Conditions with No Force

Justice Daniel in Withers v. Buckley, 61 U.S. 84 (1857) stated:

"The remaining objection [is] that founded upon the allegation, that the law of Mississippi, of March 5th, 1850, creating the board of commissioners of the Homochitto, for the purpose of improving the navigation of that river, and of any outlet from the same through Old river and Buffalo bayou to the Mississippi, and for excavating a canal into the Buffalo from the Homochitto, or from Old river to the Buffalo, is a violation of the act of Congress of the 1st of March, 1817, authorizing the people of the Mississippi Territory to form a Constitution, which act declares 'that the Mississippi river, and the navigable rivers and waters leading into the same, shall be common highways, and forever free as well to the inhabitants of the State of Mississippi as to other citizens of the United States.'

"In considering this act of Congress of March 1st, 1817, it is unnecessary to institute any examination or criticism as to its legitimate meaning, or operation, or binding authority, farther than to affirm that it could have no effect to restrict the new State in any of its necessary attributes as an independent sovereign Government, nor to inhibit or diminish its perfect equality with the other members of the Confederacy with which it was to be associated. These conclusions follow from the very nature and objects of the Confederacy, from the language of the Constitution adopted by the States, and from the rule of interpretation pronounced by this court in the case of Pollard's Lessee v. Hagan, 3 How., p. 223. The act of Congress of March 1st, 1817, in prescribing the free navigation of the Mississippi and the navigable waters flowing into this river, could not have been designed to inhibit the power inseparable from every sovereign or efficient Government, to devise and to execute measures for the improvement of the State, although such measures might induce or render necessary changes in the channels or courses of rivers within the interior of the State, or might be productive of a change in the value of private property...

..."But, for argument, let it be conceded that this derelict channel of the Mississippi, called Old river, is in truth a navigable river leading or flowing into the Mississippi; it would by no means follow that a diversion into the Buffalo bayou of waters, in whole or in part, which pass from Homochitto into Old river, would be a violation of the act of Congress of March 1st, 1817, in its letter or its spirit; or of any condition which Congress had power to impose on the admission of the new State. It cannot be imputed to Congress that they ever designed to forbid, or to withhold from the State of Mississippi, the power of improving the interior of that State, by means either of roads or canals, or by regulating the rivers within its territorial limits, although a plan of improvement to be adopted might embrace or affect the course or the flow of rivers situated within the interior of the State. Could such an intention be ascribed to Congress, the right to enforce it may be confidently denied. Clearly, Congress could exact of the new State the surrender of no attribute inherent in her character as a sovereign independent State, or indispensable to her equality with her sister States, necessarily implied and guarantied by the very nature of the Federal compact. Obviously, and it may be said primarily, among the incidents of that equality, is the right to make improvements in the rivers, water- courses, and highways, situated within the State....

Justice Brewer in State of Kan. v. State of Colo., 206 U.S. 46 (1907) stated:

"In the argument on the demurrer counsel for plaintiff endeavored to show that Congress had expressly imposed the common [riparian] law on all this territory prior to its formation into states...But when the states of Kansas and Colorado were admitted into the Union they were admitted with the full powers of local sovereignty which belonged to other states (Pollard v. Hagan and Shively v. Bowlby, supra; Hardin v. Shedd, 190 U.S. 508, 519, 47 S. L. ed. 1156, 1157, 23 Sup. Ct. Rep. 685), and Colorado, by its legislation, has recognized the right of appropriating the flowing waters to the purposes of irrigation."

Justice Lurton in Coyle v. Smith, 221 U.S. 559 (1911):

"The case of Pollard v. Hagan, 3 How. 212, 11 L. ed. 565, is a most instructing and controlling case. It involved the title to the submerged lands between the shores of navigable waters within the state of Alabama. The plaintiff claimed under a patent from the United States, and the defendant under a grant from the state. The plaintiff relied upon two propositions which are relevant to the question here. One was that, in the act under which Alabama was admitted to the Union [3 Stat. at L. 489, chap. 47], there was a stipulation that the people of Alabama forever disclaimed all right or title to the waste or unappropriated lands lying within the state, and that they should remain at the sole disposal of the United States; and a second, that all of the navigable waters within the state should forever remain public highways and free to the citizens of that state and of the United States, without any tax, duty, or impost imposed by the state. These provisions were relied upon as a 'compact' by which the United States became possessed of all such submerged lands between the shores of navigable rivers within the state.

"The points decided were:

"First, following Martin v. Waddell, 16 Pet. 410, 10 L. ed. 1012, that prior to the adoption of the Constitution, the people of each of the original states 'hold the absolute right to all their navigable waters and the soil under them for their own common use, subject only to the rights since surrendered by the Constitution.'

"Second. That Alabama had succeeded to all the sovereignty and jurisdiction of all the territory within her limits, to the same extent that Georgia possessed it before she ceded that territory to the United States.

"Third. That to Alabama belong the navigable waters, and soils under them.

"...As to the stipulation in the same admission act that all navigable waters within the state should forever remain open and free, the court, after deciding that to the original states belonged the absolute right to the navigable waters within the states and the soil under them for the public use, 'subject only to the rights since surrendered by the Constitution,'[Justice McKinley] said:

'Alabama is therefore entitled to the sovereignty and jurisdiction over all the territory within her limits, subject to the common law, to the same extent that Georgia possessed it before she ceded it to the United States. To maintain any other doctrine is to deny that Alabama has been admitted into the Union on an equal footing with the original states, the Constitution, laws, and compact to the contrary notwithstanding.'

"The plain deduction from this case is that when a new state is admitted into the Union, it is so admitted with all of the powers of sovereignty and jurisdiction which pertain to the original states, and that such powers may not be constitutionally diminished, impaired, or shorn away by any conditions, compacts, or stipulations embraced in the act under which the new state came into the Union, which would not be valid and effectual if the subject of congressional legislation after admission.