The Chicago River and its branches must, therefore, be deemed navigable waters of the United States, over which Congress under its commercial power may exercise control to the extent necessary to protect, preserve and improve their free navigation.

no waters navigable in fact, or to any great ex- | zens of the State of Delaware and of the United tent, which are not also affected by the tide. States, with sloops and other vessels to navigate That test has long since been discarded in this at all times of the year at their free will and country. Vessels larger than any which exist- pleasure; that the company had wrongfully ed in England, when that test was established, erected the dam across the navigable creek and now navigate rivers and inland lakes for more thereby obstructed the same; and that they had than a thousand miles beyond the reach of any broken the dam in order to pass along the creek tide. That test only becomes important when with their sloop. To this plea, the company deconsidering the rights of riparian owners to the murred and the demurrer was sustained by the bed of the stream, as in some States it governs Court of Appeals of Delaware and by this court. in that matter. The decision here was based entirely upon the absence of any legislation of Congress upon the subject. Said Chief Justice Marshall, speaking for the court: "The measure authorized by this Act (of Delaware) stops a navigable creek, and must be supposed to abridge the rights of those I who have been accustomed to use it. But this abridgment, unless it comes in conflict with the Constitution or a law of the United States, is an affair between the Government of Delaware and its citizens, of which this court can take no cognizance. The counsel for the complainants in error insist that it comes in conflict with the power of the United States to regulate commerce with foreign Nations and among the several States. If Congress had passed any Act in execution of the power to regulate commerce, the object of which was to control state legislation over those small navigable creeks, into which the tide flows and which abound throughout the lower country and the Middle and Southern States, we should not feel much difficulty in saying that a state law, coming in contact with such Act, would be void. But Congress has passed no such Act. The repugnancy of the law of Delaware with the Constitution is placed entirely upon its repugnancy to the power of Congress to regulate commerce with foreign Nations and among the several States, a power which has not been so exercised as to affect the question."

But the States have full power to regulate within their limits matters of internal police, including in that general designation whatever will promote the peace, comfort, convenience and prosperity of their people. This power embraces the construction of roads, canals and bridges, and the establishment of ferries, and it can generally be exercised more wisely by the States than by a distant authority. They are the first to see the importance of such means of internal communication, and are more deeply concerned than others in their wise management. Illinois is more immediately affected by the bridges over the Chicago River and its branches than any other State, and is more directly concerned for the prosperity of the City of Chicago, for the convenience and comfort of its inhabitants and the growth of its commerce. And nowhere could the power to control the bridges in that City, their construction, form and strength, and the size of their draws, and the manner and times of using them, be better vested than with the State, or the authorities of the City upon whom it has devolved that duty. The second case mentioned, that of Gilman When its power is exercised, so as to unneces- v. Philadelphia, is equally emphatic and decisarily obstruct the navigation of the river or its sive. The complaint there was by a citizen of branches, Congress may interfere and remove New Hampshire, who owned valuable coal the obstruction. If the power of the State and wharves on the Schuylkill River at Philadelthat of the Federal Government come in conflict, phia, just above Chestnut Street in that city. the latter must control and the former yield. In 1857 the Legislature of the State authorized This necessarily follows from the position given the City of Philadelphia to erect a permanent by the Constitution to legislation in pursuance bridge over the river at that street. The city of it, as the supreme law of the land. But until being about to begin the structure, which was Congress acts on the subject, the power of the to be without a draw, Gilman filed a bill to preState over bridges across its navigable streams vent its erection, alleging that it would be an is plenary. This doctrine has been recognized unlawful obstruction of the navigation of the from the earliest period, and approved in re- river, and an illegal interference with his rights, peated cases, the most notable of which are Will- and a public nuisance, producing to him special son v. Blackbird Creek Marsh Co., 2 Pet., 245, damage; and that it was not competent for the which was decided in 1829, and Gilman v. Phil Legislature of Pennsylvania to sanction such a adelphia, 3 Wall., 713 [70 U. S., XVIII., 96], structure; and he claimed that he was entitled which was decided in 1865. In the first of these to be protected by an injunction to stay the cases, an Act of Delaware incorporated the progress of the work, and to a decree of abateBlackbird Creek Company, and authorized it to ment, if it should be proceeded with to comconstruct a dam over one of the small navigable pletion. It appeared that the river was tiderivers of the State, which obstructed the navi- water, and navigable to the wharves of the comgation of the stream. A sloop, licensed and in- plainant for vessels drawing from eighteen to rolled according to the navigation laws of the twenty feet of water, and that for many years United States, broke and injured the dam, and commerce to them had been carried on in all thereupon an action was brought for damages kinds of vessels. The bridge, which was to be by the company. The owners of the sloop set constructed below them, was to be only thirty up that the river was a public and common nav- feet high; hence would not permit the passage igable creek "in the nature of a highway," in of vessels with masts. The city justified its which the tides had always flowed and reflowed, proposed action by the Act of the Legislature, and in which there was, and of right ought to alleging that the bridge was a necessity for pubbe, a common and public way, for all the citi-lic convenience, a large population residing on

exercised are national in their character, and admit and require uniformity of regulation affecting alike all the States. Upon such subjects only that authority can act which can speak for the whole country. Its non-action is, therefore, a declaration that they shall remain free from all regulation. Welton v. Mo., 91 U. S., 275 [XXIII., 347]; Henderson v. Mayor of N._Y., 92 Id., 259 [XXIII., 543]; Mobile Co. v. Kimball, 102 Id., 691 [XXVI., 238].

both sides of the river. The circuit court dis- The doctrine declared in these several decismissed the bill, and this court affirmed the de-ions is in accordance with the more general doccree, holding that as the river was wholly with- trine now firmly established, that the commerin her limits, the State had not exceeded the cial power of Congress is exclusive of state aubounds of her authority and that, until the dor-thority only when the subjects upon which it is mant power of the Constitution was awakened and made effective by appropriate legislation, the reserved power of the State was plenary, and its exercise in good faith could not be made the subject of review by the court. In its opinion, after observing "That it must not be forgotten that bridges, which are connecting parts of turnpikes, streets and railroads, are means of commercial transportation as well as navigable waters, and that the commerce which passed over a bridge may be much greater than would ever be transported on the water obstructed," the court said, speaking by Mr. Justice Swayne: "It is for the municipal power to weigh the considerations which belong to the subject and to decide which shall be preferred, and how far either shall be made subservient to the other. The States have always exercised this power, and from the nature and objects of the two systems of government, they must always continue to exercise it, subject, however, in all cases, to the paramount authority of Congress, whenever the power of the State shall be exerted within the sphere of the commercial power which belongs to the Nation." 3 Wall., 729 [70 U. S., XVIII., 100].

These decisions have been cited, approved and followed in many cases, notably in that of Pound v. Turck, decided in 1877, 95 U. S., 459 [XXIV., 525]. There, a Statute of Wisconsin authorized the erection of one or more dams across the Chippewa River, which was a small navigable stream lying wholly within the limits of the State, but emptying its waters into the Mississippi; and also the building and maintaining of booms on the river with sufficient piers to stop and hold floating logs. The dams and booms were to be so built as not to obstruct the running of lumber rafts on the river. Certain parties were damaged by delay in a lumber raft and from its breaking, caused by the obstructions in the river; and their assignees in bankruptcy brought an action against those who had placed the obstructions there and recovered. The case being brought here, this court was of opinion that the somewhat confused instructions of the circuit court must have led the jury to understand, that if the structures of the defendant were a material obstruction to the general navigation of the river, the statute of the State afforded no defense, although the structures were built in strict conformity with its provisions. The circuit court evidently acted upon the theory that the State possessed no power to pass the statute because of its supposed conflict with the commercial power of Congress. This court thus construing the instructions of that court, held that they were erroneous, that the case was within the decisions of The Blackbird Creek Case and Gilman v. Philadelphia, and that it was competent for the Legislature of the State to impose such regulations and limitations upon the erection of obstructions like dams and booms in navigable streams wholly within its limits, as might best accommodate the interests of all concerned, until Congress should interfere and by appropriate legislation control the matter.

On the other hand, where the subjects on which the power may be exercised are local in their nature or operation, or constitute mere aids to commerce, the authority of the State may be exerted for their regulation and management until Congress interferes and supersedes it. As said in County of Mobile v. Kimball: "The uniformity of commercial_regulations, which the grant to Congress was designed to secure against conflicting state provisions, was necessarily intended only for cases where such uniformity is practicable. Where from the nature of the subject or the sphere of its operation, the case is local and limited, special regulations, adapted to the immediate locality, could only have been contemplated. State action upon such subjects can constitute no interference with the commercial power of Congress, for when that acts, the state authority is superseded. Inaction of Congress upon these subjects of a local nature, or operation, unlike its inaction upon matters affecting all the States and requiring uniformity of regulation, is not to be taken as a declaration that nothing shall be done in respect to them, but is rather to be deemed a declaration that for the time being and until it sees fit to act they may be regulated by State authority." 102 U. S., 699 [XXVI., 240].

Bridges over navigable streams, which are entirely within the limits of a State, are of the latter class. The local authority can better appreciate their necessity, and can better direct the manner in which they shall be used and regulated than a government at a distance. It is, therefore, a matter of good sense and practical wisdom to leave their control and management with the States, Congress having the power at all times to interfere and supersede their authority whenever they act arbitrarily and to the injury of commerce.

It is, however, contended here that Congress has interfered, and by its legislation expressed its opinion as to the navigation of Chicago River and its branches; that it has done so by Acts recognizing the Ordinance of 1787, and by appropriations for the improvement of the harbor of Chicago.

The Ordinance of 1787, for the government of the Territory of the United States northwest of the Ohio River, contained in its 4th article a clause declaring that, "The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between them, shall be common highways and forever free, as well to the inhabitants of the said Territory as to the citizens of the United States and those of any other States that may be admitted into the

Confederacy, without any tax, impost or duty | Their application was made to the Circuit Court therefor." of the United States in Ohio for an injunction to restrain the erection of a drawbridge over a river in that State, on the ground that it would obstruct the navigation of the stream and injure the property of the plaintiff. The application was founded on the provision of the 4th article of the Ordinance mentioned. The court, which was presided over by Mr. Justice McLean, then having a seat on this bench, refused the injunction, observing that, This provision does not prevent a State from improving the navigableness of these waters, by removing obstructions, or by dams and locks, so increasing the depth of the water as to extend the line of navigation. Nor does the Ordinance prohibit the construction of any work on the river which the State may consider important to commercial intercourse. A dam may be thrown over the river, provided a lock is so constructed as to permit boats to pass with little or no delay, and without charge. A temporary delay, such as passing a lock, could not be considered as an obstruction prohibited by the Ordinance." And again; "A drawbridge across a navigable water is not an obstruction. As this would not be a work connected with the navigation of the river, no toll, it is supposed, could be charged for the passage of boats. But the obstruction would be only momentary, to raise the draw; and as such a work may be very important in a general intercourse of a community, no doubt is entertained as to the power of the State to make the bridge." 3 McLean, 226. The same observations may be made of the subsequent legislation of Congress declaring that navigable rivers within the Territories of the United States shall be deemed public highways. 1 Stat. at L., 468, sec. 9; 2 Stat. at L., 279, sec. 6.

The Ordinance was passed July 13, 1787, one year and nearly eight months before the Constitution took effect; and, although it appears to have been treated afterwards as in force in the Territory except as modified by Congress; and by the Act of May 7, 1800 [2 Stat at L., 58], creating the Territory of Indiana, and by the Act of February 3, 1809 [2 Stat. at L., 514], creating the Territory of Illinois, the rights and privileges granted by the Ordinance are expressly secured to the inhabitants of those Territories; and although the Act of April 18, 1818 [3 Stat. at L., 428], enabling the people of Illinois Territory to form a Constitution and State Government, and the Act of August 26 following, admitting the State into the Union, refer to the principles of the Ordinance according to which the Constitution was to be formed, its provisions could not control the authority and powers of the State after her admission. Whatever the limitation upon her powers as a government whilst in a territorial condition, whether from the Ordinance of 1787 or the legislation of Congress, it ceased to have any operative force, except as voluntarily adopted by her after she became a State of the Union. On her admission, she at once became entitled to and possessed of all the rights of dominion and Sovereignty which belonged to the original States. She was admitted and could be admitted only on the same footing with them. The language of the Act of admission is "on an equal footing with the original States in all respects whatever." 3 Stat. at L., 536. Equality of constitutional right and power is the condition of all the States of the Union, old and new. Illinois, therefore, as was well observed by counsel, could afterwards exercise the same power over rivers within her limits that Delaware exercised over Blackbird Creek, and Pennsylvania over the Schuylkill River. Pollard v. Hagan, 3 How., 212; Permoli v. First Municipality, 3 How., 589; Strader v. Graham, 10 How., 82.

But, aside from these considerations, we do not see that the clause of the Ordinance upon which reliance is placed materially affects the question before us. That clause contains two provisions; one, that the navigable waters leading into the Mississippi and the St. Lawrence shall be common highways to the inhabitants, and the other, that they shall be forever free to them without any tax, impost or duty therefor. The navigation of the Illinois River is free, so far as we are informed, from any tax, impost or duty, and its character as a common highway is not affected by the fact that it is crossed by bridges. All highways, whether by land or water, are subject to such crossings as the public necessities and convenience may require; and their character as such is not changed, if the crossings are allowed under reasonable conditions, and not so as to needlessly obstruct the use of the highways. In the sense in which the terms are used by publicists and statesmen, free navigation is consistent with ferries and bridges across a river for the transit of persons and merchandise as the necessities and convenience of the community may require. In Palmer v. Comrs. of Cuyahoga Co., we have a case in point.

As to the appropriations by Congress; no money has been expended on the improvement of the Chicago River above the first bridge from the lake, known as Rush Street Bridge. No bridge, therefore, interferes with the navigation of any portion of the river which has been thus improved. But, if it were otherwise, it is not perceived how the improvement of the navigability of the stream can affect the ordinary means of crossing it by ferries and bridges. The free navigation of a stream does not require an abandonment of those means. To render the action of the State invalid in constructing or authorizing the construction of bridges over one of its navigable streams, the General Government must directly interfere so as to supersede its authority and annul what it has done in the matter.

It appears from the testimony in the record that the money appropriated by Congress has been expended almost exclusively upon what is known as the outer harbor of Chicago, a part of the lake surrounded by breakwaters. The fact that formerly a light-house was erected where now Rush Street Bridge stands, in no respect affects the question. A ferry was then used there; and before the construction of the bridge the site as a light-house was abandoned. The existing light-house is below all the bridges. The improvements on the river above the first bridge do not represent any expenditure of the government.

From any view of this case, we see no error in

the action of the court below and its decree must, | defendants in error, holding various state offices accordingly, be affirmed and it is 80 ordered. True copy. Test:

On the first day of January, 1880, a new Constitution of Louisiana went into effect. A portion of that Constitution, called the "Debt Ordinance," is in these words: "State Debt.

it shall be deemed a felony for the fiscal agent | bonds to the amount of $20,000, and of unpaid or any officer of the State or Board of Liquida- coupons due January 1, 1880, to the amount of tors to divert the said fund from its legitimate $78,900. The bonds, in accordance with the channel as provided, and upon conviction the requirements of the Act under which they were said party shall be liable to imprisonment for issued are signed by the Governor, Auditor and not more than ten years nor less than two, at Secretary of State, and the coupons by the Authe discretion of the court. If there shall, dur- ditor and Treasurer. ing any year, be a surplus arising from said tax after paying all interest falling due in that year, such surplus shall be used for the purchase and retirement of bonds authorized by this Act, said purchases to be made by the said Board of Liquidation, from the lowest offers, after due notice; Provided, That the total tax for interest and all other state purposes, except the support of public schools, shall never hereafter exceed twelve and a half mills on the dollar. The interest tax aforesaid shall be a continuing annual tax until the said consolidated bonds shall be paid or redeemed, principal and interest; and the said appropriation shall be a continuing annual appropriation during the same period; and this levy and appropriation shall authorize and make it the duty of the Auditor and Treasurer, and the said Board, respectively, to collect said tax annually, and pay said interest and redeem said bonds until the same shall be fully discharged." By other sections it was provided that any judge, tax collector, or any other officer of the State obstructing the execution of the Act or any part of it, or failing to perform his official duty, shall be deemed guilty of a misdemeanor, and on conviction thereof punished; that each provision of the Act should be, and was declared to be, a contract between the State of Louisiana and each and every holder of such consolidated bonds; that the tax collectors should not pay over any moneys collected by them to any other person than the State Treasurer, and that no court, or judge thereof, should have power to enjoin the payment of principal or interest of any of the bonds, or the collection of the special tax therefor.

Immediately after the passage of this Act the State adopted an amendment to its Constitution, as follows:

Art. 1. Be it ordained, by the people of the State of Louisiana, in convention assembled, That the interest to be paid on the consolidated bonds of the State of Louisiana be and is hereby fixed at two per cent per annum for five years from the first day of January, 1880; three per cent per annum for fifteen years; and four per cent per annum thereafter, payable semi-annually; and there shall be levied an annual tax sufficient for the full payment of said interest, not exceeding three mills, the limit of all State tax being hereby fixed at six mills; Provided, The holders of consolidated bonds may, at their option, demand in exchange for the bonds held by them, bonds of the denomination of $5, $100, $500, $1,000, to be issued at the rate of seventy-five cents on the dollar, of bonds held and to be surrendered by such holders; the said new issue to bear interest at the rate of four per cent per annum, payable semi-annually.

Art. 2. The holders of consolidated bonds may at any time present their bonds to the Treasurer of the State or to an agent to be appointed by the Governor, one in the City of New York and the other in the City of London, and the said Treasurer or agent, as the case may be, shall indorse or stamp thereon the words, interest reduced to two per cent per annum for five years from January 1, 1880, three per cent per annum for fifteen years, and four per cent per annum thereafter; Provided, The holder or holders of said bonds may apply to the Treasurer for an exchange of bonds, as provided in the preceding article.

Article 209 of the same Constitution provides that "The state tax on all property for all purposes whatever, including expenses_of_government, schools, levees and interest, shall not exceed in any one year six mills on the dollar of its assessed valuation.”

"The issue of consolidated bonds authorized Art. 3. Be it further ordained, That the couby the General Assembly of the State, at its reg-pon of said consolidated bonds falling due the ular session in the year 1874, is hereby declared first day of January, 1880, be and the same is to create a valid contract betwen the State and hereby remitted, and any interest taxes collecteach and every holder of said bonds, which the ed to meet said coupon are hereby transferred State shall by no means and in nowise impair. to defray the expenses of the State GovernThe said bonds shall be a valid obligation of the ment." State in favor of any holder thereof, and no court shall enjoin the payment of the principal or interest thereof or the levy and collection of the tax therefor; to secure such levy, collection and payment, the judicial power shall be exercised when necessary. The tax required for the payment of the principal and interest of said bonds shall be assessed and collected, each and every year, until the bonds shall be paid, principal and interest, and the proceeds shall be paid by the Treasurer of the State to the holders of said bonds, as the principal and interest of the same shall fall due, and no further legislation or appropriation shall be requisite for the said assessment and collection, and for such payment from the Treasury."

Under this authority, consolidated bonds to the amount of about $12,000,000 were issued. John Elliott, Nicholas Gwynn and Henry S. Walker are the holders and bearers of these

Elliott, Gwynn and Walker demanded of the proper state officers payment of their coupons which fell due January 1, 1880; but such payment was refused, the Auditor and Treasurer stating "That they could not comply with the request made of them, owing to the prohibition contained in article 3, state debt ordinance of the Constitution of the State of Louisiana, adopted 23d July, 1879, and recently promulgated.'

All the taxes allowed by the new Constitution have been levied for the year 1880, but no proceedings have been taken to levy and collect the five and a half mill tax under the Act of 1874. About $300,000 is in the Treasury of the