Montgomery v. Portland/Opinion of the Court
This case cannot be distinguished in principle from Cummings v. Chicago, 188 U.S. 410, ante, 472, 23 Sup. Ct. Rep. 472, decided at the present term. In that case it appeared that the Secretary of War, proceeding under the act of September 19th, 1890, and other legislation of Congress, had given his assent to the rebuilding of a certain dock in Calumet river, within the limits of Chicago; which river, being one of the navigable waters of the United States, had been surveyed by the direction of the government, and for its improvement Congress had made appropriations from time to time. When that action was commenced there was in force an ordinance of the city of Chicago, enacted under the authority of the state, forbidding the construction of any pier, dock, or other structure in navigable waters within the limits of that city without first obtaining a permit from its department of public works. And the question was whether, under the acts of Congress, including that of 1890, the above ordinance was of any avail as against the permit of the Secretary.

The contention of the plaintiff was that Congress, by its appropriations for the improvement of Calumet river, had taken such complete possession of that stream as to deprive the local authorities of all power in respect of the building or maintenance of structures in that river. In determining that question the court took into consideration various enactments, including the 10th section of the river and harbor act of March 3d, 1899, chap. 425 (passed after the present suit was brought), as follows: 'That the creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States, is hereby prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the chief of engineers and authorized by the Secretary of War; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor or refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the chief of engineers and authorized by the Secretary of War prior to beginning the same.' 30 Stat. at L. 1121, 1151, U.S.C.omp. Stat. 1901, p. 3541.

In that case we recognized the doctrine as long established that the authority of a state over navigable waters entirely within its limits was plenary, subject only to such action as Congress may take in execution of its power under the Constitution to regulate commerce among the several states. After referring to Lake Shore & M. S. R. Co. v. Ohio (1897) 165 U.S. 365, 366, 368, 41 L. ed. 747, 748, 17 Sup. Ct. Rep. 357, we said that if Congress had intended by its legislation, prior to that decision, 'to assert the power to take under national control, for every purpose, and to the fullest possible extent, the erection of structures in the navigable waters of the United States that were wholly within the limits of the respective states, and to supersede entirely the authority which the states, in the absence of any action by Congress, have in such matters, such a radical departure from the previous policy of the government would have been manifested by clear and explicit language. In the absence of such language it should not be assumed that any such departure was intended. We do not overlook the long-settled principle that the power of Congress to regulate commerce among the states 'is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution.' Gibbons v. Ogden, 9 Wheat. 1, 196, 6 L. ed. 23, 70; Brown v. Maryland, 12 Wheat. 419, 446, 6 L. ed. 678, 688; Brown v. Houston, 114 U.S. 630, 29 L. ed. 260, 5 Sup. Ct. Rep. 1091. But we will not at this time make any declaration of opinion as to the full scope of this power, or as to the extent to which Congress may go in the matter of the erection, or authorizing the erection, of docks and like structures in navigable waters that are entirely within the territorial limits of the several states. Whether Congress may, against or without the expressed will of a state, give affirmative authority to private parties to erect structures in such waters, it is not necessary in this case to decide. It is only necessary to say that the act of 1899 does not manifest the purpose of Congress to go to that extent under the power to regulate foreign and interstate commerce and thereby to supersede the original authority of the states. The effect of that act, reasonably interpreted, is to make the erection of a structure in a navigable river, within the limits of a state, depend upon the concurrent or joint assent of both the national government and the state government. The Secretary of War, acting under the authority conferred by Congress, may assent to the erection by private parties of such a structure. Without such assent the structure cannot be erected by them. But under existing legislation they must, before proceeding under such an authority, obtain also the assent of the state acting by its constituted agencies.'

There is nothing in the present case to distinguish it from the Cummings Case. While § 12 of the act of 1890 forbade the construction or extension of piers, wharves, bulkheads, or other works, beyond the harbor lines established under the direction of the Secretary of War, in navigable waters of the United States, 'except under such regulations as may be prescribed from time to time by him,' it does not follow that Congress intended in such matters to disregard altogether the wishes of the local authorities. Its general legislation so far means nothing more than that the regulations established by the Secretary in respect of waters, the navigation and commerce upon which may be regulated by Congress, shall not be disregarded even by the states. Congress has not, however, indicated its purpose to wholly ignore the original power of the states to regulate the use of navigable waters entirely within their respective limits. Upon the authority, then, of Cummings v. Chicago, and the cases therein cited-to which we may add Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1, 31 L. ed. 629, 8 Sup. Ct. Rep. 811-we hold that, under existing enactments, the right of private persons to erect structures in a navigable water of the United States that is entirely within the limits of a state cannot be said to be complete and absolute without the concurrent or joint assent of both the general and state governments. Of course, the right of the government to erect public structures in a navigable water of the United States rests upon different grounds.

In this view it is unnecessary to consider the general question discussed at the bar whether Congress has or not, by some of its enactments relating to structures in navigable waters, committed to the Secretary of War the determination of matters that are legislative in their nature, and which, under the Constitution, could only be determined, in the first instance, by Congress. It is sufficient now to say that the legislation upon which the defendant relies to justify the construction of the works in question does not, when reasonably interpreted, indicate any purpose upon the part of Congress to assume such complete and absolute control of the navigable waters of the United States as will make of no avail the action of the states in respect of the erection by private parties of structures in waters wholly within their respective limits.

The judgment of the Supreme Court of Oregon is affirmed. 

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