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Opinion of the Court.
in contravention of the Constitution of the United States; and it is not sufficient that the point is raised in the assignment of errors. Ansbro v. United States, 159 U. S. 695; Cornell v. Green, 163 U. S. 75; Muse v. Arlington Hotel Company, 168 U. S. 430; Miller v. Cornwall Railroad, 168 U. S. 131.
The certificate shows that no question as to the constitutionality of the statute of Indiana, relied on by the plaintiff below, was raised or considered or decided in the Circuit Court, but that the objection made its appearance for the first time in the assignment of errors in the Circuit Court of Appeals.
In Carter v. Roberts, ante, p. 496, it was held that when cases arise which are controlled by the construction or application of the Constitution of the United States, a direct appeal lies to this court, and if such cases are carried to the Circuit Courts of Appeals, those courts may decline to take jurisdiction; or, where such construction or application is involved with other questions, may certify the constitutional question and afterwards proceed to judgment; or may decide the whole case in the first instance. But when the Circuit Court of Appeals has acted on the whole case, its judgment stands unless revised by certiorari to or appeal from that court in accordance with the act of March 3, 1891. Robinson v. Caldwell, 165 U. S. 359; Holt v. Indiana Manufacturing Company, 176 U. S.68; United States v. Jahn, 155 U. S. 109; New Orleans v. Benjamin, 153 U. S. 411; Benjamin v. New Orleans, 169 U. S. 161.
The third question propounded in the certificate must be answered in the negative, and we do not deem it necessary to answer the others.
The writ of error in No. 271 was brought wbile the case was pending in the Circuit Court of Appeals on writ of error from that court. The whole case was open on each writ for review on the merits.
In Columbus Construction Company v. Crane Company, 174 U. S. 600, it was laid down that the act of March 3, 1891, does not contemplate several separate appeals or writs of error, on the merits, in the same case and at the same time to or from two appellate courts; and as the record disclosed in that case that two writs of error to the judgment of the Circuit Court
were pending, one in the Circuit Court of Appeals and the other and subsequent writ in this court, the latter was dismissed. The writ of error in No. 271 falls within this rule.
The third question propounded in No. 259 is answered in the negative.
The writ of error in No. 271 is dismissed.
Mr. Justice HARLAN and Mr. JUSTICE WHITE were not present at the argument and took no part in the decision.
LEOVY v. UNITED STATES.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT.
No. 238. Argued April 12, 16, 1900.-Decided May 14, 1900.
Subject to the paramount jurisdiction of Congress over the navigable wa
ters of the United States, the State of Louisiana bad, under the act of March 2, 1849, c. 87, and the other statutes referred to in the opinion of the court, full power to authorize the construction and maintenance of levees, drains and other structures necessary and suitable to reclaim
swamp and overflowed lands within its limits. The dam constructed by the plaintiff in error at Red Pass was constructed
under the police power of the State, and within the terms and purpose
of the grant by Congress. The decision of the jury, to whom it had been left to determine whether
the plaintiff in error was guilty, that the pass was in fact navigable, is
not binding upon this court. The term navigable waters of the United States has reference to commerce
of a substantial and permanent character to be conducted thereon. The defendant below was entitled to the instruction asked for, but refused,
that the jury should be satisfied from the evidence that Red Pass was, at the time it was closed, substantially useful to some purpose of inter
state commerce, as alleged in the indictment. Upon the record now before the court it is held that Red Pass, in the con
dition it was when the dam was built, was not shown by adequate evidence to have been a navigable water of the United States, actually used in interstate commerce, and that the court should have charged the jury, as requested; that upon the whole evidence adduced, the defendants were entitled to a verdict of acquittal,
Statement of the Case.
Ar the April term of the Circuit Court of the United States for the Eastern District of Louisiana an indictment was found, charging Augustus F. Leovy and Robert S. Leovy, both of the parish of Plaquemines, State of Louisiana, with, on the 16th of November, 1895, unlawfully, wilfully, knowingly and without permission of the Secretary of War, building and causing to be built a dam in and across a certain navigable stream of the United States known as Red Pass, and outside of any established barbor lines, which said Red Pass flows in the Gulf of Mexico from a certain navigable stream of the United States, known as the Jump, which said Jump is an outlet of the Mississippi River into the Gulf of Mexico; that said dam has been continued by the defendants since the same was built, and still remains in and across said Red Pass, whereby the navigation of and commerce over and through Red Pass was then and there, and has been ever since, impaired and obstructed ; they, the said defendants, well knowing the said Red Pass to be a navigable stream of the United States, in respect of which the United States then and there had jurisdiction, contrary to the form of the statute of the United States in such case made and provided, and against the peace and dignity of the United States.
The defendants entered a plea of not guilty; and the cause was tried before the district judge, and a jury. The trial resulted, June 6, 1891, in a verdict of not guilty as to Augustus F. Leovy, and of guilty as to Robert S. Leovy; whereupon it was adjudged that said Robert S. Leovy pay a fine of two hundred dollars and costs of prosecution.
Several bills of exception on behalf of Robert S. Leory were seasonably presented, and signed and allowed by the trial judge, who, likewise, on June 16, 1898, allowed a writ of error, and the cause was taken to the United States Circuit Court of Appeals, for the Fifth District, which court, on February 28, 1899, affirmed the judgment of the Circuit Court.
The case was then brought to this court on a writ of certiorari to the United States Circuit Court of Appeals for the Fifth Circuit.
Opinion of the Court.
Mr. Victor Leovy for Leovy. Mr. Henry J. Leovy and Mr. Alexander Porter Morse were on his brief.
Mr. George Hines Gorman for the United States.
MR. JUSTICE Shiras, after making the above statement, delivered the opinion of the court.
On March 2, 1819, the Congress of the United States by an act of that date, c. 87, entitled “An act to aid the State of Louisiana in draining the swamp land therein,” enacted : “ That to aid the State of Louisiana in constructing the necessary levees and drains to reclaim the swamp and overflowed lands therein, the whole of those swamp and overflowed lands, which may be or are found unfit for cultivation, shall be, and the same are hereby, granted to that State.” 9 Stat. 352.
Similar grants have been made by Congress to other States within whose boundaries were undrained swamp and overflowed lands belonging to the United States. Act of September 28, 1950, c. 8+; 9 Stat. 519. This legislation declares a public policy on the part of the government to aid the States in reclaiming swamp and overflowed lands, unfit for cultivation in their natural state, and is a recognition of the right and duty of the respective States, in consideration of such grants, to make and maintain the necessary improvements.
By the act of September 13, 1890, c. 907, 26 Stat. 436, 45t, it is provided :
“That it shall not be lawful to build any wharf, pier, dolphin, boom, dam, weir, breakwater, bulkhead, jetty or structure of any kind outside established harbor lines, or in any navigable waters of the United States where no harbor lines are or may be established, without the permission of the Secretary of War, in any port, roadstead, haven, harbor, navigable river or other waters of the United States, in such manner as shall obstruct or impair navigation, commerce or anchorage of said waters, and it shall not be lawful hereafter to commence the construction of any bridge, bridge draw, bridge piers and abutments, causeway or other works over or in any port, road, roadstead.
Opinion of the Court.
haven, harbor, navigable river or navigable waters of the United States, under any act of the legislative assembly of any State, until the location and plan of such bridge or other works have been subunitted to and approved by the Secretary of War, or to excavate or fill, or in any manner to alter or modify the course, location, condition or capacity of the channel of said navigable waters of the United States, unless approved and authorized by the Secretary of War: Provided, That this section shall not apply to any bridge, bridge draw, bridge piers and abutments, the construction of which has been heretofore duly authorized by law, or be so construed as to authorize the construction of any bridge, draw bridge, bridge piers and abutments, or other works, under an act of the legislature of any State, over or in any stream, port, roadstead, haven or harbor, or other navigable water not wholly within the limits of such State.”
The tenth section of the same act provided as follows:
“Every person and every corporation which shall be guilty of creating or continuing any such unlawful obstruction in this act mentioned, or who shall violate the provisions of the last four preceding sections of this act, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding $5000 or by imprisonment in the case of a natural person) not exceeding one year, or by both such punishments, in the discretion of the court. The creating or continuing of any unlawful obstruction in this act mentioned may be prevented, and such obstruction may be caused to be removed by the injunction of any Circuit Court exercising jurisdiction in any district in which such obstruction may be threatened or may exist; and proper proceedings in equity to this end may be instituted under the direction of the Attorney General of the United States."
In the river and harbor act of July 13, 1892, c. 158, 27 Stat. 88, 110, section 7 of the act of 1890 was amended and reënacted so as to read as follows:
“That it shall not be lawful to build any wharf, pier, dolphin, boom, dam, weir, breakwater, bulkhead, jetty or structure of any kind outside established harbor lines, or in any navigable waters of the United States wbere no harbor lines are or may