But whether such obstruction is also unlawful is the question, and the only one properly arising on this bill of review. The assignment of errors in law, as has been stated, are, in effect, that the act of 1859 has no application to the case; that congress has made no provision on the subject of the navigation of the river; and that therefore the whole question of the lawfulness of the proposed structure arises under the state law, and is without the jurisdiction of this court.

The argument of counsel for the corporation, in support of this conclusion, is, in substance and effect:

1. The Wallamet river is wholly within the state of Oregon, and therefore not within the power of congress to regulate or conserve its use as a vehicle or means of interstate or foreign commerce.

Now, this proposition has no countenance or support in either reason or authority. In fact, and for all the purposes of commerce, the Wallamet river is a part of the Columbia, of which it is an important affluent or branch. Together, they form, or help to form, a continuous highway between Oregon and the other Pacific states and territories and foreign countries; therefore, in contemplation of the constitutional grant of power to congress over the subject of commerce between these states and countries, and for the purpose of regulating the same, it is the property of the nation-a navigable water of the United States.

The authorities from Gibbon v. Ogden, 9 Wheat. 1, to Miller v. City of New York, 3 S. C. Rep. 234-a period of sixty years-are uniform and unqualified on this point. In Gilman v. Philadelphia, 3 Wall. 724, Mr. Justice Swayne says: "Commerce includes navigation. The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States which are accessible from a state other than 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 occurrence of the evil, and for the punishment of the offenders.' In The Daniel Ball, 10 Wall. 557, it was held that Grand river, a comparatively insignificant water, lying wholly within the state of Michigan, but emptying into the lake of that name, and only navigable forty miles from its mouth to Grand Rapids, for a boat of one hundred and twentythree tons burden, is a navigable water of the United States and subject to its control as a highway of commerce, interstate and foreign, on account of its junction with Lake Michigan, of which it forms a part. In delivering the opinion of the court, Mr. Justice Field said (page 563) the common-law test of the navigability of a river-the ebb and flow of the tide therein does not apply to the rivers of this country. "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. And they constitute navigable waters of the United States within the meaning of the acts of congress, in contradistinction from the navigable waters of the states, when they form in their ordinary condition by themselves, or by uniting with other waters, a contiued highway over which commerce is or may be carNo. 12-2

ried on with other states or foreign countries in the customary modes in which such commerce is conducted by water."

In Escanaba Co. v. Chicago, 107 U. S. 678, it was held that the Chicago river, lying wholly within the city of Chicago, and a little local stream compared with the Wallamet, is a navigable water of the United States, because it leads into lake Michigan; and in Miller v. The City of New York, supra, the same rule was applied to the East river, a water wholly within the state of New York, but connecting the Hudson and the sound, and therefore a highway of interstate and foreign commerce. Mr. Justice Field delivered the opinion of the court in both these cases, and referred to and relied on the above citation from the opinion in the case of The Daniel Ball. See also Hatch v. Wallamet I. B. Co., 7 Saw. 131.

2. That if congress has the power to regulate the navigation of the Wallamet river, as a navigable water of the United States, it can not do so by a special act, as the statute of 1850, applicable alone to the waters of Oregon, but only by a general law, which shall operate uniformly upon all such waters in the United States. And this proposition is also without a shadow of foundation in either reason or authority. It is rather late in the day to question the right of congress to exercise its authority over the navigable waters of the United States specially—from time to time and place to place-as it may consider the exigencies of commerce to require. Congress has been making appropriations from time to time for years to maintain and improve the navigation of the Wallamet river, but on this theory of its power all such acts are void and usurpations of power, unless a like provision was made at the same time for every other navigable water of the United States.

In the last fifteen or twenty years congress has legislated largely on the subject of bridges over the Ohio, Mississippi, and Missouri rivers, prescribing when, where, and how they may or may not be built: Hatch v. Wallamet I. B. Co., 7 Saw. 138; and although important interests have been unfavorably affected by such legislation, it was never before suggested that it was invalid for want of such uniformity. It has also legislated specially upon the subject of a bridge over the East river in New York; and although the legality of this structure has since been contested from the circuit to the supreme court of the United States, Miller v. The City of New York, supra, no one appears to have ever questioned the legality of the act of congress authorizing its erection and prescribing its character and location, on this or any other ground.

The vice of the argument in support of each of these propositions is the assumption that the navigable waters within a state are exclusively the waters of such a state, and therefore congress has no power over them; or, if it may legislate concerning them in the interest of commerce, it can only do so by such general legislation as shall limit or affect the power of each state in the premises equally, so as to preserve, as it is said, its "equal footing in the Union with the other states."

But, as we have seen, this theory of the matter is founded upon a total misapprehension of the relation of the national and state governments to the subject and to one another. For the purposes of commerce and the exercise of the power of congress over that subject, every navigable water in the Union, which of itself or by means of its connections forms a continuous highway for interstate or foreign commerce, is primarily the navigable water of the United States, over which it has the same power for the purposes of such commerce as if it was wholly in a territory or

the District of Columbia. When and how far congress will exercise this power is a question for its determination in each case, looking to the public convenience and general welfare. In the exercise of this, as in the case of other congressional powers, no such thing as uniformity of action is desirable or attainable; and it is also to be considered, that what is lawful may not always be expedient.

3. That congress has no power, in the admission of a state into the Union, to impose, by compact or otherwise, any limitation or restriction on its powers or rights as a state, under the constitution; and therefore the act of 1859, admitting Oregon into the Union, so far as it attempts to restrict its power over the navigable waters within its limits, is void and of no effect. But admitting the premises, the conclusion does not follow.

Although the grant of power to congress to admit new states into this Union, U. S. Const., art. 4, sec. 3, is unqualified, yet it is well established by the supreme court that congress can not admit a state upon any other than an equal footing with the other states therein; and therefore can not, as a consideration of such admission, make any valid compact or enactment which shall deny to such state within its limits the municipal powers common to the others: Pollard v. Hagan, 3 How. 233; Permoli v. New Orleans, Id. 609; Strader v. Graham, 10 Id. 92.

The act of 1859, admitting Oregon into the Union, contains (section 4) four propositions to the people of Oregon concerning the public lands therein, which, in consideration of a valuable grant of public land, they accepted by an act of the legislature of June 3, 1859: Or. Laws, 101. But the admission of the state was not conditioned upon the acceptance of these propositions, and in fact preceded it. Nor did the state, in accepting it, undertake to relinquish any power or right that belonged to it, as a state of the Union, unless it is the right to tax "non-resident proprietors" higher than "residents." Therefore this portion of the act is valid, without reference to such acceptance, as a congressional enactment respecting the disposition of the public lands in Oregon: U. S. Const., art. 4, sec. 3; Pollard v. Hagan, 3 How. 224.

But the clause in section 2 of the act of 1859, declaring the navigable waters in Oregon to be "common highways," is no part of these propositions, and does not even purport to derive its force or vitality from this or any compact, but solely from the fact that it is an act of congress, duly passed by it in pursuance of its power to regulate commerce. The admission of the state and the enactment of the regulation are simply coincident in point of time. The one was admitted unconditionally, and the other enacted absolutely; and the regulation might have been enacted on the day before or the day after the admission, or at any time since as well as then.

But even if it had been made a condition of the admission of the state into the Union that the people thereof should consent to this regulation, it would nevertheless be valid as an act of congress, because that body had the power to pass it without their consent. Their consent would add

nothing to its force or validity.

In the leading case on this subject, of Pollard v. Hagan, supra, the court say (page 229) of the following declaration contained in the compact entered into between the United States and Alabama, upon the admission of the latter into the Union, "that all navigable waters within the said state shall forever remain public highways, free to the citizens of said

state and the United States, without any tax, duty, impost, or toll therefor, imposed by the said state," 3 Stat. 492, that it was nothing more than a regulation of commerce, and as such a valid and binding act of congress, without reference to the supposed compact or the consent of the people of Alabama.

4. That the provision in section 2 of the act of 1859-" all the_navigable waters of said state [Oregon] shall be common highways and forever free, as well to the inhabitants of said state as to all other citizens of the United States, without any tax, duty, impost, or toll therefor❞—was not intended, and should not be construed as a restriction or limitation on the power of the state to impede and obstruct the navigation of the Wallamet river, at its pleasure, but only on its power to impose a toil upon any citizen of the United States on account of such navigation.

This clause had its origin in the fourth of the articles of compact of the ordinance of 1787, for the government of the north-west territory, in which it was provided that "the navigable waters leading into the Mississippi and the St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of 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 therefor;" and has been applied to the states admitted to the Union since the formation of the constitution, and formed out of territory other than that included in the ordinance, it being generally supposed until a comparatively late day that these articles of compact, and particularly the clause in question, continued in force in the states formed out of such territory, except so far as altered by "common consent:" Straden v. Graham, 10 How. 97, McLean and Caton, JJ.; Palmer v. Commissioners of Cuyahoga County, 3 McLean, 226; Columbus Ins. Co. v. Cortinius, 6 Id. 209.

It is admitted that the provision does prohibit this state from imposing any tax or toll on any citizen of the United States on account of the navigation of the river. But the authority of the national government to restrain the state in this particular is no clearer than it is to prevent the state from authorizing or causing obstructions to the navigation of the river that may as effectually deprive the citizen of the United States of its use as a highway as any tax or toll could.

Counsel for the plaintiff herein contend that the words "common highways forever free," taken in connection with the rest of the sentence, show that the paramount purpose of this legislation "was to prevent any discrimination between the citizens of the United States" in the imposition of tolls on account of the navigation of the river. But there is no ground for this construction, for plainly the clause does not rest with the prohibition of discrimination in the imposition of such tolls, but goes further, and prohibits them altogether, as well in the case of the citizens of the state as of the United States.

But the clause contains two distinct provisions: the one an absolute prohibition against the imposition of tolls for the navigation of the river; and the other, a declaration that the river shall remain a common highway" for the use of all the citizens of the United States. The two things are separate and distinct; and one is not to be considered the mere adjunct or amplification of the other, because it is found in the same sentence. The maxim, Nascitur a sociis, does not apply. And if either provision can be considered as subordinate to the other, it is the

one against tolls. A highway is a public way upon which all persons have a right to pass; and a public river is such a way, since it is open to all the king's subjects: Rapalje and Lawrence's Law Dict., Highway; 2 Smith's L. C. 175.

A declaration or act of the congress of the United States that a navigable water thereof shall be a "common highway" imports, ex vi termini, that such water shall not be closed up or obstructed by dams, booms, bridges, or otherwise, so as to materially impede or hinder the navigation of the same. And being a highway, no toll can be charged for travel thereon, except by consent of the sovereign power which declared and made it such-the congress of the United States-and they have forbidden it to be done. The plain purport and effect of the statute is this: 1. The Wallamet river is declared and made 66 a common highway" for the use of all the citizens of the United States; and, 2. It shall be a "free" highway, upon which no toll, tax, or impost shall be charged. Being a "common" highway, it is open to all citizens; and being also "free," it is open to them without toll or tax. From these premises, the conclusion follows that any obstruction to the navigation of this river which materially impairs its use as a "common highway" is contrary to the act of congress, and therefore illegal, whether authorized by the legislature. of the state or not. It also follows, that a case involving the question whether any bridge or other structure is such an obstruction is a case arising under a law of the United States, and therefore within the jurisdiction of this court: Act of 1875, 18 Stat. 470.

The court, then, had jurisdiction to hear and decide the question whether this bridge is or would be such an obstruction to the use of this highway as is forbidden by the act of congress. Whether it properly decided the question or not, is a matter depending upon the circumstances of the case, as disclosed by the evidence, and can not be considered in this proceeding. The way to determine that is by an appeal from the final decree in the original case to the supreme court, where the whole question can be considered on its merits.

And in this connection it should be remembered that the court did not decide that the act of 1859 prohibited the erection of any bridge across the Wallamet. It prohibits, of course, the erection of a low, solid bridge, for that would be an impassable barrier-a complete closing of the highway. And it is equally certain that it does not prohibit the erection of a high suspension bridge, under which vessels navigating the river might pass without hinderance or delay. Neither does it prohibit a low bridge, properly constructed with a good and sufficient draw, through which vessels may pass without unnecessary danger or delay; the commerce, size, and condition of the river, as well as the state of the art of such bridge-building, being taken into consideration. It is well known that all highways, whether of land or water, are subject to bo crossed by other highways. The commerce of the country can not be conducted on parallel lines. But where and in what manner such crossing shall be made or allowed depends largely upon the particular circumstances of each case: Hatch v. Wallamet Iron Bridge Co., 7 Saw. 136.

But the court found upon the evidence that, all the circumstances considered, the draw of the proposed bridge was altogether inadequate; that it ought to be at least one hundred and fifty feet wide on either side of the pivot pier, as provided in the act of congress of June 23, 1874, 18