62 P. 755 | Or. | 1900
after stating the facts, delivered the opinion of the court.
It is not alleged in the complaint that the proposed wharf will be an obstruction to, or in any way interfere with, the navigation of the river, or with any of the powers and duties of the Port of Portland; but such is the necessary inference, prima facie, at least, from the resolutions forbidding its construction, the fact that it will extend beyond the \yharf line as established by the city, and that its erection is in violation of an ordinance thereof.
The contention for the defendant is that the sections above quoted manifest the purpose of congress to deprive the several states of all authority to control and regulate the extension of wharves in the harbors of the United States, although such harbors may be situated wholly within their territory ; that full power resides in the state to> prescribe the line beyond which piers, docks, wharves, and other structures may not be extended into the navigable waters of a harbor, in the absence of the exercise by congress of authority to the contrary, is not disputed: Cannon v. City of New Orleans, 87 U. S. (20 Wall.), 577; Packet Co. v. City of Keokuk, 95 U. S. 80; Packet Co. v. St. Louis, 100 U. S. 423; Cincinnati Packet Co. v. Town of Catlettsburg, 105 U. S. 559; Parkersburg Transp. Co. v. City of Parkersburg, 107 U. S. 692 (2 Sup. Ct. 732); Ouachita Packet Co. v. Aiken, 121 U. S. 444 (7 Sup. Ct. 907); Illinois Cent. R. R. Co. v. Illinois, 146 U. S. 387 (13 Sup. Ct. 110). But it is asserted that this power in the state is predicated solely upon the failure of congress to exercise its paramount authority under the commercial clause of the constitution, and therefore the authority of the state no^ longer obtains, since the act of 1890 amounts to express assumption by congress of entire control over all harbors of the United States, so far as the establishment of harbor lines and the construction of wharves, piers, and docks are concerned.
For the plaintiffs it is contended that section 12, above cited, is unconstitutional and void, for the reason that it delegates to the Secretary of War powers which are exclusively lodged by the constitution in congress. It is admitted that, under the commercial clause of the constitution, where the navigable waters of a port or river of the United States are accessible from a state other than the one in which they lie,
But this does not meet the question whether congress can delegate the whole matter to the Secretary of War. The question is important and interesting, and has been the occasion of considerable discussion in the federal courts, although it has never been adjudicated by the Supreme Court of the United States: United States v. Keokuk & H. Bridge Co. (D. C.) 45 Fed. 178; United States v. Rider (D. C.) 50 Fed. 406; United States v. City of Moline (D. C.) 82 Fed. 592; United States v. Romard (C. C.) 89 Fed. 156. The tendency of the decisions, as we read them, supports the argument that the act is void as an unlawful delegation of authority. It does not provide that harbor lines shall be established in .the harbors of the United States, leaving to the Secretary of War the mere duty of executing the will of congress, but it confers upon that officer the right to determine whether such lines shall be established or not, thus, in effect, vesting in him the power to say when and under what circumstances the general government will assume authority over a given harbor. The states have jurisdiction over the navigable waters within their boundaries until congress as
Congress has thus assumed jurisdiction over that part of a harbor outside of a line which the Secretary of War may lawfully establish. But it has not, in our opinion, assumed jurisdiction or authority over the space between such line and the shore, nor has it made any provision, directly or indirectly, as to what use shall be made thereof. While wharves, piers, and landing places are essential to commerce by water, they are, nevertheless, in their nature local, attached to the soil, and require a diversity of rules and regulations. Full jurisdiction and control over them is vested in the state, in the absence of congressional legislation upon the subject; and such legislation cannot, we think, be inferred from mere authority given an executive officer to establish a line in the harbor beyond which it shall be unlawful to extend such structures without his consent. The mere delegation of such an authority does not manifest a purpose to assume jurisdiction over the entire harbor, nor to confer upon such officer the power to give original authority to construct wharves. Nor is the provision of section 7 that it shall not be lawful to build any wharves, etc., outside of an established harbor line, without the permission of the Secretary of War, equivalent to a declaration that he has power to authorize the contraction of wharves. As it pertains to such structures, his duties are prohibitive in their character, and confined alone to preventing their extension beyond such a line as may be established by him. The initiative in the construction of wharves is with the shore owner, under such regulations as the state may make; and the duty of the Secretary of War, under the act of congress, is to see that they do not extend into the harbor beyond a certain line without his permission. So long as the legislation of the state does not interfere with the duties of such officer, or conflict with the line established by him, it is controlling. Now, in this case there is no con