Opinion of the Court.

234 U. S.

cisco. The Commission, finding the facts to be similar to those found in the case of the complaint of the Associated Jobbers of Los Angeles with respect to switching charges in the latter city (18 I. C. C. 310), entered a similar order prohibiting the carriers from continuing the charge. This suit was thereupon brought in the Circuit Court of the United States for the District of Kansas, first division, against the Interstate Commerce Commission to restrain the enforcement of the order. Upon its transfer to the Commerce Court, the United States intervened and moved to dismiss the proceeding. This motion was denied and upon the application of the petitioners an injunction was granted.

The questions presented on the appeal from this order are the same as those which have been considered in the opinion of the court in No. 98, Los Angeles Switching Case, ante, p. 294, decided this day, and for the reasons there set forth the order of the Commerce Court is reversed and the cause is remanded to the District Court of the United States for the Northern District of California with instructions to dismiss the bill.

It is so ordered.

PORT RICHMOND AND BERGEN POINT FERRY COMPANY v. BOARD OF CHOSEN FREEHOLDERS OF HUDSON COUNTY.

ERROR TO THE COURT OF ERRORS AND APPEALS OF THE STATE OF NEW JERSEY.

No. 225. Argued March 4, 1914.-Decided June 8, 1914.

At common law the right to maintain a public ferry lies in franchise. In England such a ferry could not be set up without the King's license, and, in this country, the right has been made the subject of legislative grant. Transportation of persons and property from one State to another by ferry is interstate commerce and subject to regulation by Congress, and it is beyond the competency of the States to impose direct burdens thereon; Congress not having acted on the subject, however, the States may exercise a measure of regulatory power not inconsistent with the Federal authority and not actually burdening, or interfering with, interstate commerce.

A State has the power to establish boundary ferries, not a part of a continuous interstate carrier system, and regulate the rates to be charged from its shores, subject to the paramount authority of Congress over interstate commerce; and, even though there might be a difference in the rate of ferriage from one side of the stream as compared with the rate charged from the other side.

Questions in respect to ferries such as the one involved in this case, generally imply transportation for a short distance, generally between two specified points, unrelated to other transportation, thus presenting situations essentially local and requiring regulation according to local conditions.

The absence of Federal action in such a case does not presuppose that the public interest is unprotected from extortion.

A State being able to exercise the power to regulate ferries, it follows that it may not derogate from the similar authority of another State; its regulating power therefrom extends only to transactions within its own territory and to ferriage from its own shores.

Rates of ferriage fixed by one State from its own shore on a boundary ferry do not preclude the other State from fixing other rates if reasonable with respect to the ferry maintained on its side.

Where the state court has not construed an ordinance fixing rates

Argument for Plaintiff in Error.

234 U.S.

of ferriage on a boundary ferry as requiring the issuing of round trip tickets, and this court does not so construe it, the ordinance may be valid as limiting the amount which may be charged if such trip tickets are issued; and so held in this case. Quarc as to whether a State may require round trip tickets to be issued on a boundary ferry.

82 N. J. Law, 536, affirmed.

THE facts, which involve the power of a State, or a municipality acting under its authority, to establish rates of transportation on ferries plying between one of its ports and a port of another State, are stated in the opinion.

Mr. Frank Bergen for plaintiff in error:

A State cannot prescribe rates to be charged by a person or corporation operating an interstate ferry not in connection with a railroad, because a ferry across an interstate stream is an instrument of interstate commerce; the transportation of passengers, vehicles, horses and cattle from one State to another, is interstate commerce; prescribing rates for such transportation is a direct regulation of interstate commerce; and the power to regulate directly commerce among the States can be exercised only by authority of Congress. Covington Bridge Co. v. Kentucky, 154 U. S. 204; Covington Elevated R. R. Co. v. Kentucky, 154 U. S.

224.

A ferry operated in connection with a railroad and carrying passengers who arrive at the ferry by rail, and also passengers who arrive at the ferry otherwise, is not subject to regulation as to its rates by authority of a State. N. Y. Central Case, 74 N. J. Law, 367; 76 N. J. Law, 664; 80 N. J. Law, 305; and see International Transit Co. v. Sault Ste. Marie, 194 Fed. Rep. 522; Charles River Bridge v. Warren Bridge, 11 Pet. 420, 620; Gloucester Ferry Case, 114 U. S. 196.

States have indeed exercised control in some instances over commerce by means of interstate ferries and bridges

234 U. S.

Argument for Plaintiff in Error.

since the Federal Constitution was adopted, and there are expressions in a few opinions of this court that have been supposed to recognize the authority of the States to do so (see Fanning v. Gregoire, 16 How. 524; Conway v. Taylor, 1 Bl. 603; Wiggins Ferry Co. v. East St. Louis, 107 U. S. 365), but there is no decision of this court to that effect. Gibbons v. Ogden, 9 Wheat. 1, 203, does not support this, although sometimes cited to that effect, and see St. Clair County v. Interstate Transfer Co., 192 U. S. 454; Covington Bridge Co. v. Kentucky, 154 U. S. 204; N. Y. Cent. R. R. Co. v. Hudson County, 227 U. S. 248; Wabash Ry. Co. v. Illinois, 118 U. S. 557.

Nearly every important instrument of interstate commerce was created by authority of the States; but that fact does not justify or support the conclusion that commerce carried on by those instruments may be directly regulated by the States. Covington Bridge Co. v. Kentucky, supra, at p. 219; New York v. New Jersey Nav. Co., 106 N. Y. 28.

The States may make and enforce regulations that indirectly and in minor particulars affect interstate commerce until Congress takes action, after that, as to all matters covered by congressional action, state regulations must give way. Gloucester Ferry Case, supra, at p. 214; Covington Bridge Co. v. Kentucky, supra; Robbins v. Shelby Taxing District, 120 U. S. 489; Minnesota Rate Cases, 230 U. S. 352, 398-412.

For cases in New Jersey in which the authority of the State to prescribe rates to be charged by owners of interstate ferries has been considered, see State v. Freeholders of Hudson, 23 N. J. Law, 206, aff'd, 24 N. J. Law, 718; New York Central Case, 74 N. J. Law, 367; 76 N. J. Law, 664, 679; 227 U. S. 248.

The history of the commerce clause of the Constitution confirms the opinion that it was intended to transfer the power to regulate directly foreign commerce and commerce

among the States of all kinds and by every means, from the States to the National Government. See letters by Madison to Cabell (1829), and to Davis (1832); Letters and Writings of Madison, vol. iv, pp. 14 and 247; Curtis' Const. Hist. U. S., vol. 1, p. 231, note; Elliot's Debates, vol. 1, p. 115, ed. 1876; Webster's Works, vol. vi, p. 9, 8th ed. 1854; 9 Wheat. at p. 226, and 12 Wheat. at p. 445.

If the power to regulate foreign commerce was transferred to Congress by the Constitution, it cannot be denied that power to regulate interstate commerce was also transferred at the same time. Story's Constitution, § 1065; Crutcher v. Kentucky, 141 U. S. 47, 57; West. Un. Tel. Co. v. Kansas, 216 U. S. 1. Rev. Stat., § 2792, evidently relates to ferries between points in Canada and Mexico and the United States, but § 4426 applies to all ferryboats, and see § 4400; Hall v. De Cuir, 95 U. S. 485, 488.

Mr. James J. Murphy for defendant in error.

MR. JUSTICE HUGHES delivered the opinion of the court.

The plaintiff in error, Port Richmond and Bergen Point Ferry Company, was incorporated in 1848 (c. 306) by special act of the legislature of New York for the purpose of maintaining a ferry across the Kill von Kull from Port Richmond, Staten Island, New York, to Bergen Point, Hudson County, New Jersey. This act prescribed rates of ferriage as did also the amendatory acts of 1857 (c. 692) and 1868 (c. 778).

The ferry is not operated in connection with any railroad.

In July, 1905, the Board of Chosen Freeholders of the County of Hudson, New Jersey, passed two resolutions

1 See also Laws of New York, 1857, chap. 692; 1860, chap. 266; 1864, chap. 290; 1868, chap. 778; 1873, chap. 300; 1881, chap. 652.