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made in substitution for it were defeated ; the question of river control being thus left, as in the United States, to the operation of the "trade and commerce

power. (Conv. Deb., Melb., pp. 31-150, 376-642.)

On the second recommittal (see pp. 196-7, supra) Mr. Glynn moved an addition to the "trade and commerce” sub-clause, defining “navigable rivers" on the broad basis of American decisions ; but the question was eventually postponed until after the settlement of the navigation power. The New South Wales representatives feared that the paramountcy of the federal navigation power might injure State rights of water conservation and irrigation; and Mr. Carruthers proposed to add to the "Navigation and Shipping” sub-clause a proviso that the use of the river waters for navigation should be subordinate to conservation in the States. This was eventually withdrawn in favour of Mr. Reid's amendment to the effect that the navigation power should not "abridge the rights of a State or its citizens to the use of the waters of rivers for conservation and irrigation.” Sir John Downer's amendment to add “reasonable” before" carried, and the sub-clause as amended was agreed to. (Conv. Deb., Melb., pp. 1947-90.) After the fourth Report, it was amended to stand as a separate clause.

use

was

§ 416.

“ The Commonwealth shall Not.” (See Note on the same words in the preceding section, $ 412, supra ) This section is a further limitation of the trade and commerce power. The necessity for the provision arose out of the twofold importance of the rivers--as highways of inter-state commerce, and as channels and reservoirs for the water which is essential for the development of the land. In the event of any conflict between these two purposes, the power of the Federal Parliament to regulate navigation would have prevailed absolutely against any claims by the States to the use of the water, and the object of this section is to limit the paramountcy of the navigation power so far as it may interfere with the reasonable use" of the waters for State purposes.

The river systems of Australia bear a very close analogy, in many respects, to those of the arid portion of the United States, in which the rainfall is not sufficient for the production of the crops, and which covers about two-fifths of the whole area of the United States.

“Here the paramount interest is not navigation of the streams, but the cultivation of the soil by means of irrigation. Even if, by the expenditure of vast sums of money in straightening and deepening the channels, the uncertain and irregular streams of this arid region could be rendered to a limited extent navigable, no important public purpose would be subserved by it. Ample facilities for transportation, adequate to all the requirements of commerce, are furnished by the railroads, with which these comparatively insignificant streams could not compete. But, on the other hand, the use of the waters of all these streams for irrigation is a matter of the highest necessity to the people inhabiting this region, and it such use were denied them, it would injuriously affect their business and prosperity to an extent that would be an immeasurable public calamity." (United States v. Rio Grande Dani and Irrigation Co., New Mexico, 51 Pac. Rep. 674 ; cited Prentice and Egan, pp. 116-7.)

In these arid regions difficulties arose not only between the States, but between higher and lower riparian owners in the same ite. The riparian common law of England, which required every riparian owner to perniit the flow of the water undiminished in quantity and unimpaired in quality, had grown up under totally different conditions, and was found inapplicable to the circumstances of the arid regions.

Notwithstanding the unquestioned rule of the common law in reference to the right of a lower riparian proprietor to insist upon the continuous How of the stream as it was, and although there have been in all the western States an adoption or recognition of the common law, it was early developed in their history that the mining industry in certain States, the reclamation of arid lands in others, compelled a departure from the common law rule, and justitied an appropriation of flowing waters both for mining purposes and for the reclamation of arid lands, and there has come to be recognized in those States, by custom and by State legislation, a ditferent rule--a rule which permits,

under certain circumstances, the appropriation of the waters of a flowing stream for other than domestic purposes.” (United States r. Rio Grande Dam and Irrigation Co., 174 U.S. at p. 704.)

But though each State of the American Union may, as between its own citizens, regulate the right to use the waters of rivers, the rights of the States are subject to the paramount power of Congress with respect to navigation. Thus in 1890, Congress passed a comprehensive Act prohibiting the creation of any unauthorized obstruction to the navigable capacity of waters over which the United States have jurisdiction ; and under this Act it has been held that if the navigability of a navigable stream is substantially affected by impounding the waters of a non-navigable tributary-even though such tributary be wholly within one State-the Federal Government has power to interfere. When proceedings are taken by the United States for that purpose,

“It becomes a question of fact whether the act sought to be enjoined is one which fairly and directly tends to obstruct (that is, to interfere with or diminish) the navigable capacity of a streani. It does not follow that the courts would be justified in sustaining any proceeding by the Attorney-General to restrain any appropriation of the upper waters of a navigable stream. The question always is one of fact, whether such appropriation substantially interferes with the navigable capacity within the limits where navigation is a recognized fact. In the course of the argument this suggestion was made, and it seems to us not unworthy of note, as illustrating this thought. The Hudson River runs within the limits of the State of New York. It is a navigable stream and a part of the navigable waters of the United States, so far at least as from Albany southward. One of the streams which flows into it and contributes to the volume of its waters is the Croton River, a non-navigable stream. Its waters are taken by the State of New York for domestic purposes in the city of New York. Unquestionably the State of New York has a right to appropriate its waters, and the United States may not question such appropriation, unless thereby the navigability of the Hudson is disturbed. "On the other hand, if the State of New York shoull, even at a place above the limits of navigability, by appropriation for any domestic purposes, diminish the volume of waters which, flowing into the Hudson, make it a navigable stream, to such an extent as to destroy its navigability, undoubtedly the jurisdiction of the National Government would arise, and its power to restrain such appropriation be unquestioner : and within the purview of this section it would become the right of the Attorney-General to restrain such proceedings." (United States v. Rio Grande Dam and Irrigation Co., 174 U.S. at p. 709.)

The above case was decided in October, 1898, after the Convention had finished its sittings : but the principles on which the decision is based were already well understood, and it was with the view of modifying to some extent the application of those principles that this section was framerl. Under this Constitution the mere fact that navigability is substantially affected, or even destroyed, does not enable the Conimonwealth to restrain the use of the water by a State or its residents unless such use is unreasonable.

§ 417. “By any Law or Regulation of Trade or

Commerce." (See Note to similar words, $ 413 supra, $ 427 infra.) The power of the Parliament to make laws with respect to trade and commerce extends to navigation and shipping (sec 98), and therefore to navigation upon rivers. That it extends not only to shipping, but to the highways themselves upon which the shipping is carried on, is expressly recognized by this section, which imposes a limitation on the Federal control of such highways; and it remains to discuss the extent of this power.

NAVIGABLE WATERS OF THE COMMONWEALTH. -- Incident to the power to make laws in respect of navigation with other countries and among the States, is a power of control over all waters upon which such navigation may be carried on:-which are, in fact, navigable for the purposes of inter-state and foreign commerce. In the Convention, there was some discussion, in connection with the words "navigable" and “navigability." which occurred in some proposed amendments (see Conv. Deb., Melb., pp. 111, 112, 409, &c.), whether navigability would be interpreted according to the English decisions - which make the ebb and flow of the tide the test of navigability, marking the line where prerogative of the Crown ends and private ownership of the river-bed begins-or according to American decisions, which make actual capacity for navigation the test. As the Constitution stands, however, the word “navigable” does not occur. We have only to deal with “navigation ;” and in discussing the extent of the jurisdiction with regard to navigation, we are free to use the word “navigable,” not in the artificial sense of the English decisions, but in the natural sense which has received statutory and judicial 'recognition in America-a sense which it is convenient to adopt, because the area of federal jurisdiction over rivers in the United States has for the most part been decided in connection with the words "navigable waters of the United States ” in Federal statutes. It will be useful to trace those decisions.

In the Daniel Ball, 10 Wall. 557, at p. 563, Mr. Justice Field, delivering the opinion of the Court, said :

“ The doctrine of the common law as to the navigability of waters has no application in this country. Here the ebb and flow of the tide do not constitute the usual test, as in England, or any test at all, of the navigability of waters. There no waters are navigable in fact, or at least to any considerable extent, which are not subject to the tide, and from this circumstance tide water and navigable water there signify substantially the same thing. But in this country the case is widely different. Some of our rivers are as navigable for many hundreds of miles above as they are below the limits of tide water, and some of them are navigable for great distances by large vessels, which are not even affected by the tide at any point during their entire length. A different test must therefore be applied to determine the navigability of our rivers, and that is found in their navigable capacity. Those rivers must be regarded as public navigable rivers in law which are navigable in fact, and they are navigable in fact when they are used or are susceptible of being used in their ordinary condition as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.”

In The Montello, 11 Wall. 411, it was held that if a river is not of itself a highway for commerce with other countries, or does not form such highway by its connection with other waters, and is only navigable between different places within the same State, then it is not a navigable water of the United States, but only a navigable water of the State, and subject to the exclusive jurisdiction of the State. And see Lake Shore and Michigan R. Co. v. Ohio, 165 U.S. at pp. 367-8, where a doubt was expressed whether all navigable waters, even though wholly within a State, are “waterways of the United States." These decisions are upon the words of American statutes. It is clear, however, that inter-state commerce, wherever found, is subject to federal control, and that Parliament could legislate in respect of commerce upon the navigable waters of a State, if such commerce came from, or was destined for, other States.

In The Montello, 20 Wall. 430, it was said that navigability does not depend on the mode of navigation, but upon whether the river in its natural state is such that it affords a channel for useful commerce. “ It is not, however, as Chief Justice Shaw said (21 Pickering, 344), every small creek in which a fishing skiff or gunning canoe can be made to float at high water which is deemed navigable, but, in order to give it the character of a navigable stream, it must be generally and commonly useful to some purpose of trade or agriculture.”

“ The mere fact that logs, poles, and rafts are floated down a stream occasionally at times of high water does not make it a navigable river.” (United States v. Rio Grande Dam and Irrigation Co., 174 U.S. at p. 698, where it was held that the Rio Grande, between the points mentioned in the case, was not navigable.)

It seems clear from the principle of these cases that a river may be deemed navigable even though it is in fact only intermittently navigable, provided that it is really useful for commerce.

If, however, a stream be in fact connected with the waters of other States, it is immaterial that in its natural condition it was not an inter-state highway. Such a limited construction “ cannot be adopted, for it would exclude many of the great rivers of this country, which were so interrupted by rapids as to require artificial means to enable them to be navigated without break. Indeed, there are but few of our fresh water rivers which did not originally present serious obstructions to an uninterrupted navigation.” (The Montello, 20 Wall. at p. 439.) And it has even been held to be immaterial that the stream is entirely of artificial construction. (Ex parte Boyer, 109 U.S. 629.)

“ The control vested in the general Government to regulate inter-state and foreign commerce involves the control of the waters of the United States which are navigable in fact, so far as may be necessary to ensure their free navigation, when by themselves or in connection with other waters they form a continuous channel for commerce among the States or with foreign countries.” (Escanaba Co. v. Chicago, 107 U.S. at p. 682.) Accordingly the Chicago River and its branches, though lying within the limits of the State of Illinois, were held to be navigable waters of the United States, which Congress may control so far as to protect, preserve, and improve, free navigation.

Whether a river is or is not navigable at any point is ordinarily a matter of proof; though the fact that some rivers are navigable, and others not, may be a matter of common knowledge, and judicially noticed. (United States v. Rio Grande Dam and Irrigation Co., 174 U.S. 690.)

EXTENT OF FEDERAL AUTHORITY.--The extent of the federal authority over navigable waters has in the United States been the subject of numerous decisions, and has been laid down in very wide terms. Thus it is held that the power to regulate navigation includes the power to improve the navigable channel (Wisconsin v. Duluth, 96 U.S. 379); to close one of several channels of a river in order to improve the navigability of another (South Carolina v. Georgia, 93 U.S. 4); and to make a new channel (Prentice and Egan, Commerce Clause, p. 110). In short the federal power includes authority to do everything necessary “to make and keep the highway open and safe (Prentice and Egan, Com. Clause, p. 109). "Congress can do anything which, in its reasonable effect, regulates inter-state or foreign commerce, or the instruments of commercial intercourse ; and the word 'regulate,' as employed in the Constitution, not only covers all rules prescribing the way in which such commerce can be conducted, but also all real or supposed improvements of the means of communication. In this idea of the word regulate is found the judicial justification of all our internal improvements." (Lewis, Federal Power over Commerce, p. 19) The power of Congress to pass laws for the navigation of rivers, and to prevent all obstructions therein, cannot be disputed. (United States v. Bellingham Bay Boom Co., 176 U.S. 211.)

The words of this Constitution are even wider. The Parliament has power, not merely to regulate commerce,” but “ to make laws with respect to trade and commerce," a phrase which would seem to be as wide as the most extended construction which the American courts have given to the word “regulate.”

For the carrying out of these public purposes the Federal Parliament has all the incidental powers which are necessary. Thus it has been held in the United States that Congress has the power of eminent domain over the shores and the submerged soil. (Monongahela Navigation Co. v. United States, 148 U.S. 312; Stockton v. Baltimore, &c., R. Co., 32 Fed. Rep. 9; Prentice and Egan, Com. Clause, p. 110.) “All navigable waters are under the control of the United States for the purpose of regulating and improving navigation ; and although the title to the shore and submerged soil is in the various States, and individual owners under them, it is always subject to the servitude in respect of navigarion created in favour of the Federal Government by the Constitution.” (Gibson v. United States, 166 U.S. 269.) In that case it was held that riparion owner. ship of navigable rivers is subject to the obligation to suffer the consequences of an improvement of the navigation under an Act passed by Congress in the exercise of its dominant right, and that damages resulting from such improvement cannot be recovered. (See South Carolina v. Georgia, 93 U.S. 4; Shively u. Bowlby, 152 U.S. 1 ; Eldridge v. Trezevant, 160 U.S. 452.) In this Constitution, power of acquiring the property of States or individuals for “any purpose in respect of which the Parliament has power to make laws" is expressly given by sec. 51- xxxi.

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In Green Bay and Mississippi Co. r. Patten Paper Co., 172 U.S. 58, it was held that water power incidentally created by the erection and maintenance of a dam and canal by the United States was (under the facts in that case) subject to control and appropriation by the United States. The Court afterwards explained that this decision did not apply after the waters had flower over the dam and through the sluices, and found their way to the unimproved bed ; and held further that though State courts might legitimately take cognizance of controversies between riparian owners as to the use and apportionment of waters flowing in non-navigable parts of a stream, they could not interfere, by mandamus, injunction, or otherwise, with the control of the surplus power incidentally created by the Federal dam and canal. (Green Bay, &c, Co., v. Patten Paper Co., 173 U.S. 179.)

The Congress of the United States has power, not only to improve the navigability of waters, but to prevent their obstruction by any State or person, by means of bridges, dams, piers, or other structures which interfere with navigation. It follows as a corollary to the power to preserve free navigation that Congress has the paramount right to conclusively determine what shall be deemed, so far as commerce is concerned, an obstruction. (Miller r. Mayor of New York, 109 U.S. 385.) Congress has the right to abate all bridges which obstruct the free passage of inter-state commerce on a river. The fact that a greater amount of inter-state commerce passes over than under the bridge is immaterial.” (Lewis, Fed. Pow. over Comm. p. 18 ; Bridge Co. v. United States. 105 U.S. 470; The Clinton Bridge, 10 Wall. 454. For Federal legislation on this subject in the United States, see Prentice and Egan, Commerce Clause, pp. 112, 126.) It has even been held that a dam on a non-navigable tributary may, by diminishing the supply of water to a navigable river, become an obstruction. (United States v. Rio Grande Dam and Irrigation Co., 174 U.S. 690.) In this Constitution the Federal power of interference in such cases is substantially limited by the prohibition contained in this section.

“ An unlawful obstruction in public navigable waters which threatens irreparable injury to an individual may be the subject of relief in equity (Texas and Pac. R. Co. r. Inter-State Transportation Co., 155 C.S. 585), and, when constructed, may be a public nuisance which any interested person may abate.” (Prentice and Egan, Comm. Clause,

p. 112.)

Not only can Congress prevent obstructions by the States ; it can, by virtue of its paramount power over trade and commerce, create or authorize the creation of obstructions such as briiges and clams. (See a long list of cases cited by Prentice and Egan, Comm. Clause, p. 111.)

Except as to the limitation in favour of user of the water by States and by residents therein, these decisions seem applicable to the trade and commerce power as conferred by this Constitution. It appears clearly from the debates of the Convention, and particularly the debates referred to in the Historical Note to this section, that the Convention was fully aware of the wirle scope of the American decisions, and was content that they should be applied with the limitation mentioned-to this Constitution.

In the case of railroads, indeed, the Constitution does seem to contemplate a more limited power of control than exists in the United States. The express powers given (sec. 51-xxxiii., xxxiv.) to acquire State railways with the consent of a State, and to control railways in a State with the consent of the State, not only imply that those powers may not be exercised without such consent, but perhaps imply also that the powers would not have existed, or that their existence might have been doubtful, without express words. It may be argued that the facts that it was deemed necessary to give such express powers at all, and that the powers so given were limited by requiring the consent of the States, show that a narrower scope was contemplated for the whole trade and commerce power. Such arguments from implication, however, are never very strong. If the Convention had meant the navigation power to be construed more narrowly than in the United States, the matter would hardly, in the face of the

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