that bank is now occupied by wharves and warehouses engaged in the commerce of the Wallamet valley, and other portions of the coast and Europe; that the space allowed for a draw in said bridge is too narrow to admit the passage of vessels with safety, and therefore they cannot and will not come to complainants' wharves to discharge and receive cargo, to their great and permanent injury; that the plaintiff Hatch is the owner of an enrolled and licensed steamboatthe A. A. McCully-which is employed in towing vessels to and from the wharves aforesaid upon the river aforesaid, and that the erection of said bridge with so narrow a draw-opening prevents the same from being done with safety, to his injury.

It appears from the affidavit of C. H. Gorril that he and his brother, R. W. Gorril, of California, are stockholders in the defendant corporation, and are engaged as contractors in the construction of the bridge; that they are to receive $150,000 for the work, and are under bonds in the sum of $20,000 to complete the same by April 1, 1882; that they have expended on the work $50,000, including the purchase and preparation of the timber and lumber for seven of the eight spans, and all the iron for the same, and that if not restrained by this court they will complete the bridge by June 1st.

Section 1 of the act of March 3, 1875, (18 St. 470,) which, among other things, gives this court jurisdiction of a suit in equity arising under a law of the United States, includes this

case.

Congress has power "to regulate commerce with foreign nations and among the several states, "(Const. art. 1, § 8;) and this includes, for the purpose of commerce, the control of all the navigable waters of the United States which are accessible from a state other than that in which they lie. For this purpose they are the waters of the nation, and subject to the legislation of congress in every particular affecting their navigability or use as instruments or means of commerce. Gibbons v. Ogden, 9 Wheat. 1; Penn. v. W. & B. Bridge Co. 18 How. 431; Gilman v. Philadelphia, 3 Wall. 724.

In pursuance of this power to regulate commerce congress has provided (title L of the Rev. St.) that certain vessels, when enrolled and licensed as required by law, shall have the right to engage in the coasting trade; that is, the trade upon the navigable waters of the United States. The plaintiff Hatch is the owner of a vessel so enrolled and licensed for this district, and his contention is that this bridge will and does prevent the enjoyment of this right, and therefore this suit arises out of a law of congress, as applied to the facts and circumstances of the case.

Again, the act of congress of February 14, 1859, (11 St.383,) admitting Oregon into the Union, provides (section 2) “that all the navigable waters of said state [Oregon] shall be common highways and forever free, as well to the inhabitants of said state as to all other citizens of the United States, without any tax, duty, toll, or impost therefor." Both the plaintiffs are riparian proprietors upon the stream over which this bridge is being built, and their contention is that it does and will obstruct the navigation of the river so as to prevent its being used as a common highway, to their injury as such proprietors, and therefore this suit arises out of a law of congress as applied to the facts and circumstances of the case.

To sustain jurisdiction under this clause of the act of 1875, supra, it is not necessary to show or assume that the plaintiffs are entitled to the relief sought, but it is sufficient if the controversy turns upon or grows out of the proper construction or application of these acts of congress, or either of them.

The power to authorize the erection of a bridge over a navigable water of a state, for the convenience of the inhabitants thereof, belongs to the state as a part of its general police power. Congress does not possess this authority directly, eo nomine; but its control over the navigable waters of the states, as a means of commerce, gives it a practical veto upon the power of the state in this respect. Therefore, no state can authorize or maintain the erection of a bridge over a navigable water, which in effect contravenes or conflicts with the law of congress concerning the navigation of the same; and the fact

that such water is wholly within the state is immaterial, if it is accessible from another state, or forms a part of a navigable way between itself and other states.

If, then, this bridge, in its construction or effect, is in conflict with either of these acts of congress, it is so far unlawful; and, if injurious in its operation to the rights of the plaintiffs, is a nuisance, and may be prevented or abated. But if it does not contravene such law, then, however it may inconvenience or obstruct the navigation of the river, this court cannot interfere. The power of congress to regulate the navigation of the river does not execute itself; nor can this court enforce it until congress has declared its will on the subject. Until then the power is dormant, and the authority of the state is sufficient to justify any structure or obstruction that may be placed therein.

In this case the defendant insists that it is building this bridge in pursuance of a law of the state, and that there is no law of congress upon the subject to the contrary, and therefore it is lawful. Does the law under which Hatch's steam-boat is authorized to engage in the coasting trade conflict with the act of the legislature authorizing this bridge? Upon the authorities I do not think it does. The supreme court seems to have been careful not to declare a conflict between state and federal legislation on this subject upon mere implication; and the reason of this is apparent. Congress can at any time declare specifically what shall be a lawful bridge and what shall not; and as it belongs more properly to the political than the judicial power to determine such questions, the courts will not assume that a bridge is an unlawful obstruction because it incidentatly conflicts with or limits some right or privilege claimed or existing under an act of congress.

A license to engage in the coasting trade means something. As was said by Mr. Justice Swayne, in Gilman v. Philadelphia, supra, it "carries with it right and authority. 'Commerce among the states' does not stop at the state line. Coming from abroad it penetrates wherever it can find navigable waters reaching from without into the interior, and

may follow them up as far as navigation is practicable." And in Gibbons v. Ogden, supra, it was held that a law of the state of New York, giving certain persons the exclusive right to navigate the waters of that state by vessels propelled by steam or fire, as against such license, was void. In this last case the law of the state was in direct conflict with that of congress. The latter said, in effect, to its licensee, "You are authorized to navigate the waters of New York with vessels propelled by steam," while the former said "You shall not do so." But in this case there is no necessary conflict between the law of the state and the United States. A license to engage in the coasting trade on the Wallamet river is a license to navigate only so far as it may be navigable. But if the state, in the exercise of its police power to build bridges, obstructs, or even destroys, the navigation of the river, the weight of authority, and, I think, of prudential reason, is that the act of congress licensing the plaintiff's steam-boat to navigate it is not thereby infringed. It is thought to be safer for the courts not to assume that congress intended to interfere with and restrain the power of the state over the navigability of the rivers within its jurisdiction until it says so directly or by necessary implication. Therefore, in the cases of Wilson v. Blackbird Creek Marsh Co. 2 Pet. 245; The Passaic Bridges, 3 Wall. 782; and Gilman v. Philadelphia, Id. 713, it was held that the enrollment and license acts which authorized vessels to navigate the waters of particular states were not sufficient to warrant the inference that congress thereby intended to interfere with the right of the states to dam or otherwise obstruct the navigation of said waters.

Does the act of February 14, 1859, supra, conflict with the act of the state legislature authorizing the erection of this bridge? This act, unlike the one providing for the enrollment and license of vessels, relates directly to the navigability of the waters within the state. Its only purpose is to preserve them for the free use of all the citizens of the United States as common highways. It was passed by congress in pursuance of its control over them as a means of commerce, (Pollard v. Hogan, 3 How. 229,) to secure their

free navigability to the inhabitants of the Union, against the possible exactions and obstructions of local authority, prompted by considerations of local convenience or selfishness. The provision, even to its very language, is as old as the articles of compact between the original states and the people and the states of the territory north-west of the Ohio, contained in the ordinance of 1787, for the government of said territory, from the fourth of which it is copied. This ordinance was ratified or recognized by the first congress under the constitution, (1 St. 50,) and the provision securing the freedom of "the navigable waters leading into the Mississippi and St. Lawrence" has been continued in force in all the states formed out of said territory to this day. Columbus Ins. Co. v. Curtenius, 6 McLean, 209.

In Penn. v. W. & B. Bridge Co. 13 How. 518, it was held that a provision in a compact (December 18, 1789) between Virginia and Kentucky concerning the erection of the latter into a state, to the effect that the navigation of the Ohio, so far as the territory of the two states joined thereon, “shall be free and common to the citizens of the United States," which was afterwards sanctioned by congress in the passage of the act (1 St. 189) admitting Kentucky into the Union, was a restraint upon the power of Virginia to obstruct the navigation of said river by the erection of a bridge thereon within. her own limits, and that a bridge so erected, which was a substantial obstruction to such navigation, was a nuisance and unlawful.

To the same effect is the decision in Columbus Ins. Co. v. Curtenius, supra, in which it was held that congress had declared, by the ordinance of 1787 and otherwise, that the navgable tributaries of the Mississippi were free and common highways to the citizens of the United States, and that therefore an act of the legislature of Illinois, authorizing the construction of a bridge across the Illinois river, near Peoria, was void if such bridge was a material obstruction to the navigation of said river, as being in conflict with the federal legislation declaring it free and common.

These decisions are the authoritative and uncontradicted