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If, as has been always understood, the sovereignty of Congress, hough limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in Congress as absolutely as it would be in a single government having in its Constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States." As the provision of what is called the compact between the United States and the State of Alabama does not, by the above reasoning, exceed the power thereby conceded to Congress over the original States on the same subject, no power or right was, by the compact, intended to be reserved by the United States, nor to be granted to them by Alabama.
This supposed compact is, therefore, nothing more than a regulation of commerce, to that extent, among the several States, and can have no controlling influence in the decision of the case before us. This right of eminent domain over the shores and the soils under the navigable waters, for all municipal purposes, belongs exclusively to the States within their respective territorial jurisdictions, and they, and they only, have the constitutional power to exercise it. To give to the United States the right to transfer to a citizen the title to the shores and the soils under the navigable waters, would be placing in their hands a weapon which might be wielded greatly to the injury of State sovereignty, and deprive the State of the power to exercise a numerous and important class of police powers. But in the hands of the States. this power can never be used so as to affect the exercise of any national right of eminent domain or jurisdiction with which the United States have been invested by the Constitution. For, although the territorial limits of Alabama have extended all her sovereign power into the sea, it is there, as on the shore, but municipal power, subject to the Constitution of the United States, "and the laws which shall be made in pursuance thereof."
By the preceding course of reasoning we have arrived at these general conclusions: First. The shores of navigable waters, and the soils under them, were not granted by the Constitution
to the United States, but were reserved to the States respectively. Secondly. The new States have the same rights, sovereignty, and jurisdiction over this subject as the original States. Thirdly. The right of the United States to the public lands, and the power of Congress to make all needful rules and regulations for the sale and disposition thereof, conferred no power to grant to the plaintiffs the land in controversy in this case. The judgment of the Supreme Court of the State of Alabama is, therefore, affirmed.
Mr. Justice CATRON dissented.
The statute of 1836, and the patent of the United States founded on it, by which the land in controversy was granted to Wm. Pollard's heirs, have on several occasions heretofore received the sanction of this Court as a valid title.
1. In the case of Pollard's heirs v. Kibbe, 14 Peters, 353, the Supreme Court of Alabama having pronounced an opposing claim under the act of 1824 superior to Pollard's, this Court reversed the judgment and established the latter, after the most mature consideration.
2. In the case of Pollard v. Files, 2 How. 591, the precise title was again brought before this Court, and very maturely considered; it was then said- (page 602)-"This Court held, when Pollard's title was before it formerly, that Congress had the power to grant the land to him by the act of 1836; on this point there was no difference of opinion at that time among the judges. The difference to which the Supreme Court of Alabama refers, (in its opinion in the record), grew out of the construction given by a majority of the Court to the act of 1824, by which the vacant lands east of Water street were granted to the city of Mobile."
On this occasion the decision of the Supreme Court of Alabama was again reversed, and Pollard's heirs ordered to be put into possession, and they now maintain it under our two judgments. It is here for the third time.
In the mean time, between 1840 and 1844, a doctrine had
sprung up in the Courts of Alabama, (previously unheard of in any Court of Justice in this country, so far as I know), assuming that all lands temporarily flowed with tide-water were part of the eminent domain, and a sovereign right in the old States; and that the new ones, when admitted into the Union, coming in with equal sovereign rights, took the lands thus flowed by implication as an incident of State sovereignty, and thereby defeated the title of the United States, acquired either by the treaty of 1803, or by the compacts with Virginia or Georgia. Although the assumption was new in the Courts, it was not entirely so in the political discussions of the country; there it had been asserted, that the new States coming in, with equal rights appertaining to the old ones, took the high lands as well as the low, by the same implication now successfully asserted here in regard to the low lands; and indeed it is difficult to see where the distinction lies. That the United States acquired in a corporate capacity the right of soil under water, as well as of the high lands, by the treaty with France, cannot be doubted; nor that the right of soil was retained and subject to grant up to the time Alabama was admitted as a State. Louisiana was admitted in 1812; to her the same rules must apply that do to Alabama. All acquainted with the surface of the latter know that many of the most productive lands there, and now in successful cultivation, were in 1812 subject to overflow, and have since been reclaimed by levees.
It is impossible to deal with the question before us understandingly, without reference to the physical geography of the delta of the Mississippi and the country around the gulf of Mexico, where the most valuable lands have been made and are now forming by alluvion deposits of the floating soils brought down by the great rivers; the earlier of which had become dry lands; but the more recent were flowed, when we acquired the country; and are in great part yet so; thus situated, they have been purchased from the United States and reclaimed; a process that is now in daily exercise. An assumption that mud-flats and swamps once flowed, but long since reclaimed, had passed to the new States, on the
theory of sovereign rights, did, at the first, strike my mind as a startling novelty; nor have I been enabled to relieve myself from the impression, owing to the fact in some degree, it is admitted, that for thirty years neither Congress, nor any State legislature, has called in question the power of the United States to grant the flowed lands, more than others; the origin of title, and its continuance, as to either class, being deemed the same. A right so obscure, and which has lain dormant, and even unsuspected, for so many years, and the assertion of which will strip so much city property, and so many estates of all title, should, as I think, be concluded by long acquiescence, and especially in Courts of Justice.
Again the question before us is made to turn by a majority of my brethren exclusively on political jurisdiction; the right of property is a mere incident. In such a case, where there is doubt, and a conflict suggested, the political departments, State and federal, should settle the matter by legislation; by this means private owners could be provided for and confusion avoided; but no State complains, nor has any one ever complained, of the infraction of her political and sovereign rights by the United States, or by their agents, in the execution of the great trust imposed on the latter to dispose of the public domain for the common benefit; on the contrary, we are called on by a mere trespasser in the midst of a city, to assert and maintain this sovereign right for his individual protection, in sanction of the trespass.
But as already stated, the United States may be an owner of property in a State, as well as another State, or a private corporation, or an individual may. That the proprietary interest is large, cannot alter the principle. I admit if the agents of the United States obstruct navigation, the State authorities may remove the obstructions and punish the offenders; so the States have done for many years without inconvenience, or complaint.
Nor can material inconvenience result. If a front to a city, or land for another purpose is needed, Congress can be applied to for a grant, as was done by the corporation of Mobile in 1824,
If the State where the land lies was the owner, the same course would have to be pursued. The States and the United States are not in hostility; the people of the one are also the people of the other; justice and donation is alike due from each.
Connecticut was once a large proprietor in the Northwest Territory, (now Ohio). She owned the shores of a great lake and the banks of navigable rivers. Can it be assumed that the admission of Ohio defeated the title of Connecticut, and that she could not grant? The question will not bear discussion; and how can the case put be distinguished from the one before us? Nay, how can either be distinguished from the rights of private owners of lands above water, or under the water? Yet in either instance, is the owner in fee deprived of his property, on this assumption of sovereign rights.
The front of the city of Mobile is claimed by the act of 1824, sanctioned by this Court as a valid grant in the five cases of Pollard v. Kibbe, 14 Peters; of The City of Mobile v. Eslava, 16 Peters, 234; of The City of Mobile v. Hallett, 16 Peters, 261; of The City of Mobile v. Emanuel, 1 How. 95, and of Pollard v. Files, 2 How. 591. Except the grant to Pollard, the act of 1824 confers the entire title, (so far as is known to this Court), of a most valuable portion, and a very large portion, of the second city on the gulf of Mexico, in wealth and population. This act is declared void in the present cause; and the previous decisions of this Court are either directly, or in effect, overthrown, and the private owners stripped of all title. On this latter point my brethren and I fully agree. Can Alabama remedy the evil, and confirm the titles by legislation or by patent? I say by patent, because this State, Louisiana, Mississippi, and surely Florida, will of necessity have to adopt some system of giving title, if it is possible to do so, aside from private legislation; as the flowed lands are too extensive and valuable for the latter mode of grant in all instances.
The charge of the State Court to the jury was, that the act of Congress of 1836, and the patent founded on it, and also, of