If the law is correctly stated in the majority opinion, then it would be impossible for *Page 500 the United States ever to acquire exclusive legislative jurisdiction over any lighthouse, jetty, dam or other instrumentality erected as an aid to navigation on lands underlying the navigable waters of the state. Such a doctrine is not compatible with the dignity or the sovereignty of the United States when acting within the scope of its governmental powers. It is directly contrary to the decision in Winston Bros. v.State Tax Commission, post p. 505 (62 P.2d 7), and it is not supported by any of the federal decisions cited and relied on in the majority opinion.
It is conceded in the majority opinion that the United States has jurisdiction exclusive of all state authority over the lands above the high-water mark of the Columbia river on which a part of the Bonneville dam is being constructed, but it is contended that it does not have such exclusive legislative jurisdiction over the remainder of the lands which underlie the navigable waters of the river. This contention is based wholly upon the fact that the United States has acquired the fee simple title to the lands lying above the high-water mark of the river on which a part of the dam is being constructed but not to the bed of the Columbia river over which the remainder of the dam is to rest.
Because of this difference in the quality of its ownership and of this supposed defect in the title to the lands on which the dam is being constructed, a majority of the court are of the opinion that the United States has less jurisdiction over one part of the dam than it has over the other, and this is the sole ground on which, as I understand, the majority opinion is based.
This contention wholly ignores the fact that the legislature of this state by House Joint Resolution No. 2 *Page 501 and Senate Joint Resolution No. 12, filed respectively in the office of the secretary of state on November 27, 1933, and December 12, 1933, not only consented to the construction of this dam but also urged that it be constructed. (See Or. L., 2d Special Session, 1933, pp. 263 and 265.) It also ignores the consent given by the legislature of this state in section 60-1303, Oregon Code 1930, which gives consent to the United States "to purchase or otherwise acquire any lands within the state of Oregon for the purpose of erecting thereon any needful public buildings", and authorizes the United States to "enter upon and occupy any such lands which may be purchased or otherwise acquired", and gives to the United States "the right of exclusive jurisdiction over the same", saving only the authority of the state to serve process thereon. This statute applies as much to lands under navigable waters as to those lying above the high-water mark of the shores and rivers of the state.
The Bonneville dam was constructed for two purposes — as an aid to navigation and for the generation of hydroelectric power. House Joint Resolution No. 2 contains the following recital:
"Resolved, That Oregon's delegation in congress be and is hereby requested to do all in its power to have the chief engineer of the U.S. army substitute locks adequate for ocean going vessels, for the small locks now proposed to be constructed at the Bonneville dam, and failing in this effort, that a suitable bill be prepared and introduced in congress at the earliest opportunity, requiring such change be made at this time etc."
Senate Joint Resolution No. 12 begins with the following clauses:
"Whereas the people of this state are particularly interested in the success of the Bonneville project; and
Whereas the success of the power feature of said *Page 502 development will be governed largely by its output, and its absorption by industries and the public in general; and
Whereas it is important that the state lend its fullest cooperation to the federal government in providing a market for such power; and
Whereas there are further questions involved which call for state cooperation; therefore,
Be It Resolved by the Senate of the State of Oregon, the Houseof Representatives jointly concurring: etc."
The reason which causes a difference to exist in the title of the United States to lands purchased by it and lying above the high-water mark of the Columbia river and those lying below the navigable water of the river and occupied by this dam is that when the United States disposed of the public lands which bordered on the Columbia river it conveyed only to the true meander line, that is to say, the high-water mark of the river. This line marked not only the boundary of the lands conveyed but it also marked the boundary of the lands which were subject to disposal by the United States. Consequently, when the United States acquired title to the lands needed for the construction of the dam, it could acquire a fee simple title only to such lands as it had previously conveyed. As to the lands lying below the high-water mark on the Oregon side of the Columbia river, the title to such lands passed to this state upon its admission into the Union, as did all other lands underlying the navigable waters within the territorial limits of the state. This title vested in the state, not in its proprietary capacity but as a trustee for the public. The state acquired no interest in these lands such as the rights of a proprietor and was under no duty or obligation in respect to them other than to protect *Page 503 the rights of the public for the purposes of navigation and fishing. The state could not dispose of them in any manner which might interfere with the rights of the public to use them for those purposes. The title of the state was also subject to the paramount right of Congress to appropriate any part of these navigable waters and lands underlying them for the purpose of constructing and maintaining any structure or other means of regulating navigation.
Under such circumstances, the distinction which exists in the title of the United States to the lands lying above the high-water mark of the river, which were purchased for the purpose of constructing the dam, and the lands underlying the navigable waters of the river, which had been appropriated for the same purpose, ought not to be held to deprive the United States of the same jurisdiction over the one that it has over the other.
That one of the purposes for the construction of this dam was to regulate commerce and navigation must be conceded for otherwise there could have been no reason for the construction of locks to permit the passage through the dam of ocean-going vessels and, that being one of the purposes for its construction, the fact that the dam was also constructed for the development of hydroelectric power does not detract from the powers of Congress to construct the dam for the purposes of regulating navigation on the Columbia river, particularly since, as shown, the legislature of this state, by a general statute and by the joint resolutions above referred to, has authorized the appropriation by the United States of so much of the bed of the river as was necessary for the construction of the dam. *Page 504
In this connection, it must also be borne in mind that the consent of the state was not necessary for the exercise by Congress of any of the powers delegated to it by Article I, section 8, clause 17, of the federal constitution.
If, as the majority now hold, the United States has jurisdiction exclusive of all state authority over the lands covered by the dam lying above the high-water mark of the mainland as well as over the lands covered by the dam on Bradford island, and has concurrent jurisdiction only over the remainder of the dam, then obviously this conflict of authority, which will require the state to police a part of the dam and not permit it to police the remainder, will result in a needless confusion and uncertainty in respect to the powers of the state and of the United States.
The question involved here is a federal question and until decided by the supreme court of the United States, if taken there, the courts of this state should be as zealous in protecting the rights of the United States from encroachment by the state as they are in protecting the rights of the state itself. *Page 505