"My name is Francisco Garcia. I was born in the Balearic Islands. I have lived for the last thirty years in Cuba. That is my present home-at Sagua de Namo. at Sagua de Namo. I am a Spanish subject. I was present at the seizing and taking of the ship. We had the usual coasting papers. It was a coasting vessel. We were seized about 3 miles from Sagua de Namo, on the 17th of July. We were seized on account of the war with Spain and were sailing under the Spanish flag. We were taken to the port of Banes and from there to Key West. I was the master of the vessel. I have the vessel chartered and have had it since before the war. I took possession at Baracoa, Cuba. It was delivered to me by Engnago Ortiz. He lives at Baracoa. We were carrying tobacco and a box of merchandise, and another box, which was opened here, consisting of butter. This was the cargo that we had on board at the time we were seized. It was put on board two days before leaving port. We had 44 bales of tobacco on board. The prize master broke open the box of merchandise and butter, but nothing was taken out of either box. The owner (of the vessel) was Engnago Ortiz. I know he is the owner, because he has always represented the ship. I don't know whether he is a Spaniard or Cuban. I think he is a Spaniard by birth. He lives at Baracoa. The cargo was put on board at two places-at El Canal and at Sagua de Namo. Twenty-three bales were put on board at El Canal and the balance at Sagua. The cargo was consigned to Manuel Vasilva, Portuguese consul at Gibara. He is from Portugal. He has lived at Gibara. many years. I do not know where he lived previously. The goods were to be delivered at Gibara." As I am convinced that the precedents would have led to the condemnation of tobacco so owned, so shipped, so originating, and that its condemnation was not illegal and tortious, I am of opinion that the demand of this merchant of Gibara, whose status was not affected by his consular character, is without substantial merit. Respectfully, The SECRETARY OF STATE. JOHN. W. GRIGGS. NAVIGABLE WATERS. The War Department having given its consent and approval to the dredging of a canal which is wholly within the State of Texas, there is no reason why such permission should be withdrawn. Clause 2 of the proviso to section 7 of the act of July 13, 1892, does not limit the authority of the Secretary of War to grant permission for the construction of a work of this character to navigable waters which lie wholly within the limits of one State. The Secretary of War would not be prohibited from approving the plan and location of a bridge across boundary waters if acts of authorization were passed by the legislatures of the States interested. The words "or other works" in this act are not to be interpreted according to their natural and usual sense, but are restricted to things of the same kind as those just enumerated. Under the power conferred upon Congress by the Constitution to regulate commerce, the United States has the right to control all structures and works which interfere in any manner with the navigable capacity of the navigable waters of the United States which, either by themselves or in connection with other waters, form channels for interstate commerce. Canals being artificial waterways or means of commercial transportation, as well as natural lakes and rivers, the same principles may be applied to them that are applied to bridges, turnpikes, streets, and railroads. DEPARTMENT OF JUSTICE, SIR: I have the honor to acknowledge receipt of your communication of January 23, 1899, requesting my opinion upon a question which has arisen in your Department respecting the construction of a ship canal by the Port Arthur Channel and Dock Company between Sabine Lake and a point near the head of the bayou at the terminus of the Kansas City, Pittsburg and Gulf Railroad, in the State of Texas. The facts stated in your letter are that, without any authority or consent from the Secretary of War, the Port Arthur Company originally attempted to dredge a channel through Sabine Lake, but was stopped and further work forbidden by the War Department; that subsequently permission was given by that Department to the company to dredge a channel between Sabine Lake and the terminus of the above-mentioned railroad, provided it was constructed outside the limits of the lake. Subsequently further objection was made, on behalf of another corporation, that the Secretary of War had no legal right to grant permission for the dredging of such a channel under any conditions, because, as a matter of fact, Sabine Lake and Sabine Pass (being the body of water connecting Sabine Lake with the Gulf of Mexico) constitute the boundary line between the States of Texas and Louisiana. This objection was not made nor suggested at the time the original permission to the Port Arthur Company was granted. The question submitted for my decision is, whether the fact that Sabine Lake and Sabine Pass constitute the boundary line between two States deprives the Secretary of War of jurisdiction and authority to grant permission for the construction of a public work which will affect the capacity of the port, roadstead, haven, harbor, or the channel of the navigable waters of Sabine Lake and Sabine Pass, and whether, on that account, orders should be given for the stoppage of the work now being prosecuted by the Port Arthur Company. Under date of April 24, 1897, you requested the opinion of the Attorney-General as to whether the Secretary of War had authority to permit the construction of this canal, and by an opinion dated May 11, 1897, you were advised by the Solicitor-General that, without assuming to decide whether or not a canal is one of the works provided for in section 7 of the act of July 13, 1892 (27 Stats., 88), he was of the opinion that if it is such a work the Secretary of War has authority, under that section, to authorize and permit its construction. The question now submitted arises under the last clause of the proviso of the aforesaid section. It has been the subject of consideration by the Attorney-General in several instances. This section originally formed a part of the river and harbor act of 1890: (26 Stats., 454) 20 Op., 101; Id., 479; Id., 488; 21 Op., 41; Id., 531; Opinion of March 21, 1898. The section consists of three distinct affirmative clauses, followed by a proviso in the nature of a limitation, which embraces two separate clauses. For convenience of consid eration and analysis, the section may be quoted in the following form: "(a) 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 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; "(b) 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; "(c) Or to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of any port, roadstead, haven, harbor, harbor of refuge or inclosure, within the limits of any breakwater or of the channel of any navigable water of the United States, unless approved and authorized by the Secretary of War: "Provided, (1) That this section shall not apply to any bridge, bridge draw, bridge piers and abutments the construction of which has been heretofore duly authorized by law; "(2) 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." Certain parties interested in the navigation of Sabine Lake and Sabine Pass now object to the further prosecution of the construction of this channel by the Port Arthur Company upon the ground that it affects waters which are not wholly within the limits of one State, and contend that clause 2 of the proviso limits the authority of the Secretary of War to grant permission for the construction of a work of this character to navigable waters which lie wholly within the limits of one State. I think an analysis of the section, and especially of the proviso, fails to sustain this objection. A consideration of the reasons which prompted Congress to enact the legislation now under discussion will tend to elucidate the meaning of the act, and the particular application of the various clauses in the proviso. Under the power conferred upon Congress by the Constitution to regulate commerce, the United States possesses, provided Congress sees fit to exercise it, the right to control all structures and works which interfere in any manner with the navigable capacity of navigable waters of the United States, which, either by themselves or in connection with other waters, form channels for interstate commerce. In the absence, however, of legislation by Congress forbidding the States to authorize works of that nature, the States have very frequently, by legislative acts, granted rights to corporations and others to bridge navigable streams, to erect dams, booms, wharves, piers, and other works, which practically interfered with or abridged the navigability of streams over which Congress had the right to exercise jurisdiction. In the absence of Congressional legislation the Federal power, in the language of the courts, is dormant, but capable of assertion by Congress at any time; and when so asserted the power of Congress is supreme, and its laws, if in conflict with State laws upon the same subject, are paramount. (Wilson v. Blackbird Creek Marsh Company, 2 Peters, 245.) The authority of Congress and of the several States in their respective spheres with relation to this subject is well summarized in the opinion of the United States Supreme Court in the case of Gilman v. Philadelphia (3 Wall., 713). "The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States which are accessible from a State other than those on which they lie; and includes, necessarily, the power to keep them open and free |