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Opinion of the Court.
fixing the rates to be taken at the ferry of this company within the County of Hudson for the transportation of foot passengers for single trips to the New York terminal, and for round trips to that terminal and return, respectively. This action was taken under the authority of an act of the legislature of New Jersey passed in 1799, providing as follows: "That the board of chosen freeholders shall be, and they hereby are empowered and directed to fix the rates to be taken at the several ferries within their respective counties, and the same, from time to time, to revise, alter, amend, or make anew at their discretion." Comp. Stat. (N. J.) p. 2308. On certiorari, the Supreme Court of the State of New Jersey sustained the validity of these resolutions against the objection that they were repugnant to the commerce clause of the Federal Constitution (80 N. J. Law, 614) and its judgment was affirmed by the Court of Errors and Appeals. 82 N. J. Law, 536. This writ of error is prosecuted.
The plaintiff in error contends that the action of the board is void for the reason that the transportation is interstate and the fixing of rates therefor is a direct regulation of interstate commerce,
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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. Blissett v. Hart, Willes, 508; Fay, Petitioner, 15 Pick. 243, 249, 253; Mayor &c. of New York v. Starin, 106 N. Y. 1, 10, 11; 3 Kent's Com. 458; 2 Washburn, Real Prop., 4th ed., 292. The States have been accustomed to grant such franchises not only for ferries wholly intrastate but also for those to be operated from their shores to other States. Cooley, Const. Lim. 740. They have fixed the rates for such ferriage; and this has been done both directly by the legislature and also through designated courts and local boards acting under legislative sanction. The prac
Opinion of the Court.
tice has had continuous illustration in a great variety of instances from the foundation of the Government to the present day."
The Court of Errors and Appeals of New Jersey in the case of Chosen Freeholders of Hudson County v. The State (1853), 4 Zab. 718, sustained the authority of the board to prescribe ferry rates between New Jersey and New York. Speaking through Elmer, J., the court thus described conditions existing at the time of the passage of the above-mentioned act of 1799 and its purpose: "When the act was passed, long before the invention of steamboats, ferries were generally the property of one or two individuals, established for the public convenience and private gain, by the owners of the shore, sometimes by virtue of a grant or law, and sometimes without any public authority. The owner or keeper resided on the one bank or the other of the river over which the ferry passed, and kept his boats and other apparatus where he resided. The ferry was commonly known and designated by the name of the place from which it started, and where such owner resided, as Paulus Hook ferry; or from the name of the
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1 A few of these instances may be cited:
New York.-Across Lake Champlain: Laws of 1803, chap. 37; 1810, chap. 61; 1812, chap. 60. (These are referred to in the argument of counsel in Gibbons v. Ogden, 9 Wheat. 1, 97; see 3 C. R. & G. Webster ed. Laws of New York, p. 321; 6 Websters & Skinner ed., p. 16; id., p. 394.) See also Laws of 1831, chap. 105; 1847, chap. 288; 1886, chap. 674; 1901, chap. 442; 1907, chap. 392. Between New York and New Jersey: Laws of 1850, chap. 314; 1870, chap. 731.
Vermont.-Across Lake Champlain: Laws of 1799, p. 63; 1801, p. 72; 1820, chap. 115; 1890, chap. 116; 1896, chap. 298.
New Hampshire.-Across Connecticut River: Laws of 1863, chap. 2822; 1867, chap. 86.
Missouri.-Mississippi River: Laws of 1855, p. 516; 1870, p. 231. Des Moines River: Laws of 1855, p. 517. Missouri River: Laws of 1855, p. 229; 1863–64, p. 312.
Nebraska. Compiled Statutes of 1907, § 3549.
owner or keeper, as Dunk's ferry, Corriel's ferry, etc. In many cases, where the river was not too wide, a bell or horn, or some other signal was established on the side of the river opposite to that where the owner lived, so that persons coming there who desired to pass over, could make known their wishes. Probably but few, if any of the keepers, had a boat constantly running, or started at any particular hour. In some cases, there were ferry owners on both sides of the river; but the ferry or ferries on each side were considered and spoken of as distinct ferries, and had distinct owners or keepers. This was the case with most, if not all, the ferries between Philadelphia and what is now called Camden; and the ferries on each side were regulated and governed by the laws of the State in which such owner or keeper resided. Sail and row-boats, and flats or scows, were the vessels in use, as is manifest from the act itself. -The act meant to authorize, and did authorize the boards of freeholders in the several counties, to regulate the fares to be taken at the ferry situate within that county; that is, at the ferry establishment of the owner or keeper. Even if it might happen, upon this construction, that one board might establish one set of rates at one side, and another board another set on the other side, or that each State might have different regulations, where the ferry was over one of the rivers forming the boundary between this and another State, I do not see that there would be any important conflict of authority. Each power regulated what was done within its own jurisdiction, and left to others to regulate what was done in theirs. Existing ferries between this State and New York, and this State and Pennsylvania are now, in numerous instances, regulated by the laws of this State, without the occurrence of any difficulty. .-Without deeming it necessary to go over and specially refer to the different acts
it is sufficient to say, that they show a course of legisla
Opinion of the Court.
tion, commencing in 1714, and continued till near the passage of the act of 1799, by which the ferries over the waters dividing this State from the adjoining States, were regulated by the laws of New Jersey, in those cases where ferry establishments were within this State. To effect this object" (i. e. of the act) "the word ferries must be interpreted to mean, what in those laws it had obviously included, ferries the owners or keepers of which resided in this State, or which had one of their termini where fares were demanded, in this State, and not merely ferries in the technical meaning, of an entire passage across a river or other water. If set up without public authority, it" (the ferry) "was liable at any time to be stopped, or in the discretion of the legislature to be regulated.. It is sufficient to authorize these rates, that it is a public ferry, and that there is no law prescribing rates for it, inconsistent with the exercise of the power by the board of chosen freeholders." Supra, pp. 721-724, 726. This decision was followed by the state court in the present case.1
In view of the extended consideration which the decisions of this court bearing upon the questions involved have received in recent opinions (St. Clair County v. Interstate Transfer Co., 192 U. S. 454; N. Y. C. & H. R. R. R. Co. v. Board of Chosen Freeholders, 227 U. S. 248), it is not necessary to review them at length. The authority of the State to grant franchises for ferries to be operated from its shores across boundary waters was distinctly recognized in Fanning v. Gregoire, 16 How. 524; Conway v. Taylor's Executor, 1 Black, 603; and Wiggins Ferry Co.
1 As to the views of other state courts upon this subject, see People v. Babcock, 11 Wend. 586; Newport v. Taylor, 16 B. Mon. 699; Marshall v. Grimes, 41 Mississippi, 27; Carroll v. Campbell, 108 Missouri, 550; Memphis v. Overton, 3 Yerg. 387, 390; Burlington Ferry Co. v. Davis, 48 Iowa, 133; Tugwell v. Eagle Pass Ferry Co., 74 Texas, 480; State v. Faudre, 54 W. Va. 122; Chilvers v. People, 11 Michigan, 43.
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Opinion of the Court.
v. East St. Louis, 107 U. S. 365. While in Fanning v. Gregoire, supra, the plaintiff's license for a ferry across the Mississippi river from Dubuque, Iowa, was held under the terms of the grant not to be exclusive as against the subsequent licensee, the court said that the commercial power of Congress did not 'interfere with the police power of the States in granting ferry licenses.' In Conway v. Taylor's Executor, supra, the court upheld a judgment which restrained the appellants (the owners of a ferry from Cincinnati, Ohio, to Newport, Kentucky) from conducting the ferry from the Kentucky shore to Ohio in violation of the rights of the appellees under their Kentucky franchise. Referring to the latter, the court said (p. 631): "The franchise is confined to the transit from the shore of the State. The same rights which she claims for herself she concedes to others. It was shown in the argument at bar that similar laws exist in most, if not all, the States bordering upon those streams. They exist in other States of the Union bounded by navigable waters." With respect to 'ordinary commercial navigation' the authority of the appellants to transport persons and property from the Kentucky shore was undoubted. The owners of the Kentucky franchise, it was said, had no right to exclude or restrain those who were prosecuting 'the business of commerce in good faith, without the regularity or purposes of ferry trips'; but, as the appellants' boat was run 'openly and avowedly as a ferry-boat,' as 'that was her business,' the injunction was sustained. After referring to the commerce clause, the opinion concluded, (p. 634): "Undoubtedly, the States, in conferring ferry rights, may pass laws so infringing the commercial power of the nation that it would be the duty of this court to annul or control them. .-There has been now nearly three-quarters of a century of practical interpretation of the Constitution. During all that time, as before the Constitution had its birth, the States have exercised