Booth Fisheries Co. v. United States

(after stating the facts as above).

The court below was of opinion that the amendment of 1924, providing that the mouth of a stream shall be taken to be the point determined as such by the Secretary of Commerce, and marked in accordance with his determination, made no change in the then existing law, unless and until the Secretary of Commerce saw fit to exercise the authority thus conferred. In other words, that the question whether the law has been changed or not depends, not upon the law itself, but upon the action or inaction of the Secretary of Comrherce. With this construction of the amendatory act we are unable to agree. Counsel for the government says in his brief: “At first glance, the mouth of a stream might be at any one of four places: (1) At low tide; (2) at high tide line on the sea beach; (3) at any point between low and high tide, the mouth shifting on the beach with the tide ; and (4) above high tide line, the mouth shifting with the rise and fall of the tidal waters.”

Whether counsel is correct or not we need not inquire, but the mouth of a stream cannot be ascertained with mathematical precision, and the uncertainty of the situation demonstrates the necessity…