Meyler v. Wedding

SEPARATE CONCURRING OPINION BY JUDGE DuRELLE. In my view, there are other reasons for the decision-rendered in this case than those statfed in the opinion. I shall state them in as brief a manner, and as little encumbered by citation of authority as possible. The question presented is, whether process from a court of Indiana may be served upon the Ohio river south of low-water mark. The settlement of this question depends upon the construction given to the peculiar phraseology of section 11 of the compact between Kentucky and Virginia, 13 Hen. St. Va., 19. That provision is: ‘'Seventh, that the use and navigation of the river Ohio, so far as the territory of the proposed State, or the ter — 686 — ritory which shall remain within the limits of this Commonwealth lies thereon, shall be free and common to the citizens of the United States, and the respective jurisdictions of this Commonwealth, and of the proposed State, on the river as aforesaid, shall be concurrent only with the States which may possess the opposite shores of the said river.” This can not be a grant to any State upon the northern shore of the river, for no such State existed. There was no being in esse answering the description to take such a gift. But if it be the proper construction that, by this provision, a trust was created for the benefit of a State thereafter to be created upon the northern shore, and by this language Kentucky was made trustee to hold the title until such creation, it may be that the contention of appellees may be sustained. But in construing this section it should be borne in' mind that it was one part only of the legislation and action whereby Virginia disposed of her imperial domain. And it must be construed as being in pari materia with the resolution of the Virginia Legislature relating to the cession of the Noi’thwest Territory, the deed of cession, the ordinance of 1787 by Congress accepting the grant, the amendment of the deed of cession at the request ,of Congress, and the acts of Congress admitting Kentucky, Indiana, Illinois and Ohio into the Union as States. In norte of these statutes or deeds is there to be found any language indicating the slightest intention on the part of Virginia to grant, or the faintest idea upon the part of the General Government that it obtained for itself or any other body politic, any jurisdiction, concurrent or otherwise, over the Ohio river south of low-water mark. When Virginia granted to the General Government the — 687 — territory northwest of the river, it retained the territory as far as low-water mark on the northern side, and consequently retained all jurisdiction to that boundary, for jurisdiction follows boundary. By the compact, the soil as far as that boundary was ceded to Kentucky, and jurisdiction as far as that boundary went with the grant of the territory, except in so far as jurisdiction mqy have been reserved in the grant.. The compact was approved December 18, 1789, by both States. By laws enacted in 1791-92, Kentucky was admitted into the Union as a State, according to the provisions of the compact. By the terms of the grant, which were simultaneously aocepted by the grantee, it was provided, first, that the navigation of the river, so far as the territory of the proposed State or the territory remaining within the limits of the grantor lies thereon, shall be free and common to the citizens of the United States; and, second, that the respective jurisdictions of Virginia and Kentucky on the river should be concurrent only with the States which may possess the opposite shores of said river. This does not mean at all the same thing as a provision that the jurisdictions should be only concurrent with such States. That would be a limitation upon the jurisdiction which Kentucky acquired by the compact. The language used is a stipulation that no oither body politic, except those States possessing opposite shores, should be permitted to have concurrent jurisdiction with Kentucky over the river. It was an agreement that the General Government, to which the Northwest Territory had just been ceded, should not have, in exercising ¡territorial government over that domain, concurrent jurisdiction with Kentucky over the river. The jurisdiction was to be concurrent only with such States as might thereafter possess the opposite shores. — 688 — This was not a limitation, upon Kentucky’s jurisdiction. It was an inhibition against parting with it. It gaye the territory, and with it the jurisdiction, to low-water mark on the northern 'shore. And it provided that Kentucky should not cede concurrent jurisdiction over the river to the United States, .exercising territorial government over the Northwest Territory, or to any other State than those which might possess the opposite shore. Where, then, do the States to the- north of the Ohio obtain jurisdiction, if this construction of the compact be correct? Jurisdiction by one sovereign over territory admitted to be the property and within the boundary of another, is not to be-lightly implied, and surely not from language so vague and uncertain as that used in the compact upon this point. The Congresis of the United States has invariably, in its action, recognized this construction as correct. In 1802, Ohio was admitted .as. a State, and its boundary fixed at the Ohio river. No concurrent jurisdiction was granted, and of course no territory extending over the river, for the General Government had no territory extending over the river. In 1816, Indiana was admitted. The boundary of its1 territory was fixed on the west at the middle of the Wabash river, and on the-south by the Ohio river. And it was further provided, “that the said State shall have concurrent jurisdiction on the river WTabash with the State to be formed west thereof, so far as the said river shall form a common boundary to both.” But no grant is found here of concurrent jurisdiction over the Ohio. In 1818, Illinois was admitted, and its territory bounded by the middle of the Wabash river, the middle of the Mississippi river, and the Ohio river. These acts show that the Federal Government did not assume that the three States to the north had concurrent jurisdiction with — 689 — the State of Kentucky over the Ohio. In 1820, Virginia declared the Ohio river lying opposite her was to be considered as comprehended within the bodies of several of her counties, subject to the provisions of the compact with Kentucky. (Code of Virginia, p. 50.) Ten years before, Kentucky had enacted a statute to the same effect. If the Federal Government had concurrent jurisdiction, it did not 'surrender it by the act which admitted Indiana as a State. That State. derived its whole existence from the Federal Government, and can claim no right from any other source. Kentucky could not, by a compact with Indiana, grant concurrent jurisdiction without the consent of the General Government. Ohio has never adopted any legislation claiming concurrent jurisdiction over the river, nor has such jurisdiction ever been expressly asserted by its courts. So with Illinois, which has never claimed jurisdiction until the Constitution of 1848, if then. The Constitution of 1818 fixed the boundaries according to the act admitting the State into the Union, but in -the Constitution of 1848 it is provided: “This State shall exercise such jurisdiction upon the Ohio as she is now entitled to, or such as may be1 agreed upon by this State and the State of Kentucky.” It is obvious that the jurisdiction Illinois was then entitled to was as far as low-water mark on the northern 'shore. The same provision contained in the Illinois Constitution of 1848 is embraced in the Constitution of 1870. The preamble of the Indiana Constitution of 1816 states that it is formed consistent to the act of Congress enabling the people of Indiana Territory to form a State. There is here no claim of concurrent jurisdiction. Nor — 690 — is there one in the ordinance adopted by the first Constitutional Convention -accepting the boundaries as fixed by Congress. That Constitution (art. v, sec. 2) fixes the jurisdiction of the Supreme Court with the limits of the State. But in the Constitution of 1851, thirty-five yeans after the beginning -of its existence as a State, it asserted its claim to concurrent jurisdiction with Kentucky. I shall not take time to consider the cases in the Supreme Court -of the United States further .than to s-ay that the question has never there been decided. Nor is it -profitable to consider the oases -of concurrent jurisdiction depending upon the grants embodied in the acts of Oongres-s. A claim of jurisdiction by one State over the land of another must be supported by some grant, or the claim fails. Kentucky has never granted to Indiana any jurisdiction -over the Ohio river, concurrent -or otherwise. It is beyond her power, ,a,s limited by the Constitution, to do so. (U. S. Const., art I., sec. 10.) If such jurisdiction in Indiana exists, it must be by virtue of the language of the compact, which to that end must be construed as creating a sort of springing use of jurisdiction for the benefit of States unborn. No stretch of construction can avail to extract from the language of the compact an implication which will giv-e to- ,a State not -a party to- the instrument, and not in being at the time of its execution, jurisdiction -over the territory -and within the boundary of another sovereignty, so as to authorize the grantee by implication to serve process and make arrests upon the territory of the other, and try offenders for acts committed upon foreign soil, or to impose penalties for acts which are not prohibited by the -owner of the territory. “There must be -accurate and express treaty stipulation — 691 — between the contracting parties to confer extra-territorial jurisdiction.” (Vattel, Law of Nations, 6 Am. Ed., 120.) “Sovereignty united with domain establishes jurisdiction.” (Vattel, p. 165.) For the .additional reasons given here, I concur with the opinion of the majority.