Majority
p. 587The People vs. Babcock.
Headnote
The common pleas of Niagara have power to grant licenses to keep ferries on the Niagara river, although the jurisdiction of the state extends only to the centre of the river; consequently, to maintain a ferry upon that river for transporting across the same persons or goods for hire or profit, unless authorized in the manner prescribed by law, will subject the offender to punishment as for a misdemeanor.Certiorari to a commissioner who had discharged upon habeas corpus a party committed by a justice of the peace, for an alleged misdemeanor. Babcock was brought before a justice of the peace, on a charge of having violated the statutes of this state regulating ferries, by having transported across the Niagara river, from Youngstown, in the county of Niagara, persons and goods for profit or hire, without having obtained a license, in the manner prescribed by the Revised Statutes, vol. 1, pages 526, 7, and having refused to give bail for his appearance at the oyer and terminer, was committed to the jail of the county of Niagara. Babcock thereupon applied for and obtained a habeas corpus, upon which he was brought before the commissioner who allowed the same, and the cause of his detention was shown. He proved, in addition to the facts stated in the warrant of commitment, that the boat he navigated was an open boat, of the size commonly used as ferry-boats upon the Niagara, of a burthen less than two tons ; that it was used for the transportation of passengers and their baggage, and light articles ; that he uniformly reported his ^arrivals upon this side of the river to a deputy collector of the customs, residing at Youngstown, and had caused the boat to be registered at the port of Lewiston, on the Niagara river, and accordingly produced a register granted to him on the 31st May, 1831, by the collector of Lewiston. Upon this proof, the commissioner made an order discharging Babcock from confinement and setting him at large. The district attorney of Niagara thereupon sued out a certiorari, directed to the commissioner, by virtue whereof the proceedings had before the commissioner were brought before this court.
J. C. Spencer, for the people.
The statute declares, that if any person, except within certain counties, in the enumeration of which Niagara is not included, shall use any ferry for transporting across any river, stream, or lake, any person, or any goods, chattels or effects, for profit or hire, unless authorized in the manner specified, shall be considered guilty of a misdemeanor; and on conviction, shall be subject to a fine, &c. 1 R. S. 527, § 8. The act is general, applying as well to rivers, streams and lakes, dividing states, as to those wholly within the state; and is as applicable where the jurisdiction of the state extends only to the middle of the river, as where the whole river is within its bounds. Where a river separates two independent territories, the jurisdiction of each extends to the centre of the river. Vattel, b. 1, ch. 22, § 278. The dominion of each territory extending over one half of the river, such half is of course under jurisdiction. The right to grant a ferry is a sovereign prerogative, which has been always claimed, and exercised by this state either by special grant, or by general regulations ; and ferries have accordingly been established not only across rivers, streams, and lakes, wholly within its acknowledged bounds, but across rivers and lakes separating the state from other states, as on Lake Champlain, &c. It cannot be urged on the other side, that
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there cannot be a ferry across the Niagara river, for the reason that a citizen of this state cannot have the property in the soil on the Canada shore ; for it is not necessary to its being a good ferry, that the owner of the ferry should have the property in the soil on that side of the river ; he must have the right to land, but he need *not have the property in the soil; it is enough il the landing place be in a public highway. 6 Barn & Cres. 703. The defendant cannot claim anything under the registry act of congress ; a ferryboat not being within its purview, it being a vessel employed neither in the foreign or coasting trade. Besides, by the act of 2d March, 1831, the registering of vessels upon our northern boundaries is abolished; they are to be licensed to carry on the coasting trade, but ferrying is no such business. Nor can it be said that the regulation of ferries across rivers separating the state from a foreign territory belongs to the general government. In Gibbons v. Ogden, 9 Wheaton, 203, Chief Justice Marshall specifies laws regulating ferries, as forming a portion of that immense mass of legislation, which, embraces every thing within the territory of a state not surrendered to the general government-, all which can be most advantageously exercised by the states themselves. The same doctrine is recognized by the court for the correction of errors in The North River Steamboat Company v. Livingston, 3 Cowen, 754. The regulation of ferries is a police regulation, and therefore exclusively belongs to the state government.
J. A. Spencer, for the defendant,
submitted whether the court would entertain this certiorari; no effective judgment he said could be pronounced upon it, and as the discharge of the defendant under the habeas corpus was no bar to an indictment, he asked the court to dismiss the case. If, however, the court were disposed to hear an argument, he would submit that the act of this state regulating ferries has no application to rivers separating the state from foreign territories, and was not intended to apply to them, as was manifest not only from the terms of the act authorizing the granting of licenses for keeping ferries in the respective counties of the state, but from the very nature of the case. It was conceded that the jurisdiction of the state extended no farther than the centre of the Niagara river. Could it be supposed, therefore, that the legislature intended to authorize the grant of the franchise of a ferry from our shores to the middle of the stream ? Where streams divide counties, there is no impropriety in conceding the power to grant licenses to the courts of one or both of the *counties bounding upon such stream, because in such cases both termini of the ferry are within the state ; but it may well be questioned whether the state can establish a ferry from the shores of its rivers and lakes to the shores of another state. But if such power is possessed, can it be extended to the establishing of a ferry across a river separating the state from a foreign territory ? If it can, it is in the power of the state to regulate and control intercourse with a foreign state, and thus the power of the state be directly brought in conflict with a conceded power of the general government. Intercourse with a foreign state is a subject of national regulation and legislation, and any vexatious interruption to it would be a just cause of war. Vattel, book 2, ch. 2, § 24. 1 Kent’s Comm. 411.
In Canada, it has been judicially decided (as it is understood) that the provinces have no right to legislate on the subject of ferries across the waters dividing the provinces from" this state, on the ground that as it is a subject affecting intercourse with a foreign state, it appertains exclusively to the legislation of the mother country, or must be established by treaty regulations ; and it is submitted whether the same considerations do not as conclusively point to the national government of our country as the proper and sole depositary of this
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power ? As well may Alabama establish a ferry between its shores and Havana, as this state to undertake to regulate a ferry across the Niagara river; the expanse of water is greater in the one case than in the other, but the principle is the same. For certain purposes, such as the exercise of ordinary civil and criminal jurisdiction in the service of process, the dominion of the state must be considered as extending to the centre of the Niagara; but for all other-purposes, and especially the regulation of intercourse with Canada, it appertains to the general government. The state cannot confer the power upon its citizens to land a ferry-boat in Canada, and cannot even accept such right from the constituted authorities there, as it is not3 permitted to treat with a foreign state. At the most that can be asked, the state has rights on this subject concurrent with those of the general government, and where those rights come in conflict, the former must yield to the latter.
*J. C. Spencer, in reply.
It is not pretended that this state has the right to regulate intercourse or commerce with Canada, but it is claimed, that as a police regulation, the state may prescribe the terms upon which ferries shall be conducted upon the waters within its jurisdiction. It may be conceded that an inhabitant of Canada, navigating the Niagara river, could not be prevented, by any law of the state, from landing on our shores; and that even a citizen of this state could not be forbidden to carry on commerce on the waters of that river. But where it is attempted to establish a ferry upon our waters, public policy and public convenience demand that the party should be subject to our police regulations, although the jurisdiction of the state extends only to the centre of the river upon which the ferry is used. In this point of view the law is sought to be enforced, and not for the purpose of regulating intercourse with a foreign state, or calling in question the conceded powers of the general government.
By the Court,
The county of Niagara extends westerly to the middle of the Niagara river, and the power of the court of common pleas of that county to license ferries within its limits, is without qualification. 1 R. S. 526, § 1. So far as jurisdiction is concerned, it is as complete over this river to the centre thereof, as over any other stream within the county. The privilege of the license may not be as valuable to the grantee by not extending across the river; but as far as it does extend, he is entitled to all the provisions of the law, the object of which is to secure the exclusive privilege of maintaining a ferry at a designated place. The prohibition in the eighth section of the act against using a ferry without a license, is in terms co-extensive with the power given to grant a ferry.
The defendant set up a register of his boat under the act of congress of 1792, granted to him by the collector of the customs of the port of Lewiston. This instrument conferred no authority upon him to keep and use a ferry at Youngstown ; its only effect was to give to his boat a national character. No license was shown under the act of congress of 1793 for enrolling and licensing ships and vessels employed in *the coasting trade, and therefore it is unimportant to examine the effect of such a license in reference to the jurisdiction and power of the state to regulate ferries within its limits.
I understand the case of Gibbons v. Ogden, 9 Wheaton, 1, distinctly to concede that this power, which belongs to the sovereignty of a state, and is essential to the regulation of its internal police has not been surrendered to the national government, and that the clause in the constitution, giving to congress the power “ to regulate commerce with foreign nations, and among the several states, and with the Indian tribes,” does not include it. The constitutional power of congress to regulate commerce with foreign nations, stands upon the
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same footing as that which may exist among the several states; and if the state has not reserved the right to establish and regulate ferries upon the waters in question within her limits, then she lias not the right to establish and regulate ferries upon the waters separating her from other states, and the consequence would be, that no public ferries could exist in all these cases, unless under the authority of congress. Such power has never been claimed by congress ; and on the contrary, it has always been exercised by the several states, between which a ferry is practicable and convenient. There are numerous acts in our statute book establishing ferries across the river in question ; also across the St. Lawrence, Lake Champlain, the river Hudson opposite New-Jersey, and Long Island Sound opposite Connecticut. That the state has the power to estalish and regulate ferries is indisputable, unless it has been conferred on the national government by some clause in the constitution; that it has been so conferred, has been claimed by that government, and on the contrary, it has been expressly disclaimed by the judicial department thereof. I am therefore of opinion that the commissioner erred in discharging the defendant, and that he ought to have remanded him into custody.