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. J 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 Opinion of the Court. August 13, 1888, c. 866, the Circuit Courts have jurisdiction, without reference to the citizenship of the parties, of suits at common law or in equity arising under the Constitution or laws of the United States. 24 Stat. 552; 25 Stat. 434. The present suit does arise under the Constitution and laws of the United States, because the plaintiffs base their right to construct the dock in question upon the Constitution of the United States, as well as upon certain acts of Congress and the permit (socalled) of the Secretary of War-which legislative enactments and action of the Secretary of War were, it is alleged, in execution of the power of Congress under the Constitution over the navigable waters of the United States. Clearly, such a suit is one arising under the Constitution and laws of the United States. That it is a suit of that character appears from the bill itself. The allegations which set forth a Federal right were necessary in order to set forth the plaintiffs' cause of action. 2. The appeal was properly taken directly to this court, since by the act of March 3, 1891, c. 517, this court has jurisdiction to review the judgment of the Circuit Court in any case involving the construction or application of the Constitution of the United States. 26 Stat. 834. The present case belongs to that class; for, it involves the consideration of questions relating to the power of Congress, under the Constitution, over the navigable waters of the United States. 3. We come now to the merits of the suit as disclosed by the bill. The general proposition upon which the plaintiffs base their right to relief is that the United States, by the acts of Congress referred to and by what has been done under those acts, has taken "pc session" of Calumet River, and so far as the erection in that river of structures such as bridges, docks, piers and the likes concerned, no jurisdiction or authority whatever remains with the local authorities. In a sense, but only in a limited sense, the United States has taken possession of Calumet River, by improving it, by causing it to be surveyed, and by establishing lines beyond which no dock or other structure shall be erected in the river without the approval or consent of the Secretary of War, to whom has been Opinion of the Court. committed the determination of such questions. But Congress has not passed any act under which parties, having simply the consent of the Secretary, may erect structures in Calumet River without reference to the wishes of the State of Illinois on the subject. We say the State of Illinois, because it must be assumed, under the allegations of the bill, that the ordinances of the city of Chicago making the approval of its Department of Public Works a condition precedent to the right of any one to erect structures in navigable waters within its limits, are consistent with the constitution and laws of that State and were passed under authority conferred on the city by the State. Calumet River, it must be remembered, is entirely within the limits of Illinois, and the authority of the State over it is 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. That authority has been exercised by the State ever since it was admitted into the Union upon an equal footing with the original States. In Escanaba Company v. Chicago, 107 U. S. 678, 683, the question was as to the validity of regulations made by the city of Chicago in reference to the closing, between certain hours of each day, of bridges across the Chicago River. Those regulations were alleged to be inconsistent with the power of Congress over interstate commerce. This court said: This court said: "The Chicago River and its branches must, therefore, be deemed navigable waters of the United States, over which Congress under its commercial power may exercise control to the extent necessary to protect, preserve, and improve their free navigation. But the States have full power to regulate within their limits matters of internal police, including in that general designation whatever will promote the peace, comfort, convenience, and prosperity of their people. This power embraces the construction of roads, canals, and bridges, and the establishment of ferries, and it can generally be exercised more wisely by the States than by a distant authority. They are the first to see the importance of such means of internal communication, and are more deeply concerned than others in their wise management. Illinois is more immediately affected by the bridges over the Chicago |