3 Ala. 47 | Ala. | 1841
We have taken this view of the case referred to, with the most profound respect for the Supreme Court of the United States, and have only to say, that wo hope an opportunity may soon be afforded for a re-examination of the act of 1824.
Conceding however, to the lessee of Pollard’s heirs v. Kibbe, all weight that may be claimed for it, and still the answer of the Circuit Court to the second prayer, is not objectionable on error. The water lots of 1824-, were a part of the shore of Mobile bay, over which the tide flowed, and must .consequently be regarded’ as a portion of the navigable waters of this State. Among the propositions submitted by Congress to the convention which formed our constitution, for its acceptance or rejection, it is declaimed, that “ all navigable waters within the said State, shall forever remain public highways, free to the citizens of said State, and of the United States, without any tax, duty, impost or toll therefor imposed by the State.” By the ordinance which makes a part oí the constitution, the convention accepted the propositions submitted.' Now here is a clear dedication to the public use of the navigable waters within the State, and an implied inhibition upon the power of Congress to grant the shore. Other arguments quite as cogent might be urged against the exercise of such a power, but we will content ourselves with a reference to the Mayor, &c. v. Eslava; (9 Porter’s Rep. 577,) in which the question is largely considered.
The fact that the ancestor of the plaintiffs had a grant from, the Spanish authorities for a part of the shore, can make no difference. . The stipulation between the federal government and the State, placed it beyond the power of the former to bestow its bounty by confirming that grant, which we have seen was void,
Without attempting to add any thing further, the judgment of the Circuit Court is affirmed.