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J.J. Scrivner, for appellant. A. T. Britton and J.B. Haggin, for appellee.

FIELD, J. The American river is a branch of the Sacramento river in California. It is entirely within the state, and navigable for small steam-boats and barges from its mouth to the town of Folsom, a distance of 30 miles., By its junction with the Sacramento river, vessels starting upon it can proceed to the bay of San Francisco, and thence to adjoining states and foreign countries. It is therefore a navigable water of the United States, and, as such, is under the control of the general government in the exercise of its power to regulate foreign and interstate commerce, so far as may be necessary to insure its free navigation.

The defendant is a corporation organized under the laws of California, and, pursuant to the authority conferred by an act of its legislature, has constructed a bridge over the American river, of 20 feet in width and 300 feet in length, which is used as a roadway across the stream. Its floor is about 14 feet above extreme low water, and about 5 feet above extreme high water; and the bridge is without a draw or opening for the passage of vessels. Steam-boats and other craft are therefore obstructed by it in the navigation of the river.

The complainant alleges that he is the owner of a large tract of land, bordering on the river, below Folsom, and raises many tons of grain each year; that he is also the owner of a steam-boat and other vessels by which he could ship his grain down the river but for the obstruction caused by the bridge; that there are also large quarries of granite on his land sufficient to supply the markets of Sacramento and San Francisco for years, and also large deposits of cobble-stone which have a value for paving, and, but for the obstruction, he could ship the granite and cobble-stone by his vessels and sell them at a profit, whereas the expense of sending them by rail or other means open to him are such as to deprive him of all profit on them. He therefore files his bill against the company, and prays that it may be enjoined from maintaining the bridge across the river until a draw shall have been placed in it sufficient to allow steam-boats, vessels, and water-craft, capable of navigating the stream, to pass and repass, freely and safely. A demurrer to the bill was sustained, and the bill dismissed, and the case is brought here on appeal.

* The questions thus presented are neither new nor difficult of solution. Except in one particular, they have been considered and determined in many cases, of which the most important are Willson v. Blackbird Creek Marsh Co. 2 Pet. 245; The Wheeling Bridge Case, 13 How.564; Gilman v. Philadelphia, 3 Wall. 713; Pound y. Turck, 95 U. S. 459; Escanaba Co. v. Chicago, 107 U. S. 678; S. C. 2 Sup. Ct. REP. 185; and Miller v. Mayor of New York, 109 U.S. 385; S. C. 3 SUP. Cr. REP. 228. In these cases the control of congress over navigable waters within the states so as to preserve their free navigation under the commercial clause of the constitution, the power of the states within which they lie to authorize the construction of bridges over them until congress intervenes and supersedes their authority, and the right of private parties to interfere with their construction or continuance, have been fully considered, and we are entirely satisfied with the soundness of the conclusions reached. They recognize the full power of the states to regulate within their limits matters of internal police, which embraces among other things construction, repair, and maintenance of roads and bridges, and the establishment of ferries; that the states are more likely to appreciate the importance of these means of internal communication and to provide for their proper management, than a government at a distance; and that, as to bridges over navigable streams, their power is subordinate to that of congress, as•an act of the latter body is, by the constitution, made the supreme law of the land; but that until congress acts on the subject their power is plenary. When congress acts directly with reference to the bridges authorized by the state, its will must control so far as may be necessary to secure the free navigation of the streams.

* 208

607

210

In Willson v. Blackbird Creek Marsh Co. a dam had been constructed across e small navigable river in the state of Delaware, by authority of its legislature; and this court held that the obstruction which it caused to the naviga. tion of the stream was an affair between the government of the state and its citizens, in the absence of any law of coagress on the subject. In the case of Gilman v. Philadelphia a bridge across the Schuylkill river, connecting East and West Philadelphia, had been constructed by authority of the legislature of Pennsylvania. It was without a draw, and prevented the passage of vessels to wharves above it, although the river was tide-water and navigable to them, and commerce had been carried on to them for years in all kinds of vessels. The owner of the wharves filed a bill to prevent the erection of the bridge, alleging that it would be an unlawful obstruction to the navigation of the river and an illegal interference with his rights, and claimed that he was entitled to be protected by an injunction against the progress of the work, and to a decree for its abatement should it be proceeded with to completion. But the court held that the state had not exceeded the bounds of her authority in permitting its construction, and until the power of the constitution was made effective by appropriate legislation, the power of the state was plenary, and its exercise, in good faith, could not be made the subject of review here. The court observed that it was not to be forgotten that bridges, which are connecting parts of turnpikes, streets, and railroads, were means of commercial transportation, as well as navigable waters; that the commerce which passed over a bridge might be much greater than would be transported on the water obstructed; and that it was for the municipal power to weigh the considerations that applied to the subject, and to decide which should be preferred, and how far either should be made subservient to the other.

These cases illustrate the general doctrine, now fully recognized, that the commercial power of congress is exclusive of state authority only when the subjects upon which it is exerted are national in their character, and admit and require uniformity of regulations affecting alike all the states, and that when the subjects within that power are local in their nature or operation, or constitute inere aids to commerce, the states may provide for their regulation and management until congress intervenes and supersedes their action, The complainant, however, contends that congress has intervened and expressed its will on this subject by a clause in the act of September 9, 1850, admitting California as a state into the Union, which declares “that all the navigable waters within the said state shall be common highways and forever free, as well to the inhabitants of said state as to the citizens of the United States, without any tax, impost, or duty therefor." 9 St. 454. This declaration is similar to that contained in the ordinance of 1787, for the government of the territory of the United States north-west of the Ohio river, so far as the latter relates to the navigable waters flowing into the Mississippi and the St. Lawrence. And in Escanaba Co. v. Chicago we held, with respect to the state of Illinois, that the clause was superseded by her admission into the Union, for she then became entitled to and possessed of all the rights of domain and sovereignty which belonged to the original states. The language of the resolution admitting her declared that it was on “an equal footing with the original states in all respects whatever;" so that, after her admission, she possessed the same power over rivers within her limits that Delaware exercised over Blackbird creek, and Pennsylvania over Schuylkill river.

The act enabling the people of Wisconsin territory to form a constitution and state government, and for admission into the Union, contains a similar clause. And yet, in Pound v. Turck, which was before this court at October term, 1877, it was held that a statute of that state which authorized the erection of a dam across a navigable river within her limits was not anconstitutional, in the absence of other legislation by congress bearing on the case. The court does not seem to have considered the question as affected by the

clause in the enabling act. That clause is not, it is true, commented on in the opinion, but the section containing it is referred to, and the declaration that navigable streams within the state are to be common highways, must have been in the mind of the court. It held, however, that the case was governed by the decisions in the Delaware and Pennsylvania cases, observing that there were in the state of Wisconsin, and other states, many small streams navigable for short distances from their mouths in one of the great rivers of the country, by steam-boats, but whose greatest value, in water carriage, was as outlets to saw-logs and lumber, coal, and salt, and that, in order to develop their greatest utility in that regard, it was often essential that dams, booms, and piers should be used, which are substantial obstructions to general navigation, and more or less so to rafts and barges; but that to the legislature of the state the authority is most properly confided to authorize these structures where their use will do more good than harm, and to impose such regulations and limitations in their construction and use as will best reconcile and accommodate the interests of all concerned. And the court added that the exercise of this limited power may all the more safely be confided to the local legislatures, as the right of congress is recognized to interfere and control the matter whenever deemed necessary.

The clause, therefore, in the act admitting California, quoted above, upon which the complainant relies, must be considered, according to these decisions, as in no way impairing the power which the state could exercise over the subject if the clause had no existence. But, independently of this consideration, we do not think the clause itself requires the construction which the court below placed upon it, and which counsel urges so earnestly for our consideration. That court held that the clause contains two provisions: one that the navigable waters shall be a common highway to the inhabitants of the state, as well as to citizens of the United States; and the other, that they shall be forever free from any tax, impost, or duty therefor; that these provisions are separate and distinct, and that one is not an adjunct or amplification of the other. Possibly, some support is given to that view by language used in the opinion in Escanaba Co. v. Chicago. In that case all the bridges over the Chicago river had draws for the passage of vessels, and we there held that a bridge constructed with a draw could not be regarded, within the ordinance of 1787, as an obstruction to the navigation of the stream. We were not required to express any further opinion as to the meaning of the ordinance. But upon the mature and careful consideration which we have given in this case to the language of the clause in the act admitting California, we are of opinion that if we treat the clause as divisible into two provisions, they must be construed together as having but one object, namely, to insure a highway equally open to all without preference to any, and unobstructed by duties or tolls, and thus prevent the use of the navigable streamis by private parties to the exclusion of the public, and the exaction of any toll for their navigation; and that the clause contemplated no other restriction upon the power of the state in authorizing the construction of bridges over them whenever such construction would promote the convenience of the public. The act admitting California declares that she is “admitted into the Union on an equal footing with the original states in all respects whatever.” She was not, therefore, shorn by the clause as to the navigable waters within her limits of any of the powers which the original states possessed over such waters within their limits. Decree affirmed.

219

(113 U. S. 218)

PRICE and others 0. PENNSYLVANIA R. Co.

(January 26, 1885.) BUPREME COURT-WRIT OF ERROB SUPREME COURT-FEDERAL QUESTION-CONSTRUO

TION OF STATE STATUTE-DEATH OF MAIL ROUTE AGENT-NEGLIGENCE OF RAILROAD COMPANY.

As the statutes of the United States, which authorize the employment and di. rect the service of mail-route agents, do not make an agent so carried by a railroad company a passenger, or deprive him of that character, in construing the Pennsyl. vania statute, giving a right of action for death caused by negligence, a writ of er. ror will not lie to review the decision of the supreme court of Pennsylvania hold. ing that an agent so killed was not a passenger within the meaning of the state statute. In Error to the Supreme Court of the State of Pennsylvania.

E. A. Newman and Chas. A. Ray, for plaintiffs in error. John Dalzell, for defendant in error.

MILLER, J. A statute of Pennsylvania, passed in 1851, makes the provision, now become common, for a recovery by the widow or children of a person whose death was caused by the negligence of another of damages for the loss of the deceased. A statute passed April 4, 1868, provides that “where any person shall sustain personal injury or loss of life while lawfully engaged or employed on or about the road, works, depot, and premises of a railroad company, or in or about any train or car therein or thereon, of which company such person is not an employe, the right of-action or recovery in all such cases against the company shall be such only as would exist if such person were an employe: provided, that this section shall not apply to passengers. The plaintiff in error sued the defendant in error for the loss of her husband by a death which the jury, by the following special verdict, found to be caused by the negligence of the company's servant or servants:

"We find for the plaintiff in the sum of ($5,000) five thousand dollars, subject to the opinion of the court on the question of law reserved, to-wit: We find that A. J. Price at the time of his death was route agent of the United States post-office department, duly appointed and commissioned, his route be ing on the Western Pennsylvania Railroad from Allegheny City to Blairg. ville, in the state of Pennsylvania; that his duties as such agent required him to be on the mail car on the mail train of said road to receive and deliver mail matter; that for the purpose of his business and that of the postal department, and in accordance with the laws of the United States and the regulations of the post-office department, and acceptance thereof by the railroad company, one end of the baggage car on the mail train was divided off and fitted up for the use of the department in carrying the mails, and that the duties of the said route agent required him to be in said room in the car during the running of the train; that said Price was daily on said train, making a round trip from Allegheny City to Blairsville and return; that on the twentythird day of July, 1877, while at his post in his room on said car, Mr. Price was killed in a collision of the mail train coming west with another train of the defendant company going east; that said collision was caused by the negligence or misconduct of the conductor and engineer in charge of the train going east in neglecting or disobeying orders, and in failing to take necessary precaution to avoid a collision.

“We find that the Pennsylvania Railroad Company, by resolution dated April 16, 1868, accepted the provisions of the act of assembly, approved fourth April, 1868, (P. L. p. 59,) and that [at the time of the collision the Pennsyl. vania Railroad Company was operating the Western Pennsylvania Railroad under lease.

*"If, under this finding of facts, and under the acts of congress and acts of assembly offered in evidence, and the postal regulations in evidence, the court

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should be of the opinion that the plaintiffs, as widow and children of deceased, are entitled to recover, then judgment to be entered on the verdict in favor of the plaintiffs. If the court should be of the opinion that the law is with the defendant, then judgment to be entered in favor of the defendant non obstante veredicto.

Upon this verdict the judge of the trial court held that the deceased was a person engaged in and about the train, within the meaning of the act of 1868, but that he was also within the proviso as a passenger, and gave judgment for

plaintiff on the verdict. The judgment was reversed by the supreme court of Pennsylvania on the ground that the deceased was not a passenger within the meaning of the proviso, and a judgment was rendered for defendant, to which this writ of error is prosecuted.

* The plaintiff argues here, and insisted throughout the progress of the case in the state courts, that, by reason of certain laws of the United States as applied to the facts found in the verdict of the jury, the decedent was a passenger, and the supreme court erred in holding otherwise. These laws are thug cited in the brief of plaintiff's counsel: "Section 8, act March 3, 1865, (13 St. at Large U. S. 506,) provides that for the purpose of assorting and distributing letters and other matter in railway post offices, the postmaster general may, from time to time, appoint clerks who shall be paid out of the appropria. tion for mail transportation. Section 4000, Rev. St. U.S. requires that every railway company carrying the mail shall carry on any train which may run over its road, and without extra charge therefor, all mailable matter directed to be carried thereon, with the person in charge of the same.' "

We do not think these provisions either aid or govern the construction of the proviso in the Pennsylvania statute. The person thus to be carried with the mail matter, without extra charge, is no more a passenger, because he is in charge of the mail, nor because no other compensation is made for his transportation, than if he had no such charge; nor does the fact that he is in the employment of the Unitel States, and that defendant is bound by contract with the government to carry him, affect the question. It would be just the same if the company had contracted with any other person who had charge of freight on the train to carry him without additional compensation. The statutes of the United States, which authorize this employment and direct this service, do not, therefore, make the person so engaged a passenger, or deprive him of that*character, in construing the Pennsylvania statute. Nor does it give to persons so employed any right, as against the railroad company, which would not belong to any other person in a similar employment by others thap the United States.

We are therefore of opinion that no question of federal authority was involved in the judgment of the supreme court of Pennsylvania, and the writ of error is accordingly dismissed. (113 U. S. 222)

COUNTY OF DAKOTA 0. GLIDDEN.

(January 26, 1885.) 1. WRIT OF ERROR-COMPROMISE, DISMISSAL.

Where, after the rendition of the judgment sought to be reversed, the matter in controversy has been the subject of a valid compromise between the parties to the litigation, which leaves nothing of the controversy presented by the record in the

supreme court to be decided, the writ of error will be dismissed on motion. 2, SAME-EVIDENCE DEHORS THE RECORD.

In such a case evidence dehors the record may be allowed to prove the compro. mise. In Error to the Circuit Court of the United States for the District of Nebraska.

A. J. Poppleton and John M. Thurston, for plaintiff in error. J.M. Woolworth, R. P. Ranney, and A. P. Hoilges, for defendant in error.

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