gress acts on the subject their power is plenary. When Congress acts directly with reference to the bridges authorized by the state, its will must control so far as may be necessary to secure the free navigation of the streams. In Wilson v. Blackbird Creek Marsh Co., 2 Pet. 245 [7 L. Ed. 412], a dam had been constructed across a small navigable river in the state of Delaware, by authority of its Legislature; and this court held that the obstruction which it caused to the navigation of the stream was an affair between the government of the state and its citizens, in the absence of any law of Congress on the subject."

The case in which the question has probably received the fullest consideration is that of Gilman v. Philadelphia, 3 Wall. 713 18 L. Ed. 96. The members of the court in that case were divided in opinion, and therefore the case was thoroughly and fully considered by the whole court and the law upon the subject learnedly and ably examined and expounded. In that case it was said: "It is almost as important that the law should be settled permanently as that it should be settled correctly. Its rules should be fixed deliberately and adhered to firmly, unless clearly erroneous. serious evil. 'Misera est servitus ubi lex est vaga aut incerta.' Commerce includes navigation. The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States

Vacillation is a

and in that character hold the absolute right
to all their navigable waters and the soil
under them for their own common use, sub-
ject only to the rights since surrendered by
the Constitution to the general government.'
* * In the Wheeling Bridge Case this
court placed its judgment upon the ground
'that Congress had acted upon the subject,
and had regulated the Ohio river, and had
thereby secured to the public, by virtue of
its authority, the free and unobstructed use
of the same, and that the erection of the
bridge, so far as it interfered with the en-
joyment of this use; was inconsistent with
and in violation of the acts of Congress, and
destructive of the right derived under them;
and that, to the extent of this interference
with the free navigation of the Ohio river,
the act of the Legislature of Virginia af-
forded no authority or justification. It was
in conflict with the acts of Congress, which
not be forgotten that bridges, which are con-
necting parts of turnpikes, streets, and rail-
roads, are means of commercial transporta-
tion, as well as navigable waters, and that
the commerce which passes over a bridge
may be much greater than would ever be
It
transported on the water it obstructs.
siderations which belong to the subject, and
is for the municipal power to weigh the con-
to decide which shall be preferred, and how
far either shall be made subservient to the
other. The states have always exercised

were the paramount law.'

It must

this power, and from the nature and objects of the two systems of government they must always continue to exercise it, subject, howof Congress, whenever the power of the ever, in all cases, to the paramount authority states shall be exerted within the sphere of the commercial power which belongs to the

nation.

rent or independent power in all cases but The states may exercise concurthree: (1) Where the power is lodged exclusively in the federal Constitution. (2) Where it is given to the United States and prohibited to the states. (3) Where, from the nature and subjects of the power, it must necessarily be exercised by the national government exclusively."

which are accessible from a state other than those in which they lie. For this purpose they are the public property of the nation, and subject to all the requisite legislation by Congress. This necessarily includes the power to keep them open and free from any obstruction to their navigation, interposed by the states or otherwise, to remove such obstructions when they exist, and to provide, by such sanctions as they may deem proper, against the occurrence of the evil and for the punishment of offenders. For these purposes Congress possesses all the powers which existed in the states before the adoption of the national Constitution, [2] Appellant does not deny the law upon and which have always existed in the Par- this subject to have been as announced above liament in England. It is for Congress to at the time it was so announced; but his indetermine when its full power shall be sistence is that the law has been changed brought into activity, and as to the regula- since those decisions by acts of Congress, tions and sanctions which shall be provided. which change is contemplated, or the power The national government possesses to make it, in the decisions above referred no powers but such as have been delegated to it. The states have all but such as they have surrendered. The power to authorize the building of bridges is not to be found in the federal Constitution. It has not been taken from the states. It must reside somewhere. They had it before the Constitution was adopted, and they have it still. 'When the Revolution took place the people

to. The act relied upon as working this change is that of March 3, 1899, c. 425, and the amendments thereto, 30 Stat. at Large, 1151 (U. S. Comp. St. 1901, pp. 3540, 3541). While it is very true that these and many other federal statutes before and since, have made regulations in this matter, we do not find any which would have the effect of mak ing the bridge in question a public nuisance,

Those acts all provide that bridges like the purposes, so long as he does not materially one in question may be built across streams affect or abridge the public right. The rights like the one in question, under the author- of each must be exercised with due regard ity of the Legislature of a state, provided to the existence and preservation of the the locations and places therefor are submit- rights of the other. The right of passage ted to, and approved by, the Chief of Engi- is, to some extent, necessarily the dominant neers and the Secretary of War before their right, because it is the right to move on or construction is commenced. There is no al- by. It, in the nature of things, cannot be legation in this complaint that the structure exercised unless the other temporarily yields was built since the passage of the act of to it, but it is not an exclusive right, and Congress referred to, or that the structure must not be usurping, excessive, or unreawas built without the approval of the War sonable." If this be true as to individual Department, as is provided for in the stat- riparian owners, surely it must be equally ute. In fact, there is no claim here that true as to public service corporations, such the initial structure was wrongfully or unas railroads, common carriers, who are aulawfully erected, but the gravamen of the thorized to cross, and of necessity must cross, charge is that it has been allowed to be- such streams with their lines of railroads. come a nuisance by the accumulation of driftwood against the piers or substructure of the bridge, so as to obstruct nagivation. [3] Construing the counts most strongly against the pleader, as we are required to do, no special damage would have come to him, for which alone he sues and can sue in this action, except for the fact that driftwood was allowed to collect against the substructure and thus obstruct navigation for his rafts. The specific allegation is as follows: "That, by so maintaining and operating said bridge, said river became liable to be blocked, as to navigation, by loose timbers floating down said river and lodging against the supports of said bridge; that it became the duty of defendant to keep open said passageway under said bridge for the passage of rafts of timber floated down said river, so that when plaintiff approached said bridge with said rafts of timber on, to wit, at times between the 28th of September and the 3d of October, 1907, plaintiff found said passageway under said bridge so blocked as above described, and as a result thereof plaintiff was delayed, to wit, 150 days in getting his timber to market," etc. There is no allegation in any one of the three counts complained of that the bridge was built without authority of law; nor is there any claim of damages for the erection or creation of a nuisance other than that arising from allowing the driftwood to collect against the substructure of the bridge, which obstructed navigation for the purposes for which plaintiff used the river, thereby causing him to suffer special damages.

The character and capacity of the river in question, as for navigation, was discussed and considered in the case of Blackman v. Mauldin, 164 Ala. 337, 51 South. 23, 27 L. R. A. (N. S.) 670. It was there held to be navigable as for floatage, such as rafts, as is claimed in this case. In the case of Trullinger v. Howe, 53 Or. 219, 97 Pac. 548, 99 Pac. 880, 22 L. R. A. (N. S.) 545, it is said: "The right of the public to use a navigable or floatable stream in its natural condition is not paramount to the right of a riparian owner to construct

The case of P. & A. R. R. Co. v. Hyer, 32 Fla. 539, 14 South. 381, 22 L. R. A. 368, is very much like the case at bar. That was a suit by a navigator against a railroad company for obstructing navigation by allowing logs, etc., to accumulate under the draws of its bridge, thereby breaking the propeller of plaintiff's boat. The court in that case said: "What, then, is the defendant's default that has wrought the damage complained of? We find it in the allegation that 'the defendant permitted the space of the said draw, through which said boat had to pass, to become obstructed by snags, posts, logs, and other obstacles below the surface of the water and invisible to persons in plaintiffs' said boat, insomuch that, when the plaintiffs' said boat undertook to pass through the same, her propeller struck against the said obstructions and was broken,' etc. It will be observed that in this, the gravamen of the complaint, there is no charge that the alleged obstructions were present in the waters under the draw through any instrumentality of the defendant, or in consequence of any faultiness in its structures, but the charge is that the defendant 'permitted' the space under the draw to 'become obstructed,' thereby implying that the obstructions were present there, not through the active instrumentality of the defendant, but through other agencies, and that the defendant was in default in not removing them and in passively permitting them to remain there. In other words, as is contended here, it is assumed by the plaintiffs that it is the defendant's duty at all times to keep the water highway passing through and under its drawbridge free from all obstructions, no matter how they become present there. And the injury resulting to plaintiffs' boat from the defendant's neglect of this, its alleged duty, is the foundation for the suit. In this contention we cannot agree with the counsel for the appellees."

[4] While there are allegations in the complaint that the bridge constituted an unreasonable obstruction of the navigation of said river, and was maintained by the defendant without authority of law, this is a mere

allegations of facts. As we gather from the brief of counsel, the only contention is that there was a lack of authority from Con

(181 Ala. 368) MONTGOMERY BANK & TRUST CO. v. WALKER, Superintendent of Banks.

gress to build the bridge, and thus to partial-(Supreme Court of Alabama. April 15, 1913. ly obstruct the navigation of this stream. Rehearing Denied May 8, 1913.)

[5] As before stated, the federal law re-1. BANKS AND BANKING (8 77*)-CONSTITUquires only that the plans and specifica- TIONAL LAW (§ 318*)-DUE PROCESS-WHAT tions for such structures be submitted to, CONSTITUTES. The inhibition of Const. U. S. amend. 14, and approved by, the Chief of Engineers and against the deprivation of property without due by the Secretary of War before construc- process of law requires that the substance of tion be commenced. If this was not done in property rights be preserved and that opportu the present case, it should have been al- the law by some judicial proceeding adequate nity be given to invoke the equal protection of leged. This is not a matter of which the and appropriate, but does not deprive the state trial court could, or this court can, take ju- of the power to determine by what process ledicial knowledge. So far as this court can gal rights may be asserted or legal obligations enforced, consequently Act 1911, p. 59, § 10, know, the Chief of Engineers and the Sec- providing that, before the banking board shall retary of War may have approved the spec- declare a bank in default or turn its affairs ifications submitted to them for this par- over to the superintendent of banks, the superticular bridge, and it may have been built, ters of default or misconduct in its affairs of intendent must first submit to the board matand have remained ever thereafter, accord- which the bank shall have notice and upon ing to such specifications. Or it may be that which it may be heard in person or by counsel, no specifications were ever made or sub-ed by the action of the board to apply for an and further authorizing a bank feeling aggrievmitted to them. We have no judicial knowl-injunction, does not work a deprivation of propedge on this subject. This is a question of erty without due process of law. fact and not of law.

[Ed. Note.-For other cases, see Banks and 77;* Constitutional Law, Cent. Dig. § 949; Banking, Cent. Dig. §§ 165-1762; Dec. Dig. § Dec. Dig. § 818.*]

2. BANKS AND Banking (§ 77*)—INSOLVENCY -RIGHTS OF BANKING SUPERINTENDENT.

[Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 165-1762; Dec. Dig. 877.*]

3. BANKS AND Banking (§ 77*)—INSOLVENCY -POWERS OF SUPERINTENDENT.

Under Act 1911, p. 59, § 10, providing that in case a bank is in default its affairs shall be turned over to the superintendent of banks who is authorized to collect all debts due and claims belonging to the bank and to do all acts necessary to conserve its assets and business, the superintendent has power to sue in the name of the bank to avoid a fraudulent transaction made by its officials.

Recurring to the initial or original proposition stated in the opinion, which is the real question passed upon by the lower court, and insisted upon as error on appeal, we do not think that either count 12, 13, or 14 showed Under Act 1911, p. 59, § 10, providing that the maintenance of a public nuisance, and in the affairs of banks in default shall be turned over to the superintendent, who is authorized to our opinion the trial court, for this reason, collect moneys due and do such other acts as properly sustained demurrers to each of are necessary to conserve its assets and busithese counts. Construing the pleadings most ness and liquidate the affairs thereof, the sustrongly against the pleader, as we are re-is no change in the ownership or legal title of perintendent is in reality a receiver, and there quired to do, we do not think that the counts the property. showed the maintenance of a public nuisance. They were for this reason subject to the demurrer interposed. We concede that each of the counts does show such special damages as would entitle the plaintiff to recover, if he had showed that the defendant had maintained a public nuisance. We gather from the pleadings and from the brief of counsel that the question presented to the trial court was whether any one of these three counts (12, 13, or 14) sufficiently show ed the maintenance of a public nuisance. We do not think that these counts presented, or were intended to present, the question of the erection or creation of a public nuisance, but only the question of maintaining such a nuisance. We are reviewing on this ap peal, of course, only the questions presented to and decided by the trial court. Considering the case in this light, as we are constrained to consider it, we are not prepared to say that the trial court erred in the rulings on the demurrers to counts 12, 13, or 14. This, of course, must result in an affirmance of the judgment of the trial court, whatever may be the absolute rights of the litigants.

Affirmed.

DOWDELL, C. J., and ANDERSON and DE GRAFFENRIED, JJ., concur.

[Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 165-1762; Dec. Dig. § 77.*]

4. BANKS AND BANKING (§ 77*)-INSOLVENCY -TRUST Fund.

that the assets of insolvent corporations conRegardless of Code 1907, § 3509, providing stitute a trust fund for the payment of creditors, the assets of an insolvent bank must be regarded as a trust fund for the payment of agents of the bank are trustees for their benecreditors, and the stockholders, directors, and fit and as such may be made to discover and account in chancery.

[Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 165-1762; Dec. Dig. § 77.*]

5. BANKS AND BANKING (§ 77*)-ACTION BY SUPERINTENDENT OF BANKS REMEDY AT LAW.

-

Where the superintendent of banks wished to avoid a transaction whereby the officers of an insolvent institution pledged collateral to another bank for an antecedent debt as well as

one presently created, and challenged the au- Montgomery Bank & Trust Company, the thority of the officers, but offered to do equity, respondent below, and that at times the he had no plain adequate remedy at law and the jurisdiction of equity was properly invoked. Montgomery Bank & Trust Company made [Ed. Note.-For other cases, see Banks and loans to the Bank of Geneva and extended Banking, Cent. Dig. §§ 165-1762; Dec. Dig. § it credit. In the same paragraph it is al77.*]

In the sixth paragraph it is alleged that the Montgomery Bank & Trust Company claimed that the Bank of Geneva was in[Ed. Note.-For other cases, see Banks and debted to it in the sum of $25,753.24, maturBanking, Cent. Dig. §§ 244-248; Dec. Dig. §ing and coming due some four or five years 104.*]

In the fourth paragraph it is alleged that within two or three years after its organization the bank became insolvent, and that such condition remained and grew worse, and further alleges that the bank is now in-ness on account of insufficient funds, a fact solvent.

the Montgomery Bank & Trust Company, be- | the alleged sale until two or three weeks ing afraid to loan the Bank of Geneva mon- thereafter, and that, if notice was given, it ey, required the Bank of Geneva to put up was done by insertion in some newspaper of collateral to secure a loan of from $5,000 to small circulation; and it further alleges that $7,000. And in the same paragraph the bill the Montgomery Bank & Trust Company is alleges that the Montgomery Bank & Trust now holding the collateral and asserting Company, in acquiring and taking over the rights to all of it and refuses to surrender collateral for said loan and to secure the it to the Superintendent of Banks. same, and with the purpose and intent on their part to secure its alleged claim against the Bank of Geneva, and for the purpose of securing a preference for said alleged indebtedness, and in fraud of the rights of the creditors of the Bank of Geneva, required Clark, president of the Bank of Geneva, to assign, pledge, and turn over to said Montgomery Bank & Trust Company a large amount of securities owned and held by the Bank of Geneva, to wit, $60,000, and of the value of $42,000; in accordance with such requirement the said Clark turned over and delivered to Montgomery Bank & Trust Company said collateral.

In the eighth paragraph the bill alleges that the Bank of Geneva was cited to appear before the State Banking Board at Montgomery on, to wit, June 3, 1912, to show cause why said Bank of Geneva should not cease as a going concern and its business and affairs be wound up and liquidated by sald board; that on that day no cause being shown, and, in fact, consent being given, the affairs and business of said Bank of Geneva were taken over by said Banking Board and process of liquidation commenced by A. E. Walker, as Superintendent of Banks; that the property, assets, and affairs of the Bank of Geneva are held by A. E. Walker, as Superintendent of Banks, for the purpose of liquidation and the collection of its debts and payment of its liabilities; and he alleges that the assets are not sufficient to pay the liabilities, setting out the amounts; and in the same paragraph charges that Love joy, and probably others connected with the Montgomery Bank & Trust Company, knew that the Bank of Geneva had been cited to appear before the said Banking Board and knew, or honestly believed, that said Bank of Geneva would cease business and its affairs would be wound up through the Banking Board; that in anticipation of such course, and in furtherance of the design, intent, and scheme of the Montgomery Bank & Trust Company to collect the alleged debt and to appropriate for that purpose a substantial portion of the assets of the Bank of Geneva, and in fraud of the rights of the creditors, the Montgomery Bank & Trust Company on, to wit, June 2, 1912, sold, or pretended to sell, collateral held by it, or substantially all of it, and claims to have purchased it at and for the sum of $7,500, leaving thereby a large balance due on said alleged debt. And it is further averred and charged that the Banking Board, or the Su

In the tenth paragraph the bill charges that the pledge of said collateral to the Montgomery Bank & Trust Company was and is absolutely void for that J. R. Clark, as president of the Bank of Geneva, had no authority, as president or otherwise, to pledge of dispose of the assets of the Bank of Geneva in that manner.

In the eleventh paragraph he says that, if he is mistaken in that, then he charges that the contract or agreement whereby the Montgomery Bank & Trust Company acquired said collateral was and is wholly void for that the Bank of Geneva had no authority or right to pledge said property without authority of its board of directors, and no such authority was given as required by law.

In the twelfth paragraph he says that, if he is further mistaken, he then charges that the pledge of said collateral was and is wholly void for that the same was acquired by the Montgomery Bank & Trust Company with the intent to have itself preferred and with intent to hinder, delay, and defraud creditors of the Bank of Geneva from their lawful and just demands and claims.

In the thirteenth paragraph he says that, if he is mistaken in all that he has heretofore alleged, then the bill alleges that the transfer and pledge of said collateral to the extent of the excess of the amount claimed by Montgomery Bank & Trust Company over and above the $7,000 borrowed and admitted is void as to any other and further amount for that said Bank of Geneva did not owe the Montgomery Bank & Trust Company said amount of $25,753.24, or any portion thereof, as claimed and alleged by the Montgomery Bank & Trust Company, and that therefore the pledge of collateral to secure said fictitious claim was and is void. And also in the same paragraph the bill says that, if mistaken as to the existence of the debt, then he says that Clark had no authority, and the Bank of Geneva had no authority, to pledge its property and assets to secure a past-due debt and give such creditor preference over other creditors; the said Bank of Geneva at the time being insolvent, and this fact being known to the Montgomery Bank & Trust Company.

In the fourteenth paragraph of the bill he alleges that, if mistaken in all the other allegations and charges, he says that if the Montgomery Bank & Trust Company is rightfully and legally entitled to hold said collateral, or any portion of same, for and on account of any valid debt due the Montgomery Bank &