Page images
PDF
EPUB

those in which they lie. For this purpose they are the public property of the Nation, and subject to all the requisite legislation by Congress. This necessarily includes the power to keep them open and free from any obstruction to their navigation, interposed by the States or otherwise; to remove such obstructions when they exist; and to provide, by such sanctions as they may deem proper, against the occurrence of the evil and for the punishment of offenders. For these purposes, Congress possesses all the powers which existed in the States before the adoption of the national Constitution, and which have always existed in the Parliament in England.

"It is for Congress to determine when its full power shall be brought into activity, and as to the regulations and sanctions which shall be provided."

More recently the Court, in New Jersey v. Sargent, supra, referred (p. 337) to:

"the doctrine, heretofore firmly settled, that the power to regulate interstate and foreign commerce, which the Constitution vests in Congress, includes the power to control, for the purposes of such commerce, all navigable waters which are accessible to it and within the United States, whether within or without the limits of a State, and to that end to adopt all appropriate measures to free such waters from obstructions to navigation and to preserve and even enlarge their navigable capacity; and that the authority and rights of a State in respect of such waters within its limits, and in respect of the lands under them, are subordinate to this power of Congress."

But the authority over navigable waters which Congress derives from its power to regulate interstate or foreign commerce extends only so far as its action bears a substantial connection with the regulation of such commerce. Thus, in Port of Seattle v. Oregon & Washington R. Co., 255 U. S. 56, the Court said (p. 63):

"The right of the United States in the navigable waters within the several States is limited to the control thereof for purposes of navigation."

And in Wisconsin v. Illinois, 278 U. S. 367, the limitation on the power of Congress was stated as follows (p. 415):

"This Court has said that while Congress in the exercise of its power may adopt any means having some positive relation to the control of navigation and not otherwise inconsistent with the Constitution, United States v. ChandlerDunbar Co., 229 U. S. 53, 62, it may not arbitrarily destroy or impair the rights of riparian owners by legislation which has no real or substantial relation to the control of navigation or appropriateness to that end.”

See also United States v. River Rouge Improvement Company, 269 U. S. 411, 419.

From this review of the decisions it is clear that this waterway, when completed, being navigable waters capable of use in interstate commerce, will be wholly subject to the power of the United States to regulate commerce through control of navigation. To what extent the United States may take over possession and control of works and improvements made by the State in navigable streams, without compensation to the State, is an open question, but I am disposed to believe that if the State undertakes to improve streams which are highways of interstate commerce and to construct works for that purpose, it takes the chance that the United States may conclude to exercise its paramount authority under the Commerce Clause of the Constitution and take full charge of the improvement of navigation and of all works relating thereto. The fact that the State may have expended money in the works for the improvement of navigation on such streams can not operate to prevent the United States, under appropriate Acts of Congress, from exercising its full constitutional powers.

Some parts of this system appear to be wholly artificial, constructed with State funds, and as to them the question arises whether the United States may take over complete possession and control of an artificial highway constructed by a State, and appropriate the State's investment without the payment to it of any compensation or consideration. It has been shown that notwithstanding a waterway is artificial and built by a State, commerce and navigation on it are subject to Federal regulation and control, and it is subject to the maritime and admiralty jurisdiction of the United States. The authorities have not gone to the extent of hold.

ing that complete possession and control of such artificial waterways may be taken over from a State and the State deprived of its investment and of any return thereon without its consent. It may be that Illinois, as owner of the canal property built in part with State funds, could charge reasonable tolls to vessels passing through them. In such case, no doubt, Congress could regulate the charges. (See 33 Op. 428.) It is not apparent that the State is in any worse position than a public-service corporation which builds an artificial waterway under a State charter. Although such an artificial waterway, if a highway of interstate commerce, would be subject to regulation by Congress and its waters would be within the admiralty jurisdiction, it does not follow that the United States could take possession of it, appropriate it, exclude the owner, and deprive the latter of his investment or any return upon it.

While this question is a novel one, I find nothing in the decisions of the courts to warrant the conclusion that powers of the Federal Government over artificial waterways extend that far.

In answer to your inquiries, therefore, my conclusions are: First: That in dealing with this problem and having in mind the fact that the Illinois constitution may never be amended, and that no State officers may ever be authorized to relinquish this waterway to the United States, we must assume that the powers of the United States are limited to those which it may exercise under the Constitution without the consent of the State.

Second: That with respect to those parts of the waterway under consideration which are navigable streams improved by the State, the powers of Congress are plenary, and without any amendment to the constitution of Illinois or any permission from the State, the United States, under appropriate Acts of Congress, may take complete control over the improvement of navigation and its regulation and provide for and insure to the public perpetual, free navigation. Third: That as to those parts of the waterway which are entirely artificial, Congress may provide for improvement and control of navigation and for the regulation and control thereof, so as to insure to the public the right of navi

gation, and to take such action as may be necessary to prevent interference with or obstruction to navigation, but probably subject to the qualification that without the consent of the State it can not be deprived of reasonable compensation for the use of its property.

Respectfully,

To the PRESIDENT.

WILLIAM D. MITCHELL.

PHILIPPINE ISLANDS-LEGALITY OF BOND ISSUE

The proposed issue by the Government of the Philippine Islands of bonds in the sum of $500,000, the proceeds from the sale of which are to be used for the extension of the port works and the improvement of the harbor facilities in the City and Province of Cebu, being authorized by Congress and by Act No. 3413 of the Philippine Legislature of December 7, 1927, and being within the limit of indebtedness authorized by law, and all statutory requirements regarding the issue of such bonds having been complied with, said bonds, being the third series of bonds under Act No. 3413, supra, when issued in the form and amount proposed, will have been legally issued and will be valid and binding obligations of the Government of the Philippine Islands.

DEPARTMENT OF JUSTICE,

April 8, 1930.

SIR: I have the honor to acknowledge receipt of your letter of March 28, 1930, requesting my opinion as to the validity of the proposed issue by the Government of the Philippine Islands of bonds in the sum of $500,000, being the third series and balance of the total issue of bonds in the sum of $2,000,000, authorized by Act No. 3413, enacted by the Seventh Philippine Legislature, Third Session, approved December 7, 1927, pursuant to the Act of Congress approved August 29, 1916 (c. 416, 39 Stat. 545), as amended by the Act of May 31, 1922 (c. 203, 42 Stat. 598). The proceeds from the sale of said bonds are to be used for the extension of the port works and the improvement of the harbor facilities in the City and Province of Cebu. The first series of these bonds, dated March 1, 1928, in the amount of $750,000, was issued in accordance with the opinion of Attorney General Sargent, dated April 17, 1928 (35 Op. 446), and the second series of said bonds, dated September 15, 1929, in the

amount of $750,000, was issued in accordance with my opinion, dated October 12, 1929 (36 Op. 105).

You state that you are now in receipt of a request from the Governor General of the Philippine Islands that a third series in the amount of $500,000.00, being the balance of the bonds authorized by Act No. 3413 of the Philippine Legislature, be issued and sold as soon as possible. You also state that, pursuant to Act No. 3413, you have determined that the proposed bonds shall be dated March 15, 1930, to mature in 30 years (March 15, 1960); that they shall be in coupon form only in the denomination of $1,000.00 each and that they shall bear interest at the rate of 42% per annum, payable semiannually.

In an opinion dated April 17, 1928 (35 Op. 446), my predecessor upheld the legality of the original authorization of the entire issue under Philippine Act No. 3413, supra, and approved the issuance of the first series of bonds covered by this authorization in the amount of $750,000.00. In passing upon the legality of the proposed third issue of bonds in the sum of $500,000.00, it is only necessary to consider whether the bonds when issued would increase the bonded indebtedness of the Government of the Philippine Islands beyond that permitted by law, and to pass upon the form of bond submitted.

Section 11 of the Act of August 29, 1916, as amended, supra, provides "that the entire indebtedness of the Philippine Government created by the authority conferred herein, exclusive of those obligations known as friar land bond, shall not exceed at any one time 10 per centum of the aggre gate tax valuation of its property

*

[ocr errors]

You enclose with your letter a copy of a memorandum by the Chief of the Bureau of Insular Affairs, in which it is stated:

"On December 31, 1928 (the latest date for which complete figures are available) the assessed valuation of taxable real property in the Philippine Islands was $860,514,525.00. The present bonded indebtedness of the Philippine Government, exclusive of collateral bonds aggregating $6,765,500, which are secured by an equivalent amount of bonds issued by its constituent provinces and municipalities, and of

« PreviousContinue »