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Show CONTROL OVER NAVIGATION AND NAVIGABILITY 105 subordinate power of the State, which may act in the absence of action by the Federal Government. In the words of the United States Supreme Court:17 The power of Congress to regulate commerce among the States involves the control of the navigable waters of the United States over which such com- merce is conducted is undeniable; but it is equally well settled that the con- trol of the State over its internal commerce involves the right to control and regulate navigable streams within the State until Congress acts on the subject. * * * A decade earlier, the Court observed that the jurisdiction of the general government over interstate commerce and its natural highways vests in that government the right to take all needed measures to preserve the navigability of the navigable watercourses of the country "even against any state action."18 It was acknowledged that frequent decisions had recognized the power of the State, in the absence of congressional legislation, to assume control of even navigable waters within its limits to the extent of creating obstructions to navigability. Until, in some way, Congress asserts its superior power, the power of the State to thus legislate for the interests of its own citizens is conceded. "All this proceeds upon the thought that the non-action of Congress carries with it an implied assent to the action taken by the State." The privilege of the States through which a navigable stream flows, and of their inhabitants, to appropriate and use the water is subject to the paramount power of the United States to control it for the purpose of improving navigation.19 The same limitation applies to appropriations of water of nonnavigable portions or tributaries of a navigable stream.20 With respect to the power of the Federal and State Governments to regulate and control the navigable streams and their navigable streams and their navigable and nonnavigable tributaries, the California Supreme Court has said that:21 This general power, so far as the national government is concerned, is found in the constitutional grant to the United States of the right to regulate commerce with foreign nations and among the states, and the state's power in this regard is limited only by the supervisory control which the paramount authority may exercise over it. This power over navigable waters and over navigation is essentially an attribute of sovereignty, and some of its forms find expression in the exercise of the police power. "Coyle v. Oklahoma, 221 U.S. 559, 573 (1911). 18 United States v. Rio Grande Dam & In. Co., 17'4 U.S. 690, 703-704 (1899). 19Arizona v. California, 298 U.S. 558, 569 (1936). 20 United States v. Rio Grande Dam & In. Co., 174 U.S. 690, 706-707 (1899). 21 Gray v. Reclamation Dist. No. 1500, 174 Cal. 622, 637,163 Pac. 1024 (1917). |
