The pending bill (HB 230) proposing abandonment of state authority over submerged lands in Lake Michigan would be invalid under available case law.

BILLS-HOUSE BILL NO. 230 (SUBMERGED LANDS IN LAKE MICHIGAN.) February 25, 1907. Hon. J. Frank Hanly, Governor of Indiana: Dear Sir-You have submitted to me House Bill No. 230, and have asked my opinion upon its constitutionality, if it should be- come a law. After a careful examination of the authorities I am of the opin- ion that the measure would be invalid, for the principal reason that it involves the abandonment by the state of its authority as a sovereign over submerged lands in Lake Michigan. The authorities are to the effect that while the state may, under some conditions, lease or grant submerged lands belonging to it, this must be done for some public purpose, or with the public inter- ests immediately in view. Submerged lands are held by the state for public uses, and con- stitute, in a sense, a public trust. This trust can not be defeated by granting to individuals or corporations the rights which the state thus holds, unless the public interests demand it. In the leading case of Illinois Central Rd. v. Illinois, 146 U. S. 387, it was held that the state of Illinois could not grant to the Illinois Central Railroad submerged lands in the bed of Lake Mich- igan, for a distance of one mile from the shore, and which consti- tuted a part of the harbor of Chicago. The grant in that case ex- pressly provided that no obstructiotis to the harbor were authorized and the public right of navigation should not be impaired. In the course of that opinion the court state: "The state can no more abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them, so as to leave them entirely under the use and control of private parties, except in the instance of parcels mentioned for the improvement of the navigation and use of the waters, or when parcels can be disposed of without impairment of the public interest in what remains, than it can abdicate its police powers in the administration of government and the preservation of the peace. " The grants which are recognized as valid are stated in the same decision to be as follows: " It is grants of parcels of land under navigable waters that may afford foundations for wharves, piers, docks and other structures in aid of commerce and grants of parcels which being occupied do not substantially impair the public interest in the lands and waters remaining, that are chiefly considered and sustained in the adjudged cases, as a valid exercise of legislative power consistently with the trust to the public upon which such lands are held by the state." In Saunders v. New York Central Co., 38 N. E. 992, while hold- ing that the state, as trustee for the public, may permit a railroad corporation to take submerged lands, on page 994 the court state that- "It is competent for the supreme legislative power to authorize and regulate grants of the same for public or such other purposes as it may deterinine to be for the best inter- ests of the state." In Coxe v. State, 144 N. Y. 396 (39 N. E. 400), the court de- clared invalid a statute which granted to an improvement company certain submerged lands on Staten Island. The terms of that grant were "to use and own the right and title of the state in and to all the lands under water that may lie within or between said dikes and the present shore line." The court say, on page 401: "We think that so far as the statutes referred to attempt to confer title to such a vast domain which the state holds for the benefit of the public, they were absolutely void, as in conflict with the constitution of the state and of the -United States. * " * There is nothing in the enactments to in- dicate that the grant was for any public purpose, and none has been suggested; and if it could be upheld, it is obvious that such a result would establish the principle that a ma- jority in the legislature is competent to convey to a private corporation for private purposes the land under all the tide waters within the jurisdiction of the state. * * * The title of the state to the sea coast and the shores of tidal rivers is different from the fee simple which an individual holds to an estate in lands. It is not a proprietary, but a sovereign right; and it has been frequently said that a trust is engrafted upon this title for the benefit of the public of which the state is powerless to divest itself." In Stockton v. Baltimore Ry. Co., 32 Fed. 919, the same doe- trine is recognized, namely, that submerged lands are held in trust by the state for the public uses of navigation, fishery, etc. In 21 Am. and Eng. Ency. of Law, p. 436, it is said: "The rule laid down by the supreme court of the United States in several recent decisions, and which seems to be in accord with most of the cases on the subject, is that the re- spective states in which such lands are found have the right to use or dispose of any part of such lands when that can be-done without substantially impairing the interests of the public in such waters, and subject to the paramount right of congress to control their navigation, so far as may be neces- sary for the regulation of commerce. Such lands may be granted to a municipality constituting a political division of the state, for the promotion of the commercial prosperity of the municipality and consequently of the people of the state. Grants to railroads for rights of way and other facilities for the transaction of their business, made under authority of the state, have been held valid, and grants to the owners of uplands, either for beneficial enjoyment or for commercial purposes, have long been authorized and recognized as one of the uses to which a state may lawfully apply such lands." In the light of the above authorities, it would seem that this bill, which confers upon individuals the right to acquire the abso- lute fee simple to these submerged lands, is open to the objection above specified. There is nothing in the bill which purports to limit its operation to grants resulting in benefit to the public. A second possible objection to the bill is that it may in its prac- tical operation interfere with interstate commerce. As stated in Coxe v. State, above cited: "A statute must be viewed with reference to what could have been done under it, and not what actually was done. * ' * When we consider that the locality .where the operations of the company were to be carried on is the great highway of commerce, which should be open and common to all, it is not difficult to see that such power, if it held, might seriously interfere with the navigation upon the waters and consequently with the freedom of commerce. " My opinion, therefore, is that the bill, if it should become a law, would be unconstitutional.