St. Clair County v. Interstate Sand & Car Transfer Co.

delivered the opinion of the court.

This suit was commenced in a court of the State of Illinois by the county of St. Clair, a municipal corporation of the State of Illinois, against the Interstate Sand and Car Transfer Company, a Missouri corporation, to recover statutory penalties. We shall hereafter refer to the. one party as the county and to the other as the company. The right of the county to recover was based upon the charge-that the company had, during certain years which were stated, incurred penalties to the amount sued for, because it had carried on a ferry for' transporting railroad cars, loaded or unloaded, from the county of St. Clair in Illinois to the Missouri shore and from the Missouri shore to the county of St. Clair, without obtaining a license from the county,' as was required by the law of Illinois. The cause of action was thus stated in the complaint.

“And plaintiff avers that the said defendant, in order to keep and use its said ferry at the time of its establishment as aforesaid, constructed and caused to be built a permanent landing

The case was removed by the company on diversity of citizenship to the Circuit Court of the United States for the Southern District of Illinois. In that court the company filed a general demurrer, which was sustained. From the final judgment dismissing the complaint the case was brought directly to this court because solely involving the construction or application qf the Constitution of the United States.

The court below decided that the company was not liable for the penalties, because the law of Illinois purporting to impose upon the company the obligation of taking out a license was not binding, as it was repugnant to the commerce clause of the Constitution of the United' States. The conclusions of the court upon this subject were in substance based on what was deemed to be the result of the rulings in Gloucester Ferry Company v. Pennsylvania, 114 U. S. 196 , and Covington & Cincinnati Bridge Company v. Kentucky, 154 U. S. 204 .

In the argument at bar the county insists that the lower court erred in applying the cases mentioned, because those cases did not question the power of the several States to license and regulate ferries, but prevailed upon other considerations, and

In Gibbons v. Ogden, (1824) 9 Wheat. 1 , wherein it was held that the acts of the legislature of.New York, granting to Livingston and Fulton exclusive rights to navigation, bjr steamboats, in the navigable waters within the jurisdiction of the State of New York, wras repugnant to the commerce clause of the Constitution, in the course of the opinion Mr. Chief Justice Marshall said (p. 65):

“Internal commerce must be that which is wholly carried on within the limits of a State; as, where the commencement, progress .and termination of the voyage are wholly confined to the territory of the State. This branch of power includes

In Fanning v. Gregoire, (1853) 16 How. 524 , the question for decision was whether a subsequent grant of a license for a ferry' across the Mississippi River interfered with and violated the rights of a prior license to a ferry of .like character. In other words, the question wás whether‘the grant of the first' license was exclusive and prevented the grant of a second license. The court decided that the first grant was not exclusive; and in concluding the opinion — speaking through Mr. Justice McLean, and noticing the argument that the guaranty contained in the ordinance of 1787, in respect to the free navigation of the Mississippi River and the power delegated to Congress to regulate commerce between, the States were in conflict with the isserted power of the State to grant the second ferry license in question said (p. 534):

“Neither of these interfere with the police power of the States, in' granting ferry licenses. When navigable rivers, within the commercial power of the Union, may be obstructed, one or both of these powers may be invoked.”

In Conway v. Taylor, (1861) 1 Black, 603 , the case was substantially this: An exclusive franchise had been granted by the laws of Kentucky to operate a ferry from the Kentucky shore across the Ohio River. A person having commenced to operate a ferry from the Ohio shore to the Kentucky side, in conflict with the exclusive right, his power to do so was resisted in the Kentucky courts on the ground that it was

“The concurrent action of the two States was not necessary. ‘A ferry is in respect the landing place, and not of the water. The water may be to one and the ferry to another.’ 13 Viner’s Ab. 208a.”

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“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.”

Further along" in the opinion (p. 633) the language which we have previously cited from the opinion of Mr. Chief Justice Marshall in Gibbons v. Ogden was quoted in part, as follows (italicized as in the reports):

“The court said: ‘They [State inspection laws] form a portion of the immense mass of legislation which embraces everything within the territory of a State not ' surrendered to the General Government; all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the hiternal commerce of a State, and those which respect turnpike roads, ferries, &c., are parts of this mass.’ ”

After referring to Fanning v. Gregoire, and citing the passage

In Wiggins Ferry Company v. East St. Louis, (1882) 107 U. S. 365 ,. the case was this: The.ferry company was in the enjoyment of a ferry franchise to operate across the Mississippi River between Illinois and Missouri. It was domiciled in Illinois, that State being the situs of its boats and other property. This property was taxed in Illinois ás other property, and there was also levied upon the company a license tax for the- privilege of carrying on the ferry, the validity of which last exaction was the question which the case presented. ' The collection of the license charge was resisted on the groimd that the corporation was exempt by the contract arising from the grant of its franchise from the payment of a license charge, and that if not, the exaction of the license tax for the privilege •of ferrying across a navigable river lying between two States was repugnant to the commerce and other clauses of the Constitution of the United States not necessary to be specially referred to.

After disposing adversely to the corporation of the contention concerning the alleged exemption, the court considered the application of the commerce clause of the 'Constitution,

In Gloucester Ferry Company v. Pennsylvania, (1885) 114 U.S. 196 , the facts were these: The ferry company was incorporated and domiciled in New Jersey, carried on a ferry business over the Delaware River between Camden, New Jersey, and Philadelphia. The situs of its boats and property were in New Jersey; but the company owned in Philadelphia a wharf or slip at which its boats landed. The taxing officers of the State of Pennsylvania assessed against the corporation, on the ground that it was doing business within the State, a tax upon the estimated value of its capital stock, and the validity of this tax was the question decided. After referring to thé reasoning of the Supreme Court of Pennsylvania affirming the validity of the tax, in which it was pointed out that the company did business in the State because it landed in the State of Pennsylvania, and there in part carried on its ferry business, the court said (p. 203):

“As to the first reason thus expressed, it may be answered that the-business of landing and'receiving passengers and freight at the wharf in Philadelphia is a necessary incident to, indeed a part of, their transportation across the Delaware River from NeW Jersey. Without it that transportation would be impossible. Transportation implies the taking up of persons or property at-some point and putting them down at another. A tax, therefore, upon such receiving and landing of passengers and freight is a tax upon their transportation; that is, upon the commerce between the two States involved in such transportation.

“It matters not-that the transportation is made in ferryboats, which pass between the States every hour of the day. The means of transportation of persons and freight between the States does not change the character of the business as one

After reviewing and applying many prior adjudications of this court, in which the want of power of the several States to burthen interstate commerce had been pointed out, in its various- aspects, the -court considered the statement of Mr. Chief Justice Marshall in Gibbons v. Ogden, which we have previously quoted, and observed (p. 215):

“The power' of the States' to regulate matters of internal police includes'the establishment of ferries as well as the construction of roads and bridges. In Gibbons v. Ogden, Chief Justice- Marshall said' that laws respecting ferries, as well as inspection laws, quarantine laws, health laws, and laws regulating the internal commerce of the States, are component parts of an immense mass of legislation, embracing everything within the limits of- a State not surrendered to the general government; but in this language he plainly refers to ferries ' entirely within the State, and not to ferries transporting passengers and freight between the States and a foreign country.”

Although no reference was made in the opinion to Fanning v. Gregoire, Conway v. Taylor and Wiggins Ferry v. East St. Louis, in concluding the opinion it was said (p. 217):

“It is true that, from the earliest period in the history of the

The tax imposed by the State of Pennsylvania was decided

In Covington &c. Bridge Co. v. Kentucky, 154 U. S. 204 , a law of the State of Kentucky regulating the tolls to be charged by a bridge company operating a bridge across the Ohio River between Kentucky and Ohio came under review. After an extended consideration of the previous crises, with one exception, including the cases to which we have previously referred, it was decided that as the bridge was over a navigable.stream between two States, the power to regulate the tolls thereon was in Congress, and therefore the State regulation was void.

The position of the parties as to the cases which we have reviewed is this: The county insists that the statement in" Gibbons v. Ogden, that the establishment of ferries was within the reserved powers of the States,.and the rulings in Fanning v. Gregoire, Conway v. Taylor and Wiggins Ferry v. East St. Louis, affirmatively settle that a State may establish ferries over a navigable river, the boundary between two States, and license the same, and that doing so is not only not repugnant to the commerce clause of the Constitution of the United States, but is in consonance therewith, since the power as to ferries was reserved to the States and not delegated to the national government. The Gloucester Ferry case, it is said, rested upon the nature pf the particular tax imposed by the State of Pennsylvania, and that the case may hence not be considered as overruling the previous cases, not only because it did not expressly refer to them, but also because -come expressions found in .the opinion which we have cited are construed as substantially affirming the right of the State to regulate and license a ferry like the one here in question. On the other hand, the corporation urges that the rulings in Fanning v. Gregoire arid Conway v. Taylor proceeded upon a misconception arid partial view of the language of Chief Justice Marshall-in Gibbons v. Ogden. That language, it is insisted, when the sentences are considered which immediately precede the pas

We do not think, however, that for the purposes of this case we need enter into these contentions, because we consider that in any view which may be taken of the previous cases, each and all of them are conclusive of-this case without reference to any real' or supposed conflict between .them.

First. None of the cases, whatever view may be taken' of them, imports power in a State to directly control interstate commerce. Conceding, arguendo, that the police power of a State extends to the establishment, regulation and licensing of ferries on a navigable stream, being the boundary between two States, none of the cases justifies the proposition that such power embraces transportation by water across .such a river which does not constitute a. ferry in a’strict technical sense. In that sense “a ferry is a continuation of the highway from one side of the water over which it passes to the other, and is for. transportation of passengers or of travellers with their teams and vehicles and such, other property as they may carry or have with them.” Mayor &c. of New York v. Starin, 106 N. Y. 1 , 11; Broadnax v. Baker, 94 N. Car. 675. It proceeds

Indeed, the essential distinction between á ferry in the restricted and legal signification of that term and transportation as such constituting interstate commerce was pointedly emphasized in a passage from the opinion in Conway v. Taylor, supra, which we have previously quoted, and the distinction between the two was necessarily involved, if it may not be said to have been controlling, in the decision of that case.

The difference between a ferry in its true sense and transportation of the character of that now under review is shown in the case of Mayor of New York v. New England Transfer Company, 14 Blatch. 159. In that case a boat was operated from Jersey City in New Jersey to Mott Haven in New Yorkand from Mott Haven to Jersey City. In tins boat, by meanof tracks, railroad cars, both passenger and freight, were run and carried under contract with the railroad company for the purpose of further transportation' The contention was that the operation of this boat constituted the running of a ferry, and therefore to so operate it required a ferry license from the proper, authority of the city of New York. The court (Shipman, J.), whilst not denying the power of the city of New York to require a license for a ferry operating over the route in question, held that the use of thé bdat in the manner specified was not the operation of a ferry. After'pointing out the similarity between bridges and ferries and directing attention to Bridge Proprietors v. Hoboken Company, 1 Wall. 116 , in which it was

“The reasoning which denies that a railroad bridge is an interference with an exclusive right theretofore granted to build an ordinary bridge, applies with almost equal force to the question, whether a ferry franchise is interfered with by a ferry which is designed for the transportation' of railroad cars only. The boat of the defendants is provided with two railroad Tracks, which prevent the entrance or egress of ordinary vehicles, and also of foot passengers^ except as they are transported in cars which fun upon the railroad tracks. The boat is exclusively used for the transportation of railroad cars, in connection only with the arrival of trains. It is impossible to transport ordinary vehicles upon the boat, it is impracticable to transport foot passehgérs, except as they are conveyed to the boat in cars. The whole arrangement of boat and docks is for the ingress and egress of railroad cars/ and not for the accommodation of anything else.-. The- ferry is a part of a continuous through- railroad line from places north and east of the city Of New York, to. places south and southwest of that city, and the trips of the boat are dependent upon the arrival of'through railroad trains.

“ Such a ferry is unlike an ordinary ferry for the transportation across a river of persons, animals and freight, at intervals more or less regular, for fare or toll.”

Second. As we conclude from the considerations previously expressed that - the transportation of railroad cars — whether loaded or unloaded — across the Mississippi River at the point in question was not the maintenance of a ferry in the proper Sense of that term, and that such business was essentially interstate commerce, the only question remaining for decision

Because we have, arguendo, rested our conclusion in this case upon the assumption that the respective States have the power to regulate ferries over navigable rivers constituting boundaries between States, we must not be understood as deciding' that that doctrine, which undoubtedly finds support in the opinions announced in Fanning v. Gregoire and Conway vr Taylor, has not been modified by the rule subsequently laid down in the Gloucester Ferry case and the Covington Bridge case; As this case has not required us to enter into those considerations we have not done so.

Affirmed.