OCR Text |
Show 17 of the government property. Second, that it is limited by the superior power of the General Government to secure the uninterrupted navigability of all navigable streams within the limits of the United States. A similar example appears in the 1941 Denison Dam opinion involving the upper nonnavigable section of the Red River.60 The Supreme Court having already held that no part of that River in Oklahoma is navigable,51 the State of Oklahoma sought to enjoin federal construction of a dam in the River at a point in Oklahoma and Texas. But the Court rejected Okla- homa's contention that the authorizing statute was unconsti- tutional, making it clear that the commerce authority extends to the tributaries of navigable streams, just as control over the nonnavigable reaches of a river may be essential or desirable in the interests of the navigable portions.62 The Court added that ever since M'Culloch v. Maryland™ it had repeatedly recognized that: M the exercise of the granted power of Congress to regulate interstate commerce may be aided by appropriate and needful control of activities and agencies which, though intrastate, affect that commerce. It should be noted that in the Rio Grande case the threat- ened effect on the interests of commerce was adverse, a sub- stantial impairment of navigable capacity; whereas in the Denison Dam case the effect was beneficial in character, the provision of flood control, power, and navigation improvement. Such a difference is therefore plainly immaterial to the ap- plicability of commerce power.56 50 Oklahoma v. Atkinson, 313 U. S. 508 (1941). In the interim between the Rio Grande and Denison Dam cases, Mr. Chief Justice Hughes had oc- casion to recognize the power of Congress to control the nonnavigable reaches of a river to protect and preserve the navigability of navigable portions, in United States v. Utah, 283 U. S. 64, 90 (1931). 61 Oklahoma v. Texas, 258 U. S. 574, 591 (1922). 82 Oklahoma v. Atkinson, 313 U. S. 508, 525 (1941). 58 4 Wheat. 316 (U. S. 1819). 54 Oklahoma v. Atkinson, 313 U. S. 508, 526 (1941). 88 In Georgia Power Co. v. Federal Power Commission, 152 F. 2d 908 (C. A. 5,1946), the United States Court of Appeals for the Fifth Circuit held valid |