Argument for Appellees.

of greater value than $2000, and the action of the city of Chicago in preventing the building of said dock by the appellants is a taking of their property without due process of law and a taking thereof for public use without just compensation in violation of the provisions of the Constitution of the United States.

Mr. Charles M. Walker and Mr. Henry Schofield for appellees.

I. The Circuit Court, as a Federal court, had no jurisdiction.

If the statement of the claim, or demand, in each bill does not, in and of itself, show, that the claim, or demand, arises under the Constitution, or laws, of the United States, the fact that the defendant filed a demurrer cannot aid the statement to that end. Tennessee v. Union & Planters' Bank, 152 U. S. 454; Houston & Texas Central Rd. Co. v. Texas, 177 U. S. 66, 78, and cases cited; New Orleans v. Benjamin, 153 U. S. 411, 424, 431.

The jurisdiction cannot rest on section 629, subdivision "sixteenth," of the Revised Statutes, because said section, if in force, has no application.

II. Even if the Circuit Court, as a Federal court, did have jurisdiction in these cases, this court has no jurisdiction, because section 6 of the Court of Appeals Act vests the appellate jurisdiction in these cases in the Court of Appeals exclusively.

The jurisdiction of the Circuit Court could not rest on the ground that the suits arise under the Constitution of the United States, because the attempt to draw in question the validity of an ordinance of the city of Chicago is wholly abortive, neither the ordinance itself being set forth, nor any statute of the State authorizing the passage of the ordinance being set forth, in any way whatever. The State of Illinois cannot be convicted of violating the Fourteenth Amendment without allegation, or proof, approximating, at least, to a certainty. No reason is perceived why the rule stated in Yazoo & Mississippi Railroad Co. v. Adams, 180 U. S. 41, 48, on error to a state court, is not applicable. A municipal ordinance is not a state act, unless passed under legislative authority. Hamilton Gas Light

Argument for Appellees.

Co. v. Hamilton City, 146 U. S. 258, 265-266. This court has no jurisdiction under section 5 of the Court of Appeals Act. Curtis' Jurisdiction of U. S. Courts, 2d ed. pp. 67-73.

The cases are cases other than those provided for" in section 5 of the Court of Appeals Act; and the act of March 3, 1899, under sections 10 and 12 of which these cases arise, being a criminal law, section 6 of the Court of Appeals Act makes the judgment of the Court of Appeals final.

II. The court below, as a court of equity, had no jurisdiction because the remedy at law is entirely adequate. That is, the bills do not show that it is not. And also a court of equity will not generally stop the enforcement of a penal police ordinance. People v. Canal Board of New York, 55 N. Y. 390; Davis v. American Society for Preventing Cruelty to Animals, 75 N. Y. 362; Poyer v. Village of Des Plaines, 123 Illinois, 111; 1 Foster's Fed. Practice, 2d ed. sec. 215; In re Sawyer, 124 U. S. 200; Harkrader v. Wadley, 172 U. S. 166; Fitts v. McGhee, 172 U. S. 531; Osborne v. Missouri Pacific Ry. Co., 147 U. S. 248, 258.

IV. Complainants should have joined in one bill, as, at best, they held a joint permit under section 10 of the act of March 3, 1899. Minnesota v. Northern Securities Co., 184 U. S. 199, 234, 238. One is not a party, though named in the pleadings, unless he is brought in by process, or appears. Terry v. Com. Bank, 92 U. S. 454; May v. Le Claire, 11 Wall. 217.

V. Complainants do not own the land they intend to build on. It is conceded that it is established law in the State of Illinois, that a conveyance of land calling for running water as a boundary carries title to submerged land to the middle of such running water, whether the water be navigable or not. Notwithstanding the decision of the majority of the judges in Hardin v. Jordan, 140 U. S. 371 (1890), the rule is different where the conveyance calls for still water, ponds or lakes, navigable or not, for a boundary. Fuller v. Shedd, 161 Illinois, 462 (1896). The descriptions in the bill call for a fixed boundary or for a definite extent of land. In McCormick v. Huse, 78 Illinois, 363, the extent of land, or quantity of land, conveyed controlled. In Brophy v. Richeson, 137 Indiana, 114, meander

Argument for Appellees.

lines and stakes controlled. Rockwell v. Baldwin, 53 Illinois, 19. In Handly's Lessees v. Anthony, 5 Wheaton, 374, the words "northwest of the River Ohio," in the Virginia grant of the Northwest Territory, was held to restrict the boundary to the low water mark on the northwest bank of the Ohio River. A plat referred to in a description is part of the description. Henderson v. Hatterman, 146 Illinois, 555; Smith v. Young, 160 Illinois, 163, 170. Appellants are asking a court of equity to aid them to commit trespasses. Braxon v. Bressler, 64 Illinois, 488, a case of taking rocks from bed of a stream, held to be trespass. Washington Ice Co. v. Shortall, 101 Illinois, 46, taking ice found on stream held to be trespass. Shively v. Bowlby, 152 U. S. 138.

VI. There is no collision between section 10 of the act of March 3, 1899, and the ordinance of the city of Chicago.

In the absence of any national or state statute, or municipal ordinance regulating the subject, the ownership of the submerged soil, by the law of Illinois, gives only a license to such owner to build a wharf on such soil. When a State parts with its title to the bed of navigable water, and thereby gives, as in Illinois, an implied license to build wharves in the bed in aid of commerce, it nevertheless retains its power to control and prohibit, in the interest of the public, the building of wharves and other structures in such bed, and does not, and cannot thereby, in any way, impair, or diminish, the power of Congress, under the commerce clause, to regulate and prohibit, in the interest of interstate and foreign commerce, the use of such bed, or the police power of the State. Prosser v. Northern Pacific R. R. Co., 152 U. S. 59, 64–65; Shively v. Bowlby, 152 U. S. 1, 40, VII ; Walker v. Marks, 17 Wall. 648; Weber v. State Harbor Comrs. 18 Wall. 57; Com. v. Alger, 7 Cush. 53; People v. New York & Staten Island Ferry Co., 68 N. Y. 71; State v. Sargent, 45. Connecticut, 358; Hawkins Point Light House, 39 Fed. Rep. 77, brief for the Government; Gould, Waters, 3d ed. sec. 138 and sec. 179, at p. 349, and cases cited.

In the case of navigable streams, the cases in Illinois all recognize, that the license of a riparian owner on a navigable stream in Illinois, by virtue of his ownership of the bed in front of his

Argument for Appellees.

land, may be regulated and prohibited by the legislature in the interest of the public easements of navigation, etc. Middleton v. Pritchard, 3 Scam. 510 (1842); People v. St. Louis, 5 Gilman, 351 (1848); Canal Trustees v. Havan, 5 Gilman, 548 (1849); Illinois River Packet Co. v. Peoria Bridge Co., 38 Illinois, 417 (1865); Ensminger v. People, 47 Illinois, 384 (1868); City of Chicago v. Laflin, 49 Illinois, 172 (1868); City of Chicago v. McGinn, 51 Illinois, 766 (1869); Rockwell v. Baldwin, 53 Illinois, 19 (1869); Hubbard v. Bell, 54 Illinois, 110 (1870); Braxon v. Bressler, 64 Illinois, 488 (1872); Washington Ice Co. v. Shortall, 101 Illinois, 46 (1881); Piper v. Connolly, 108 Illinois, 646 (1884).

There can be no doubt that Congress has power to prevent the erection of any kind of structures, constituting obstructions to navigation, over, or in, the Calumet River, the same being navigable waters of the United States, even when such structures are authorized by state law.

It is very apparent that the River and Harbor Act of 1899 is preventive legislation, and is not legislation designed to grant authority. The power of the Secretary of War is to prevent the erection of structures, bridges, on, over, and in, navigable waters of the United States, if they will be obstructions, and not to authorize them. The act is preventive and defensive, and it has been so authoritatively decided in regard to the River and Harbor Act of 1890, almost the first of the acts containing these preventive, defensive regulations. Lake Shore & Michigan Southern R. Co. v. Ohio, 165 U. S. 365. See Lane v. Smith, 71 Connecticut, 65, 70.

The language of the act of Congress of 1899 is prohibitory, preventive and defensive, and is not apt language to affirmatively give authority. See sections 9 and 10 of act.

There is no material difference between the act of 1890, involved in 165 U. S. 365, and the act of 1899, involved in the case at bar. The construction of the act of 1890, sanctioned by the Supreme Court, had previously been given by Mr. Attorney General Miller. 20 Ops. Atty. Genl. 102, 114.

If the power of the Secretary of War is exclusive of any action by the State, then the United States should bear all the

Opinion of the Court.

expense of managing and controlling the Calumet River, and the city of Chicago should abolish its Harbor Department, and use the money spent in maintaining it for some other purpose.

Numerous decisions of the Supreme Court, from Gibbons v. Ogden, 9 Wheat. 1 (1824), (for a leading case, see Cooley v. The Board of Wardens of the Port of Philadelphia, 12 How. 299, 1851), conceded to the states power over local matters such as bridges, quarantine, pilots, wharves, etc., in the absence of any legislation on the same subject by Congress, although the exercise of such power by the States might, and often did, incidentally affect, impede and embarrass interstate commerce. The policy of the recent River and Harbor Acts is not to abrogate this state power entirely, but to control its exercise in defence of interstate and foreign commerce. Sinnot v. Davenport, 22 How. 227; Ex parte Siebold, 100 U. S. 371.

We believe that the construction which counsel seek to put upon the power vested in the Secretary of War by the act of Congress of 1899, makes the constitutionality of that act, as applied to the facts in this case, very doubtful. Where does Congress get the power to authorize the Secretary of War to give a private person leave to put a structure of no aid at all, or, at best, of only doubtful and purely private aid, to interstate commerce, in a local harbor, and thus displace the police power of the States, expressly reserved to them and to the people. Constitution, Art. X; Art. X of Amendments; Yick Wo v. Hopkins, 118 U. S. 356.

At any rate, that the ordinances of the city and the act of Congress are not irreconcilably in conflict would seem to be clear.

MR. JUSTICE HARLAN, after making the foregoing statement, delivered the opinion of the court.

1. We hold that the Circuit Court had jurisdiction in this case. That the parties, plaintiffs and defendant, are citizens of the same State is not sufficient to defeat the jurisdiction; for by the act of March 3, 1887, c. 373, as corrected by the act of