Portland v. Montgomery

Mr. Chief Justice Bean, 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. 1. The defendant’s right to construct a wharf in front of his property is subject to the power of the corporate authorities to “prescribe the mode and extent to which the same may be exercised beyond the line of low-water mark” : Hill’s Ann. Laws, §4228; Portland City Charter, Laws 1891, p. 805, § 16; 29 Am. & Eng. Enc. Law (1 ed.), 69; Lewis v. City of Portland, 25 Or. 133 (46 Am. &. Eng. Corp. Cas. 230, 42 Am. St. Rep. 772, 35 Pac. 256, 22 L. R. A. 736). 2. And it will be assumed that the regulations prescribed by the municipal authorities are reasonable and valid, until the contrary is made to appear. 3. The only questions in this case, therefore, are whether the act of congress of September 19, 1890 (26 U. S. Stat. 454, 455), authorizing the Secretary of War to- establish harbor lines, is valid, and, if so-, whether it vests in that officer the power and authority to permit or authorize the construction of wharves up to- such lines in navigable waters wholly within a state, notwithstanding the laws of the state prohibit such construction. Sections 7 and 12 of the act are as follows : “Sec. 7. That it shall not be lawful to- build any wharf, pier, dolphin, boom, dam, weir, breakwater, bulkhead, jetty, or structure of any kind outside established harbor lines, or in any navigable waters of the United States where no harbor lines are or may be established, without the — 223 — permission of the Secretary of War, in any port, roadstead, haven, harbor, navigable river, or other waters of the United States, in such manner as shall obstruct or impair navigation, commerce, or anchorage of said waters, and it shall not be lawful hereafter to- commence the construction of any bridge, bridge-draw, bridge piers and abutments, causeway or other works over or in any port, road, roadstead, haven, harbor, navigable river, or navigable waters of the United States, under any act of the legislative assembly of any state, until the location and plan of such bridge or other works have been submitted to and approved by the 'Secretary of War, or to excavate or fill, or in any manner to alter or modify, the course, location, condition, or capacity of the channel of said navigable water of the United States, unless approved and authorized by the Secretary of War; provided, that this section shall not apply to- any bridge, bridge-draw, bridge pier's and abutments the construction of which has been heretofore duly authorized by law, or be so- construed as to- authorize the construction of any bridge, drawbridge, bridge piers and abutments, or other works, under an act of the legislature of any state, over or in any stream, port, roadstead, haven or harbor, or other navigable water not wholly within the limits of such state.” “Sec. 12. That section 12 of the river and harbor act of August eleventh, eighteen hundred and eighty-eight, be amended and re-enacted so as to- read as follows: Where it is made manifest to the Secretary of War that the establishment of harbor lines is essential to the preservation and protection of harbors, he may, and is hereby authorized to, cause such lines to be established, beyond which no piers, wharves, bulkheads or other works shall be extended or deposits made, except under such regulations as may be prescribed from time to time by him; and any person who- shall willfully violate the provisions of this section, or any rule or regulation made by the Secretary of War in pursuance of this section, shall be deemed guilty of a misdemeanor, and, — 224 — on conviction thereof, shall be punished by a fine not exceeding one thousand dollars, or imprisonment not exceeding one year, at the discretion of the court, for each offense.” 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, — 225 — congress has absolute power over them, so far as to preserve and protect their free navigation, and can declare what may and may not constitute obstructions thereto; but such power, it is argued, can alone be exercised by congress, and cannot be delegated to any other body or agency. It may be assumed that congress can confer upon the Secretary of War, or any other agent, the duty of ascertaining whether any given harbor line conflicts with some act of congress upon the subject, and can require any change or modification thereof that may be needed to conform it thereto, or it may, perhaps, as in the matter of bridges (Miller v. Mayor, etc., 109 U. S. 385, 3 Sup. Ct. 228), prohibit the establishment by local authorities of harbor lines without the approval of the Secretary of War or some other agency. 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 — 226 — 'sumes authority over them, and it would seem doubtful that congress can legally confer upon a mere executive officer the power to determine whether the general government or the state has jurisdiction over a given subject-matter, and especially to establish, alter, or change, at his will and pleasure, lines beyond which it shall be unlawful to extend or maintain wharves, piers, and landing places in the great commercial cities of the country, when the location or change of a single line might involve the loss of millions of dollars to individuals. But, as we construe the act of 1890, it was not designed to interfere with the power and authority of the several states over the location and construction of wharves, piers, and landing places, unless they encroach upon the harbor lines established by the Secretary of War. It is unnecessary, therefore, to decide whether it is void for the reason suggested. It provides that under certain circumstances the Secretary of War may establish a line in harbors of the United States, beyond which no pier, wharf, etc., shall be extended, except by his permission, or. under such regulations as may be prescribed from time to time. This is not equivalent, however, to a legislative declaration that they may be extended up to such line regardless of the local laws on the subject. The more reasonable construction is that congress, in the exercise of its paramount authority under the commercial clause of the constitution, has authorized the establishment of a line beyond which such structures shall not be extended, except by permission of the Secretary of-War, but has left to the several states authority to determine whether local interests require that a larger space in the harbor shall be reserved for the use of ships and shipping than that outside of such line. The obvious purpose of the law is to preserve the free navigation of harbors. To that end it provides for the establishment of lines therein, when necessary to their “preservation and protection,” outside of which no ob — 227 — struction shall be permitted without the consent of the federal government. 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 — 228 — flict. The purpose of the City of Portland is not to interfere with the harbor line relocated by the Secretary of War in September, 1898, but to prohibit the extension of wharves and piers beyond a certain line inside thereof. In our opinion, such power and authority still remain in the state, and congress has not by the act of 1890 assumed to exercise exclusive control over the matter. This conclusion, we think, finds support in Lake Shore Ry. Co. v. State of Ohio, 165 U. S. 365 (17 Sup. Ct. 357). It follows that the decree of the court below must be reversed, and a decree entered here in accordance with this opinion. Reversed.