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2, that "all the navigable waters of said State shall be common highways and forever free, as well to the inhabitants of said State as to all other citizens of the United States, without any tax, duty, impost or toll therefor," does not refer to physical obstructions of those waters, but to political regulations which would hamper the freedom of commerce.
On page 10, Mr. Justice Bradley, referring to the above quotation from the act for the admission of Oregon into the Union, said:
It is obvious that if the clause in question does prohibit physical obstructions and impediments in navigable waters, the State Legislature itself, in a State where the clause is in force, would not have the power to cause or authorize such obstructions to be made without the consent of Congress. But it is well settled that the Legislatures of such States do have the same power to authorize the erection of bridges, dams, etc., in and upon the navigable waters wholly within their limits, as have the original States, in reference to which no clause exists.
And on page 12 he said:
Until Congress acts, the States have the plenary power supposed, yet, when Congress chooses to act, it is not concluded by anything that the States, or that individuals by its authority or acquiescence, have done, from assuming entire control of the matter, and abating any erections that may have been made, and preventing any others from being made, except in conformity with such regulations as it may impose.
This was prior to the Act of Congress of March 3, 1899, relating to the construction of bridges, etc., in navigable streams. This act has been amended by several acts of Congress.
In the case of Lake Shore & Michigan Ry. Co. v. Ohio, 165 U. S. 365, the Act of Congress of September 19, 1890, was involved. Section 7 of this act provides that it shall be unlawful to commence the construction of any bridge, etc., in any navigable river, etc., "under any act of the Legislative Assembly of any State until the location and plan of such bridge or other work have been submitted to or approved by the Secretary of War." It was held that said act did not deprive a State of authority to bridge such a river, but created an additional remedy to prevent such a bridge from interfering with commerce. I have not found any act of Congress
