This is а suit in equity for an injunction to prevent the secretary of the department of agriculture and the chief game warden of Nebraska from enforcing the legislative act containing the following provisions in so far as they relate to the waters of the Missouri river:
“No person shall take or attempt to take any fish excеpt minnows from the waters within the state of Nebraska with nets, traps or seines. Carp, suckers, gars and buffalow fish may be taken with a spear during the months of March to November inclusive. The possession of any and all seines, except minnow seines, as provided in section 7356, Compiled Statutes of Nebraska for 1922, as amended, nets or traps, except as authorized by the department of agriculture, shall be unlawful.” Laws 1927, ch. 126, sec. 10.
Defendants denied the invalidity of the legislativе act and pleaded authority to enforce it.
Upon a trial of the cause the district court found the issues of law and fact in favor of plaintiff and granted his рrayer for a permanent injunction. Defendants appealed.
The question presented by the appeal is the validity of the act as applied to Missouri river waters in Nebraska between the middle of the main channel ánd the Nebraska bank. The act applies alone to waters within the boundaries of Nebraskа and defendants confine their jurisdiction thereto.
The admission of Nebraska into the Union on an equality with the original states established her state sovereignty over thе entire area within her boundaries, except as restricted by treaty, by act of congress or by the federal Constitution. The eastern boundary of Nebraska is
“The said state of Iowa shall have concurrent jurisdiction on the river Mississippi, and every other river bordering on the said state of Iowa, so far as the sаid rivers shall form a common' boundary to said state, and any other state or states now or hereafter to be formed or bounded by the same; such rivers to be cоmmon to both.” 5 U. S. St. at Large, ch. 48, sec. 3, p. 743; 9 U. S. St. at Large, ch. 82, p. 52.
The jurisdiction of Nebraska is not limited to the western bank of the river, unless the restriction is imposed by the words “shall have concurrent jurisdiction” as they appear in the provision quoted. The meaning of the expression has been the subject of judicial discussion and of somе diversity of opinion. The better view seems to be that those words do not prevent one state from exercising generally civil and criminal jurisdiction over that pаrt of the river within her own boundaries. The power to make treaties has been committed to the federal government and not to individual states. One state cannot require another to unite in ^treaties, laws, contracts or compacts. If Iowa and Nebraska, with a common boundary in the Missouri river, do not agree on public policy or on methods of exercising concurrent jurisdiction granted by congress, the river is not for that reason a zone without police protection, whеre the offenses known to criminal law-may be committed with impunity. The exigency of preserving order along the border does not necessarily await the concurrent action of two states. Their interests may conflict and they may never agree. The concurrent jurisdiction authorized by congress is not “over” or “in” the river, but “on” thе river. Each state, as to river waters within her own boundaries, has rights and powers not committed to the adjoining state. The supreme court of the United States once took occasion to say:
It is clear, therefore, that concurrent jurisdiction is not all-inclusive as applied to the Missouri river. The sovereign power to define crimes and to authorize penalties therefor is inherent in state government. The exercise of рolice power to protect food at the source of supply within state boundaries is a legitimate function of sovereignty. Fisher v. Board of Regents,
“The territorial limits of Kentucky extend across the river to low-water mark on the northerly shore. * * * And we think it clear that no limitation upon the power of that commonwealth to protect fish within her own boundaries •by proper legislation resulted from the mere establishment of concurrent jurisdiction by the Virginia Compact.” Nicoulin v. O’Brien,
Plaintiff’s understanding of concurrent jurisdiction is also at variance with the f ollowing view:
“Undoubtedly one purpose, perhaps the primary purpose, in the grant of concurrent jurisdiction was to avoid any nice question as to whether a criminal act sought to be prosecuted was committed on one side or the other of the exact boundary in the channel, that boundary some
To prevent conflict of authority and double punishment in the exercise of concurrent jurisdiction granted by congress to two states, where there is doubt about the exact situs of a crime committed on or near the boundаry line in a river, the state first acquiring jurisdiction may retain it to the exclusion of the other.
.Cases in federal district and circuit .courts containing interpretations of cоncurrent jurisdiction at variance with rulings of the supreme court of the United States have been cited, but are of course not controlling.
Plaintiff insists that-he owned and lаwfully used his nets, traps and seines before the legislative .act assailed was passed, and argues that they will be depreciated in value or destroyed without due process of law in violation of the Constitution, if the legislation is enforced. A valid exercise of police power may affect or destroy valües, where the use of the property for its original purpose has become unlawful by a change in public policy as disclosed by a new statute. Prohibition thus affected property in breweries, but the legislation on that subject was nevertheless sustained. Mugler v. Kansas,
Invalidity of the legislative act in controversy has not been shown. The. in junction granted by the district court is therefore reversed and the action dismissed.
Reversed and dismissed.
Note — See Constitutional Law, 12 C. J. 931 n. 31— Criminal Law, 16 C. J. 61 n. 12, 168 n. 99 — States, 36 Cyc. 829 n. 22, 830 n. 32, 840 n. 29 — Treaties, 38 Cyc. 965 n. 42. '