§ 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

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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

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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 navigation 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 riparian ownership 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 v. Bowlby, 152 U.S. 1; Eldridge v. Trezevant, 160 U.S. 452.) In this Constitution, the 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. v. 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 flowed 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 v. 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. v. Inter-State Transportation Co., 155 U.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 bridges and dams. (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 wide 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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American authorities, have been left to implication. Besides, the express gift of the power of eminent domain (sec. 51—xxxi.) which enables the Commonwealth to acquire property “for any purpose in respect of which the Parliament has power to make laws,” evidences a broad view not only of the trade and commerce power, but of all the legislative powers vested in the Commonwealth. It is submitted, therefore, that subject to exceptions expressed or arising by clear implication from the language of the Constitution—such as the exception expressed in this section in favour of the user of water, and the exception implied in sec. 51—xxxiii. and xxxiv. against the acquisition of the railways of a State, or the construction of Federal Railways in a State, without the consent of the State—the trade and commerce power, with respect to navigable waters, has as wide a scope as in the United States. In this view, the Commonwealth may create waterways for inter-state commerce, or any other kind of highway except railways; and for that purpose it may not only improve the navigability of navigable streams, but may create navigability in naturally non-navigable streams, and may cut canals where no streams previously existed.

CONCURRENT POWERS OF THE STATES — The navigation power, being part of the trade and commerce power, is not “exclusively” vested in the Parliament of the Commonwealth, and, therefore, the concurrent power of the States to deal with interstate navigation and with navigable waters will continue, subject to be ousted, in part or in whole, by Federal legislation.

In the United States, the distinction between those parts of the commerce power which are in their nature exclusive, as requiring uniform legislation, and those which are concurrent, as admitting of auxiliary local legislation in the absence of Federal legislation (see pp. 527, 530, supra), has led to a subordinate distinction being drawn between streams which are wholly within the limits of a State, and streams which form the boundary between two States, or flow through two or more States. With regard to the former streams much wider concurrent powers of control have been conceded to the States than with regard to the latter.

“It has always been the rule that, in the absence of Federal legislation, the States may prevent obstruction of navigable waters within their limits; may regulate the placing of buoys and beacons; the construction of wharves; and may deepen channels; change outlets of lakes and rivers, construct dams and locks to increase the depths of water or for other purposes, care being taken not to create serious impediments to the navigation of important waters; may construct canals around falls and improve their harbours and rivers generally, and may collect a charge from vessels using the improved navigation, as a compensation for the facilities thus afforded.” (Prentice and Egan, Comm. Clause, p. 113; Mobile v. Kendall, 102 U.S. 691; State v. Illinois Central Railway, 146 U.S. 387; Pound v. Turck, 95 U.S. 459; Willson v. Blackbird Creek Marsh Co., 2 Pet. 245; Sands v. Manistee R. Improvement Co., 123 U.S. 288; Monongahela Nav. Co. v. United States, 148 U.S. 312; Huse v. Glover, 119 U.S. 543; Gloucester Ferrv Co. v. Pennsylvania, 114 U.S. 196.)

Thus it was held in Huse v. Glover, 119 U.S. 543, that if, in the opinion of a State, its commerce will be more benefited by improving a navigable stream within its borders than by leaving it in its natural condition, it may authorize the improvements though individuals may be inconvenienced; and that a river does not change its legal character as a highway if crossings by bridges or ferries are allowed under reasonable conditions, or if dams are erected under like conditions. “The erection of bridges with dams and the establishment of ferries for the transit of persons and property, are consistent with the free navigation of rivers.” (Huse v. Glover, at p. 547.)

In the same case it was held that a toll for the use of the improvements was not a tax. “The fact that if any surplus remains from the tolls, over what is used to keep the locks in repair, and for the collection, it is to be paid into the State Treasury as a part of the revenue of the State, does not change the character of the toll or impost.” (Huse v. Glover, at p. 549.)

And a State may not only, in the absence of Federal legislation, improve the navigability of rivers, but may even obstruct navigability. Thus in Hamilton v. Vicksburg R. Co., 119 U.S. 280 (following Cardwell v. Bridge Co., 113 U.S. 205) it was held

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that persons acting under the authority of a State may construct bridges over navigable streams. The opinion of the Court contains the following passage:—

“What the form and character of the bridges should be, that is to say, of what height they should be erected, and of what materials constructed, and whether with or without draws, were matters for the regulation of the State, subject only to the paramount authority of Congress to prevent any unnecessary obstruction to the free navigation of the streams. Until Congress intervenes in such cases, and exercises its authority, the power of the State is plenary. When the State provides for the form and character of the structure, its directions will control, except as against the action of Congress, whether the bridge be with or without draws, and irrespective of its effect upon navigation. As has often been said by this Court, bridges are merely connecting links of turnpikes, streets, and railroads; and the commerce over them may be much greater than that on the streams which they cross. A break in the line of railroad communication from the want of a bridge may produce much greater inconvenience to the public, than the obstruction to navigation caused by a bridge with proper draws. In such cases, the local authority can best determine which of the two modes of transportation should be favoured and how far either should be made subservient to the other.”

When a bridge is lawfully built over a navigable river, its owners may have recourse to the courts to protect it; and relief granted by the courts is not a regulation of commerce. (Texas and Pacific R. Co. v. Inter-state Transp. Co., 155 U.S. 585.)

The general principle, as finally settled by the courts of the United States, is summed up by Prentice and Egan (Comm. Clause, p. 117) as follows:—“The question whether or not an obstruction should be permitted in navigable waters wholly within a State is essentially legislative, and this, it is now held, in the absence of federal legislation, is controlled entirely by the States.”

The principles which, in the absence of federal legislation, would govern inter-state streams, are less clearly defined in the United States—chiefly because federal legislation has, as a matter of fact, occupied the field, and made the question one of little practical importance. Authority seems to show, however, that the power of the Federal Government to authorize obstructions is in such cases regarded as exclusive. (Albany Bridge Case, 2 Wall. 403; Pennsylvania v. Wheeling Bridge Co., 13 How. 518; Prentice and Egan, Comm. Clause, pp. 118–120; Lewis, Federal Power over Commerce, p. 56.)

It is contended, however, by Dr. Lewis (Fed. Pow. over Comm. pp. 58–9) that the question whether a stream is within the limits of a State, or flows through or between two or more States, is not the conclusive test of concurrent control.

“It is impossible to draw the boundary line between rivers which are under the concurrent control of the State, and those which are national in their character. Such a rule as the one above stated, concerning the national character of streams flowing on the boundaries of States, and the local character of those wholly within a State, is purely empirical. A stream is not national in character because of its geographical position; the national character depends upon the importance of its navigation to the people of the Union as a whole. … We do not wish to minimize the value of general rules indicating the class of rivers under the concurrent power of the State. Nevertheless, the Supreme Court will not have to overrule its previous decisions in order to change or modify empirical distinctions. They are invented for utility; whenever a strict adherence would result in a palpable absurdity they will be abandoned. To say that all rivers on the boundaries of States are national in character and require the exclusive control of Congress, or that a State can place physical obstructions in all navigable streams entirely within her boundaries, means, and can mean nothing more, than that the majority of rivers of a particular class are national or are local in character.”

It thus appears that in the United States three classes of navigable waters are recognized:—

  • (1.) Waters which are wholly within a State, and do not connect with the waters of other States (either by ocean, lake, river, canal, or otherwise) to form a continuous inter-state waterway. These waters are under the exclusive control of the State.
  • (2.) Waters which are wholly within the limits of a State, but which connect with the waters of other States to form a continuous inter-state waterway. These may be controlled by the Union, but in the absence of Federal legislation are subject to the concurrent control of the States.

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  • (3.) Waters flowing on the boundaries of States or through two or more States. These are under the exclusive control of the Union.

Or perhaps, following Dr. Lewis' principle of classification, it might be said that streams on which there can be no Federal navigation are exclusively controlled by the States; that streams on which Federal navigation is unimportant, may be controlled by the States until the Union chooses to exercise control; and that streams on which Federal navigation is important are exclusively controlled by the Union.

APPLICATION OF AMERICAN DECISIONS.—In considering the applicability of the American decisions, it must be borne in mind that the Australian Constitution is explicit on two points on which the Constitution of the United States is silent. It provides (sec. 92) that after the imposition of uniform duties, inter-state commerce shall be absolutely free; and it provides (sec. 107) that every power of the State Parliaments, unless exclusively vested in the Federal Parliament or withdrawn from the State Parliaments, shall continue. No part of the commerce power (except customs, excise and bounties), or of the navigation power which it includes, is “exclusively” vested in the Federal Parliament; and therefore—in the absence of Federal legislation—it would seem that the States may exercise concurrent control over all navigable waters within their jurisdiction, except so far as the power to obstruct may be “withdrawn” from the State Parliaments by the constitutional provision that trade among the States shall be “absolutely free” (sec. 92). That provision, it would seem, does not extend to prevent such incidental physical obstructions as may arise from the bona fide exercise by the States of the concurrent power to regulate inter-state commerce in the absence of Federal legislation. It is to be noted that the provision for freedom of trade is as binding on the Commonwealth as on the States. Any obstruction which would be unlawful under sec. 92, if created by a State, would be equally unlawful if created by the Commonwealth; so that no argument for an exclusive power can be founded on that section. It would seem therefore that, in the absence of Federal legislation, the States may exercise concurrent control over all navigable waters within their jurisdiction; subject of course to all the constitutional conditions—such as the prohibitions against interfering with freedom of trade (sec. 92) and against discriminating against the citizens of other States (sec. 117)—by which the exercise of State power is controlled.