a public highway connecting several States."
In short, for the purpose of performing governmental functions
either Congress or the States may create corporations vested with
power to perform such functions.




75


B: Municipalities
As Judge Dillon has made clear (see Dillon on Municipal Corporations, Vol. I, pp. 25, 26, ~15) (9), in general, all of our American cities, towns and counties are public corporations, full or quasi,
created by the Legislature and invested with power to decide and
control local and subordinate matters pertaining to their respective
localities. They are the administrative form of the fundamental
American idea of government, namely, that the people are the
source of all political power and have the right to exercise it.
"This," says Dillon, "is with us no mere rhetorical declamation,
but a foundation principle upon which our political institutions
rest. As local matters can better be regulated by the people of the
locality than by the central power, we provide that each road
district, each school district, each city, and each county shall, as
to its local concerns, be self-governed.... The policy of creating local public and municipal corporations for the management of
matters of local concern runs back to the earliest period of our
colonial history, is exhibited in all our legislation, and expressly or
impliedly guaranteed or assumed in our State Constitutions." Such
organizations are, says Dillon, "of course, subject to the legislature
of the State."
In the recent case of People ex rel. Palmer v. Travis, 223 N. Y.
150, considering the relationship of the governmental function to
the franchise granting function, Judge Andrews said: "Clearly,
the purely political jurisdiction may at any time be resumed [by the
State]."
Chief Judge Denio, in Darlington v. Mayor, etc., of New York,
31 N. Y. 164, 196. said the Legislature of the State may modify the
charter of the city, may transfer the functions performed by the
municipality to other municipalities.
In the Dartmouth College case, 4 Wheaton 518, Mr. Justice
Washington said that there were two kinds of corporations aggregate, such as were for public government and others of a private
character. "The first," he said, "are those for the government of
a town, city, or the like; and being for public advantage, are to
be governed according to the law of the land." Such corporations,
he said, were mere creatures of public institution, created exclusively
for public advantage, and therefore it is reasonable that such a
corporation may be controlled and its constitution altered and
amended by the Government in such manner as the public necessity




76


may require. Such legislative interference cannot be said to impair
the contract by which the corporation was formed, because there is,
in reality, but one party to it; the trustees or governors of the
corporation being merely the trustees for the public will not be
questioned. "The statutes of this State," said Judge Denio in the
Darlington case, "furnish instances, too numerous for citation, of
the interference of the legislature with the corporate government
of the city of New York. If the charter, like that of Dartmouth
College, was private and independent of legislative interposition,
these acts would be void upon the principle of the judgment of the
case cited, and the regulation of the city government would be
confined to the brief prescriptions contained in the charter of the
colonial governors."
In the Dartmouth College case Chief Justice Marshall said that
"if the act of incorporation be a grant of political power, if it
create a civil institution to be employed in the administration of the
government, or if the funds of the college be public property, or if
the State of New-Hampshire, as a government, be alone interested
in its transactions, the subject is one in which the legislature of
the State may act according to its own judgment, unrestrained by
any limitation of its power imposed by the constitution of the
United States."  See also Dillon on Municipal Corporations, Vol.
I, p. 59, ~32 (20), Vol. I, pp. 142-3, ~92 (54).
Harlan, J., speaking for the United States Supreme Court in
A tkin i. Kansas, 191 U. S. 207, 220, says: "Municipal corporations
are the creatures, mere political subdivisions, of the State
for the purpose of exercising a part of its powers. They may
exert only such powers as are expressly granted to them, or such
as may be necessarily implied from those granted. What they
lawfully do of a public character is done under the sanction of
the State. They are, in every essential sense, only auxiliaries of
the State for the purposes of local government.    They may
be created, or, having been created, their powers may be
restricted or enlarged, or altogether withdrawn at the will
of the Legislature; the authority of the Legislature, when restricting
or withdrawing such powers, being subject only to the fundamental
condition that the collective and individual rights of the people of
the municipality shall not thereby be destroyed." It is clear that
the power now vested in the City of New York or in any of the cities
or towns of New Jersey within the Port of New York may be so
amended or modified by action of the Legislature of the State in




77


which such city or town is situated as to transfer the regulatory
powers over port development to new State agencies. Thus, in New
Jersey, the creation of the Passaic Valley Sewerage Commissioners,
which took in as a sewerage district a large number of municipalities
and parts of municipalities in the counties of Passaic, Hudson,
Bergen and Essex, and constituted the commissioners a "body
politic and corporate" was held to be constitutional.  See Van
Cleve v. Passaic Valley Sewerage Commissioners, 71 N. J. L. 183
and 574; 58 Atl. R. 796; 60 Atl. Rep. 214. It is held that the
Legislature of New Jersey may establish new political districts by
designating and delimiting areas of the State for that purpose. The
Supreme Court opinion is written by Judge Pitney and the opinion
by the Court of Errors and Appeals is written by Judge Garrison.
Judge Pitney says (p. 197): "For all essential purposes, the
corporate body created by this act is but an executive and administrative branch of the state government, charged with the duty of
carrying out in detail a work that the lawmaking body has determined to establish and maintain for the good and welfare of the
citizens of the state, and especially of those residing within the
sewerage district."  P. 195: "The main purpose of the act is
to establish, within and for a designated portion of the area of
the state, a great public work for a great public purpose, which
work is to be established, maintained and operated through the
instrumentality of an administrative branch of the central government of the state, at the cost of the present and future residents of
the district particularly affected.... In effect, the act declares
that the Passaic river and other natural streams within the district
are so polluted by sewage and other deleterious matter as to be a
menace to the health, not to mention the comfort, of the population.
One of the chief objects of this act is to revoke the legislative authority previously given to the municipalities in that
behalf." In Judge Garrison's opinion (p. 578), this act did not
constitute a regulation of the internal affairs of a town in violation
of the constitutional provisions of New Jersey. "Obviously," he
said, "the act is local, as from its nature it must be, but it is equally
obvious that the purpose of the act is a public enterprise, as distinct
from a municipal affair, and that the regulations referred to are
purely incidental to such extra-municipal scheme. It is not, moreover, true that every public utility that exists in whole or in part
within the geographical boundaries of a municipality is its internal
affair in the same sense that every governmental function that has




78


been committed to it is one of its internal affairs. So that it may
well be and often is the case that the special license of municipalities to regulate instrutments of public utility within their confines
may co-exist with the general legislative power to direct the larger
scheme of which such instruments are a part."
Again, in State v. Price, 71 N. J. L. 249, 58 Atl. 1015, Judge
Pitney writing the opinion, held that Paragraph 11 of ~11 of Article
4 of the New Jersey Constitution providing that "the legislature
shall not pass private, local or special laws in any of the following
enumerated cases, that is to say... regulating the internal
affairs of towns and counties; appointing local offices or commissions to regulate municipal affairs;... granting to any corporation, association or individual any exclusive privilege, immunity or franchise whatever... the legislature shall pass
general laws providing for the cases enumerated in this paragraph,
and for all other cases which, in its judgment, may be provided for
by general laws" is not violated where the purpose of the Act is
to deal with lands owned by the State in its sovereign capacity and
which it holds in trust for the citizens. "The mere fact," says he,
"that a given act of the legislature is limited in its territorial scope
to a portion of the state coincident with or less than the bounds of a
single county or other municipal division, does not make such act
an act regulative of the 'internal affairs' of such county or municipality within the meaning of the constitutional prohibition."
So in New York, Chapter 74 of the Laws of 1866, creating the
Metropolitan Sanitary District of the State of New York was held
to be constitutional. Metropolitan Board of Health v. Heister, 37
N. Y. 661. This sanitary district took in the counties of New York,
Kings, Westchester and Richmond before Greater New York was
established. So, too, the Act establishing the Metropolitan Police
District of the State of New York, which likewise took in New
York, Kings, Westchester and Richmond, was sustained in People
v. Draper, 15 N. Y. 532. At p. 543, Denio, C. J., said: "Plenary
power in the legislature for all purposes of civil government is the
rule. A prohibition to exercise a particular power is an exception."
Accordingly, the Legislature of each State has undoubted power
to create a new district for the purpose of developing the Port of
New York, taking in the various municipalities, in order the more
effectively to execute the public trust under which the State holds
the lands under water in the navigable highways forming the port,




79


and for the State purpose of improving commerce and navigation.
In doing so, it may freely transfer power from local municipalities
to any new board or commission that it may create for the purpose.
In doing so, however, the State may not, as we have already pointed
out, destroy the franchise rights of grantees holding waterfront
privileges through grants from the State or City, nor impair the
obligations of bondholders of such municipalities by taking away
the property of such municipalities or the revenue derived therefrom. The distinction is very like the distinction drawn by the
Court of Appeals in People v. O'Brien, 111 N. Y. 1, in which the
right of the State to revoke the charter of a railway corporation
is sustained, while the franchise right of the corporation to operate
a railroad is at the same time held to be irrevocable.
But though the legal right to take away from cities embraced
within the Port of New York all governmental power over the port
is clear, the principle of local autonomy to which Ex-Justice Hughes
has referred (see supra, p. 42) and which is at the basis (as Dillon
tells us) of all municipal government, remains. Nowhere is the
demand for "'local self-government" so persistent as in the State
of New York. In the proposed Constitution adopted at the 1915
Convention and submitted to the voters at the November, 1915,
election, Section 3 of New Article XV provided (All new matter):
"Every city shall have exclusive power to manage, regulate and
control its property, affairs and municipal government subject to
the provisions of this constitution and subject further to the provisions of the general laws of the State, of laws applying to all the
cities of the State without classification or distinction, and of laws
applying to a county not wholly included within a city establishing
or affecting the relation between such a county and a city therein.
"Such power shall be deemed to include among others:" The
power to organize and manage all departments, fix compensation,
etc., to revise or enact amendments to its charter in relation to its
property, affairs or municipal government and to enact amendments
to any local or special law in relation thereto.
In Section 4 it was provided: "The Legislature may delegate
to cities for exercise within their respective local jurisdictions
such of its powers of legislation as to matters of state concern as
it may from time to time deem expedient.
"The Legislature shall pass no law relating to the property,
affairs or municipal government of any city excepting such as is




80


applicable to all the cities of the State without classification or
distinction."
Recognizing, however, that there are many functions dual in their
nature but primarily of State concern, the following was included:
"The provisions of this article shall not be deemed to restrict
the powers of the Legislature to pass laws regulating matters of
State concern as distinguished from matters relating to the property, affairs or municipal government of cities.
"Laws affecting cities in relation to boundaries, water supply,
sewerage and public improvements, involving the use of territory
outside the boundaries of cities, and in relation to the government
of cities in matters of State cotncern and applying to less than all
the cities of the State without classification or distinction are
defined for the purposes of this article as special city laws."
Even had this amended Constitution been adopted by the people,
adequate power would have remained, nevertheless, in the State
to create a State Commission exercising State functions in the
development of the port; and in spite of the provisions for local
autonomy existing in the Constitution of the State of New York,
adequate power exists, as we have seen, to create commissions exercising a similar State function. The political problem remains still
to be solved, namely, to what extent shall the power and the
initiative of municipalities in the development of the port be preserved? The answer in the proposed plan is this: That there
shall be a single Port Authority deriving powers from the two
States, covering a district embracing parts of the two States.
Within this district the Port Authority shall have veto power upon
all port developments and improvements, and in addition shall have
power to initiate improvements, and for that purpose shall have
power to take and hold property, borrow money, construct and
maintain docks, piers and terminals, and to collect the revenue
therefrom. Subject always to the federal power to regulate commerce and navigation, it shall, additionally, have power to pass
rules and regulations governing the port, but only after consideration of these rules and regulations by the local communities within
the district. In brief, (see Article XVII) before a rule or regulation becomes operative it must be published and the communities
affected thereby have the right to register their approval or disapproval. If the regulation affects the entire district, communities
embracing one-third of the total population may, through their




81


official bodies, take exception to the regulation. If the Port Authority so desires, it may then apply to the Appellate Division of the
First and Second Departments (if the regulation is applicable
within the State of New York) or to the Supreme Court of New
Jersey (if the regulation is applicable within the State of New
Jersey) for a certificate of "reasonableness and public necessity."
If such certificate be secured, the regulation becomes binding. If
not, it falls. There is thus given full opportunity for hearing,
public discussion, careful examination of each regulation upon its
merits. Eighty per cent. at least of the regulations so adopted,
in all probability, will never be questioned, but by this provision
every community will be given the opportunity of public discussion
and its "day in court."  Yet the paramount power of the State
will not be thwarted in its exercise by the mere recalcitrance of an
unreasonable and dissentient local government.
C: Other Delegated Bodies
In Erie Railroad Co. v. Public Utility Commissioners, 89 N. J. L.
57 (1916), it is said that to accomplish the ends of government, "it
'has been found expedient to create various boards and commissions,
which are charged with the duty of supervising, directing and
controlling particular subjects. It has been held that the granting
of such power by the legislature was not a grant of either legislative or judicial power." In the leading case in New York, Saratoga
Springs v. Saratoga Gas Co., 191 N. Y. 123, it was held that "the
constitutional guaranty does not require or imply that the three
great powers of government, legislative, executive and judicial,
shall be kept absolutely separate and independent of each other.
While legislative powers that are strictly and exclusively legislative cannot be delegated, yet, both before and after the ratification
of the Federal Constitution by the state of New York, and under
all the constitutions of the state, the legislature has imposed duties,
involving the exercise of legislative, as well as administrative or
judicial, powers upon administrative and judicial officers. During
that time the people have had ample opportunities, in the adoption
of four constitutions, or the amendment thereof, to correct any
misconception or misconstruction as to their powers, on the part
of public officers, whether legislative, executive or judicial, but no
constitutional provision restraining the legislature from delegating
legislative powers, when necessary for the execution of general laws,
has been adopted, and any exercise of power by the legislature




82


which for a long time has passed unchallenged, or, if challenged,
has been sustained by the courts, must be deemed to have been
approved by the people, unless forbidden by subsequent constitutional provision."  (Headnote.)
The United States Supreme Court has repeatedly held that it is
not a delegation of legislative or judicial power to charge the
Secretary of War or the President or any other administrative
officer with the duty of ascertaining, under a general rule, whether,
for example, a particular bridge is an unreasonable obstruction to
navigation (See Monongahela Bridge Co. v. United States, 216
U. S. 177). Thus the President may be authorized to suspend an
Act or to put it in operation upon the contingency of the happening of events to be ascertained by him and made known by his
proclamation. Field v. Clark, 143 U. S. 649, 683. Chief Justice
Marshall, in delivering the unanimous judgment of the Supreme
Court in Wayman v. Southard, 10 Wheaton 1, 43, 45, 46, said that
Congress may decide upon a general provision and give powers "to
those who are to act under such general provisions to fill up the
details." In Field v. Clark, the Court said: "As the suspension
was absolutely required when the President ascertained the exist-*
ence of a particular fact, it cannot be said that in ascertaining that
fact and in issuing his proclamation, in obedience to the legislative
will, he exercised the function of making laws." "The true distinction,'" as pointed out by Judge Ranney in Cincinnati, Wilmington R. Co. v. Clinton County Comrs., 1 Ohio St. 88, quoted in
Field v. Clark at pages 693-4, "is between the delegation of power
to make the law, which necessarily involves a discretion as to what
it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The
first cannot be done; to the latter no valid objection can be made."
"Half the statutes on our books," says the Court in Moers v.
Reading, 21 Pa. 188, 202, quoted by the United States Supreme
Court in Field v. Clark, "are in the alternative, depending on the
discretion of some person or persons to whom is confided the duty
of determining whether the proper occasion exists for executing
them. But it cannot be said that the exercise of such discretion is
the making of the law." So in Locke's App., 72 Pa. 491, 498:
"To assert that a law is less than a law, because it is made to
depend on a future event or act, is to rob the legislature of the
power to act wisely for the public welfare whenever a law is passed
relating to a state of affairs not yet developed, or to things future




83


and impossible to fully know."  See also Buttfield v. Stranahan,
192 U. S. 470, 496 (giving the Secretary of the Treasury authority
to establish uniform standards of purity, quality and fitness of
all kinds of teas) and the recent Acts of Congress by which the
Secretary of the Treasury, the Commissioner of Internal Revenue,
the Secretary of War and the President are authorized to make, by
proclamation, general language administratively effective.  This
principle is also the basis for the power to fix rates by the Interstate
Commerce Commission and public service and public utility commissions.
Nor is there any objection to transferring such powers to the
judicial department. As Judge Cullen has pointed out in the
Saratoga Springs case, originally the power to grant divorce was
legislative and in this State during Cotonial times this power remained purely legislative until 1787, when the State passed an Act
which, reciting that it was more advisable for the Legislature to
make general provision for such cases than to afford relief to individuals without proper trial, jurisdiction was conferred upon the
Court of Chancery to grant divorce for adultery. "'This transfer of
power to the judiciary," says Judge Cullen (Saratoga Springs v.
Saratoga Gas Co., 191 N. Y. 123, 135) "rested solely on legislative
enactment until the Constitution of 1846."  Likewise, from the
earliest times in the history of the State, the power to lay out and
construct new roads was with the courts, although as Judge Cullen
says: "No student of government would assert that the laying out
and construction of roads is properly a judicial function."
In Citizens' Savings Bank v. Tolwn of Greenburgh (173 N. Y.
215), the Court considered the validity of the statute providing for
the laying out and construction of highways extending through two
or more towns up on the presentation of a petition by a freeholder
to the Supreme Court, the Supreme Court being directed, after a
hearing, to determine whether the highway was necessary for the
public welfare and convenience, it being urged that the Act conferred non-judicial duties upon the Court. The statute was upheld,
Judge Gray saying: "The legislature is unrestricted in its power
to provide for the construction of public highways, and, from an
early date in this state, there has been legislation devolving functions similar in effect to those imposed in this act, which has never
been held to be objectionable by this court." Judge Gray
quoted from Judge Nelson's opinion in Commissioners of Highways




84


of Warwick v. Judges of Orange County, 13 Wend. 433, wherein
Judge Nelson said: "The proceeding by appeal was not intended
to be a review of legal questions, or of irregularities that might
exist in the preliminary steps, as on a writ of certiorari; but to be
an examination of the necessity or propriety of the road, assuming
all the previous steps to have been regularly taken." The Legislature in 1797 by Chapter 64 conferred upon the Courts of Common
Pleas of the various counties power to grant licenses for the keeping
of ferries and to prescribe the tolls to be charged, which power
continues to this day, being now vested in County Courts and
City Courts (Highway Law, ~~170, 171*) and, said Judge Cullen,
"a member of this court, when county judge of Erie county, granted
such a license and fixed the rates of ferriage." (Saratoga Springs
case, 191 N. Y. 123, at p.-136.)
In People v. Babcock, 11 Wend. 587, the Supreme Court of the
State of New York decided that to authorize the conduct of a ferry
between that State and Canada over the Niagara river, license
must be secured from the Court of Common Pleas of the County
in which its terminus within that State was located. In Canada
Xorthern Railway v. International Bridge Co., 7 Fed. Rep. 653 and
8 Fed. Rep. 190, the charter of the International Bridge Co. contained the following provision: "All railway companies desiring
to use said bridge shall have and be entitled to equal rights
and privileges in the passage of the same, and in the use of the
machinery and fixtures thereof, and of all the approaches thereto,
under and upon such terms and conditions as shall be prescribed
by the district court of the United States for the northern district
of New York, upon hearing the allegations and proofs of the parties,
in case they shall not agree." Judge Wallace held that this was
not a delegation of legislative power, nor was it a conferring upon
the court of non-judicial functions. "It devolves upon this court
simply the judicial functions of determining the rights of parties
when they may be brought into controversy.... It is no less
the exercise of judicial functions to prescribe a rule of conduct
or protect the existence of a right during a future period, than it
is to determine whether the right has been invaded in the past.
It is one of the common offices of a court of equity to do this."
The duty to grant certificates of "public convenience and necessity" where the consent of property owners has not been secured
*Should read ~~270, 271.




85


to the construction of a railroad is now vested in the Supreme
Court of the State (See Railroad Law, ~174). The power which
the States have to regulate commerce and navigation and to remove
obstructions to commerce and navigation (subject at all times to
the paramount federal power) may, therefore, be exerted by the
passage of general laws and the execution of the details either by a
municipality, a commission, a board, or a single individual; and the
power to determine whether regulation is reasonable and a public
necessity may be vested in the courts.
The Legal Basis for Interstate Action
Thus far we have confined ourselves to the consideration of the
power of each State in relation to the Federal Government to deal
with matters within its own territory and sovereignty. There is
still to be considered the extent to which and the manner by
which two States may join in the attainment of an object common
to both. First of all, as we have seen from the Stockton case (32
Fed. Rep. 9), a New York corporation may be granted power by
Congress to build a bridge across the waters intersecting New York
and New Jersey. But another method which may be employed is
the one used for the construction of the international bridge running
from New York to Canada. On April 17th, 1857 (Chap. 753, Laws
of 1857), the State of New York, by Act of the Legislature, authorized the formation of the International Bridge Company to build
a bridge across the Niagara River to the American-Canadian line.
In the same year the Province of Canada authorized another corporation, the International Bridge Co. (of Canada), to build a
bridge across the Niagara River to the Canadian-American line
(20 Vict., Chap. 227). On May 4th, 1869, by an Act of the New
York Legislature (Chap. 550, Laws of 1869), the (New York)
International Bridge Company was authorized to consolidate with
the (Canadian) International Bridge Company, and a complementary Act was passed by the Dominion of Canada June 22, 1869.
These two corporations, one Canadian and one New York, were
thus permitted to consolidate and amalgamate by statutes of
the State of New York and of Canada, became vested with all of
the stock, property and franchises of the two corporations, and were
thereafter deemed to be one corporation, to have the name provided in their agreement and to possess all the rights and privileges
and were subject to all the disabilities and duties of each of




86
the corporations so consolidated. The consolidated company became the International Bridge Company. By Chapter 176 of the
Second Session of the 41st Congress of the United States (June,
1870), the bridge was authorized to be constructed. The bridge was
constructed and is now in operation. The validity of these grants
was sustained by Wallace, J., at 7 Fed. Rep. 653 and 8 Fed. Rep.
190, and recently were passed upon by the New York Court of
Appeals in People v. International Bridge Co., 223 N. Y. 137.
The Chesapeake and Ohio Canal, as originally planned, required
the action of the Legislatures of Virginia, Maryland and Pennsylvania, all of which united in incorporating the "Chesapeake
and Ohio Canal Company." The mutual interests of these States
could not have been carried out by the action of any one alone.
The highest court of Maryland said, "The legislature of neither of
the States, could have performed by any separate act of legislation,
what was proposed to be accomplished by the concurrent acts of all.
One terminus of the canal is proposed to be in the District of
Columbia, and the other in the State of Maryland; and Virginia
could not of its own authority, by any separate act, authorise a
canal to be made through Maryland, nor could Maryland authorise
a canal to be made through Virginia, without its consent." Yet all
this was accomplished by statutory enactments passed by each of
the three States and also by the Congress of the United States in
so far as it affected the District of Columbia (Congress in this instance acting as the Legislature for the District of Columbia). This
case, one of the earliest in the history of the country (1832), reported in 4 Gil. & J. (Maryland) 1, under the title Chesapeake &
Ohio Canal Co. v. Baltimore & Ohio Railroad Co., is clear authority
for the proposition that as a State may contract with an individual,
two or more of the States may enter into a compact or agreement
inter se, and this may be done by the complementary Acts of their
respective Legislatures.
The Morris Canal, as is well known, runs from the Delaware River
in New Jersey to the Hudson River at a point opposite New York
City. In its course it passes the southern border of New York. It
required for its supply a reservoir and for that purpose desired to
take the basin of Long Pond (or Greenwood Lake), a portion of
which was within the State of New York. In the employment of
this pond by raising the water, some of the lands around its shore
would be appropriated. Could a canal company organized under
the laws of the State of New Jersey acquire land within the State
of New York for the operation of a canal wholly within the State of




87


New Jersey? This was the question in the Matte) of Townsend, 39
N. Y. 171. The New York Court of Appeals held, in language appropriate to our situation, Judge Woodruff writing the opinion:
" The work promoted belongs to a class long recognized as public in
its character; and I think it was for the legislature to say whether
the benefit to result to our own citizens, and facilitating internal
commerce for the promotion of our trade or otherwise, were sufficient to call for the exercise of the power to take private property
therefor; and that the decision of the legislature on that point is
not subject to review in this court." There was, of course, no doubt
in the case that if the canal had come within our own limits the
Legislature could authorize its construction and the taking of lands
for that purpose, and, said the Court, "the construction of the reservoir for its supply, would be no less within the power. It does not
follow, because the canal is outside the State limits, that its construction and maintenance are not for a public use, within the meaning
of our Constitution. If it were within our limits, what are the public
benefits to result from its construction? Not merely that our citizens may use it for transportation or travel. Providing transportation to market and facilitating intercommunication are some
of the public purposes of such improvements; but communication
between our chief cities and the productive regions which lie outside our State, and intercourse with those who dwell there, are as
truly objects of public interest and advantage as between two sections of the State itself. Besides, the court cannot say that the
Morris canal does not run within the reach of a portion of our own
citizens, and directly aid them in the conduct of their intercourse
with our eastern border, or the counties along the Hudson river
to which it runs." This would seem to be clear authority for the
exercise of State power in the development of port facilities,
the purpose of which is "providing transportation," "facilitating
intercommunication" and "communication between our chief cities
and the productive regions which lie outside our State." Especially
would this be true if, by solemn treaty, the two States were to
engage in the common enterprise.
In the leading case of State of Virginia v. State of Tennessee,
148 U. S. 503, at p. 518, the United States Supreme Court observed
that "there are many matters upon which different States may
agree that can in no respect concern the United States. If, for
instance, Virginia should come into possession and ownership of a
small parcel of land in New York which the latter State might




88


desire to acquire as a site for a public building, it would hardly
be deemed essential for the latter State to obtain the consent of
Congress before it could make a valid agreement with Virginia for
the purchase of the land. If Massachusetts, in forwarding its
exhibits to the World's Fair at Chicago, should desire to transport
them a part of the distance over the Erie Canal, it would hardly
be deemed essential for that State to obtain the consent of Congress
before it could contract with New York for the transportation of
the exhibits through that State in that way. If the bordering line
of two States should cross some malarious and disease-producing
district, there could be no possible reason, on any conceivable public
grounds, to obtain the consent of Congress for the bordering States
to agree to unite in draining the district, and thus removing the
cause of disease. So in case of threatened invasion of cholera,
plague, or other causes of sickness and death, it would be the
height of absurdity to hold that the threatened States could not
unite in providing means to prevent and repel the invasion of the
pestilence, without obtaining the consent of Congress, which might
not be at the time in session."
A recent example of the co-operation between two States is to be
found in the creation of the Palisades Interstate Park Commission.
1y Acts of the two Legislatures (Chapter 170, Laws of 1900, New
York, p. 380 and Chapter 87, Laws of 1900, New Jersey, p. 163),
there were created two separate State Commissions, each "a body
politic with power to sue and to be sued, " each appointing its own
officers authorized to acquire, maintain and make available for use
as a public park certain lands along the Palisades. Within its
State each Commission is supreme, but, like the present Port and
HIarbor Development Commission, the two Commissions sit in common session and engage in a joint undertaking.
Randolph, in his Law of Eminent Domain, ~29, believes that the
observations of the Supreme Court in Virginia v. Tennessee contemplate that an undertaking considered as a whole may be of
public use common to two States, so that "joint and interdependent
grants of the eminent domain may cure deficiencies incident to independent grants." In two articles in the Columbia Law Rcview
for Ilay and June, 1902, this author expresses the view that two
States may combine to secure more equitable enjoyment in a common
interest in water than is obtainable by independent action, and for
that purpose he suggests, to meet the decision in Kansas v. Colorado
(which involved an interstate controversy over the diversion of




89


water for irrigation purposes), that the States and Territories interested create, by compact, a public corporation for the promotion of
irrigation, which corporation should be charged with the planning,
construction and maintenance of a comprehensive system and with
the general apportionment of water among the several States parties
to the compact, the powers of the corporation to depend upon the
compact and upon such ancillary federal and state legislation as
might be advisable.
In an opinion by the same author upon the obtaining of a water
supply for the State of New York, he urged the making of a compact
between the States of New Jersey and New York as a means for
securing an interstate water supply. (See his opinion, Randolph
Legal Pamphlets, 1888-1915, Library of the Association of the Bar
of the City of New York.)
But as we have already seen, the States of New York and New
Jersey have already done business with each other. The Treaty of
1834 furnishes at once an historical precedent and a classical example for us to follow. For our present purposes, however, it is
defective and inadequate in many respects. Take, for example, so
simple a matter as the regulation of the rates of ferriage where,
Congress not having acted, the two States are still free to act.
In the New York Central case (74 N. J. L. 367), Justices Hendrickson, Swayze and Trenchard, Judge Swayze writing the opinion,
said (p. 375): "By the treaty between New York and New Jersey
(Gen. Stat. p. 3464) New York is given exclusive jurisdiction over
the waters of the Hudson river to the low-water mark on the New
Jersey shore, subject to the right of property of New Jersey to the
land under water west of the middle of the river, and to the exclusive jurisdiction of New Jersey over the wharves, docks and improvements on its shore, and all vessels aground on that shore or
fastened to such wharves or docks, and subject to the exclusive right
of New Jersey to regulate the fisheries on the westerly side of the
river. Even these reserved rights of New Jersey are further qualified by a provision that they shall be subject to the laws of the
State of New York in relation to passengers, and that navigation be
not obstructed or hindered.
"The limitation of New Jersey's jurisdiction to vessels aground
on its shore, or fastened to wharves or docks, and the express
reservation by which even those vessels are subject to the laws of
New York in relation to passengers, are a plain indication that
New Jersey has no control over vessels actually in transit across




90


the river, and the rates to be charged for transportation of passengers thereon." This case went up to the Court of Errors and
Appeals of New Jersey and is reported in 76 N. J. L. 664. The
opinion of the lower court was there reversed and the highest court
of New Jersey (Judge Reed writing the opinion) said (p. 682):
"It would seem, however, that whether the jurisdiction of the State
of New York runs to the middle of the Hudson river or to the
New Jersey shore, it would not affect the question now involved.
The ferry-house is within the jurisdiction of New Jersey, and it is
the right of the state to regulate the charges which the keeper of
such ferry-house may impose for transportation to New York that
is involved. Now, whether the transportation is partly or wholly
over waters of the State of New York seems to be immaterial, for in
the one case, as in the other, the transportation would be interstate
commerce.
"But apart from this, it is to be observed that the agreement
entered into between the commissioners was ratified by the legislature of New Jersey in 1834. It had been in existence, therefore,
nearly twenty years when the case of State v. Chosen Freeholders
of Hudson County, supra, was decided, although this point was not
noticed by either counsel or court in that case. We would hardly,
on that ground, disturb a decision so well considered which has
stood for over half a century upon a new view of the effect of
conditions which then existed."
The decision of the Court of Errors and Appeals in this case
came up before the United States Supreme Court, and the United
States Supreme Court reversed the Court of Errors and Appeals,
sustaining the Supreme Court of New Jersey (see 227 U. S. 248),
the United States Supreme Court, however, resting its decision upon
the ground that the operation of the ferry (the Weehawken Ferry)
constituted interstate commerce.  (See supra, p. 41.)
In the Port Richmond Ferry case, 234 U. S. 317, as we have
already seen (see supra, p. 40), Mr. Justice Hughes held, distinguishing the Weehawken Ferry case, on the ground that it was
not a ferry operated in connection with any railroad, that each
State at the ferry-house situated within its State, could regulate the
charges and tolls. "If the State may exercise this power, it necessarily follows that it may not, in its exercise, derogate from the
similar authority of another State. The state power can extend
only to the transactions within its own territory and the ferriage




91


from its own shore. It follows that the fact that rates were fixed
by New York did not preclude New Jersey from establishing
reasonable rates with respect to the ferry establishment maintained
on its side." In this case, the point with regard to the New YorkNew Jersey Treaty of 1834 was neither presented nor considered
by the Court.
The question, therefore, is either still unsettled and subject to
debate (which seems to us to be the better opinion) or each State is
still free to make regulations with regard to ferriage tolls on its own
side. It may be desirable to construct between the two States
many bridges and many tunnels, some of which or some part of
the operation of which, may be founded upon legal principles
identical with those in the Port Richmond Ferry case. Such opportunities for the development of friction should be foreclosed.
Problems of this character should be committed to a single Port
Authority representative of both States and co-operating in the
development of the larger port.
The Treaty-Making Power of the States and What May Be
Done Under It
The Federal Constitution provides that "no State shall, without
the consent of Congress, lay any duty of tonnage, keep troops or
ships of war in time of peace, enter into any agreement or compact
with another State, or with a foreign power, or engage in war, unless
actually invaded, or in such immediate danger as will not admit of
delay."  We have already seen that the United States Supreme
Court held that this provision does not apply to those matters which
do not concern the United States. Even the establishment of a
boundary line between States-the most familiar and most frequent
raison d'etre of treaties between States-may not require the approval of Congress. Says the United States Supreme Court in
Virginia v. Tennessee, 148 U. S. 503, 520:  "The compact or
agreement will then be within the prohibition of the Constitution
or without it, according as the establishment of the boundary line
may lead or not to the increase of the political power or influence of
the States affected, and thus encroach or not upon the full and free
exercise of Federal authority. If the boundary established is so run
as to cut off an important and valuable portion of a State, the
political power of the State enlarged would be affected by the settlement of the boundary; and to an agreement for the running of such




92


a boundary, or rather for its adoption afterwards, the consent of
Congress may well be required. But the running of a boundary
may have no effect upon the political influence of either State; it
may simply serve to mark and define that which actually existed
before, but was undefined and unmarked. In that case the agreement for the running of the line, or its actual survey, would in no
respect displace the relation of either of the States to the general
government." If the compact or agreement between the States
does not affect the political power of either, it would seem, therefore, as though approval by Congress were unnecessary. The treaty
between New York and New Jersey of 1834, however, was approved
by Congress. That treaty did seriously affect the political relations
of the two States, and as we have seen (supra, p. 15 et seq.) settled
and disposed of a matter that had been the subject of serious controversy between the two States. It is probable that, in any event,
the farsighted lawyers of that day would have recommended the
approval of the treaty by Congress in order to avoid any possible
question concerning its validity. So in proposing an amendment
or supplement to the 1834 treaty, it would seem to be the wiser
policy to secure ratification and approval by Congress. The points
at which the federal power crosses the State power, the difficulty
of always distinguishing between what is a State function and what
is a federal function-all of which has been already discussedwould seem to point to the practical wisdom of securing in advance
of action ratification of the treaty by Congress. (The time when
such a treaty may be ratified and whether by express action or by
acquiescence is fully discussed in Virginia v. Tennessee, 148 U. S.
503, at p. 521.) Of course, the two States could deal with the port
problem as they have dealt with the Palisades Park problem, that
is to say, each State could act within its own jurisdiction
through a separate commission which would co-operate with a
similar commission created by the other State. Each of the two
commissions could be a body corporate, as well as politic, and could
receive power to hold real estate and to operate port utilities. Such
a piece of machinery would be cumbersome, slow in operation, and
likely to be ineffective at many points. But plans for port development have been so long delayed and the great war has so imperatively made prompt action necessary, that the most effective agency
that can be created should now be devised and put into action as
quickly as possible. A single Port Authority, deriving powers from
the two States, a body both corporate and politic, capable also of




93


performing duties that may be assigned to it by any of the branches
of the Federal Government, would seem to be the logical instrumentality. But each State is a sovereign in its own territory and
the port lies in the territory of both. Adequate power in such a
single Port Authority, similar to the power invested in Port
Authorities at London, Liverpool, Hamburg, New Orleans, Montreal,
etc., etc., in our situation will involve some yielding upon the part
of each State of its supreme and complete sovereignty. To what
extent may a State or Nation, retaining its general sovereignty,
grant power to another State to deal with property located within
the territorial bounds governed by the former? We may assume
at the outset that every State, like every nation, will reluctantly
yield of its sovereign power, though, in our situation, the fact that
the obligations will be equal, mutual and reciprocal may make the
problem easier. This branch of the subject is perhaps the most
difficult, though at the same time the most interesting of the subjects
with which we must deal. It takes us into fields which lawyers
do not customarily enter. However, when such a Port Authority
comes to take title to property, or conveys title, or borrows money,
or issues orders, it will need to rest its action upon firm and well
settled principles of law. It will be profitable, therefore, to consider
this branch of the problem fully and place where it is accessible
the legal theory and the precedents upon which we may rely.
If a State may alienate a part of its territory in perpetuity to
an individual, it may, of course, alienate to another State. This
is the theory underlying all boundary treaties. Each State grants
and conveys to the other-or releases, as the case may be-all its
right, title and interest in the property on the other side of the
boundary. "It is too late in the history of the United States," says
Judge Brewer in Wlilson v. Shaw, 204 U. S. 24,.32, "to question the
right of acquiring territory by treaty." But we are not to change
in any respect the boundary lines between New York and New
Jersey as settled by the Treaty of 1834. We are simply to vest
sovereign authority within a certain portion of territory in both
States, and such sovereign authority only to a limited degree, sufficient to accomplish the main purpose. This is already done in
the Treaty of 1834. Though, of course, no State in the Union may
act beyond the scope of its own Constitution nor infringe any of the
provisions of the Federal Constitution, within these limitations it
is free and acts with the power of any sovereign State. In Brien
v. West Elliott, 2 Penrose & Watts (Pa.) 49, 61, Gibsoni, C. J.,
speaking for the Court, says: "... the power of the two states




94


to regulate questions of title to the soil, even at the expense of rights
previously vested under either, [is] not now to be questioned. The
compact is necessarily founded in an assumption of it. There was
no constitutional limitation on either side; and the parties acting
in the capacity of sovereigns, were fettered by no rule but their
sense of expediency and justice. The consideration was the compromise of an international dispute...."  Under the Treaty
of 1780 between Pennsylvania and Virginia, the title to land conveyed thereby would go one way under the decisions of the Virginia
court, while under the decisions of the Pennsylvania court it would
go another. In Marlatt v. Silk, 36 U. S. (11 Pet.) 1, 9 L. ed. 609,
the United States Supreme Court, Barbour, J., writing the prevailing opinion, held that the decisions of the State courts are
looked to to ascertain what the law is where the controversy is
between private parties arising under a compact made in or by
one State, "whereas in the case at bar, the question arises under,
and is to be decided by, a compact between two states: where therefore the rule of decision is not to be collected from the decisions
of either state, but is one, if we may so speak, of an international
character. "
So, too, in Iowa v. Illinois, 147 U. S. 1, 37 L. ed. 55, 13 Sup. Ct.
Rep. 239, where the dispute arose over the boundary line between
Illinois and Iowa, the contention of each State was supported by a
decision of its court of last resort. The United States Supreme
Court recognized these decisions as presenting in the clearest terms
the conflicting view as to the line of jurisdiction between two neighboring States bounded by a navigable stream, but proceeded to a
determination of the rights of the two States based upon a careful
study and review of the authorities on international law, in this
instance finding that the term "middle of the stream," as established in international law and by the usage of European nations,
meant the middle of the channel of such streams.
International law and international precedent, therefore, must be
examined for the purpose of determining the effect of such a treaty
as we have under consideration.
Servitudes
Two owners of adjoining farm lands require access across both
for the full development of the farms of both. To confirm this
access they draw a deed or instrument by which the rights are
established. The thing created in law is called an "easement," and




95


the burden imposed upon the land which is to serve the easement
is called a "servitude;" each piece of property serves the other.
In urban real estate there is a very common illustration. Two
owners of lots adjoining each other intend to erect separate buildings. Ordinarily, each would erect a separate wall at or near the
line of intersection. Where land is expensive, what more natural
than for one owner to say to the other: "Let us erect a wall which
will serve both buildings and which will be common to us both"?
This is what is called a "party wall," and an agreement of this
character is called "a party wall agreement."   Each piece of
property is the beneficiary of a servitude assumed by the other. In
Roman law "the one piece of land was said to serve the other."
(Imperatores Justiniani Institutiones, 2 ed., p. 26, note.) Sir Robert
Phillimore, in his "International Law," Vol. 1, 3d ed., 1879, says:
"In the language of Jurisprudence, when a thing is subject to the
exercise of a right by a person who is not the master or proprietor
it is said to serve (res servit) or yield service to that other person."
This doctrine of Servitus plays an important part in Roman law,
and in some shape and under some appellation or other is to be
found in the jurisprudence of all nations. The obligation to service
"'constitutes a right in the obligee or the person to whom it is due,
and it ranks among the 'jura in re,' while it operates as a diminution and limitation of the right of the proprietor to the exclusive
and full enjoyment (libertas rei) of his property." Under Roman
law the servitudes consisted either in not doing something (in non
faciendo) and was negative (servitus negativa), or in suffering
something to be done (in patiendo) and was affirmative (servitus
affirmaativa). Where the owner of a thing assumed the obligation
to do something (in faciendo) in relation to that thing for the
benefit of another, this obligation assumed a technically different
character and was not regarded as a jues in re. "But (as Bluntschli
warns us)," says Sir Edward S. Creasy (Creasy: The First Platform of International Law, 1876, ~256), "much caution is requisite
in applying to international law the doctrines of the Roman law
as to praedial servitudes, urban servitudes, rustic servitudes, and
other forensic distinctions." Nevertheless, the principles of "international servitude" are fairly well established and history presents
many applications of them.
Probably nowhere in the history of international law has the
subject received fuller examination and study than in the North
Atlantic Coast Fisheries Arbitration before the Hague Tribunal of




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Arbitration. In the twelve or thirteen volumes forming the record
of this case will be found the expressions upon the subject of nearly
every international writer and of all the great international lawyers.
English translations of extracts from works of Argentinian,
Austrian, Belgian, French, German, Italian, Russian, Spanish and
Swiss publicists, together with extracts from the works of British
and American publicists, were compiled by James Brown Scott for
use before the Hague Tribunal. This volume, called "'International
Servitudes," printed by the Government Printing Office in 1910,
is undoubtedly the most valuable collection of authorities on the
subject. (Through the courtesy of Ex-Senator Elihu Root, of
counsel for the United States, and Hon. Chandler P. Anderson, the
attorney for the United States in the Fisheries Arbitration, a copy
of this volume has been made a part of the library of our Commission.)
Sir Robert Phillimore once said (Vol. 9, Proceedings before the
Hague Tribunal, North Atlantic Coast Fisheries Arbitration, 569
(338): "In the memorable answer, pronounced by Montesquieu
to be reponse sans repliqte, and framed by Lord Mansfield and
Sir Geoige Lee, of the British to the Prussian Government,
" 'The law of nations is said to be founded upon justice, equity,
convenience, and the reason of the thing, and confirmed by long
usage. 
"It is more especially to this usage, as evidencing the consent of
nations, that great judges, such, among others, as Lord Stowell and
Chancellor Kent, and great jurists of all countries, have continually
referred."
From the wealth of learning contained in the volume to which
we have referred, we take the following (Vol. 1, Sir Robert Phillimore's "International Law," 3rd ed., 1879, ~277): "The property
of a state may not only be alienated, but may also be subjected to
obligations and services in favor of another state; as the property
of an individual may be burdened and encumbered in favor of
another individual."
~279: "States are sometimes placed in such physical relations
to each other that some limitations of the abstract rights of each
necessarily flow from their natural relations, or from the reason of
the thing. Thus a state is bound to receive the waters which naturally flow within its boundaries from a conterminous State. This




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obligation belongs to the class of 'sertvitutes juris gentium naturalcs,' and here the provisions of the Digest and Institutes may
be said to be identical with those of International Law."
~280: "A   State may voluntarily subject herself to obligations
in favor of another state, both with respect to persons and things,
which would not naturally be binding upon her. These are 'servitutes juris gentium voluntarice.' "
Hannis Taylor, in "A Treatise on International Public Law,"
~217, says:  "A state may limit or qualify its sovereignty and
jurisdiction over its territorial property by permitting a foreign
state to perform within its bounds certain acts otherwise prohibited(; or by surrendering the right to exercise certain parts of its
domestic jurisdiction as a protection to others. Restrictions thus
imposed upon the sovereignty of a state are known as servitudes,
which may be either positive or negative."
Dr. L. Oppenheim, "International Law," ~205: "Since the
territory of a state includes not only the land, but also the rivers
which water the land, the maritime belt, the territorial subsoil, and
the territorial atmosphere, all these can, as well as the service of
the land itself, be an object of state servitudes. Thus a state may
have a perpetual right of admittance for its subjects to the fishery
in the maritime belt of another state, or a right to lay telegraph
cables through a foreign maritime belt, or a right to build and use
a tunnel through a boundary mountain, and the like. And should
ever aerostation become so developed as to be of practical utility, a
state servitude might be created through a state acquiring a perpetual right to send military aerial vehicles through the territorial
atmosphere of a neighboring state."
Senator Root, in his argument before the Hague Tribunal (see
Volume 11, p. 1285), after reading from Bluntschli, Bonfils, Calvo,
Chretien, Clauss, Despagnet, Diena, Fabre, Fiore, Hall, Hartmann,
Heffter, Heilborn, Hollatz, Holtzendorff, Kliiber, Lomonaco, G. F.
de Martens, Neumann, H. B. Oppenheim, L. Oppenheim, Phillimore,
Rivier, Ullmann, at p. 1287 (2129) culls as a well-settled principle
the following: "Since anybody can grant any right he chooses
to a third party concerning his thing, so has each nation a right to
graynt another nation a certain right in its territory.... It belongs
even to the mutual duties of nations for the one to create certain
rights in his territory for the advantage of the other, in so far as
no abuse of the territory takes place."




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The North Atlantic Coast Fisheries Case
In the argument before the Hague Tribunal, George Turner, one
of the counsel for the United States (Vol. 9, North Atlantic Coast
Fisheries Arbitration, 564 (335), said: "When one nation grants
to another certain rights to be exercised within its territorial limits,
rights which possess the attributes and qualities of a servitude by
the municipal law, it creates a relation between itself and the other
nation which is analogous to the relation which exists between the
owners of the dominant estate and the servient estate by the municipal law, in view of the fact that the sovereignty which nations
possess, under the conception of to-day, constitutes a species of
higher ownership, which the nations may contract about, or may
burden or may dispose of, in whole or in part, at their will and
their pleasure. When such a grant is made by one nation to
another, to be exercised within its territories by the other, a right
to resort to the territory and to employ the territory for profit,
which right is a perpetual right, and is strictly a national right, we
have, in fact, every one of the concepts, every one of the qualities,
every one of the attributes of the servitude as it was known to the
Roman law."
The controversy before the HIague Tribunal in the Fisheries Arbitration presented a number of interesting questions. The one with
which we are concerned, however, called for an interpretation of the
fisheries provision of the Treaty of 1818 and arose out of the clause
of the treaty which provided that "the inhabitants of the United
States shall have forever, in common with the subjects of His
Britannic Majesty, the liberty to take fish of every kind" on the
so-called treaty coast. "The British contention," says Mr. Anderson (Chandler P. Anderson: The Final Outcome of the Fisheries
Arbitration-The American Journal of International Law, January, 1913), "rested on the argument that the words 'in common
with the subjects of His Britannic Majesty' meant that American
fishermen should be on exactly the same footing as local fishermen
in British waters, and therefore subject to the same governmental
control exercised by Great Britain and her Colonies over British
subjects. The United States, on the other hand, showed by the
negotiations resulting in that treaty, as well as by means of the
antecedent French fishing treaty rights on the Newfoundland coast,
that the words 'in common' were used to negative the implication,
which otherwise would have arisen, that American fishermen were




99


to have an exclusive right of fishing. The United States further
maintained that, instead of subjecting American fishermen to local
regulations, the effect of the treaty was either to establish a fishery
common to both nations, in which the United States had an equal
interest with Great Britain, thus creating an international servitude
depriving Great Britain of a portion of her sovereignty in the
treaty waters, or else, in the alternative, that the treaty must be
regarded as imposing upon Great Britain a contractual obligation
limiting the exercise of British sovereignty in treaty waters, to the
extent that the prerequisite of reasonableness must be determined
before regulations could be enforced against American fishermen,
and that neither Great Britain nor her Colonies could be the sole
judge of the question of reasonableness."
In his dispatch to the United States Ambassador in London, Secretary Root said: "'The treaty of 1818 either declared or granted a
perpetual right to the inhabitants of the United States, which is
beyond the sovereign power of England to destroy or change. It
is conceded that this right is, and for ever must be, superior to any
inconsistent exercise of sovereignty within that territory. The
existence of this right is a qcalification of British sovereignty
within that territory."  (Vol. 4, North Atlantic Coast Fisheries
Case, Brief for Great Britain, pp. 18, 19.) In the memorable communications between Lord Salisbury and Secretary Evarts (Ibid.
29, 30, 31), Lord Salisbury said: "... Her Majesty's Government will readily   admit-what is, indeed, self-evident-that
British sovereignty, as regards those waters, is limited in its scope
by the engagements of the Treaty of Washington, which cannot be
modified or affected by any municipal legislation. I cannot anticipate that with regard to these principles any difference will be
found to exist between the views of the two Governments." Mr.
Evarts replied (1879) that he had nowhere taken any position
larger or broader than that stated by Lord Salisbury in the quotation just made. "I have never denied the full authority and jurisdiction either of the Imperial or colonial Governments over their
territorial waters, except so far as by Treaty that authority and
jurisdiction have been deliberately limited by these Governments
themselves."
Sir W. Robson, of counsel for Great Britain before the Tribunal
(see discussion, Vol. 11 (1011), 1674 et seq.), in a most enlightening
colloquy with Dr. Drago of the Hague Tribunal, stated that "a




100


State may make, for instance, with regard to a railway, a contract
with another State, giving that other State any rights it pleases
over its own territory, for the purposes of the railway... (1674)
(1012). It is to the good of mankind, to the good of individual
States, and to the good of the whole civilized community, that each
State should be encouraged to open its territory to other States,
either for economic purposes, or for purposes of general beneficial
intercourse. I say they may do it, and I say that the existing
international law allows them to do it, without danger. They may
do it as sovereigns. They may put their territory, as sovereigns,
under all kinds of obligations of the kind which we have heard
called real obligations. They may say:.'You may come to our
territory and fish, or build railways, or build warehouses. You
may do all these things.' I say that those are highly meritorious
grants to make; that they must be made, and they are made, without any consequence whatever of a character derogating from the
sovereignty of the States. That is my case.
"So that I accept the suggestion of the learned arbitrator that
such contracts can be made. I say they can be made, and ought to
be encouraged. No State ought to be deterred from limiting the
exercise of its own sovereignty in any of these respects. It ought
not to be deterred from doing it."  In other words, the great lawyers representing England did not dispute the power of two states
to join in a treaty limiting the exercise of their sovereignty in
these respects, but confined the argument to the consideration of
whether, in fact, they had done so with regard to the fisheries.
Sir W. Robson laid stress upon the importance of the Hague
Tribunal "in dealing with this great question, so framing its judgment as not to allow of any discouragement to States in making
obligations inter se, which may open the territory of one to the
inhabitants of another without any detriment to the sovereignty of
either. That, I think, is the thing we should all aim at. And my
own belief is that international law, as it is now constituted, does
that. International law, when it is thoroughly considered, as it
stands to-day, does allow a State to open its territory freely, to
limit the exercise of its own sovereign rights in certain particulars,
without any detriment to its other sovereign rights or Its
general national sovereignty." Again, in the colloquy with Sir
Charles Fitzpatrick: "States may do what they like with regard
to their property. In so far as they are owners, they may subject their property to any obligation that they please. I say they




101


may do it without any danger to their sovereignty. That is to say,
they put what obligations they like upon themselves as lords of
the land. A State may submit its dominium to these rights, without any derogation from its imperium... " Sir Charles Fitzpatrick said: "Your contention, briefly, is that a State may part
with a share of the public domain, either in favour of a citizen of
that State, in favour of the citizen of a foreign country, or in
favour of the Government of a foreign country?"  Sir W. Robson: "Yes.... It is the essential difference between dominium
and imperium, which, as one of the learned arbitrators has just
pointed out, has to be considered.... That general sovereignty is a
thing wholly apart and not affected by the grant of particular territorial rights, as the United States say it is affected."
Indeed, we may say that the framers of the treaty between New
York and New Jersey of 1834 had clearly in mind this distinction
between the preservation of general sovereignty and governmental
functions and the grant of title to land, the distinctions between
the title to the land under water, which, in the case of New Jersey,
extends to the middle of the stream, and the exercise of governmental police power, which is granted to one State even to the
shores of the other.
In its decision, the Hague Tribunal did not support the extreme
contention of our Government that Great Britain had transferred
to the United States sovereign rights in the treaty waters, but
"equally to the satisfaction of the United States" (as Mr. Anderson says in his article, "The Final Outcome of the Fisheries Question"), it decided that though Great Britain retained its sovereignty intact, it had nevertheless imposed a limitation upon the
exercise of this sovereignty, that is to say, it was an implied condition of the treaty that whatever regulations were adopted by
Great Britain covering the exercise of fishery rights, these regulations must be reasonable. The treaty, said the Tribunal, limited
the inherent sovereign rights of Great Britain to regulate the liberty
to take fish in and about Newfoundland "in respect of the said
liberties therein granted to the inhabitants of the United States
in that such regulations must be made bona fide and must not be
in violation of the said Treaty." Accordingly, in case of any disputes as to the reasonableness of such regulations, enforcement of
them against American fishermen must be suspended until they
were passed upon by an impartial tribunal and held by such
tribunal to be reasonable. The rules and methods of procedure




102


which should be adopted by the two Governments to carry out this
decision were embodied in the award and subsequently took shape
in a treaty, adopting with minor modifications the rules and
methods of procedure thus recommended. This treaty was signed
at Washington on July 20, 1912, and appears in full in the compilation of addresses and papers of Ex-Senator Elihu Root under the
title "North Atlantic Coast Fisheries Arbitration" (Harvard
Univ. Press, 1917-Edited by Robert Bacon and James Brown
Scott). The method, briefly stated, requires the British Government, when adopting regulations, to publish them in designated
newspapers for a certain period of time before they become effective, and provides that they shall not become effective with respect
to the inhabitants of the United States "until the Permanent Mixed
Fishery Commission has decided that the regulation is reasonable
within the meaning of this award." After the publication of these
regulations, the United States may convoke the Permanent Mixed
Fishery Commission for the purpose of passing upon the regulations. If it shall fail, however, so to do, the regulations become
effective. The Permanent Mixed Fishery Commission is made up
of experts selected by both nations.
Here, then, is a clear recognition on the part of English and
American lawyers, as well as a decision by the highest international
court, to the effect that sovereign states may engage in the regulation of commercial privileges in territorial waters without surrendering general sovereignty, and may, for the purpose of administering such regulations or of determining their reasonableness,
create a joint tribunal with final and supreme authority in the
premises.
The Panama Canal
Recently, the United States Government entered the cities of
Panama and Colon for the purpose of maintaining order and preserving health and taking certain necessary sanitary precautions.
These two cities are under the sovereignty of the Government of
Panama. The authority under which the United States Government acted was the treaty with the Government of Panama. This
treaty is in itself but another application of the principles under
discussion, not only with reference to our dealings with the Government of Panama, but also with reference to our dealings with




103


England. Again, the repeal of the Panama Canal tolls provision
in the Hay-Pauncefote Treaty furnishes a most instructive chapter
in the modern history of our Government, considered by many
statesmen to be one of the most honorable chapters in the diplomacy
of our country. This controversy presented the single question
of the obligations that we had assumed towards the governments
of other countries, especially that of Great Britain, in the building
and operation of the Canal. On the 5th of March, 1914, President
Wilson urged the passage by Congress of the bill for the repeal
of the tolls exemption in favor of the United States upon the
ground that our country had assumed treaty obligations toward
Great Britain which made exemption of tolls in our own favor
a breach of international duty. Legal title of the United States
to the Canal Zone was conceded. The sole issue was whether or
not the title was subject to an obligation in the nature of a trust.
In his memorable address to the Senate on January 21, 1913,
Senator Root said concerning our obligations to Great Britain:
"So, MIr. President, far from our being relieved of the obligations
of the treaty with Great Britain by reason of the title that we have
obtained to the Canal Zone, we have taken that title impressed with
a solemn trust. We have taken it for no purpose except the construction and maintenance of a canal in accordance with all the
stipulations of our treaty with Great Britain. We cannot be false
to those stipulations without adding to the breach of contract a
breach of the trust which we have assumed, according to our own
declarations, for the benefit of mankind, as the mandatory of civilization. " In other words, absolute sovereignty and control over the
Panama territory was vested in the United States, yet was subject
to a sacred trust in favor of Great Britain. Senator Root (in the
same volume, Addresses on International Subjects), discussing
"The Ethics of the Panama Question," traces the history of all
the treaties bearing upon the subject and the relations
between the various governments.   The treaty of December
12, 1846, between the United States and New Granada
(p. 182) provided: "The Government of New Granada guarantees
to the Government of the United States that the right of way or
transit across the Isthmus of Panama upon any modes of communication that now exist, or that may be hereafter constructed, shall
be open and free to the Government and citizens of the United
States.... And in order to secure to themselves the tranquil and
constant enjoyment of these advantages, and as an especial com



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pensation for the said advantages and for the favors they have
acquired by the fourth, fifth, and sixth articles of this treaty, the
United States guarantee positively and efficaciously to New Granada
by the present stipulation the perfect neutrality of the beforementioned Isthmus with the view that the free transit from the
one to the other sea may not be interrupted or embarrassed in any
future time while this treaty exists, and in consequence the United
States also guarantee in the same manner the rights of sovereignty
and property which New Granada has and possesses over the said
territory."  Senator Root, commenting upon this, said (p. 183):
"You will perceive that in this transaction New Granada recognized the subordination of her sovereignty to the world's easement
of passage by railroad or by canal, and, apprehending that other
nations might seek to exercise that right through the destruction
of her sovereignty and the appropriation of her territory, she procured the United States to assume the responsibility of protecting
her against such treatment."
The preamble of the IIay-Pauncefote Treaty of December 16,
1901, recites that the two parties "being desirous to facilitate the
construction of a ship canal... by whatever route may be considered expedient, and to that end to remove any objection which
may arise out of the Convention of the 19th April, 1850, commonly
called the Clayton-Bulwer treaty, to the construction of such canal
under the auspices of the Government of the United States, without impairing the 'general principle' of neutralization established
in Article VIII of that Convention" have for this purpose appointed plenipotentiaries, etc.  Article 2 gave our nation the
exclusive privilege to buy the right of way and to own it and
to build the canal. Article 3 gave rights to protect and govern
the  great  waterway.   But   Article  4  provided  that  no
change of territorial sovereignty or of international relations
of the country or the countries traversed by the canal shall
affect the present principle of "neutralization" or the obligations
under the present treaty.
Turning now to the international relations between the United
States and Panama established by the Hay-Bunau-Varilla treaty of
February 23, 1904, we find that the United States secured the grant
of lands and the franchise to build and operate a canal across
Panama from ocean to ocean. By Article I, "the United States
guarantees and will maintain the independence of the Republic of




105


Panama." By Article II, "the Republic of Panama grants to the
United States in perpetuity the use, occupation and control of a
zone of land and land under water for the construction, maintenance, operation, sanitation and protection of said Canal of the
width of ten miles extending to the distance of five miles on each
side of the center line of the route of the Canal to be constructed;
the said zone beginning in the Caribbean Sea three miles from
mean low water mark and extending to and across the Isthmus of
Panama into the Pacific Ocean to a distance of three marine miles
from mean low water mark with the proviso that the cities of
Panama and Colon and the harbors adjacent to said cities, which
are included within the boundaries of the zone above described,
shall not be included within this grant. The Republic of Panama
further grants to the United States in perpetuity the use, occupation and control of any other lands and waters outside of the
zone above described which may be necessary and convenient for
the construction, maintenance, operation, sanitation and protection
of the said Canal or of any auxiliary canals or other works necessary and convenient for the construction, maintenance, operation,
sanitation and protection of the said enterprise..
"Article III. The Republic of Panama grants to the United
States all the rights, power and authority within the zone mentioned and described in Article II of this agreement and within the
limits of all auxiliary lands and waters mentioned and described
in said Article II which the United States would possess and exercise if it were the sovereign of the territory within which said lands
and waters are located to the entire exclusion of the exercise by
the Republic of Panama of any such sovereign rights, power or
authority."
"Article VII. The Republic of Panama grants to the United
States within the limits of the cities of Panama and Colon and their
adjacent harbors and within the territory adjacent thereto the right
to acquire by purchase or by the exercise of the right of eminent
domain, any lands, buildings, water rights or other properties necessary and convenient for the construction, maintenance, operation
and protection of the Canal and of any works of sanitation, such
as the collection and disposition of sewage and the distribution of
water in the said cities of Panama and Colon, which, in the discretion of the United States may be necessary and convenient for the
construction, maintenance, operation, sanitation and protection of




106


the said Canal and railroad. All such works of sanitation, collection and disposition of sewage and distribution of water in the
cities of Panama and Colon shall be made at the expense of the
United States, and the Government of the United States, its agents
or nominees shall be authorized to impose and collect water rates
and sewerage rates which shall be sufficient to provide for the
payment of interest and the amortization of the principal of the
cost of said works within a period of fifty years and upon the
expiration of said term of fifty years the system of sewers and
water works shall revert to and become the properties of the cities
of Panama and Colon respectively, and the use of the water shall
be free to the inhabitants of Panama and Colon, except to the
extent that water rates may be necessary for the operation and
maintenance of said system of sewers and water.
"The Republic of Panama agrees that the cities of Panama and
Colon shall comply in perpetuity with the sanitary ordinances
whether of a preventive or curative character prescribed by the
United States and in case the Government of Panama is unable or
fails in its duty to enforce this compliance by the cities of Panama
and Colon with the sanitary ordinances of the United States the
Republic of Panama grants to the United States the right and
authority to enforce the same.
"The same right and authority are granted to the United States
for the maintenance of public order in the cities of Panama and
Colon and the territories and harbors adjacent thereto in case the
Republic of Panama should not be, in the judgment of the United
States, able to maintain such order."
For all of this, it will be recalled, Panama got ten million in gold
coin and an annual payment of two hundred and fifty thousand
dollars. By Articles VI and XV private land owners are guaranteed against damage, and any damage to private owners is to be
appraised and settled by a joint commission appointed by the
United States and Panama, whose decision shall be final. This
commission is to be appointed, two by the President of the United
States and two by the President of Panama. In case these disagree
by being equally divided, an umpire is to be appointed by the two
Governments who shall render the decision. By Article XXIII
the United States is given the right to employ armed force, if it
becomes necessary, for "the safety or protection of the Canal, or of




107


the ships that make use of the same, or the railways and auxiliary
works. ' 
While the United States Supreme Court. did not pass upon the
validity of all of the provisions of this treaty, nevertheless, in the
case of Wilson v. Shaw, 204 U. S. 24, it refused to interfere with
the operation of any of the provisions of the treaty. After reviewing the history preceding the execution of the treaty, Judge Brewer,
speaking for the Court, said: "For the courts to interfere...
would be an exercise of judicial power which, to say the least, is
novel and extraordinary" (p. 31). (In the same case the power
of the Government to build the Canal, and to authorize the incorporation of a company to operate the railroad, is fully sustained.)
The Suez Canal Convention
The provisions of the Hay-Pauncefote Treaty were taken from
the Suez Convention almost, says Senator Root (Panama Canal
Tolls address to the Senate, January 21, 1913), "though not quite —
textually. " The Suez Convention contained provisions reserving to
Turkey and Egypt as sovereigns of the territory through which the
canal passed, treating Turkey as the suzerain and Egypt as the
sovereign over Egypt, all of the rights that pertained to the sovereigns for the protection of their own territory.  (The Suez Canal
Convention is given in both French and English in Sen. Doe., 56th
Cong., 1st Sess., 1899, Vol. 10, Doc. 151, and in English in Sen.
Rep., 56th Cong., 2nd Sess., 1900, Vol. 1, Doc. 1337, pt. 4, p. 318 -319, and in House Doc., 62nd Cong., 2nd Sess., 1912, Doc. 680,
p. 41-44, and in White's "Expansion of Egypt," p. 339 et seq.)
By the Treaty of Constantinople, Oct. 29, 1888, between Great
Britain, Germany, Austria-Hungary, Spain, France, Italy, the
Netherlands, Russia and Turkey, providing for the free and open
navigation of the Suez Canal "to every vessel of commerce or of
war, without distinction of flag," the Powers agreed as follows
(Article VIII): "The Agents in Egypt of the Signatory Powers
of the Present Treaty shall be charged to watch over its execution.
In case of any event threatening the security or the free passage
of the Canal, they shall meet on the summons of three of their
number under the presidency of their Doyen, in order to proceed
to the necessary verifications. They shall inform the Khedivial
Government of the danger which they may have perceived, in order




108


that that Government may take proper steps to insure the protection and the free use of the Canal. Under any circumstances, they
shall meet once a year to take note of the due execution of the
Treaty.
"They shall especially demand the suppression of any work or
the dispersion of any assemblage on either bank of the Canal, the
object or effect of which might be to interfere with the liberty and
the entire security of the navigation."
The Egyptian Commission of the Public Debt
Lord Cromer in his "Modern Egypt" (Vol. II, p. 304 et seq.)
tells the story of the establishment of the Egyptian Commission
of the Public Debt, consisting originally of an Englishman, a
Frenchman, an Austrian, and an Italian, and later of a German
and a Russian. The Powers of Europe having loaned nine million
pounds, it was necessary to furnish security for the debt. For this
purpose, the revenues of Egypt were pledged to the service of the
debt and the Commissioners were authorized to collect these revenues. No loan could be contracted without their consent. The
Law of Liquidation passed by Egypt, coupled with the decree of
July 27, 1885, gave to the European Powers participation in the
judicial system  (Cromer: "Modern Egypt," p. 316), all the
Powers, without distinction, being represented upon the Courts of
First Instance. "The choice of judges rests nominally with the
Egyptian Government. In reality, the judges have until quite recently been nominated by their respective Governments" (p. 318).
Lord Cromer, commenting upon this system in his chapter on "Internationalism," refers to the wide field for the development of
internationalism of which the Egyptian Commission of the Public
Debt furnishes an example. For "What can be more natural in
cases of this kind," says he (p. 303), "than for the Powers to say
-we are agreed as to all that is essential; certain points of detail
remain to be settled locally; let us each appoint an expert who will
represent our interests and see that they get fair play, but who at
the same time will have no very marked political bias, and who will




109


treat the technical questions which come under his consideration on
their own merits?"
Sir Robert Phillimore points out that it frequently occurs that
a State, having contracted pecuniary obligations toward another
State, has mortgaged its revenues, or pledged a portion of its territory, as security for the payment of its debts. Thus, among the
instances which he cites, the United Provinces of the Netherlands
hypothecated Vlissingen, Rameken and Briel to England, in 1585.
Denmark, in 1654, hypothecated the province of Holland to Sweden,
as a security for the peace then concluded. Weimar appears to
have been pawned, so to speak, to Mecklenburg in 1803, and Corsica
by Genoa to France in 1768.
General Provisions of the Congress of Vienna
By the General Treaty of the Congress of Vienna, signed at
Vienna, June 9, 1815, Art. XXX (30), the King of Prussia and the
King of Hanover agreed:
"I. The Hanoverian Government engages to cause to be exectued, at its expense, in the years 1815 and 1816, the works which
a Commission, composed partly af artists, and to be immediately
appointed by Prussia and Hanover, shall deem necessary to render
navigable that part of the river Ems which extends from the
Prussian frontier to its mouth, and to keep it, after the execution
of such works, always in the same state in which those works shall
have placed it for the benefit of navigation."
Article CVIII provided: "The Powers whose States are separated or crossed by the same navigable River engage to regulate, by
common consent, all that regards its navigation. For this purpose
they will name Commissioners, who shall assemble, at latest, within
six months after the termination of the Congress, and who shall
adopt, as the bases of their proceedings, the Principles established
by the following Articles."
Article CIX: "The navigation of the Rivers, along their whole
course, referred to in the preceding Article, from the point where
each of them becomes navigable, to its mouth, shall be entirely free,




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and shall not, in respect to Commerce, be prohibited to any one; it
being understood that the Regulations established with regard to
the Police of this navigation shall be respected, as they will be
framed alike for all, and as favourable as possible to the Commerce
of all nations."
Article CX provides that the system for collection of duties and
maintenance of the police "shall be, as nearly as possible, the same
along the whole course of the River; and shall also extend, unless
particular circumstances prevent it, to those of its Branches and
Junctions, which, in their navigable course, separate or traverse
different States."
The Scheldt
By the Treaty of London, Nov. 15, 1831, between Great Britain,
Austria, France, Prussia and Russia and Belgium, relating to the
separation of Belgium from Holland, by Article IX it was provided
that concerning the River Scheldt, "that the pilotage and the buoying of its channel, as well as the conservation of the channels of the
Scheldt below Antwerp, shall be subject to a joint superintendence;
that this joint superintendence shall be exercised by Commissioners,
to be appointed on both sides for this purpose; that moderate pilotage dues shall be fixed by mutual agreement; and that such dues
shall be the same for the Dutch as for the Belgian Commerce."
(British and Foreign State Papers, 1830-31, p. 653 et seq.)  By
Article X, "The use of the canals which traverse both Countries
shall continue to be free and common to the Inhabitants of both."
The Niger and the Congo
The Treaty of Berlin, February 26, 1885 (Vol. 76, British and
Foreign State Papers), between Great Britain, Austria-Hungary,
Belgium, Denmark, France, Germany, Italy, the Netherlands, Portugal, Russia, Spain, Sweden, Norway, Turkey and the United
States, respecting the affairs of Africa, established the freedom of
navigation of these rivers, and provided for the creation (Article
XVII) of the International Navigation Commission of the Congo,
which "shall be charged with supervising the application of the
principles proclaimed and perpetuated (consacres) by this Declaration.




11l


"In all cases of difference arising relative to the application
of the principles established by the present Declaration, the Governments concerned may agree to appeal to the good offices of the
International Commission, by submitting to it an examination of
the facts which shall have occasioned these differences." (Hertslet's "Commercial Treaties," London, 1890, Vol. XVII.)
The Rhine
By the Treaty of Vienna, June 9, 1815 (see Hertslet's "Collection
of Treaties and Conventions between Great Britain and Foreign
Powers, Vol. 1, 1827), Article X of Annex 16 provided that in
order to insure that the navigation of the rivers along their whole
course, referred to in the preceding article, "shall be entirely free,
and shall not, in respect to Commerce, be prohibited to any one"
and "... to establish a perfect control over the observance of
the general regulation, and to constitute an authority which may
serve as a means of communication between the States of the Rhine
upon all subjects relating to Navigation, a Central Commission
shall be appointed." Each State bordering on the Rhine (Article
XI) was authorized to name a commissioner for its formation,
which was to assemble regularly at Mentz on the 1st of November
in each year.   (The Congress was representative of Austria,
France, Great Britain, Portugal, Prussia, Russia, Spain and Sweden.)  Article XII provided that "in order that a permanent
authority may exist, which, in the absence of the Central Commission, may superintend the observance of the regulation, and to
which the merchants and boatmen may at all times refer, there
shall be named a Chief Inspector and three Deputy Inspectors."
Articles XIII, XIV and XV provided in detail for the manner of
selection of the Chief Inspector by the Central Commission. It
was provided that the Prussian Commissioner should have one-third
of a certain number of votes, the French Commissioner one-sixth,
the Commissioner of the Netherlands one-sixth and the other German princes, excepting Prussia, one-third. The appointments of the
inspectors were to be for life. The Chief Inspector, assisted by
the Deputy Inspectors (Article XV), "are to superintend the fulfilment of the regulation, and to arrange everything relating to
the police of the navigation. It will, therefore be his right and his
duty to issue orders on this subject to the Offices for collecting
duties, and to communicate with the other local authorities of the




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States bordering on the Rhine." By Article XVI, the Inspectors
are to be under the control of the Central Commission, to whom
they must report, and were subject in all respects to their superintendence. And by Article XVII, "The decisions of the Central
Commission shall be had by an absolute majority of votes, which
shall be given in perfect equality; but as its members should be
considered as agents of the States of the Rhine, charged with making arrangements for their mutual interests, their decisions shall not
be binding upon these States until their consent shall have been
given by their Commissioners." By Article XXVII provision is
made for the making of detailed regulations, as well as for organizing "judicial authorities of the First and Second Instance, and
their mode of proceeding," "the Police of the ports for shipping,
unloading, or shifting cargoes," all of which are to be framed by
the Central Commission.
And by additional articles the same principles, it was stipulated,
should be applied to the Neck-r, the Mayne, the Moselle, the Meuse
and the Scheldt.
The French Fishing Rights at Newfoundland
The ownership of Newfoundland was at one time a matter of
dispute between Great Britain and France. By the Treaty of
Utrecht in 1713, France ceded all her claims to Great Britain, subject, however, to the provision that "it shall be allowed to the Subjects of France, to catch fish and to dry them on land, in that part
only, and in no other besides that, of the said Island of Newfoundland, which stretches from the place called Cape Bonavista, to the
northern point of the said Island, and from thence running down
by the western side, reaches as far as the place called Point Riche."
By the treaty between Great Britain and France in 1783, the territorial limitations were changed, and by the treaty of January 14,
1857, Article I (see U. S. Case, North Atlantic Fisheries Case before
the Hague Tribunal, Vol. 2, Appendix, p. 51 et seq.) French
subjects were confirmed in the "exclusive right to fish, and to use
the strand for fishery purposes, during the season elsewhere specified (Article VIII), on the east coast of Newfoundland, from Cape
St. John to the Quirpon Islands. They shall also have the right
to fish, and to use the strand for fishery purposes, during the said
season, the the exclusion of British subjects, on the north coast of
Newfoundland, from the Quirpon Islands to Cape Norman; and




113


on the west coast, in and upon the five fishing-harbours of Portau-Choix, Small Harbour (or Petit Port), Port au Port, Red Island,
and Cod Roy Island.    Such exclusive fishing, from the Quirpon
Islands to Cape Norman, shall extend to a distance of three marine
miles... from... and as regards the five harbours, shall extend
to within a radius of three marine miles in all directions from the
centre of each such harbour, but with power to the Commissioners
or Umpire elsewhere provided for in this Convention to alter such
limits for each harbour in accordance with the existing practice."
For the enforcement of these provisions, the naval officers of the
French Government (Article IX) were authorized to enforce "the
said French exclusive rights of fishing" by "expulsion of vessels or
boats attempting concurrent fishing, in the case of there being no
British cruizing-vessel in sight, or made known to be present, within
a distance of five marine miles."  Article XVIII provided for
an arbitration commission, consisting of one commissioner for each
Power, with provision for an umpire to settle disputes. These
treaty rights remained in force and effect until April 8, 1904, when
France limited her advantages in exchange for other rights in
Africa, retaining, however, the fishing rights in these territorial
waters.  (See 2 North Atlantic Coast Fisheries Case, p. 83 et seq.)
Despagnet, a leading French writer, in his work "Cours de
Droit International Public," 1899 (see "Coastal Waters," English translations compiled by Borchard, p. 59), says:
"A state may cede to another the right of fishing in territorial
seas, even to the exclusion of its own nationals. Such is the case in
Newfoundland. Although fishing is free on the Grand Banks of
Newfoundland situated in the open sea, and although it belongs
exclusively to the French in the territorial waters of her colonies of
St. Pierre and Miquelon, it is by exception reserved to France over
a part of the territorial waters of Newfoundland, with liberty for
French fishermen to establish themselves exclusively on the portion of the shore called, on that account, the French shore, by the
Treaty of Utrecht of April 11, 1713, which ceded the island to
Great Britain. This reservation has been confirmed in the treaty
of Aix-la-Chapelle, 1748, and the treaty of Paris of February 10,
1763, of Versailles of September 30, 1783, of Paris of May 30, 1814,
and November 20, 1815, and in the special convention regulating
the exercise of fishing of January 14, 1857."  (~422.)
Rivier, another French writer (see Borchard: "Coastal Waters,"
English translation, p. 319), says: "The most well known and




114


important derogations from the exclusive right of fishing in the
littoral sea is the servitude constituted in favor of France by Article XIII of the treaty of Utrecht of 1713, ceding Newfoundland
to Great Britain and the servitude in favor of the United States in
the British waters off Newfoundland and Canada."
The significant fact about the French fishing rights is that they
are rights in waters over which Great Britain retains sovereignty,
which, during certain periods of the year, may be exercised exclusively by Frenchmen.
Other Fishery Cases
By Article XI of the treaty of peace between Russia and Japan,
August 23-September 5, 1905, Japanese subjects receive a concession of fishing rights in Russian territorial waters of the Seas of
Japan, Okhotsk, and Behring.
United States-Canadian Canals
By the Treaty of 1871 between the United States and Great
Britain, the citizens of the United States are given free use "of
the Welland, St. Lawrence, and other canals in the Dominion on
terms of equality with the inhabitants of the Dominion; and the
Government of the United States engages that the subjects of Her
Britannic Majesty shall enjoy the use of the St. Clair Flats Canal
on terms of equality with the inhabitants of the United States. "
In our treaty with Great Britain (the reciprocity treaty) of
1854, "It is agreed that the citizens and inhabitants of The United
States shall have the right to navigate the river St. Lawrence and
the canals in Canada, used as the means of communicating between
the Great Lakes and the Atlantic Ocean, with their vessels, boats,
and crafts, as fully and freely as the subjects of Her Britannic
Majesty, subject only to the same tolls and other assessments as
now are or may hereafter be exacted of Her Majesty's said subjects..
"It is further agreed, that British subjects shall have the right
freely to navigate Lake Michigan with their vessels, boats and
crafts, so long as the privilege of navigating the river St. Lawrence,
secured to American citizens by the above clause of the present
Article, shall continue; and the Government of The United States
further engages to urge upon the State Governments to secure to
the subjects of Her Britannic Majesty the use of the several State




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canals on terms of equality with the inhabitants of The United
States."
Nicaragua Canal
By the treaty between the United States and Nicaragua in 1867
it was provided that: "The Republic of Nicaragua hereby grants
to The United States, and to their citizens and property, the right
of transit between the Atlantic and Pacific Oceans through the
territory of that Republic, on any route of communication, natural
or artificial, whether by land or water, which may now or hereafter exist or be constructed under the authority of Nicaragua,
to be used and enjoyed in the same manner and upon equal terms
by both Republics and their respective citizens."
United States-Mexico Commission
In 1896 the United States and Mexico referred to "The International (Water) Boundary Commission" the subject of the
equitable distribution of the waters of the Rio Grande (see
Vol. II, Department of State, Proceedings of the International (Water) Boundary Commission, U. S. and Mexico, Treaties
of 1884 and 1889). Among other things, the Commission was to
report as to "the best and most feasible mode, whether through a
dam to be constructed across the Rio Grande near El Paso, Tex., or
otherwise, of so regulating the use of the waters of said river as to
secure to each country concerned and to its inhabitants their legal
and equitable rights and interests in said waters." On November
25, 1896, after careful study, the Joint Commission thus appointed
recommended to the two Governments "that a treaty be entered
into, as a final settlement of all questions past and future, regarding
the distribution of the waters of the Rio Grande."  This treaty was
to involve the ceding by the United States to Mexico of a small tract
of land, the construction of a dam as designed by joint engineers,
the removal of railroads from the bed of the proposed reservoir, the
acquisition of land to be submerged, and required that the further
management of the river should be committed to the management
of a mixed commission, who, after constructing the dam, should
provide for the permanent distribution of the flow, one-half, roughly
speaking, for such use as the Mexican Government might see fit
to apply it to, and one-half as the United States might see fit to




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apply it. 'The treaty between the United States and Mexico of
March 1, 1889, provided that all questions arising by reason of the
changes which take place in the beds of the Rio Grande and the
Colorado Rivers should be submitted "for examination and decision to an International Boundary Commission which shall have
exclusive jurisdiction in the case of said differences or questions."
Under this power, the construction and limit of works undertaken
on the Rio Grande and Colorado along the international boundary
line has been freely exercised, notably in the case of the Brownsville and Matamoras jetties in 1895, where the commission recommended the construction of a complete system of defensive and
counter-defensive works. (The Rio Grande is a torrential stream.
For the greater part of the year it carries no great quantity of
water. Then come its flood seasons, which come suddenly, do not
last long and pass away quickly. To check these torrential flows
"defensive and counter-defensive works" were required.)  The
International Commission in 1897 settled the matter of the demarcation of the boundary of the two international bridges connecting
Eagle Pass, Texas, and Ciudad Porfirio Diaz, Coahuila. It also
settled the boundary line in the El Chamizal case.
The International Joint Commission
(United States and Canada)
Ex-Senator Root and Ex-Ambassador Bryce negotiated in 1909
the treaty relating to boundary waters between the United States
and Canada which is now in full force and operation. This treaty
provides (Article 1) that "the navigation of all navigable boundary
waters shall for ever continue free and open for the purposes of
commerce to the inhabitants and to the ships, vessels, and boats of
both countries equally, subject, however, to any laws and regulations of either country, within its own territory, not inconsistent
with such privilege of free navigation, and applying equally and
without discrimination to the inhabitants, ships, vessels, and boats
of both countries," both parties, however, reserving (Article II)
"the exclusive jurisdiction and control over the use and diversion,
whether temporary or permanent, of all waters on its own side of
the line which in their natural channels would flow across the
boundary or into boundary waters; but it is agreed that any interference with or diversion from their natural channel of such waters
on either side of the boundary, resulting in any injury on the other




117


side of the boundary, shall give rise to the same rights and entitle
the injured parties to the same legal remedies as if such injury took
place in the country where such diversion or interference occurs."
By Article VII, "The High Contracting Parties agree to establish and maintain an International Joint Commission of the United
States and Canada, composed of six commissioners, three on the
part of the United States, appointed by the President thereof, and
three on the part of the United Kingdom, appointed by His Majesty
on the recommendation of the Governor in Council of the Dominion
of Canada."
By Article VIII the Commission is given jurisdiction over and is
required to pass upon all cases involving the use or obstruction or
diversion of the waters with respect to which, under Articles III
and IV of the treaty, the approval of the Commission is required.
In passing upon such cases the Commission is required to govern
itself by the following rules and principles:
"The High Contracting Parties shall have, each on its own side
of the boundary, equal and similar rights in the use of the waters
hereinbefore defined as boundary waters.
"The following order of precedence shall be observed among the
various uses enumerated hereinafter for these waters, and no use
shall be permitted which tends materially to conflict with or restrain
any other use which is given preference over it in this order of
precedence:
"(1)   Uses for domestic and sanitary purposes;
" (2) Uses for navigation, including the service of canals for the
purposes of navigation;
" (3) Uses for power and for irrigation purposes.
" The foregoing provisions shall not apply to or disturb any existing uses of boundary waters on either side of the boundary.'"
Furthermore, and this is of very great practical importance and
of direct application to our problem, the Commission "may make
its approval in any case conditional upon the construction of remedial or protective works to compensate, so far as possible, for the
particular use or diversion proposed, and in such cases may require
that suitable and adequate provision, approved by the Commission,
be made for the protection and indemnity against injury of any
interests on either side of the boundary."




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Pursuant to this treaty, commissioners were appointed on the
part of the United States on March 9, 1911, and on the part of
Canada, November 10, 1911, organized on the 10th of January,
1912, and adopted rules of procedure (a copy of which is to
be found in the library of the Commission). Under this authority,
the Commission has acted in many cases, notably the Watrous
Island Boom Company application for the approval of plans for a
boom in Rainy River, the application of the Receiver of Michigan
Lake Superior Power Company for approval of a lease with the
United States for diversion of water and the construction of compensating works, the application of the Michigan Northern Power
Company for diversion of waters of St. Mary's River at Sault Ste.
Marie, Michigan, the application of the Algoma Steel Corporation, Limited, for approval of the construction of compensating
works on St. Mary's River. Upon the hearing of the latter application, the Chairman, Hon. James A. Tawney, said: "... the
people of no two countries in the world, except the people of Canada
and the United States, have the opportunity of appearing personally before an international tribunal of any kind with original and
final jurisdiction in their respective countries, as they may and are
now doing in this case.... This tribunal is also unique because
composed of citizens of two independent sovereignties.... Neither
section of the Commission has any authority under the treaty to
act in either country independent of the other. Each section acts
in conjunction with the other as a joint international organization.
In cases like the one now before us each member acts as the representative of both countries, or as Mr. Commissioner Gore, of Massachusetts, in deciding a case arising under the Jay treaty for the
settlement of questions growing out of the War of the Revolution,
well said:
"'Although I am a citizen of but one nation, I am constituted
a judge of both. Each nation has the same right and no greater
right to demand of me fidelity and diligence in the examination,
exactness, and justice of the decision.'"
This is precisely the attitude that we should like a Joint Port
Authority to take, though receiving appointment, one-half of its
members at the hands of the Governor of New York and one-half
at the hands of the Governor of New Jersey. The considerations
leading to the formation of this International Commission are pertinent to our inquiry. In the opinion of the Joint High Commission




119


in the matter of the compensating works in St. Mary's River, it
said:
"Neither Government needed the aid of the Commission to
prevent it from acting improvidently in granting persons or corporations authority to use, obstruct, or divert its navigable waters.
They were fully capable of taking care of themselves. But in
taking care of themselves on their own side of the line, they did
not always consider, or at least did not always adequately provide
for taking care of, the interests of their neighbor on the other side
of the line. It was this feature of the situation that led to the
establishment of the International Joint Commission. That Commission so long as the treaty remains, supervises the action of either
Government acting singly and alone in the matter of uses, obstructiotns, or diversions of boundary waters authorized by it, but it does
so, not for the protection of the moving government, but for the
protection of the passive government, which may be injured by the
energy of its neighbor acting within the scope of its municipal
authority, if its power be not scrutinized and supervised by an impartial tribunal."
The employment of a joint agency to construct "compensating
work"' finds precedential authority in the opinion of the Joint
High Commission in the matter of the application of the Michigan
Northern Power Company for approval of diversion and use of
the waters of the St. Mary's river on the United States side of the
international boundary at Sault Ste. Marie. In its opinion and
order, the Joint High Commission directed that compensating
works, including power canals, should be built to maintain the
level of Lake. Superior, but provided that "the operation of all
the said works, canals, head gates and by-passes for the above purposes shall be under the direct control of... 'the board of
control.' " This board of control consists of two members, one appointed by each- Government, which board is authorized to formulate the rules under which the compensating works, the power
canals, their head gates and by-passes are to be operated, "so as to
secure as nearly as may be the regulation of Lake Superior within
the range of monthlymean levels recommended and found necessary." In this opinion, the Commission considers its power to
create such boards of control and finds that it is not only confirmed
by the treaty, "but its existence is a necessary concomitant to the
carrying out of the true intent and purpose of the treaty in respect




120


to the prevention and settlement of disputes between the two governments and their people regarding the use of boundary waters.
Without this power to approve conditionally, in cases where the
proposed obstructions and diversions affect the rights and interests
of the people on the other side, the purpose of the treaty would
entirely fail." And the Commission adopts the language of Judge
Brown in Tucker v. Alexandroff (183 U. S. 424) to the effect that
"treaties are solemn engagements entered into between independent
nations for the common development of their interests and the interests of civilization."  Not only are they designed to avoid war
and secure a lasting and perpetual peace, but they are designed [as
our proposal is designed] to promote a friendly feeling between the
people of the two countries [States]. For this reason "they should
be interpreted in that broad and liberal spirit which is calculated
to make for the existence of a perpetual amity, so far as it can be
done without the sacrifice of individual rights or of those principles
of personal liberty which lie at the foundation of our jurisprudence." Accordingly, the Joint High Commission, interpreting the
treaty  in  this  broad  spirit, finds  that  "there  are  no
limitations whatsoever except the judgment of the Commission"  as  to  what "may     be  necessary  to  suitably  and
adequately  protect and indemnify   all interests."  Thus, to
avoid any possible injury to large public and private
interests on both sides of the river, it established the joint board
of control and finds it "unnecessary to consider the question of
whether, under the treaty, the commission has or has not administrative or executive powers."  It holds that in exercising the
judicial powers given to it by the treaty, it may make the grant
of permission conditional upon the construction of works to be
supervised by an international board of control. In its order it
provides that this board of control is to be made up of the officer
of the Corps of Engineers charged with the improvement of the falls
of St. Mary's River on the American side, and an officer appointed
by the Canadian Government. It is made the duty of these two
"to formulate rules under which the compensating works and power
canals and their head gates and by-passes shall be operated so as to
secure as nearly as may be the regulation of Lake Superior."
And by Paragraph 17, in case this board cannot agree, the Commission itself will make the decision. Other applications, involving
the construction of compensating works, were treated by the Commission in the same way. Thus the application of the St. Croix




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Water Power Co., incorporated by C. 203, Acts of 1899, of Maine,
and the Sprague's Falls Manufacturing Co. (Ltd.), incorporated 2
Edw. VII, C. 103, Dom. Can., for the construction of a dam across
the St. Croix river at Grand Falls, and a power canal to convey
water to a power house, was approved on condition that all dams,
sluices, by-passes, etc., shall be "under the direct control" of the
Board of Control consisting of an officer to be appointed by the
Governor General in Council of Canada and one appointed by the
Secretary of War of the United States, with full power to make
rules, preserve records, and, in case of disagreement, to refer the
matter to the Joint High Commission for final decision. The remarks of Commissioner Magrath in concurring with the decision in
this case have value for us. He wishes to point out that "while not
strictly pertinent to the matter before the commission, the practice
by Governments of making grants of land carrying riparian rights
in streams was initiated when these rights were not looked upon as
being of much value, and unfortunately the practice has outlived
the old condition of things. In recent years, however, owing largely
to electrical transmission, power rights have acquired great importance and may properly be regarded as public utilities. It
would be well for all Legislatures of both the United States and
Canada to consider the desirability of retaining or acquiring these
valuable assets for the benefit of the public."
The Lake of the Woods Case
What the Port of New York is to the States of New York and
New Jersey, the watershed of the Lake of the Woods is to Minnesota, Manitoba and Ontario. It is 1,485 square miles in area, or
about 400 square miles greater than the State of Rhode Island.
The entire drainage area of the lake and its tributary waters is
26,750 square miles, an area 5,000 square miles greater than Nova
Scotia, and greater than the combined areas of New Hampshire,
Massachusetts, Rhode Island, Connecticut and Delaware. The lake
on the map appears as only a small water between Lake Winnipeg,
Canada, and Lake Superior, United States. It is the westerly
point of the water boundary between the United States and Canada.
But upon its rise and fall largely depends the commercial and
agricultural prosperity of these communities in Canada and in the
United States. In 1895, settlers on the south shore of the lake, in




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Minnesota, began to complain to the Department of the Interior
that their lands had been submerged by high levels in Lake of the
Woods, caused by the construction of a dam, and these complaints
continued down to and including 1905 and 1906. The situation
having grown worse, and investigation having been made both by
the War Department of our country and a Canadian Government
committee, the question was raised, "what rights and remedies the
citizens of Minnesota will have" with regard to "diversion of these
waters" and what corresponding measures should be taken with a
view to the establishment of similar rights and to provide similar
remedies for citizens of Canada. Overtures were made by the
United States to Canada to submit these questions to the International Joint Commission. It appeared that there was doubt as
to whether or not the Commission had jurisdiction, and the rights
of the parties were "not rights which either now possess. They are
rights which belong to their respective inhabitants and, if not
voluntarily granted, can be acquired only for the purposes desired,
by and through the exercise of the sovereign power to take private
property for a public use." After a most painstaking engineering
investigation into the whole problem, covering many volumes, the
International Joint High Commission recommends that for the
purpose of securing the most advantageous use of the waters of this
entire watershed, and also from the standpoint of a sound, comprehensive international policy,... the International Joint
Commission "be authorized to exercise supervision and control over
the operation of all dams and regulating works extending across
the international boundary... "  And further, that, "as a
matter of sound international policy, neither Government should
permit the permanent or temporary diversion out of the watershed
of any waters within its jurisdiction which are tributary to the
boundary waters under consideration," and which would result in
any injury on the other side of the boundary, without the approval
of the International Joint Commission, and that the decision of the
commission in all such cases be made final. The Commission was
required to consider "by what means or arrangement can the
proper construction and operation of regulating works or a system
or method of regulation be best secured and maintained in order
to insure the adequate protection and development of all the
interests involved on both sides of the boundary, with the least
possible damage to all rights and interests, both public and private." In order to accomplish this task, the American Commis



123


sioners recommend acquisition of private property, and il their
report submit a definite plan of procedure for the exercise of the
powers of eminent domain in each of the two countries by which
such private property may be acquired. They examine into the
questions of law raised by these recommendations, and say that the
use to which the property is to be put "would constitute a public
use and authorize the taking of property for this use under the
power of eminent domain and expropriation." Their observations
upon the value of such a joint undertaking have value to us. "The
interdependent interests, the importance and value to both countries
and their people of permanently securing all the material advantages from the use of these waters and preventing such use from
hereafter being a disturbing factor between the two Governments,
are of such magnitude that the rights acquired in respect thereto
should be permanent and irrevocable. If acquired severally and
thereafter held by the Government acquiring the same in trust for
the benefit of the other the uncertainty of tenure uould seriously
impair the stability of these rights and probably constitute a barrier
in the wtay of the development of the water powers of this region,
because rights thus held could be renounced at will."   They
also consider the question of how the parties "can legally acquire
and hold, under the jurisdiction of the other, these necessary vested
rights in order to insure the satisfactory maximum water-power
development in both countries this region affords, and at the same
time safeguard the rights and promote the development of the interests of their respective peoples." They propound the question:
"Can a State in its public capacity hold nonterritorial property in
another State or can a sovereign State limit or qualify its proprietary sovereignty by permitting another State to acquire and hold
property within its territorial jurisdiction for the use and benefit
of such other State within its jurisdiction or for the use and benefit
of its inhabitants?"  After a careful review of authorities and
the statement that "the doctrine here laid down is supported by
all text writers on international law," they say:  "The power
of a nation to restrict its proprietary sovereignty by granting to
another nation the right to acquire and hold title to land or vested
rights or easements therein the same as if held by a private individual can not be questioned. Lands, rights, or easements thus
acquired are held, however, subject to the political sovereignty of
the nation granting the right to hold the same." For this state



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ment they cite Leavenworth R. R. Co. v. Howe, 114 U. S. 525, 538.
They are of opinion that this doctrine has been "universally recognized and followed by nations 'time out of mind' as appears
from their treaties. The granting of this right, however, does not
involve or carry with it any surrender of political sovereignty.
That remains unchanged and supreme."   Further considering the
question whether or not the two sovereignties could acquire property and thereafter hold it jointly, the American Commissioners
say: "The rights, however, which both parties must have for this
purpose are not rights which either now possess. They are rights
which belong to their respective inhabitants and, if not voluntarily
granted, can be acquired only for the purpose desired, by and
through the exercise of the sovereign power to take private property
for a public use. Can this power, by agreement, be exercised
jointly by the high contracting parties for this purpose?" Recognizing always that whatever procedure is adopted must conform
to the fundamental law of each nation, and since the law in
Canada and the United States emanates from the same common
source and both are protected under the same or similar rulesin the United States under a written Constitution and in Canada
under rules perhaps less rigid, and more flexible-therefore, in
their belief the recommendation should conform to the requirements of the Constitution of the United States. If it so conforms,
"it will not likely be found inconsistent with the laws governing
the taking of private property in the Dominion of Canada." "The
high contracting parties," say the American Commissioners, "each
possess and may exercise the power of eminent domain or expropriation in their respective jurisdictions, for their own or the
public good. It follows, therefore, that in their sovereign capacity,
they may by treaty agree to do jointly and for their mutual welfare,
in their respective jurisdictions, that which they are authorized to
do severally." Indeed, they find recognition of this principle in
the treaty under which they are acting, by which the two nations
have clothed the Joint High Commission with "final jurisdiction
in both countries in certain matters which involve the rights,
obligations, or interests of either in relation to the other, or to
the inhabitants of the other." There is no doubt, therefore, in
their opinion, that the two countries may conclude a treaty, providing for the institution of legal proceedings in either or both
countries for the taking of private property, provided the purpose




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of the proposed taking is a public use, and that being so "it is
clearly within the power of the high contracting parties to authorize, by treaty, the making of a special administrative agreement
between them for the complete accomplishment of the purposes of
that treaty or of any part thereof." [These careful observations of
the American Commissioners, though contained in a supplemental
report, are in accord in the main with the formal recommendations
for control made by the Joint Commission.] This determination
by an international commission of Canadian and American lawyers,
taking full account of the fundamental principles of the English
common law and of the limitations of the Federal Constitution,
seems to be a most convincing and satisfactory precedent to guide
us in the formulation of our treaty.
The European (Danube) Commission
Of all the administrative agencies that have ever been created
for the purpose of carrying out the common purpose of several
sovereignties, especially in the development of rivers and harbors
and the improvement of commerce and navigation, none is so
instructive and so valuable in experience as the Danube Commission. Two recent English writers-" The Question of the Bosphorus
and Dardanelles —Phillipson and Buxton, London, 1917-recommend as the model for the internationalisation of the Bosphorus
and the Dardanelles the method of internationalisation of the
Danube. "In many spheres of political and commercial activity,"
say they (p. 237), "international co-operation has conferred great
benefits on all parties concerned." "A system of internationalisation means international co-operation. It is, then, manifestly in the
interests of the world at large that every opportunity should be
seized for internationalising territories that have given rise to
inveterate disputes, as well as waterways that are used for general
international commerce and intercourse. To bring about the cooperation of States in this or that undertaking is to promote the
habit of association, and to pave the way for a more thorough and
comprehensive union, such as is implied in the establishment of a
League of Nations subject, in the event of differences, to the arbitrament of an International Court." The European Commission for
the Danube (p. 241) "has achieved such success that it may be
regarded as a remarkable precursor in the art of international




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government."   The Danube played a very important part in
European policy and political economy even before the present war.
It traverses regions "whose rich agriculture is proverbial" (Le
Danube, Baicoianu, Paris, 1917) and its great importance economically and commercially arises from the diversity of the production
along its banks. It finds its source in the Grand Duchy of Baden,
a distance of thirty to forty kilometers from the approach to the
Rhine and about 500 to 600 kilometers "de la Mer du Nord"
(North Sea). It travels through Wurtemburg and Bavaria, its
branch, the Enns, dividing Lower from Upper Austria. It passes
the cities of Linz and Vienna. It then takes a right oblique to the
south and goes through the great fields of Hungary, passing Budapest, dividing Slavonia from Hungary. Near the Theiss it changes
its direction to the southeast, touching the city of Semlin, at which
point commences the front of Servia. The Danube then passes
Belgrade between Servia on the south and Hungary on the north
and enters Rumania, nourishing the basin between the Carpathians
and the Balkans, separating Dobrudja from Bessarabia. For a
distance of four hundred kilometers it is the frontier between
Rumania and Bulgaria, and enters the Black Sea through three
mouths, the Kilia, Sulina and St. George. It travels through nine
countries, having a population of 52,783,472. (Baicoianu.)
Of course, the improvement of the navigability of the Danube
is of great importance to all of the countries it traverses, but the
Associated Chambers of Commerce of the United Kingdom, addressing the Secretary of State for Foreign Affairs, the Right Honorable
Earl Granville, K. G., on April 27, 1882, said "it is of great importance to the trade and commerce of this country [Great Britain]
that the navigation of the River Danube should be as free as possible,
and that British ships, as well as the vessels of other maritime
nations, should be allowed to move and carry cargo to and from,
and between, all the ports on that river with the same freedom
and on the same terms and conditions as vessels belonging to States
having territory bordering on the river." (Parliamentary Papers,
1882, Vol. LXXX, London, 1882.) The tonnage leaving Sulina in
1881 amounted to 793,454. tons. The annual receipts in 1881 were
Fr. 3,448,190, c. 60. The expenses were Fr. 2,606,095, c. 39.
Statistics of the expenditure, debt, sinking fund, etc., are to be
found in this volume, as well as in Baicoianu. (See also Encyclopadia Britannica, 11th Edition, title "Danube," p. 819 et seq.)




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The history of the various European controversies over the
Danube is told by Baicoianu at length, and an excellent map showing in colors the several sovereign States through which the Danube
runs and the effect of the several treaties of Paris, 1856, Berlin,
1878, and of London, 1883, is to be found attached to the book of
Geffcken (Berlin, 1883), "La Question du Danube."
The European convulsion of 1853, resulting in the Treaty of
Paris (1856), afforded an opportunity for the harmonization of the
political and economic questions affected by the Danube, and a
convenient grouping of a considerable number of States. The
principle emphasized by Grotius and expounded more fully by
Vattel and other jurists, that navigation of international rivers
should be free, was proclaimed in November, 1792, by the provisional Executive Council of France in regard to the Scheldt.
This proclamation has been designated "the first charter of contemporary fluvial liberties." (E. Engelhardt: "Du regime con.
ventionnel des fleuves internationaux," Paris, 1879.) In 1814, the
Treaty of Paris (Art. V) declared the freedom of. navigation on
the Scheldt, and on the Rhine from the point at which it becomes
navigable to the sea. The following year the final act of the
Congress of Vienna stipulated that "the Powers whose States
are separated or crossed by the same navigable River engage to
regulate, by common consent, all that regards its navigation." And
they agreed to the appointment of a commission which should
assemble within six months thereafter and which should follow the
basic principle established by the Article. Article CIX laid down
this fundamental principle and said that "the navigation of the
Rivers, along their whole course, referred to in the preceding
Article, from the point where each of them bec6mes navigable, to
its mouth, shall be entirely free, and shall not, in respect to Commerce, be prohibited to any one; it being understood that the Regulations established with regard to the Police of this navigation
shall be respected, as they will be framed alike for all, and as
favourable as possible to the Commerce of all nations." Article CX
provides that the system for 'collection of duties and maintenance
of the police "shall be, as nearly as possible, the same along the
whole course of the River; and shall also extend, unless particular
circumstances prevent it, to those of its Branches and Junctions,
which, in their navigable course, separate or traverse different
States."




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To control the navigation, and as a means of communication between the States of the Rhine, it was agreed that a central commission should be appointed, comprising delegates named by the various
bordering States. The Treaty of Paris come to between Great
Britain, Austria, France, Prussia, Russia, Sardinia and Turkey
(March 30, 1856) provided as follows:
"Art. XV. The Act of the Congress of Vienna having established
the principles intended to regulate the Navigation of Rivers which
separate or traverse different States, the Contracting Powers stipulate among themselves that those principles shall in future be
equally applied to the Danube and its Mouths. They declare that
its arrangement henceforth forms a part of the Public Law of
Europe, and take it under their Guarantee.
"The navigation of the Danube cannot be subjected to any impediment or charge not expressly provided for by the Stipulations
contained in the following Articles: In consequence, there shall
not be levied any Toll founded solely upon the fact of the Navigation of the River, nor any Duty upon the Goods which may be on
board of Vessels. The Regulations of Police and of Quarantine to
be established for the safety of the States separated or traversed by
that River, shall be so framed as to facilitate, as much as possible,
the passage of Vessels. With the exception of such Regulations, no
obstacle whatever shall be opposed to Free Navigation.
"Article XVI. With the view to carry out the arrangements
of the preceding Article, a Commission, in which Great Britain,
Austria, France, Prussia, Russia, Sardinia, and Turkey, shall each
be represented by one delegate, shall be charged to designate and to
cause to be executed the Works necessary below Isatcha, to clear the
Mouths of the Danube, as well as the neighboring parts of the Sea,
from the sands and other impediments which obstruct them, in
order to put that part of the River and the said parts of the Sea in
the best possible state for Navigation.
" In order to cover the Expenses of such Works, as well as of the
establishments intended to secure and to facilitate the Navigation
at the Mouths of the Danube, fixed Duties, of a suitable rate, settled
by the Commission by a majority of votes, may be levied, on the
express condition that, in this respect as in every other, the Flags
of all Nations shall be treated on the footing of perfect equality."
By Article XVII a commission is established to be composed of
delegates from Austria, Bavaria, the Sublime Porte, and Wurtem



129


burg (one for each of these Powers), to whom are to be added
Commissioners from the three Danubian Principalities, which nomination shall have been approved by the Porte. "This Commission,
which shall be permanent: 1. Shall prepare Regulations of Navigation and River Police; 2, Shall remove the impediments, of whatever nature they may be, which still prevent the application to the
Danube of the Arrangements of the Treaty of Vienna; 3, Shall
order and cause to be executed the necessary Works throughout
the whole course of the River; and 4, Shall, after the dissolution of
the European Commission, see to maintaining the Mouths of the
Danube and the neighbouring parts of the Sea in a navigable
state."
"Art. XVIII. It is understood that the European Commission
shall have completed its task, and that the River Commission shall
have finished the Works described in the preceding Article, under
Nos. 1 and 2, within the period of two years. The signing Powers
assembled in Conference having been informed of that fact, shall,
after having placed it on record, pronounce the Dissolution of the
European Commission, and from that time the permanent River
Commission shall enjoy the same powers as those with which the
European Commission shall have until then been vested.
"Art. XIX. In order to insure the execution of the Regulations
which shall have been established by common agreement, in conformity with the principles above declared, each of the Contracting
Powers shall have the right to station, at all times, Two Light
Vessels at the Mouths of the Danube."
In 1865, the European Commission created by the treaties (See
Vol. XII, Hertslet's "Treaties," p. 884) having succeeded "after
nine years' work in realizing important improvements in the system
of navigation-notably, by the construction of two piers at the
mouth of the Sulina branch, which have had the effect of admitting
into this embouchure vessels of a large draught of water-by the
execution of works of correction and cleansing in the course of the
same branch-by raising wrecks, and establishing a system of buoys
-by the erection of a lighthouse at the mouth of the St. Georgeby the institution of a regular life boat service, and by the creation
of a seaman's hospital at Sulina-lastly, by the provisional regulation of the different services connected with the navigation between Isaktcha and the sea;" the Powers, representing
Great Britain, Austria, France, Italy, Prussia, Russia and




130


Turkey, do ratify and establish the rights of the parties
by the succeeding articles. Article I provides that all the works
and establishments "shall continue to be devoted exclusively to the
use of the navigation of the Danube, and can never be turned aside
from this object for any motive whatever; to this end they are
placed under the guarantee and protection of international law."
By the same Article, the European Commission "shall continue
charged, to the exclusion of all interference whatever, to administer
these works and establishments for the advantage of the navigation, to watch over their maintenance and preservation, and to give
to them all the development that the requirements of the navigation
may demand." By Article II there is "specially reserved to the
European Commission, or to the authority that shall succeed it, the
power to design and cause to be carried out all the works that may
be deemed necessary, in the event of its being wished to render
permanent the improvements, until now of a temporary character,
in the branch and at the mouth of the Sulina, and to prolong the
piers at this mouth according as the state of the Bar Channel may
require it."
By Article VI it is provided "that on neither bank of the river,
either in the port of Sulina or St. George, shall there be constructed
either by the territorial authorities, by commercial or navigation
companies, or by private individuals, any landing jetties, quays, or
other establishments of the same nature, of which the plans have
not been communicated to the European Commission, and recognized as being in conformity with the general plan of the quays, and
as tending in no wise to compromise the effect of the works of
improvement."
By Article VIII administrative power is vested in an Inspector
General of the Lower Danube and the Captain of the Port of Sulina.
Annexed to these articles is a code governing the policing of the
Sulina Roads and Port, regulations for vessels crossing and passing
one another, towage rules, discharge of ballast, lighterage, etc., etc.,
with a chapter of penalties resembling a very substantial section of
our Penal Code. Phillipson and Buxton ("The Question of the
Bosphorus and Dardanelles," p. 245) say that this institution is
"unprecedented in international law and usage" and is "a kind
of European syndicate, enjoying practically full independence and
exercising many functions attaching to sovereignty." Demorgny,
a French writer ("La Question du Danube," Paris, 1911, p. 176)
also refers to this Commission as a sort of temporary embodiment of




131


sovereignty granted to it in the interest of humanity in general,
having administrative, executive, legislative and judicial power.
Say Phillipson and Buxton: "Indeed... in many respects
[it] is in the position of an autonomous State." It is not amenable
to the jurisdiction of Rumania, through whose territory it goes.
It may negotiate without intermediary with neighboring States.
It has a treasury derived from the tolls which it collects for the use
of the works which it has built. It publishes its budget in every
country that it represents. It possesses a flotilla which flies its
own distinctive flag. It may contract loans and dispose of lands.
It is both a deliberative and an executive body. It has the power
to examine any matter whatever relating to navigation on the
Danube and legislates police regulations, shipping rules, tariff scales,
plans of necessary works, etc., and its resolutions carried by a
majority of votes, become law. As an executive body it carries its
own decisions into operation. To accomplish this, it employs a
staff of specialists. It punishes violations of its own rules and
regulations, and as a supreme tribunal reviews the judgments
pronounced by the Navigation Inspector or the Superintendent of
the Port of Sulina, who are the judges of first instance. The light
vessels of the Powers stationed at the mouth of the Danube are the
police force to secure the execution of the legislative, executive and
judicial decisions of this Commission.
In 1865, as we have seen, the works and establishments of the
Commission were declared to be neutralized so as to be immune
from attack in case of war. At the Conference in Paris in 1866,
its term was extended for five years. By the Treaty of London,
1871, Russia was allowed to maintain a fleet in the Black Sea, but
the neutrality of the European Commission was protected by additional guarantees. Its powers were then extended, also, for twelve
years. In the Russo-Turkish War of 1877, the operations of the
belligerents interfered with the free navigation of the Danube, and
complaints were made against them, but it seems to have been held
that the transactions relating to the river did not entirely make of
it a neutral zone and imposed upon belligerents merely the duty
to respect the works and establishments of the Commission, to
impede the navigation as little as possible, and to restore it as
quickly as possible in case of any interference with it. Nevertheless,
by the Treaty of Berlin of 1878, all fortresses between the Iron
Gates and the sea were. to be demolished, no new ones were to be
constructed, and within these limits no warships other than light
vessels used for police and custom purposes were to navigate the




132


river. At this time Rumania, having been made independent, was
given representation in the Commission and its sphere of operations
was extended to Galatz. By the subsequent treaties of 1883 and
1904, the authority of the Commission was renewed and enlarged.
By the Treaty of 1904, provision was made for its continuance for
successive periods of three years, but reserved to each of the eight
States represented the right to dissolve the treaty by giving notice
a year before the termination of the triennial period.
This great institution of Europe, supported by these several
solemn treaties and by international law, has been treated by
Germany with a contempt equal only to that which she has paid
to similar treaties and institutions. Having subjugated Rumania,
she negotiated a "peace" by which she eliminated entirely the
Entente Powers from any further participation in the Danube
Commission, changed the Commission into the "Danube Mouth
Commission," continuing it "as a permanent institution with the
powers, privileges, and obligations hitherto appertaining to it,"
but limiting its organization to "representatives of the States
situated on the Danube or the European coasts of the Black Sea."
(See Treaty of Bucharest, signed May 7th, in "The New Europe,"
Vol. VII, No. 85, May 30, 1918, at p. 166.) On the 19th of May
the Entente Ministers informed the Rumanian Government that
they did not recognize that portion of the treaty which dealt with
the navigation of the Danube (Idem, p. 166). Nevertheless, even
Germany recognizes the principle and effectiveness of internationalization of ports and rivers in this Treaty of Bucharest. The system
and method is continued, though the participating Powers are
changed.
Sir Charles Hartley, Chief Engineer of the European Danube
Commission from 1856 to 1907, in a paper contributed to the
Institution of Civil Engineers in 1873 (Vol. XXXVI) (See Encyclopamdia Britannica, 11th edition, title "Danube," p. 822) gave
a graphic description of the state of the Sulina mouth when the
Commission began its work in 1856. "The entrance to the Sulina
branch," said he, "was a wild open seaboard strewn with wrecks,
the hulls and masts of which, sticking out of the submerged sandbanks, gave to mariners the only guide where the deepest channel
was to be found. The depth of the channel varied from 7 to 11
feet, and was rarely more than 9 feet.
"The site now occupied by wide quays extending several miles
in length was then entirely covered with water when the sea rose




133


a few inches above ordinary level, and that even in a perfect calln;
the banks of the river near the mouth were only indicated by
clusters of wretched hovels built on piles and by narrow patches of
sand skirted by tall weeds, the only vegetable product of the vast
swamps beyond."
Prior to the time when the great improvements were made an average of only 2,000 vessels, with a tonnage capacity of 400,000 tons,
visited the Danube, and of this number more than three-fourths
loaded either the whole or part of their cargoes from lighters in the
Sulina roadstead, where, "lying off a lee shore, they were frequently
exposed to the greatest danger." "Shipwrecks," says Sir Charles
Hartley, "were of common occurrence, and occasionally the number
of disasters was appalling. One dark winter night in 1855, during
a terrific gale, 24 sailing ships and 60 lighters went ashore off the
mouth and upwards of 300 persons perished." The method by
which all of the improvements have been made was by levying
tolls upon the vessels entering the Danube. By the Treaty of
Galatz, April 30, 1868, Great Britain, Austria, France, Italy, Prussia and Turkey agreed to contract a loan for the completion of the
works at Galatz. This loan was not to exceed ~135,000. This loan
was made Sept. 29, 1868, through Messrs. Bischoffsheim and Goldschmidt, and was paid off in full prior to January 15, 1884, all the
nations interested in guaranteeing the loan being thus relieved of
further liability.  (See Declaration by Percy Sanderson, Her
Majesty's Commissioner for the Danube, Vol. XVII, Hertslet's
"Commercial Treaties," p. 1039.)  The Commission now has an
average annual income of about ~80,000 derived from taxes paid
by ships when leaving the river. The normal annual expenditure
amounts to ~56,000, while ~24,000 is generally allotted to extraordinary works, such as new cuttings. (See Encyclopaedia Britannica,
11th edition, title "Danube," p. 823.)  Between 1857 and 1905
over one and three-quarter million pounds sterling were spent on
engineering works, including the construction of quays, lighthouses,
workshops and buildings, and from being a collection of mud hovels
Sulina has grown into a town of 5,000 inhabitants, has a well
organized hospital where all merchant sailors receive gratuitous
treatment, lighthouses, quays, floating elevators, and an efficient
pilot service, which all combine to make Sulina "a first-class port."
(See Encyclopaedia Britannica, 11th edition, title "Danube," p.
823.)




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Other Examples of International Government
Reinsch, in his "Public International Unions" (Ginn & Co.,
1911), says: "... the realm of international organization is
an accomplished fact." (Introduction, p. 4.) At that time (1911)
there were already in existence over forty-five public international
unions composed of States, of which thirty are provided with
bureaus or commissions. These include unions for postal and telegraphic communications, and for improvement in the means and
methods employed by them. "International co-operation," says
Reinsch, "has become an absolute necessity to States, along all the
various lines of national enterprise." Again (p. 137), Reinsch says:
"International co-operation may, in the present state of our civilization, be represented as an ethical duty. No State has the right, by
stubborn aloofness,... to exclude its citizens from the advantages of civilization. But this ethical duty is reenforced by a
very practical necessity, which is plain to any common-sense administration."
'International Government" (1916), a recent book written for
the purpose of establishing the practicability of an international
authority to settle points of difference among nations, consists of a
study made by L. S. Woolf and a committee of the Fabian Society,
with an introduction by Bernard Shaw. Part II gives many examples of the internationalisation of administration, reviewing the
theory and experience of the Universal Postal Union, the Telegraphic Union, the international control of wireless, of railways, of
other means of communication, the international regulation of public health and the prevention of epidemic diseases, of international
monetary unions, sugar commissions, etc., etc.
It would unduly lengthen this report to discuss in detail the
various legal phases of the instrumentalities that have been devised
by governments, legislative, executive and judicial, to effect a common purpose. It has not been the purpose to make a complete
resume of all precedents upon the subject, but to make clear the
legal theory and to cull those special precedents that have value in
the framing of our interstate treaty and, in addition, perhaps fix
guideposts for the determination of legal controversies that may
hereafter arise.




135


The Enforcement of an Interstate Treaty
The private client about to enter into an agreement asks his
lawyer how it may be enforced. The sovereign States in this situation may properly ask: "If we enter into such a treaty, how is it
enforcible? " So far as immediate pecuniary obligation is assumed,
it is confined (Article XIV) to equal annual appropriation of such
sum as the Commission and the two Governors may recommend to
the Legislatures. But in the future, it is reasonably certain that
the Legislatures will desire to vest the Port Authority with power to
incur obligations mutually binding upon each State. Happily,
neither State need resort to war to enforce the obligations of a
- compact between them. The treaties between two States who are
members of the Federal Union are not mere "scraps of paper."
By the compact between Virginia and West Virginia for the
purpose of constituting the area of the State of West Virginia, the
new State, coincident with its existence, became bound for and assumed to pay its just proportion of the previous public debt of Virginia. A compact was made with the approval of Congress. In
1906, West Virginia having failed to pay its share of this debt, suit
was brought in equity in the United States Supreme Court and
judgment rendered in 1915 for $12,393,929.50, with interest. (See
234 U. S. 117, 58 L. ed. 1243, 34 Sup. Ct. Rep. 889.) West Virginia
having failed to pay this judgment, a petition was presented by the
State of Virginia to the United States Supreme Court for a writ of
mandamus to compel the levy of a tax by the Legislature of West
Virginia to meet the amount thus adjudicated. The United States
Supreme Court in its recent decision in Virginia v. West Virginia
(Advance Sheets, U. S. Supreme Court, May 15, 1918, p. 486) holds
that the Federal Supreme Court has power to enforce by appropriate proceedings a judgment rendered against a State by that
Court in the exercise of its original jurisdiction of controversies,
and that, notwithstanding the rights reserved to the States by the
Federal Constitution, the United States Supreme Court may exert
authority over the governmental powers and agencies possessed
by the State to the extent necessary to discharge the State's obligation. In this case, Chief Justice White reviews the early history
of the formation of the Constitution of the United States and the
reasons for delegation of power to the United States Supreme Court
to settle controversies between the States. He considers two questions: (a) The power of Congress to legislate to secure the enforce



136


ment of a contract between two States; and (b) the appropriate
remedy which may, by the judicial power, be exerted to enforce the
judgment. IIe says: "The vesting in Congress of complete power
to control agreements between States, that is, to authorize them
when deemed advisable and to refuse to sanction them when disapproved, clearly rested upon the conception that Congress, as the
repository not only of legislative power but of primary authority
to maintain armies and declare war, speaking for all the States
and for their protection, was concerned with such agreements, and
therefore was virtually endowed with the ultimate power of final
agreement which was withdrawn from State authority and brought
within the federal power. It follows as a necessary implication
that the power of Congress to refuse or to assent to a contract
between States carried wivth it the right, if the contract was assented
to and hence became operative by the will of Congress, to see to its
enforcemen t..
"Having thus the power to provide for the execution of the
contract, it must follow that the power is plenary and complete,
limited of course, as we have just said, by the general rule that
the acts done for its exertion must be relevant and appropriate
to the power. This being true, it further follows, as we have already
seen, that, by the very fact that the national power is paramount in
the area over which it extends, the lawful exertion of its authority
by Congress to compel compliance with the obligation resulting from
the contract between the two States which it approved is not circumscribed by the powers reserved to the States." "Indeed," says
Judge White, "the argument that the recognition of such a power
in Congress is subversive of our constitutional institutions from
its mere statements proves to the contrary, since at last it comes to
insisting that any one State may, by violating its obligations under
the Constitution, take away the rights of another, and thus destroy
constitutional government. Obviously, if it be conceded that no
power obtains to enforce as against a State its duty under the
Constitution in one respect and to prevent it from doing wrong to
another State, it would follow that the same principle would have
to be applied to wrongs done by other States, and thus the government under the Constitution would be not an indissoluble union
of indestructible States but a government composed of States
each having the potency with impunity to wrong or degrade another
-a result which would inevitably lead to a destruction of the union




137


between them." And Judge White reminds West Virginia that to
maintain the proposition which it now urges "would compel a
disregard of the very principles which led to the carving out of that
State from the territory of Virginia; in other words, to disregard
and overthrow the doctrines irrevocably settled by the great controversy of the Civil War, which in their ultimate aspect find
their consecration in the amendments to the Constitution which
followed." Which statement, coming from a Civil War veteran
who wore the gray, is pregnant with meaning. The Court decides
that whether Congress shall go first in providing for the enforcement of the compact, or whether the Supreme Court shall act in
the first instance, it reserves for further consideration, and that
branch of the subject it sets down for discussion at the next term
(the one just past). Nevertheless, it gives what may be regarded
as a very broad hint to West Virginia that the Court is "fain to
believe," having determined "the right judicially to enforce by
appropriate proceedings as against a State and its governmental
agencies" and "the constitutional power of Congress to legislate
in a twofold way — " that if we refrain now from passing upon the
questions stated, we may be spared in the future the necessity of
exerting compulsory power against one of the States of the Union to
compel it to discharge a plain duty resting upon it under the
Constitution."  Besides, says Judge White, even assuming "that
both the requirements of duty and the suggestions of self-interest
may fail to bring about the result stated," the Court nevertheless
thlinks, because of "the character of the parties and the nature of
the controversy-a contract approved by Congress and subject to
be by it enforced-we should reserve further action in order that
full opportunity may be afforded to Congress to exercise the power
which it undoubtedly possesses."
This would seem to be a full and adequate indication of what
Congress or the United States Supreme Court or both may do to a
State which refractorily refuses to meet its solemn obligation to
another, and in this respect it is always important to bear in mind
that, by the Constitution itself, there is a grant of judicial power to
the United States Supreme Court by the respective States, which
power is one of original jurisdiction.  The States waive their
exemption from judicial power as sovereigns of original inherent
right by their own grant of its exercise over themselves in such
cases, a power which they would not grant to any inferior tribunal.
By this grant, the United States Supreme Court acquired jurisdic



138


tion over the parties by their own consent and delegated authority
as their agent for exercising the judicial power of the United States
in the cases specified.  (See Rhode Island v. M1assachutsetts, 12
Peters 725, 9 L. ed. 1233.) (In footnote 3 to the decision in Virginia
v. West Virginia is a list of litigations between States which have
come before the Supreme Court of the United States.)
State Limitations Upon Borrowing Capacity
The Constitution of the State of New York limits the borrowing
capacity of the City of New York, and the Constitution of the State
of New Jersey limits the borrowing capacity of the State. By
Article 4, Section 6, paragraph 4, of the New Jersey Constitution,
the Legislature may not in any manner create any debt or liability
of the State exceeding $100,000 without the previous approval of
the people at a general election. This provision the courts of New
Jersey have held has no application to local or municipal indebtedness. Van Cleve v. Passaic Valley Sewerage Conmmissioners, 71
N. J. L. 183 and 574, 58 Atl. R. 796, 60 Atl. R. 214. See also People
v. Flagg, 46 N. Y. 401, 406; Cass v. Dillon, 2 Ohio St. 607, 613;
Clark v. City of Jaenesville, 10 Wis. 136; Bushnelll v. Belvit, Id.
195, 211; Pattison v. Board of Sutpervisors, 13 Cal. 175, 182; Cooley
on Constitutional Limitations (7th ed.) 325.
The capacity of the new Port authority, as a body corporate or
politic, to borrow money is not limited, therefore, by the constitutional limitations on the borrowing capacity of the State of New
Jersey or the City of New York. The argument that this is to
create a power which the State itself does not possess is completely
disposed of by Paine, J., in Clark v. City of Janesville, 10 Wis.
136, at pp. 172, 173: "The State may have power to grant a power,
and at the same time not have power to execute it. This is clearly
shown by reference to this very prohibition [constitutional debt
limitation] against its being a party in carrying on internal improvements.  No one doubts that it may authorize a railroad
company to build a railroad. But it could not build one itself. And
is that deriving power from  a source where it does not exist?
Clearly not. Because the State has the power to grant the authority,
and is prohibited only from being itself a party in its execution.
The difficulty with this objection is, that it confounds the power
of granting a right, with the power of being a party to its exercise;
whereas the two are essentially distinct."




139


Conclusions
From all of which it would appear that the States of New Jersey
and New York may join in the consummation either of an original
treaty, or, preferably, one amendatory of and supplementary to the
Treaty of 1834, preserving in full the sovereignty of each State, but
pledging each to the other perpetual co-operation in the development
of the port which is common to both. For the purpose of carrying
out the comprehensive development of the port, they may create
an agency vested with as little or as great power as it shall please
the States to grant. Included in this power is the power to take
and hold real estate, to construct, maintain and operate every
conceivable kind of terminal facility, and to regulate, within the
limitations arising from the paramount power of Congress, and to
govern the operation of such facilities. Such a body may be authorized to borrow money upon the credit of the States, to the extent
that each State is willing to pledge its credit or to borrow upon
its own credit. Upon its acquisition of property, it may itself
hold and operate it or lease it to private enterprise upon satisfactory
terms. It can receive grants of the power of eminent domain which
each State possesses. It can receive power from Congress to the
extent that it pleases Congress to grant power, and like the United
States towards the Panama Canal, the two States may declare
that they create and hold all of these powers and properties under
a sacred trust-for the benefit of the nation as a whole.
It is clearly feasible to leave municipal power where it now
resides, and is essential, as we have seen, not to disturb those property and contractual rights which are protected by the Federal
Constitution. Without disturbing private grants or the rights of
municipalities, the great power of the States to regulate may be
exercised in the interest of promoting navigation and commerce.
In short, the underlying principles governing such action on the
part of the two States may be regarded as fairly well settled, and
the problem largely one of details and form. The time has comeindeed, is already here-when the need for constructive planning is
imperative.




140
It would be a mistake, however, to take for granted that the
public generally-that even members of the legal profession generally-in both States will be prepared to aid in the formulation of
such a treaty without the assistance of a preliminary survey of legal
theory and precedents bearing upon the problem.
Dated, New York, December 2, 1918.
JULIUS HENRY COHEN,
Counsel.








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