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NICOULIN v. O'BRIEN , 248 U.S. 113 (1918)

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United States Supreme Court


No. 113

Argued: Decided: December 9, 1918

Mr. Augustus E. Willson, of Louisville, Ky., for plaintiff in error. [248 U.S. 113, 114]   Mr. David A. Sachs, of Louisville, Ky., for defendant in error.

Memorandum opinion by Mr. Justice McREYNOLDS.

Plaintiff in error was adjudged guilty of violating the prohibition of a Kentucky statute by seining for fish in the Ohio river south of low- water mark on the Indiana side. 172 Ky. 473, 189 S. W. 724. We are asked to hold that by reason of the Virginia Compact (13 Hening's St. at Large, c. 14, pp. 17, 19) Kentucky had no power to regulate fishing in the river at that point without Indiana's concurrence. The provision relied upon is this:

    'Seventh, that the use and navigation of the river Ohio, so far as the territory of the proposed state, or the territory which shall remain within the limits of this commonwealth lies thereon, shall be free and common to the citizens of the United States, and the respective jurisdictions of this commonwealth and of the proposed state on the river as aforesaid, shall be concurrent only with the states which may possess the opposite shores of the said river.'

The territorial limits of Kentucky extend across the river to low- water mark on the northerly shore. Indiana v. Kentucky, 136 U.S. 479, 519 , 10 S. Sup. Ct. 1051. And we think it clear that no limitation upon the power of that commonwealth to protect fish within her own boundaries by proper legislation resulted from the mere establishment of concurrent jurisdiction by the Virginia Compact. See Wedding v. Meyler, 192 U.S. 573 , 24 Sup. Ct. 322, 66 L. R. A. 833; Central R. R. Co. v. Jersey City, 209 U.S. 473 , 28 Sup. Ct. 592; Nielsen v. Oregon, 212 U.S. 315 , 29 Sup. Ct. 383; McGowan v. Columbia River Packers' Ass'n, 245 U.S. 352 , 38 Sup. Ct. 129.

The judgment below is affirmed.

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