Matter of Farrand.

4, 1864, 13 Stat. at L. 380, requires the secretary of war to discharge minors who are under eighteen at the time of their application, and who are in service without the consent, either express or implied, of their parents or guardians.

Let no one apprehend that, as a consequence of this opinion, the liberty of the citizen will be seriously jeoparded. This court, and the judge thereof, will, I trust, be ever ready to hear the complaints of all persons wrongfully confined under authority or color of authority of the United States, and to give speedy relief. The communication between the judge's residence and all parts of the State where such confinement is likely to occur, is so easy and rapid that no serious delay can ensue, and if partial evil may result, it were better that this should be endured than that the

I am aware that a practice has recently grown up of sometimes swearing the recruit to his "declaration," and of sometimes inserting a statement of the age of the recruit in the "oath of enlistment," but this practice is not, so far as I know, authorized by any law, and, therefore, cannot avail for any legal purpose. There can be no oath in legal contemplation, which is not required to be taken by some law, and there is no law requiring a recruit to swear to his age.

The opinion here indicated is slightly different from those rendered by the learned judge of the Southern District of New York, in the matter of John Edward Cline, and in the matter of John Riley. The difference between my opinion in the one case above referred to, and the opinion of Judge BLATCHFORD in the matter of Cline, is of little practical importance; but I dissent from the opinion rendered in the matter of Riley, so far as it denies the jurisdiction of the Federal courts and judges in cases of this kind.

His opinion is founded on the assumption that section 1 of the act of 1814, 3 Stat. at L. 146, is still in force. I think the assumption unfounded. The act of 1814 was a war statute, and section 1 was, 1 think, superseded as early as 1815, that is, by section 7 of March 3, 1815 entitled, “An act fixing the military peace establishment of the United States." 3 Stat. at L. 224. Section 1 of the act of 1814 has been assumed to be repealed in numerous judicial decisions, and by the war department in all the "Army Regulations." B.

Woodman v. Kilbourn Manuf. Co.

peace of society should be disturbed by any attempt of State tribunals to interfere with the proper jurisdiction of the national courts, or with officers acting in the line of their duty under the authority of the United States.

Let the relator be discharged.

WOODMAN v. THE KILBOURN MANUFACTURING COMPANY.

Circuit Court, Seventh Circuit; District of Wisconsin, January T., 1867.

ORDINANCE OF 1787.-POWER OF CONGRESS TO REGULATE COMMERCE.-NAVIGABLE STREAMS.

The ordinance of 1787, for the government of the Northwest Territory, has been superseded by the adoption of the Constitution of the United States, and the admission to the Union of the States formed from that Territory; and the provision of the ordinance declaring the navigable waters leading into the Mississippi and the Saint Lawrence common highways and forever free," does not restrict the powers of Congress, or of the States, to legislate respecting those

waters.

In the absence of any conflicting enactment by Congress relative to the use of a navigable stream, the State within which such stream lies has power to legislate respecting it.

The right of the public to use a navigable river as a highway, is paramount to every other use of the water; but it does not exclude or forbid the legislature of the State (where no conflicting enactment by Congress exists) from authorizing the construction of public improvements upon the stream, although they may involve a partial obstruction or inconsiderable detention to navigation.

Under the constitution and laws of Wisconsin, any obstruction to the

Woodman v. Kilbourn Manuf. Co.

use of a navigable stream by the public for purposes of navigation, which is erected without a constitutional legislative authority, is a nuisance, and liable to be abated either at the suit of an individual or at the instance of the State.

Motion for a preliminary injunction.

George W. Lakin and Israel Holmes, for the motion.

Finckes, Lynde, & Miller, opposed.

MILLER, J.-It is alleged and charged in the bill, that the Wisconsin is one of the navigable rivers leading into the Mississippi river, and a common highway, free to be navigated and used as such highway by complainant and all other citizens of the United States. That said river is navigable from its source to its mouth, and capable of being used for rafting and for driving lumber, and also for steamboat navigation; and that it runs through a district of pine lands lying above the town of Newport. That the owners of said lands, including complainant, annually raft down said river large quantities of lumber and logs to saw mills and to market; and that they are dependent upon the unobstructed use of the river in this employment. The bill further charges, that in 1859 a dam was constructed in said river at the town of Newport, by a chartered company, for hydraulic purposes, which, being an obstruction to navigation, was partly removed. And that the company defendant are building a dam at the same place, using a portion of the old dam; and that this company are doing so under color or in pursuance of an act of the State legislature, entitled "An act to aid in the development of manufacturing interests in this State," approved April 10, 1866, as follows: "The Kilbourn Manufacturing Company, whenever organized in pursuance of any law in this State, shall have power,

Woodman v. Kilbourn Manuf. Co.

and said company is hereby authorized to complete the water power in sections three, four, nine, and ten in township thirteen north, of range six east, in the counties of Columbia and Sauk, by raising the dam sufficient height for that purpose, not exceeding three feet above the usual low water mark in the Wisconsin river, and so forming the same that rafts of lumber can pass safely and conveniently, without hindrance or delay." The bill then charges that it is physically impossible to build a dam at that point, the town of Newport, in such form as that rafts of lumber can pass safely or conveniently, or without hindrance or delay; and that such dam would wholly obstruct the navigation of the river by steamboats and other vessels; and will entirely obstruct navigation up stream; and that the structure, as at present towards completion, has obstructed free passage to rafts, and caused to the owners thereof delay and damage. It is further charged, that the act authorizing the construction of the dam is contrary to the ordinance of 1787, the constitution and laws of the United States, and of this State.

Defendants Anderson and Kilbourn are alleged to be agents of the company defendant in the work of building the dam.

The bill prays an injunction restraining defendants from further proceeding in the building of the dam; and that at the final hearing the dam may be decreed to be abated as a common nuisance.

Affidavits read on the part of complainant sustain the charges in the bill in regard to the obstruction of navigation by the proposed dam. Those on the part of defendants state that the dam will be an improvement to navigation at that point. It does not satisfactorily appear that the river above the site of the dam is navigable for steamboats employed in the ordinary business of commerce. It is conceded that rafts of logs

Woodman v. Kilbourn Manuf. Co.

and lumber can be floated down stream from several miles above the dam.

The ordinance of the Confederate Congress, for the government of the territory of the United States northwest of the river Ohio, adopted July 14, 1787, created a temporary government; and also contained six articles, "to be considered as articles of compact between the original States and the people and States in said territory, and forever remain unalterable, unless by common consent." After the adoption of the constitution of the United States, an act of Congress, passed August 7, 1789, 1 Stat. at L. 50, continued the ordinance in force, and modified it in conformity to the conditions of the constitution, so far as it related to the temporary government of the territory.

That portion of the ordinance referred to in the bill is, "The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free as well to the inhabitants of said territory as to the citizens of the United States, and those of any other States that may be admitted into the confederacy, without any tax, impost, or duty therefor." The constitution of the United States, subsequently adopted, contains the provision that "new States may be admitted by the Congress into this Union," which implies that new States shall be admitted into the Union on an equality with the original States. The ordinance directs that the territory may be divided into not less than three nor more than five States; but the territory has been divided into six States, including that portion of Minnesota east of the Mississippi river. The ordinance further directs, that in case of a division into five States, one boundary shall be an east and west line drawn through the southerly bend or extreme of Lake Michigan, which we knew to have been entirely disregarded by Congress in the acts admitting new States.