that the opinion of the court in that case on the subject in hand is anomalous, and opposed to the entire course of previous decisions in the State. It is our judgment that the law of Illinois, in this regard, is the common law, and nothing else; and that the opinion of the court in Trustees, etc., v. Schroll is not in accordance with the common law.

The court then refers to the fact that the State of Illinois, through its legislation, had enacted the common law of England as the rule of decision in that State, and then at page 386 proceeds:

This statute, as far as we are able to learn, has never been repealed and no supplementary or amendatory statute relating to the subject in hand has ever been passed by the legislature. Except with regard to Lake Michigan, which is a navigable lake and one of the internal seas of the country, it can not be pretended that the common law relating to grants of land abutting on streams and permanent bodies of water, and to the rights of riparian owners, are of such a local character peculiar to England as to be inapplicable to the State of Illinois. And then concludes:

If anything can be deemed settled in the jurisprudence of a State we think that until the decision of that case it was absolutely settled in Illinois that the rule of the common law was the law of that State in regard to the rights of riparian owners.

Section 14 of the Code of Alabama of 1923, supra, was made a part of the general law of Alabama in 1907. It does not appear in the statutes of Alabama prior to the codification of the laws in 1907. However, the courts of Alabama have on several occasions declared that the common law of England has been the rule of decision in that State since the adoption of the Alabama constitution in 1819. In State v. Cawood et al. (2 Stuart (Ala.) 360), decided in 1830, it was observed that the common law of England was then in operation in Alabama and it was made applicable to the case then under consideration.

Referring to the Ordinance of 1787, "for the government of the territory of the United States, Northwest of Ohio," in relation to the writ of habeas corpus, trial by jury, and the "judicial proceedings according to the course of the common law," the court said:

*

This provision was doubtless made with reference to the common law of England, and hence that law need not have been declared to be in force here by express enactment * *. I take it then as most obvious, that Congress designed to make the common law of England, so far as applicable, the rule of action both in civil and criminal proceedings in the Mississippi territory.

The court then referred to the fifth section of the constitution of Alabama, which declared that

All laws and parts of laws now in force in Alabama territory, which are not repugnant to the provisions of the constitution shall continue and remain in force as the laws of this State.

And remarked

By this section it is clear that all laws whether unwritten or statute, if consistent with the constitution, are continued in force.

The Cawood case was referred to by the Supreme Court of Alabama in Barlow v. Lambert (28 Ala. 704), decided in 1856. In this case the court said:

In Cawood's case (2 Stuart, 360). this court held that under the second article of the ordinance of 1787, which was afterwards made the fundamental law of this territory, the common law of England, so far as applicable, was made a rule of action for our government, both in civil and criminal cases. By a series of decisions running through our entire judicial history, the above doctrine has

been firmly established; and it must now be admitted that the common law qualified as above, is part and parcel of the law of this State.

The writing of the common law of England into the Code of 1907 appears to be declaratory of what already was recognized by judicial decision, under the constitution of Alabama, when it was admitted as a State. The conclusion is warranted that the common law of England, adopted by the constitution of Alabama, spoke the identical. language in all matters coming within the purview of that law that was always understood and applied in England. The pronouncements of the courts of Alabama have undoubtedly created confusion in relation to the rights, not only of riparian owners to the beds of navigable streams, tidal and nontidal, but as to other principles under the control of or affected by the common law; and it is frankly admitted by the writer that, in view of the decisions of Alabama's courts, the question is not free from doubt. It is with good reason arguable, however, that Alabama has definitely declared, through its constitution and legislature, a clear and definite rule of decision upon the question here involved, and that such rule is not open to challenge and does not admit of construction by the courts.

After such declaration the courts have no authority to change the rule. Courts are to declare the law and not to make it. (Farnum on Water Rights, supra.)

XV

(h) The Government has undoubted right to establish and maintain in connection with the Wilson Dam an electric power plant for the purpose of furnishing motive power in aid of its constitutional functions, and to sell or dispose of any surplus power incident thereto created by said power plant

Section 124 of the national defense act of June 3, 1916, supra, relates not only to national defense and the production of materials needed in time of war, but provides for the improvement of navigation. Either is, of course, a national purpose. Legislation of this character would be expected to be broad and comprehensive. The act is so. It gives the President large discretionary powers in the designation of suitable places for the erection of such plants as in his judgment are necessary in the effectuation of the purposes of the act. It gives authority to construct, maintain, and operate dams, locks, improvements to navigation, power houses, and other plants and equipment for the generation of electric or other power, and for the production of nitrates and other products needed for munitions of war. Paragraph 3 of section 124 reads:

The products of such plants shall be used by the President for military and naval purposes to the extent that he may deem necessary, and any surplus which he shall deem is not required shall be sold and disposed of by him under such regulations as he may prescribe.

This is not a case where the Government has entered upon the business of generating power for commercial uses. It is a case where the Government, under its constitutional powers, has entered upon the prosecution of a work of national concern, relating to national defense and the improvement of navigation, in which a surplus product is created which can be disposed of in meeting the operating and maintenance costs of the plants and to afford an opportunity for recoupment of a portion of its vast expenditure in constructing them. That the Government has a right to do this is beyond question.

In United States v. Chandler-Dunbar Co. (229 U. S. 53) Mr. Justice Lurton, speaking for the Supreme Court on the question of the rights of the Government to deal with property of the character, here under consideration, said:

If the primary purpose is legitimate, we can see no sound objection to leasing any excess of power over the needs of the Government. The practice is not unusual in respect to similar public works constructed by State governments. In Kaukauna Co. v. Green Bay etc. Canal (142 U. S. 254, 273), respecting a Wisconsin act to which this objection was made, the court said:

"But if, in the erection of a public dam for a recognized public purpose, there is necessarily produced a surplus of water, which may properly be used for manufacturing purposes, there is no sound reason why the State may not retain to itself the power of controlling or disposing of such water as an incident of its right to make such improvement. Indeed, it might become very necessary to retain the disposition of it in its own hands, in order to preserve at all times a sufficient supply for the purposes of navigation. If the riparian owners were allowed to tap the pond at different places, and draw off the water for their own use, serious consequences might arise, not only in connection with the public demand for the purposes of navigation, but between the riparian owners themselves as to the proper proportion each was entitled to draw-controversies which could only be avoided by the State reserving to itself the immediate supervision of the entire supply. As there is no need of the surplus running to waste, there was nothing objectionable in permitting the State to let out the use of it to private parties, and thus reimburse itself for the expenses of the improvement.

Following the Chandler-Dunbar case, the Circuit Court of Appeals for the Seventh Circuit, in Waters v. Phillips (284 Fed. 237) said:

* * * We conclude that when the United States, in the lawful exercise of its authority, builds a dam for purposes of navigation, the water power thus developed may be lawfully used by the United States, or leased to any concern engaged in the development and distribution of power or electrical current. In other words, there was no need for the potential power residing in this pond to go to waste, and we can see nothing objectionable, but everything commendable, in the policy of the Government in permitting a lessee or licensee to convert such power into electrical current. (U. S. v. Chandler-Dunbar Co., 229 U. S. 73, 33 Sup. Ct. 667, 57 L. Ed. 1063.)

In Alabama Power Co. v. Gulf Power Co. (283 Fed. 606) this question was under consideration. The court, at page 613, said: The control of power is a mere incident to that of navigation. In this connection attention is directed to Addyston Pipe Co. v. U. S. (175 U. S. 211, 20 Sup. Ct. 96, 44 L. Ed. 136), where it was held that the power of Congress to regulate foreign and interstate commerce includes the power to legislate upon private contracts in respect to such commerce. Certainly, if Congress can legislate on the subject of private contracts as an incident to its power to regulate commerce, it has authority to legislate upon the incidental subject of hydro-electric energy resulting from surplus water at a dam built for navigation purposes.

Kaukauna Water Power Co. v. Green Bay & Mississippi Canal Co. (142 U. S. 254) was a suit by the canal company against the water power company and its lessees to enjoin them from interfering with the plaintiff while engaged in repairing and rebuilding an embankment upon lands abutting on Fox River, a navigable stream in Wisconsin. Congress had granted public lands to the future State for the improvement of navigation on the Fox River. The State accepted the grant and undertook the work of improvement, reserving to itself the water power created thereby. The State failed to complete the work and thereupon incorporated an improvement company and transferred to it the complete work, vesting in that company complete title to all the improvements, water powers to be created and all rights, powers, and franchises. The company mortgaged the property, the mortgage was foreclosed for failure of the company to pay its

obligations and complete title passed to the purchaser, Green Bay & Mississippi Canal Co., under foreclosure sale. This company in turn sold the improvements to the United States, reserving to itself the water power created by the dam and the use of surplus water not required for navigation. The Kaukauna Co., a riparian owner, began to execute and build a canal upon these abutting lands for the purpose of drawing water from a pond formed by the dam and thus deprive the Green Bay Co. of its use and dominion over it. The court enjoined the defendant company and the case went to the Supreme Court of the United States. The question for consideration was whether an act of the legislature which authorized the State to take and appropriate the water power in question was valid. After stating that it is the settled law in Wisconsin that the ownership of riparian proprietors extends to the thread of the stream, subject to the right of the public to its use as a public highway for the passage of vessels, the Supreme Court, through Mr. Justice Brown, handed down the decision from which the quotation was taken in United States v. Chandler-Dunbar, supra. The court proceeded to say (142 U. S. at p. 273):

Those proprietors lost nothing that was useful to them except the technical right to have the water flow as it had been accustomed and the possibility of their being able some time to improve it. If the State could condemn this use of the water with the other property of the riparian owner it might raise a revenue from it sufficient to complete the work which might otherwise fail. There was every reason why a water power thus created should belong to the public rather than to the riparian owners. Indeed, it seems to have been the practice, not only in New York, but in Ohio, in Wisconsin, and perhaps in other States, in authorizing the errection of dams for the purpose of navigation or other public improvement, to reserve the surplus of water thereby created to be leased to private parties under authority of the State; and where the surplus thus created was a mere incident to securing an adequate amount of water for the public improvement, such legislation, it is believed, has been uniformly sustained.

And the court (p. 276) concludes:

Under the circumstances of this case, we think it within the power of the State to retain within its immediate control such surplus as might incidentally be created by the erection of the dam.

It will be noted that the Kaukauna case dealt with the power of the State in the exercise of its functions in relation to navigation, while the Chandler-Dunbar case, supra, dealt with the right of the Government in reference to the same matter. The court appears to assume that there is no distinction in principle in the two cases; but the question is definitely settled in the case of Green Bay, etc., Canal Co. v. Patten Paper Co. (172 U. S., p. 58), in which the right of the United States to control and dispose of surplus waters created by the improvement to the navigation described in the Kaukauna case was brought into question. The court, through Mr. Justice Shiras (p. 68), says:

Whether the water power, incidentally created by the erection and maintenance of the dam and canal for the purpose of navigation in Fox River, is subject to control and appropriation by the United States, owning and operating those public works, or by the State of Wisconsin, within whose limits Fox River lies, is the decisive question in this case.

The court reviewed the facts relating to the grant of land by act of Congress to the future State of Wisconsin for the improvement of navigation and other matters set out in the former (Kaukauna) case, and the sale by the Green Bay & Mississippi Canal Co. of its

property to the United States Government, under an act of the Legislature of Wisconsin and an act of Congress providing for the purchase. Relating to this transaction, the court (p. 79) said:

The legal effect and import of the sale and conveyance by the canal company were to vest absolute ownership in the improvement and appurtenances in the United States, which proprietary rights thereby became added to the jurisdiction and control that the United States possessed over the Fox River as a navigable water. By the findings of the arbitrators the sum of three hundred and twentyfive thousand dollars was payable to the canal company, but, by agreement and under the act of Congress of June 10, 1872, the United States consented to the retention by the canal company of certain personal property and of the water powers, with the lots appurtenant thereto, in part payment of the sum at which the entire plant had been appraised; and accordingly, in its deed of conveyance, the company reserved to itself such personal property and the water powers and appurtenances, and the United States paid the remaining sum of one hundred and forty-five thousand dollars.

The substantial meaning of the transaction was, that the United States granted to the canal company the right to continue in the possession and enjoyment of the water powers and the lots appurtenant thereto, subject to the rights and control of the United States as owning and operating the public works, and that the United States were credited with the appraised value of the water powers and appurtenances and the articles of personal property. The method by which this arrangement was effected, namely, by a reservation in the deed, was an apt one, and quite as efficacious as if the entire property had been conveyed to the United States by one deed, and the reserved properties had been reconveyed to the canal company by another.

So far, therefore, as the water powers and appurtenant lots are regarded as property, it is plain that the title of the canal company thereto can not be controverted; and we think it is equally plain that the mode and extent of the use and enjoyment of such property by the canal company fall within the sole control of the United States. At what points in the dam and canal the water for power may be withdrawn, and the quantity which can be treated as surplus with due regard to navigation, must be determined by the authority which owns and controls that navigation. In such matters there can be no divided empire.

On page 76 the court, after observing that structures for private purposes could not be authorized by the legislature, says:

But we have here the case of a water power incidental to the construction and maintenance of a public work and, from the nature of the case, subject to the control of the public authorities, in this instance the United States.

In determining the question whether the United States has a right to deal in matters such as were involved in the Chandler-Dunbar case and in the Green Bay-Patten Co. case, no distinction can legitimately be made between a case where the property is acquired by purchase and one where the property is obtained by condemnation or under the supreme mandate of the Congress of the United States in matters relating to national concern, so long as the exercise of the right comes properly within governmental functions. When the Government, in the exercise of constitutional powers such as are invoked in the instant case, takes control of the subject matter, all questions legitimately within the purview of the power must be disposed of and determined by the authority in control. "In such matters there can be no divided empire." The cases determine that where the Government is in control of power developed as an incident to the operation of governmental functions it has the exclusive right to draw the line between the quantum necessary for its major purposes and any surplus that may be created, and deal with such surplus in any manner deemed suited to its interests. The waterpower project, consisting of dams, power houses, riparian lands, and