The committee on Roads, Bridges and Ferries, to which was referred

No. 624, A..

A bill to legalize a public highway on town line between the city of Milwaukee and town of Wauwatosa, in Milwaukee county. No. 351, A.,

A bill to provide for the laying out of a state road from the town of Marrinette, in the county of Oconto, to Big Suamico, in the county of Brown.

No. 350, A.,

A bill to lay out a state road from Humbird, Clark county, to intersect the state road from Alma, in Jackson county, to Coral City, in Trempealeau county, at the most practicable point in Jackson county.

No. 233, S.,

A bill to legalize a state road from section 16, township 19, range 11 west, to section 10 in the same town and range, in Buffalo county.

No. 240, S.,

A bill to amend section 13 of chapter 152, general laws of 1869, entitled an act to codify the laws of this state relating to highways and bridges,

Have had the same under consideration, and have instructed me to report the same back to the Senate without amendment, and recommend concurrence and passage of the same.

S. PRATT,

Chairman.

The committee on Town and County Organization to whom was referred

No. 222, S.,

A bill to change the boundaries of the towns of Farmington and Milford in Jefferson county and State of isconsin,

Has had the same under consideration, and report the same back without amendment and recommend its passage.

No. 53, A,

A bill to authorize county boards of supervisors to appoint land inspectors, and to define their duties and the duties of the clerks of boards of supervisors and assessors.

No. 241, A.,

A bill to further provide for the duties and authority of the county board of supervisors, and to provide for filling vacancies in the board from cities and villages,

No. 303, A.,

A bill to extend the limits of the village of West Depere.

And report the same back without amendment and recommend that they be concurred in,

JAMES H. FOSTER,
Chairman

The committee on Judiciary to whom was referred the following bills, have bad the same under consideration and submit the following report:

No. 216, S.,

A bill relating to the settlement of the estates of deceased persons, and amendatory of section 9, chapter 98 of revised statutes. No. 254, S.,

A bill to amend section 2, of chapter 279, of general laws of 1865, entitled an act to legalize the proceedings of certain town meetings held in the several towns of St. Croix county.

No. 94, S.,

A bill to provide for the appointment of a phonographic reporter for the circuit courts of certain counties in the State of Wisconsin, And report the same back without amendment and recommend that they do severally pass.

No. 177, S.,

A bill relating to actions in the circuit courts of this State, Report the same back to the Senate and recommend that it be indefinitely postponed.

No. 386, A.,

A bill to amend section 4 of chapter 474 of the private and local laws of 1866, entitled an act to incorporate the city of Janesville, and the several acts amendatory thereof, into one act, and to amend the same, and also to amend section 4 of chapter 393 of the private and local laws of 1869, entitled an act to amend sections 2 and 3 of chapter 474, of the local laws of 1866, entitled an act to reduce the act incorporating the city of Janesville, and the several acts amendatory thereof, into one act, and to amend the same,

Reported back with amendment and concurrence recommended when so amended.

No. 24, A.,

A bill to regulate the sale of patent rights and prevent frauds connected therewith.

No. 288, A.,

A bill to provide for the issuing of marriage licenses by the clerks of circuit courts, and to repeal sections 6, 7 and 9, of chapter 109, of the revised statutes, entitled "of marriages,"

No. 653, A.,

A bill to authorize the supervisors of the county of Trempeleau to levy a tax for the purposes therein named.

Report them back to the Senate without amendments, and recommend that they be severally concurred in.

ANGUS CAMERON,

Acting Chairman Judiciary Committee.

The committee on Engrossed Bills respectfully report that they have examined the following bills and find them correctly engrossed: No. 96, S.,

A bill to incorporate the Waupaca County Acadey.

No. 223, S.,

A bill authorizing certain towns in the county of La Fayette to aid in the construction of a railroad from the village of Monroe, in Green county, westwardly through LaFayette county to the Mississippi river,

No. 186, S.,

A bill to provide for the publication of a catalogue of the library of the State Historical Society, to amend chapter 135 of the general laws of 1866, relative to the publication of certain collections of said society, and to provide for the publication of a catalogue of the state library.

No. 188, S.,

A bill to amend certain sections of chapter 133 of general laws of 1863, entitled an act to authorize county snpervisors to lay out and establish highways in certain cases.

J. H. JONES,

Chairman.

The undersigned, two of the committee on Judiciary, to which committee, on February 3, 1871, was referred by the Senate,

No. 7, S.,

A bill to incorporate the Chippewa Improvement and Booming Company.

To determine two stated questions of law involved in the consideration of said bill, beg leave to submit the following report:

The Judiciary Committee of the Senate have had under consideration said bill, so far as to determine the questions of law so referred, and the undersigned present the conclusions to which they have been irresistably led and their judgment of the law on said questions, as follows:

First. The first question presented, is:

Have the legislature the right to authorize a corporation of the kind contemplated in this bill, to erect a dam across a stream conceded to be a navigable stream, in the ordinary sense of that term, imposing upon said corporation the duty of constructing sufficient chutes and locks for the passage of boats and other means of water transportation by the same?

To properly determine said question, we must first examine the organic laws of the State.

The last clause of article four, of the ordinance of 1787, provides as follows:

"The navigable waters leading into the Mississippi and St Law rence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of the said Territory, as to the citizens of the United States, and those of any other States that may be admitted into the confederacy, without any tax, impost, or duty therefor."

The same provision, substantially, was included in section 3, of the act of Congress, approved August 6, 1846, entitled "an act to onable the people of Wisconsin Territory to form a State Constitution and State Government, and for the admission or such State into the Union," whereby it was enacted that "said (Mississippi) riyer and waters, and the navigable waters leading into the same, shall be common highways, and forever free, as well to the inhabitants of said State as to all other citizens of the United States, without any tax, duty, impost or toll therefor."

Substantially the same provision was also incorporated in and forms the last clause of section 1, of article IX of the Constitution of this State, which clause is in the following language:

"The river Mississippi, and the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well to the inhabitants of the state as to the citizens of the United States, without any tax, impost, or daty therefor."

The act of Congress, approved May 29, 1848, entitled "an act for the admission of the State of Wisconsin into the Union," impliedly assented to said clause in our state constitution-sealed the compact of our state with the Union-and accorded this state all the rights and powers, in every respect, with the original states. The constitution of the United States, subsequent to the ordinance of July 13, 1787, became operative March 4, 1789; and the constitution of this state took effect with the admission of Wisconsin into the Union, May 29, 1848.

The above are believed by the undersigned to be all the organic laws that pertain directly to the question under consideration.

Now, it is urged that the legislature have no authority to pass said bill, authorizing a corporation to construct a dam across the Chippewa river, although sufficient chutes and locks are provided for and required by the bill, for two reasons:

First. Because it is against the above provision of the ordinance

of 1787.

Second. Beacause it is against the same provision in section 1 of artiele IX. of our State Constitution.

It is probably of no practical importance whether the ordinance of 1787 has remained in force in this State or not, subsequent to the adoption of our State Constitution, for the reason that the provislon of the ordinance relating to navigable rivers has been, as stated, substantially and almost literally incorporated into the constitution of this State, and the measure of legislative power over this subject is the same whether the ordinance or constitution, or both, are in

force. But as, however, it is urged that the passage of this bill is pr hibited by the ordinance, it will be well to examine the question briefly.

It is conceded that the supreme courts of the States of Ohio, Indiana, Illinois, and the United States circuit courts, in those States, for a considerable period of time, held that the ordinance continued in force after the adoption of the constitution of the United States, and of the State constitution, in those States. But this question first reached the supreme court of the United States, in Pollard vs. Hagan, 3 Howard, U. S. 212, and subsequently in Strader vs. Graham, 10 Howard, U. S. 82.

In these cases the court set this question at rest-Whether the ordinance of 1787 continued in force after the adoption of the National Constitution and the State Constitution? Chief Justice Taney, delivering the opinion of the court, in speaking of the ordinance, says: And in the States since formed in the territory, these provisions so far as they have been preserved owe their validity and authority to the constitution of the United States and the constitutions and laws of the respective States, and not to the authority of the ordinance of the old confederation. As we have already said, it ceased to be in force upon the adoption of the constitution, and cannot now be the source of jurisdiction of any description to this court."

And what is somewhat remarkable, Justice McLean, who had frequently, while presiding in circuit courts of the United States, held the ordinance of 1787 to be in force, concurred with Justice Taney in the case of Strader vs. Graham, in holding that the adoption of the constitution of the United States and of the several states, wholly superseded the ordinance of 1787.

That such is the fact is not only a necessary legal deduction from those cases, but is likewise supported by the decision of our Supreme Court in the case of Connecticut Mutual Life Insurance Company vs. Cross, 18 Wis., 115, where our Supreme Court say: The adoption of the Constitution of this State by the free will and vote of the people, with the assent of the Government of the United States, and the subsequent admission of the State into the Union, in our judgment, abrogates entirely the provisions of the ordinance (of 1787) wherever its provisions and those of the State Constitution come in conflict. Such adoption and ratification of the Constitution was a repeal of the ordinance by mutual consent,' as provided for by the ordinance itself, and gave to the Legislature of the State plenary powers of legislation, except as limited by the Constitution of the United States and the Constitution of the State."

6

These cases, in the opinion of the undersigned, authoritatively settle the question that the ordinance is not in force, that it has been superseded, and is now of no binding authority on the legislature whatever.

But we come to the main question, which is: Whether the legis