Letter from Richard F. Harrison to Mississippi Governor Adelbert Ames; February 2, 1874

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Letter from Richard F. Harrison to Mississippi Governor Adelbert Ames; February 2, 1874

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People

Ames, Adelbert, 1835-1933 Barrett, Fred Harris, George E. (George Emrick), 1827-1911 Harrison, Richard F.

Events

Legislation. Mississippi Legislation. United States. Congress Taxation Taxation--Exemption

Organizations

Alabama--Legislature Mississippi--Executive Department Mississippi--Legislature Mississippi--Office of the Attorney General

Occupations

Legal Profession--Lawyers Letter carriers

Places

Alabama Alabama--Mobile County. Mobile Bodies of Water--International. Gulf of Mexico Bodies of Water--Interstate. Mississippi River Bodies of Water--Interstate. Ohio River Bodies of Water--Interstate. Pearl River Bodies of Water--Louisiana. Lake Borgne Bodies of Water--Louisiana. Rigolets Bodies of Water--Mississippi. Pascagoula River Kentucky Louisiana--Orleans Parish. New Orleans Mississippi--Hancock County. Bay Saint Louis Mississippi--Harrison County. Biloxi Mississippi--Hinds County. Jackson Pennsylvania Tennessee--Hamilton County. Chattanooga Virginia

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[seal]

Jackson Miss. February 2^nd 1874

His Excellency Gov. Adelbert Ames

Dear Sir—

I am charged by the Superintendent of the New Orleans & Mobile Rail Road Co. (formerly the New Orleans, Mobile & Chattanooga Co) who desires to avoid unnecessary litigation, with a Commission to Confer with you upon the subject of a State Law of 1873 (Chap 55 Page 205) in which it is made the duty of the Governor to Commence suit vs: said Co. to compel the construction of a drawbridge at Pearl River, which divides the States of Louisiana and Mississippi.

By reference to the Statutes at Large of 1867-68 (Chap. 15 Page 38) it will be seen that Congress passed a bill declaring the bridges of said Co. to be postroads, and designating such bridges on the line of said road, as should be drawbridges—this one is not

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of the number so designated—besides which the main pass on River Pearl, discharges at the Rigolets, and there is a drawbridge at the Rigolets of the full capacity ordered by Congress—All traffic of Pearl River, direct with New Orleans, is independent of the East Pass, and of the Eastern outlet of the Rigolets.

It is only in reference to the limited trade of Pearl River in the direction of Lake Borgne, that the question of the East Pearl river arises, and the depth of water available by the West Pass and Rigolets is no less than by the East Pass, which is the one over which the bridge is solid.

Be so good as to inform yourself of the facts, and oblige me by communicating to me the view you take of it, after consultation with the Attorney General—

I am very respectfully
Your obt Servant

Rich^d. F. Harrison

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Refer
Atty. Genl

A A

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Attorney Generals Office
Jackson Miss Mch 5" 1874

His Excellency
Adelbert Ames Gov^r.

Dear Sir:

Yours of the 7^th Ult. to hand, inclosing a communication of Rich^d F. Harrison, who states, as follows: "I am charged by the Superintendant of the New Orleans & Mobile Rail Road Co (formerly the New Orleans, Mobile and Chattanooga Co) who desires to avoid unnecessary litigation; with a commission to confer with you upon the subject of a State Law of 1873 (chap 55 page 205) in which is is. made the duty of the Governor to Commence suit v^s. said Co to compel the construction of a Drawbridge at Pearl River which divides the state of Louisiana and Mississippi." He then cites an act of Congress on the subject, and concludes that the Road has complied with all the law that is obligatory on it. By reference to the subject of the navigable Rivers leading into the Gulf of Mexico, an act of Congress approved March 1^st 1817 authorizing the people of Mississippi to form a State Government provides, among other things

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"That the River Mississippi and the navigable rivers and waters leading into the Same or into the Gulf of Mexico, shall be common highways, and forever free, as well to the inhabitants of the said State, as to other Citizens of the United States, without any Tax duty imposd or toll therefor imposed by the said said state." [gap] The Pearl river, being a navigable river, and leading into the Gulf of Mexico, shall be "a common highway and forever free." [gap] Taking up the several acts that have a bearing on this subject, in their order, we come next to the act of the Legislature of Alabama, incorporating the New Orleans, Mobile and Chattanooga Railroad Co. approved Nov^r 24 1866, which provides on page 15 sec 13, "That Said Corporation are authorized to Construct their said Railroads, or any part of the same, across along or upon any stream of water water course, river, bay, inlet, street highway turnpike or canal, which the route of said Railroad may intersect or touch, but the said Corporation shall preserve the stream, water course, river street, highway, turnpike or canal, thus intersected touched or crossed

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so as not to impair itsusefulness unnecessarily or if temporarily impaired by said Corporation in constructing said roads, the corporation shall restore the same to its former state, or to such a state as not to have unnecessarily or materially impaired its usefullness and convenience to the public. [gap] The act of our own Legisla=ture approved Febry 7^th 1867 page 335-6 provides, "That said Company is authorized and empowered to Construct and maintain its said Railroad, over and across any of the waters of this State on the line on the line of the same by Bridges, Provided however, That in the central portion of the channel of Pearl river of the Bay of St Louis, of the Bay of Biloxi, of the East Pasca=goula river and in each of them the said Company shall construct and maintain a Drawbridge, which, when open shall give a clear space for the passage of vessels of not less than sixty feet in width, and said company, after the construction of said Drawbridge, shall, at all times thereafter provide that said Drawbridge shall be open for the passage of any and all vessels, Seeking to pass through the same without unnecessa=ry delay"

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It is true that the act of Congress of Mch 2^nd 1868 directing such Drawbridges as shall be Constructed, does not include the Bridge across Pearl river, but specifies four other Bridges, yet it Confers no right on the Company to obstruct the navigation of the Pearl river, nor did Congress have the power to do so, as the United States were divested of that power by the act of Congress of Mch 1^st 1817.

It seems that the Bridge across the Pearl river is solid, and that the Draw=bridges on the said road are only such as are specified in the act of Congress of Mch 2" 1868, and in disregard of the acts, both of Alabama and of Mississippi, as well as the former act of Congress, re-fered to. [gap] It is true that the act of the Legislature of Mississippi approved Feby 7" 1867, provides "That in case the Company shall locate the line of their road across the channel of the Rigolet at a point south of, or below the principal entrance of the Pearl river into the Rigolet then the said Company shall not be required to construct a Drawbridge across

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any bayou leading into Pearl river, or across any small pass or mouth of said river."

But the act no where authorizes the obstruc=tion of the navigation of the Pearl river, nor does any of the acts above refered to, and any obstruction of any of the navigable Streams leading into the Gulf of Mexico, in the State of Mississippi, in the absence of the express power confered upon said road is in Violation of the act of Congress of the 1^st of March 1817, and I doubt if the Legislature can confer such power, if they had attempted it.

In the case of the State of Penn=sylvania v^s The Wheeling &c Bridge Co. the court say: "That the use and naviga=tion of the River Ohio, so far as the territory of Virginia and Kentucky are concerned shall be free and common to the citizens of the United States" 13 Howard U. S. Reports page 519.

In this case the court uses the same language that is employed in the act of 1817 refered to, "shall be free and common to the citizens."

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This compact is obligatory, and "where there ~~there~~ is a private injury by a public nuisance, a court of equity will interfere by injunction, ib.

In this case I am of the opinion that the act of 1873 page 205 is proper for the protection of the citizens, and that suit should be brought to compell the road to construct and maintain a Drawbridge across Pearl River as required by the of the Legislature refered to, unless the said Railroad will comply within a reasonable time, to prevent litigation.

Very Respctfly

G. E Harris
Attorney General

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EXECUTIVE OFFICE,
STATE OF MISSISSIPPI.

From G. E. Harris ~~Esq~~^Atty Gen>et al.^
Address Jackson, Miss
Dated March 5 1874
Received March 6 1874
Answered [gap]

SUBJECT:

In regard to the State Law of 1873—chap. 55, Page 205.

R. R. Paper.

ADELBERT AMES,
Governor.

FRED. BARRETT,
Private Secretary.

2 Enclosures,