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decided: February 23, 1909.



Author: Brewer

[ 212 U.S. Page 319]

 MR. JUSTICE BREWER, after making the foregoing statement, delivered the opinion of the court.

By the legislation of Congress the Columbia River is made the common boundary between Oregon and Washington, and to each of those States is given concurrent jurisdiction on the waters of that river. How that jurisdiction is to be exercised, what limitations there are, if any, upon the power of either State, is not in terms prescribed. It is true in the first section of the act admitting Oregon the jurisdiction was apparently limited to "civil and criminal cases," but in the second section of that act there was given in general terms "concurrent jurisdiction." In Wedding v. Meyler, 192 U.S. 573, 584, construing the term "concurrent jurisdiction," as given to Kentucky and Indiana over the Ohio River, this court, reversing the Court of Appeals of Kentucky, said:

"Concurrent jurisdiction, properly so-called, on rivers is familiar to our legislation, and means the jurisdiction of two powers over one and the same place. There is no reason to give an unusual meaning to the phrase. See Sanders v. St. Louis & New Orleans Anchor Line, 97 Missouri, 26, 30; Opsahl v. Judd, 30 Minnesota, 126, 129, 130; J.S. Keator Lumber

[ 212 U.S. Page 320]

     Company v. St. Croix Boom Corp., 72 Wisconsin, 62, and the cases last cited.

"The construction adopted by the majority of the Court of Appeals seems to us at least equally untenable.It was held that the words 'meant only that the States should have legislative jurisdiction.' But jurisdiction, whatever else or more it may mean, is jurisdictio, in its popular sense of authority to apply the law to the acts of men. Vicat Vocab., sub. v. See Rhode Island v. Massachusetts, 12 Pet. 657, 718. What the Virginia compact most certainly conferred on the States north of the Ohio, was the right to administer the law below lowwater mark on the river, and as, part of that right, the right to serve process there with effect.State v. Mullen, 35 Iowa, 199, 205, 206."

Undoubtedly one purpose, perhaps the primary purpose, in the grant of concurrent jurisdiction was to avoid any nice question as to whether a criminal act sought to be prosecuted was committed on one side or the other of the exact boundary in the channel, that boundary sometimes changing by reason of the shifting of the channel. Where an act is malum in se prohibited and punishable by the laws of both States, the one first acquiring jurisdiction of the person may prosecute the offense, and its judgment is a finality in both States, so that one convicted or acquitted in the courts of the one State cannot be prosecuted for the same offense in the courts of the other. But, as appears from the quotation we have just made, it is not limited to this. It extends to civil as well as criminal matters, and is broadly a grant of jurisdiction to each of the States.

The present case is not one of the prosecution for an offense malum in se, but for one simply malum prohibitum. Doubtless the same rule would apply if the act was prohibited by each State separately, but where as here the act is prohibited by one State and in terms authorized by the other, can the one State which prohibits, prosecute and punish for the act done within the territorial limits of the other? Obviously, the grant

[ 212 U.S. Page 321]

     of concurrent jurisdiction may bring up from time to time many and some curious and difficult questions, so we properly confine ourselves to the precise question presented. The plaintiff in error was within the limits of the State of Washington, doing an act which that State in terms authorized and gave him a license to do. Can the State of Oregon, by virtue of its concurrent jurisdiction, disregard that authority, practically override the legislation of Washington, and punish a man for doing within the territorial limits of Washington an act which that State had specially authorized him to do? We are of opinion that it cannot. It is not at all impossible that in some instances the interests of the two States may be different. Certainly, as appears in the present case, the opinion of the legislatures of the two States is different, and the one State cannot enforce its opinion against that of the other, at least as to an act done within the limits of that other State. Whether, if the act of the plaintiff in error had been done within the territorial limits of the State of Oregon, it would make any difference we need not determine, nor whether, in the absence of any legislation by the State of Washington authorizing the act, Oregon could enforce its statute against the act done anywhere upon the waters of the Columbia. Neither is it necessary to consider whether the prosecution should be in the names of the two States jointly. It is enough to decide, as we do, that for an act done within the territorial limits of the State of Washington under authority and license from that State one cannot be prosecuted and punished by the State of Oregon.

There is little authority upon this precise question, but see In re Mattson, U.S. Circuit Court for the District of Oregon, 69 Fed. Rep. 535, and Ex parte Desjeiro, same court, 152 Fed. Rep. 1004. See also Roberts v. Fullerton, 117 Wisconsin, 222; Rorer on Interstate Law, p. 438, and following.

The judgment of the Supreme Court of the State of Oregon is reversed, and the case remanded for further proceedings not ...

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