Willson v. Black Bird Creek Marsh Co. 2 Peters 45 (1829)

Gibbons v. Ogden left open the question of whether the states had any concurrent jurisdiction over interstate commerce. Five years later, in the case below, Marshall opened the way for state regulation when the federal government had not acted. The defendants had been authorized by the state of Delaware to improve marsh land, and for that purpose, built a dam across a navigable creek. Willson complained that the creek was a "public and common navigable creek" in which there was "a certain common and public way" for all citizens of the United States to pass at their pleasure. The Court was faced with a typical policy-preference choice: whether to sanction the state's action as a valid exercise of its powers to act for the general welfare, or to expand the latent, yet largely unexploited, powers of the national government. 

Chief Justice Marshall delivered the opinion of the Court. 

The jurisdiction of the court being established, the more doubtful question is to be considered, whether the act incorporating the Black Bird Creek Marsh Company is repugnant to the constitution, so far as it authorizes a dam across the creek. The plea states the creek to be navigable, in the nature of a highway, through which the tide ebbs and flows. 

The act of assembly by which the plaintiffs were authorized to construct their dam, shows plainly that this is one of those many creeks, passing through a deep level marsh adjoining the Delaware, up which the tide flows for some distance. The value of the property on its banks must be enhanced by excluding the water from the marsh, and the health of the inhabitants probably improved. Measures calculated to produce these objects, provided they do not come into collision with the powers of the general government, are undoubtedly within those which are reserved to the States. But the measure authorized by this act stops a navigable creek, and must be supposed to abridge the rights of those who have been accustomed to use it. But this abridgment, unless it come in conflict with the constitution or a law of the United States, is an affair between the government of Delaware and its citizens, of which this court can take no cognizance. 

The counsel for the plaintiffs in error insist that it comes in conflict with the power of the United States "to regulate commerce with foreign nations and among the several States." 

If congress had passed any act which bore upon the case; any act in execution of the power to regulate commerce, the object of which was to control state legislation over those small navigable creeks into which the tide flows, and which abound throughout the lower country of the middle and southern States; we should feel not much difficulty in saying that a state law coming in conflict with such act would be void. But congress has passed no such act. The repugnancy of the law of Delaware to the constitution is placed entirely on its repugnancy to the power to regulate commerce with foreign nations and among the several States; a power which has not been so exercised as to affect the question. 

We do not think that the act empowering the Blackbird Creek Marsh Company to place a dam across the creek, can, under all the circumstances of the case, be considered as repugnant to the power to regulate commerce in its dormant state, or as being in conflict with any law passed on the subject. 

There is no error, and the judgment is affirmed.