South Carolina v. Georgia

THIS is a bill in equity, filed in this court by the State of South Carolina, praying for an injunction restraining the State of Georgia, Alonzo Taft (Secretary of War), A. A. Humphries (chief of the corps of engineers United States army), Q. A. Gilmore (lieutenant-colonel of that corps), and their agents and subordinates, from 'obstructing or interrupting' the navigation of the Savannah River, in violation of the compact entered into between the States of South Carolina and Georgia on the twenty-fourth day of April, 1787. The first and second articles of that compact are as follows:--

'ARTICLE 1. The most northern branch or stream of the river Savannah, from the sea or mouth of such stream to the fork or confluence of the rivers now called Tugoloo and Keowee, and from thence, the most northern branch or stream of the said river Tugoloo till it intersects the northern boundary-line of South Carolina, if the said branch or stream extends so far north, reserving all the islands in the said rivers Tugoloo and Savannah to Georgia; but if the head spring or source of any branch or stream of the said river Tugoloo does not extend to the north boundaryline of South Carolina, then a west line to the Mississippi, to be drawn from the head spring or source of the said branch or stream of Tugoloo River which extends to the highest northern latitude, shall, for ever hereafter, form the separation, limit, and boundary between the States of South Carolina and Georgia.

'ART. 2. The navigation of the river Savannah, at and from the bar and mouth, along the north-east side of Cockspur Island, and up the direct course of the main northern channel, along the northern side of Hutchinson's Island, opposite the town of Savannah, to the upper end of the said island, and from thence up the bed or principal stream of the said river to the confluence of the rivers Tugoloo and Keowee, and from the confluence up the channel of the most northern stream of Tugoloo River to its source, and back again by the same channel to the Atlantic Ocean, is hereby declared to be henceforth equally free to the citizens of both States, and exempt from all duties, tolls, hinderance, interruption, or molestation whatsoever attempted to be enforced by one State on the citizens of the other, and all the rest of the river Savannah to the southward of the foregoing description is acknowledged to be the exclusive right of the State of Georgia.'

Congress enacted June 23, 1874: 'That the following sums of money be, and are hereby, appropriated to be paid out of any money in the treasury not otherwise appropriated, to be expended under the direction of the Secretary of War, for the repair, preservation, and completion of the following public works hereinafter named.'

'For continuing the improvement of the harbor at Savannah, $50,000.' 18 Stat. 240.

The act of March 3, 1875 (18 id. 459), contains the following appropriation: 'For the improvement of the harbor at Savannah, Ga., $70,000.'

The work which the bill seeks to arrest is doing pursuant to the authority conferred by these acts.

The Savannah River, where it flows past the city of Savannah, is divided into two channels by Hutchinson's Island, which extends above and below the city, with a length of about six miles, and a width, where widest, of one mile or more. Of these channels, the more northerly is known as Back River, whilst that which passes immediately by the city of Savannah is called Front River.

The improvement consists in the construction of a crib dam at a point known as the 'Cross Tides,' for the purpose, by diverting a sufficient quantity of the water passing through the Back River into the Front River channel, of securing to the city a depth of fifteen feet at low water.

Mr. William Henry Trescot and Mr. Philip Phillips for the complainant.

1. The terms of the treaty of Beaufort are perpetual. Biordan & Duane, U.S. Laws, vol. i.; 1 Stat. So. Ca.; Wheaton's Int. Law, pt. 2, c. 2, sect. 268; Heffter, Droit Int., 170; Chirac v. Chirac. 2 Wheat. 259; Chappell's Historical Mis. of Georgia, pt. 2, 65; Bancroft, vol. viii. 137; vol. ix. 257; Articles of Confederation, Amer. Archives, vol. iv. 352-359.

2. Georgia and South Carolina were competent to execute that treaty. Articles of Confederation; Harcourt v. Gaillard, 12 Wheat. 523; Spooner v. McConnell, 1 McLean, 347; Journal American Congress, vol. iv.; 2 Stat. 57.

3. The adoption of the Federal Constitution did not abrogate the treaty. Constitution of United States; Spooner v. McConnell, supra; Ordinance of 1787; Wilson v. Blackbird Creek Co., 3 Pet. 245; Hogg v. ''Zanesville Manuf. Co., 5 Ohio, 410; Woodbourn v. Kilbourn Manuf. Co.'', 1 Abb. 158; Pollard v. Hogan's Lessee, 3 How. 212; Permolli v. First Municipality, id. 589; Strader v. Graham, 10 id. 82; Dred Scott, 19 id. 396; Howard v. Ingersoll, 13 id. 405; American State Papers, Public Lands, vol. i. 103; President's Message, 1835, Dec. 8, Senate Doc. 1, p. 108; Engineer Report, 1838, MSS.; President's Message, February, 1840, Doc. 2; id. July, 1850, Ex. Doc. 19; Appropriation Acts, 1828-73; Annual Report, Gen. Gilmore, 1873, pp. 16, 17; Gilman v. Philadelphia, 3 Wall. 928; Fowler v. Lindsey, 3 Dall. 411.

4. The acts of Congress should be so construed and executed as not to invade the rights of the State under the compact (Aldridge v. Williams, 3 How. 24; Savings-Bank v. United States, 19 Wall. 237; Fisher v. United States, 2 Cranch, 385; United States v. Kirby, 7 Wall. 486; Dash v. Vankleek, 7 Johns. 502; Cohens v. Virginia, 6 Wheat. 264; Comm. v. Dounes, 24 Pick. 230), or to give preference to the ports of one State over those of another.

5. The State is the proper party complainant. Georgetown v. Canal Co., 12 Pet. 91; Cohens v. Virginia, 6 Wheat. 264; Georgia v. Stanton, 6 Wall. 75.

6. The equity side of the court is properly invoked. Wheeling Bridge Case, 13 How. 560; Georgetown v. Canal Co., supra.

7. The court will not enter into the question as to the degree of the obstruction. Green v. Biddle, 8 Wheat. 2; King v. Ward, 4 Ad. & El. 384.

Mr. Solicitor-General Phillips, contra.

1. South Carolina and Georgia, by becoming members of the Union, stripped themselves of all power under the second article of their agreement of 1787, when the United States undertook to regulate the navigation of the river. Both States were, thereafter, excluded from interference with it. Cooley v. Board of Wardens of Port of Philadelphia et al., 12 How. 299; Gilman v. Philadelphia, 3 Wall. 713; Crandall v. State of Nevada, 9 id. 35.

2. That agreement confers no present rights upon citizens of South Carolina to navigate the Savannah. Their rights, in common with those of all citizens of the United States, are perfect under the Constitution, and cannot be vindicated by a suit in the name of the State.

3. When a State brings suit in a court of the United States, it appears in its private capacity, is treated as other litigants, and must make out such a cause of action as would entitle them, under the same circumstances, to recover. Pennsylvania v. The Wheeling and Belmont Bridge Co., 18 How. 518; City of Georgetown v. The Alexandria Canal Co., 12 Pet. 91. The property rights of South Carolina are not involved, and there is no pretence of any apprehended damage to them by reason of this pretended obstruction. The only ground of complaint is, that the interests of her citizens may be thereby injuriously affected.

4. The navigation of the Savannah River will not be obstructed by the contemplated mode of improvement. The plan therefor adopted after thorough examination by experienced and skilful engineers, and approved by the appropriate committees of the two houses, received the ultimate sanction of Congress. That body has the unquestionable power to improve the navigable waters of the United States, and is the exclusive judge of the most expedient mode of exercising it. Full discretion in the expenditure of the sum appropriated has been confided to the Secretary of War, who will carry out that plan. It is an idle pretence, that, by so doing, preference will be given to the ports of one State over those of another.

MR. JUSTICE STRONG delivered the opinion of the court.