not exist, every exercise of it is, pro tanto, a violation of the power of congress to regulate commerce.[1]
§ 1069. How far any state possesses the power to authorize an obstruction of any navigable stream or creek, in which the tide ebbs and flows, within its territorial limits, as by authorizing the erection of a dam across it, has been a subject of much recent discussion. If congress, in regulating commerce, should pass any act, the object of which should be to control state legislation over such navigable streams or creeks, there would be little difficulty in saying, that a state law in conflict with such an act would be void. But if congress has passed no general or special act on the subject, the invalidity of such a state act must be placed entirely upon its repugnancy to the power to regulate commerce in its dormant state. Under such circumstances, it would be difficult to affirm, that the sovereignty of a state, acting on subjects within the reach of other powers, beside that of regulating commerce, and which belonged to its general territorial jurisdiction, would be intercepted by the exclusive power of commerce, unexercised by congress, over the same subject-matter. The value of the property on the banks of such streams and creeks may be materially enhanced by excluding the waters from them and the adjacent low and marshy grounds, and the health of the inhabitants be improved. Measures calculated to produce these objects, provided they do not come into collision with the power of the general government, are undoubtedly within those, which arc reserved to the states.[2]
