United States v. Doughton

• Decision Date: 10 January 1933
• Docket Number: No. 3321.,3321.
• Citation: 62 F.2d 936
• Parties: UNITED STATES v. DOUGHTON et al.
• Court: U.S. Court of Appeals — Fourth Circuit

62 F.2d 936 (1933)

UNITED STATES v. DOUGHTON et al.

No. 3321.

Circuit Court of Appeals, Fourth Circuit.

January 10, 1933.

COPYRIGHT MATERIAL OMITTED

J. Frank Staley, of Washington, D. C. (W. H. Fisher, U. S. Atty., of Clinton, N. C., on the brief), for the United States.

Charles Ross, of Raleigh, N. C. (Dennis G. Brummitt, Atty. Gen., on the brief), for appellees.

Before PARKER and SOPER, Circuit Judges, and PAUL, District Judge.

PARKER, Circuit Judge (after stating the facts as above).

The regulatory power of the federal government over the navigable waters of the United States rests upon section 8, subd. 3 of article 1 of the Constitution, which authorizes Congress "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Gibbons v. Ogden, 9 Wheat. 1, 194, 6 L. Ed. 23. And it is well settled that the power of Congress over waters which are susceptible of being used in their ordinary condition as highways for interstate or foreign commerce is plenary. The Daniel Ball, 10 Wall. 557, 19 L. Ed. 999; The Montello, 20 Wall. 430, 22 L. Ed. 391; U. S. v. Holt State Bank, 270 U. S. 49, 56, 46 S. Ct. 197, 70 L. Ed. 465.

On the other hand, it is not sufficient to bring a stream under the regulatory power of Congress that it merely be susceptible of some sort of navigation. If this were true, there is scarcely a creek or stream in the United States that would not be a navigable water of the United States or that could be bridged by the state highways or the railroads without the approval of the Secretary of War. Congress would thus be enabled under the commerce clause to exercise control over internal affairs of the states in relation to streams where interstate commerce has no existence, actual or potential; and the states would be deprived of vital power in regulating matters of domestic concern, having no relation to commerce. This would clearly contravene the whole theory of the Constitution as to the division of the powers of sovereignty between state and national governments. We think that the true rule is that, to come within the regulatory power of Congress, the stream must be susceptible in its natural condition of becoming a highway of interstate or foreign commerce; i. e., it must be of such a nature and so situated that there is at least a practical possibility of its being used as a highway for such commerce; for, as has been said, the power of Congress over navigable waters of the United States, arising as it does under the commerce clause of the Constitution, "has reference to commerce of a substantial and permanent character to be conducted thereon." Leovy v. U. S., 177 U. S. 621, 20 S. Ct. 797, 801, 44 L. Ed. 914; Healy v. Joliet & Chicago R. Co., 116 U. S. 191, 6 S. Ct. 352, 29 L. Ed. 607; Oklahoma v. Texas, 258 U. S. 574, 591, 42 S. Ct. 406, 66 L. Ed. 771; Brewer-Elliott Oil & Gas Co. v. U. S., 260 U. S. 77, 86, 43 S. Ct. 60, 67 L. Ed. 140; Harrison v. Fite (C. C. A. 8th) 148 F. 781, 783; Toledo Liberal Shooting Co. v. Erie Shooting Club (C. C. A. 6th) 90 F. 680; Gulf & I. R. Co. v. Davis (D. C.) 26 F.(2d) 930, affirmed (C. C. A. 5th) 31 F. (2d) 109; Rowe v. Granite Bridge Corp., 21 Pick. (Mass.) 344; Wethersfield v. Humphrey, 20 Conn. 227; North American Dredging Co. of Nevada v. Mintzer (C. C. A. 9th) 245 F. 297, 300. We are not here considering the power of Congress to regulate the flow of nonnavigable streams which are tributary to those that are navigable, as to which we express no opinion.

The case of Leovy v. U. S., supra, is squarely in point on the question here involved. In that case defendant had been convicted of obstructing Red Pass, a stream which flowed into the Gulf of Mexico and connected with a navigable stream of the United States known as the "Jump," which was an outlet of the Mississippi river into the Gulf of Mexico. "A few fishermen testified that they occasionally went through this pass with small vessels, carrying oysters for planting, and one or two cargoes of willows and timber were spoken of." The trial court charged the jury, what in effect is the contention of the government here, that, if the pass was navigable and connected with waters that permitted a journey to another state, it was a navigable water of the United States. The Supreme Court held this instruction to be erroneous, and, after reviewing the decisions in The Daniel Ball, supra, The Montello, supra, and Withers v. Buckley, 20 How. 84, 15 L. Ed. 816, the court, using the language above quoted, said that "navigable waters of the United States," as defined in these cases, "has reference to commerce of a substantial and permanent character to be conducted thereon." Commenting on the instruction to which we have referred, the court said:

"If these instructions were correct, then there is scarcely a creek or stream in the entire country which is not a navigable water of the United States. Nearly all the streams on which a skiff or small lugger can float discharge themselves into other streams or waters flowing into a river which traverses more than one state, and the mere capacity to pass in a boat of any size, however small, from one stream or rivulet to another, the jury is informed, is sufficient to constitute a navigable water of the United States.

"Such a view would extend the paramount jurisdiction of the United States over all the flowing waters in the states, and would subject the officers and agents of a state, engaged in constructing levees to restrain overflowing rivers within their banks, or in regulating the channels of small streams for the purposes of internal commerce, to fine and imprisonment, unless permission be first obtained from the Secretary of War. If such were the necessary construction of the statutes here involved, their validity might well be questioned. But we do not so understand the legislation of Congress. When it is remembered that the source of the power of the general government to act at all in this matter arises out of its power to regulate commerce with foreign countries and among the states, it is obvious that what the Constitution and the acts of Congress have in view is the promotion and protection of commerce in its international and interstate aspect, and a practical construction must be put on these enactments as intended for such large and important purposes.

"We also think that these instructions are open to the further criticism that they contain no reference to the nature or extent of the traffic or...