Mr. Charles W. Thomas for plaintiff in error. [192 U.S. 454, 455] Messrs. John F. Lee and George R. Lockwood for defendant in error.
Mr. Justic e White delivered the opinion 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 & 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:
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 of 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 Co. v. Pennsylvania, 114 U.S. 196 , 29 L. ed. 158, 1 Inters. Com. Rep. 382, 5 Sup. Ct. Rep. 826, and Convington & C. Bridge Co. v. Kentucky, 154 U.S. 204 , 38 L. ed. 962, 4 Inters. Com. Rep. 649, 14 Sup. Ct. Rep. 1087
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 [192 U.S. 454, 458] hence were inapposite. It is insisted that a consistent line of other cases decided by this court, commencing at an early day, determined that the right to establish, regulate, and license ferries, even though they be across a navigable river constituting a boundary between two states, rests exclusively within the several states, as embraced within police powers reserved to the several states, and not delegated to the national government. On the other hand, the company insists that, whilst undoubtedly there are decisions of this court apparently sustaining the contention of the other side, when properly considered the cases referred to must be limited to ferries over streams wholly within a state, and to the extent that certain of the cases cannot be so limited, they have been in effect overruled. As, then, both sides confidently rely upon prior adjudications of this court, and both in effect argue that the cases which are asserted to sustain the view urged by the other side are in irreconcilable conflict with other cases, it becomes necessary to briefly advert to the cases relied upon by both parties in order to ascertain whether the asserted antagonism between the decided cases really obtains so far as it may be necessary for the decision of the question arising on this record, and if not, to apply the rule settled by the previous cases, and, if the conflict does exist between the adjudications, to determine which of the prior decisions announce the correct rule, and to follow it.
In Gibbons v. Ogden (1824) 9 Wheat. 1, 6 L. ed. 23, wherein it was held that the acts of the legislature of New York, granting to Livingston and Fulton exclusive rights to navigation, by steamboats, in the navigable waters within the jurisdiction of the state of New York, was repugnant to the commerce clause of the Constitution, in the course of the opinion Mr. Chief Justice Marshall said (p. 65, L. ed. p. 38):
In Fanning v. Gregoire (1853) 16 How. 524, 14 L. ed. 1043, the questioin 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 was 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 asserted power of the state to grant the second ferry license in question-said (p. 534, L. ed. p. 1047):
In Conway v. Taylor (1861) 1 Black, 603, 17 L. ed. 191, 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 [192 U.S. 454, 460] violative of the Kentucky ferry franchise. The courts of Kentucky held that it was in conflict with the Kentucky franchise for the person operating the ferry from the Ohio shore to conduct a ferry from the Kentucky side back to Ohio, and therefore restrained the ferry to that extent. The Kentucky court in effect enforced the exclusive right of the one owning the Kentucky ferry to ferry from Kentucky across to Ohio, but declined to restrain the right of the Ohio ferry owner to ferry from Ohio to Kentucky. The judgment of the Kentucky court came to this court for review, and it was affirmed. In the course of the opinion, announced by Mr. Justice Swayne, it was expressly stated that the right existed in the several states bordering on navigable rivers which were a boundary between two states to grant a ferry privilege from their own borders to cross the river. The court said (p. 629, L. ed. p. 201).
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Further along in the opinion (p. 633, L. ed. p. 203), 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):
After referring to Fanning v. Gregoire, and citing the passage [192 U.S. 454, 461] which we have previously quoted as affirming the doctrine that a state had a right to grant a ferry license across a navigable river, being the boundary between the granting, and another, state, the question of the operation of the commerce clause of the Constitutioin of the United States was passed on. The court declared (p. 633, L. ed. p. 203), that there was no repugnancy to the commerce clause of the Constitution in the mere licensing by a state of a ferry; that the regularity and nature of the business of ferrying was such that the granting of a privilege on the subject did not regulate interstate commerce, and therefore, despite an exclusive ferry privilege, interstate commerce was free from restraint by the state. In conclusion, however, the court pointed out (p. 634, L. ed. p. 203), that undoubtedly if in the grant of a ferry privilege there were contained provisions repugnant to the commerce clause, it would be the duty of the court to prevent their enforcement.
In Wiggins Ferry Co. v. East St. Louis (1882) 107 U.S. 365 , 27 L. ed. 419, 2 Sup. Ct. Rep. 257, 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 as 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 ground 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 applicaion of the commerce clause of the Constitution, [192 U.S. 454, 462] and decided that proposition against the corporation. In doing so the court referred to the passage in the opinion of Chief Justice Marshall in Gibbons v. Ogden, which we have already quoted, and also referred approvingly to the opinions in Conway v. Taylor, 1 Black, 603, 17 L. ed. 191, and Fanning v. Gregoire, 16 How. 524, 14 L. ed. 1043.
In Gloucester Ferry Co. v. Pennsylvania (1885) 114 U.S. 196 , 29 L. ed. 158, 1 Inters. Com. Rep. 382, 5 Sup. Ct. Rep. 826, 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 was 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 the 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, L. ed. p. 161, Inters. Com. Rep. p. 385, Sup. Ct. Rep. p. 827):
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, L. ed. p. 166, Inters. Com. Rep. p. 390, Sup. Ct. Rep. p. 834):
Although no reference was made in the opinion to Fanning v. Gregoire, Conway v. Taylor, and Wiggins Ferry Co. v. East St. Louis, in concluding the opinion it was said (p. 217, L. ed. p. 167, Inters. Com. Rep. p. 390, Sup. Ct. Rep. p. 835):
The tax imposed by the state of Pennsylvania was decided [192 U.S. 454, 465] to be void, as being repugnant to the commerce clause of the Constitution.
In Covington & C. Bridge Co. v. Kentucky, 154 U.S. 204 , 38 L. ed. 962, 4 Inters. Com. Rep. 649, 14 Sup. Ct. Rep. 1087, 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 cases, 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 Co. 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 of 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 some 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 and Conway v. Taylor proceeded upon a misconception and partial view of the language of Chief Justice Marshall in Gibbons v. Ogden. That language, it is insisted, when the sentences which immediately precede the pas- [192 U.S. 454, 466] sage quoted in Fanning v. Gregoire and Conway v. Taylor, are considered, clearly demonstrates that the Chief Justice was referring to the power of the states to license and control ferries on streams of a local character, and this, it is said, is demonstrated by the statement on the subject in the Gloucester Ferry Case. The case of Wiggins Ferry Co. v. East St. Louis, it is argued proceeded not upon the right of the state over the ferry, but upon its power to tax property whose situs was within its jurisdiction, and this was the view adopted by the court below. The Gloucester Ferry Case, it is urged, did not proceed upon the nature of the tax, but upon the want of power in the state of Pennsylvania to exert its control over a ferry crossing a river which was a boundary between two states, so as in effect to burthen the carrying on of interstate commerce. And that case, it is further insisted, therefore qualifies, if it does not specifically overrule, the earlier cases.
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, import 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 justify 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 travelers with their teams and vehicles and such other property as they may carry or have with them.' New York v. Starin, 106 N. Y. 11, 12 N. E. 631; Broadmax v. Baker, 94 N. C. 675, 55 Am. Rep. 633. It proceeds [192 U.S. 454, 467] at regular intervals, and, growing out of the local necessities and the public interest in its operation, is subject to local control, and at common law the exclusive franchise to operate a ferry within designated limits might be conferred upon a particular person or persons. In a strict sense the ferry business is confined to the transportation of persons with or without their property, and a ferryman carrying on only a ferry business is bound to transport in no other way. New York v. Starin, 106 N. Y. 11, 12 N. E. 631; Wyckoff v. Queens County Ferry Co. 52 N. Y. 32, 11 Am. Rep. 650.
Indeed, the essential distinction between a 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, 1 Black, 603, 17 L. ed. 191, 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 of ferry in its true sense and transportation of the character of that now under review is shown in the case of New York v. New England Transfer Co. 14 Blatchf. 159, Fed. Cas. No. 10,197. In that case a boat was operated from Jersey City in New Jersey to Mott Haven in New York, and from Mott Haven to Jersey City. In this boat, by means of 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 the boat in the manner specified was not the operation of a ferry. After pointing out the similarity between bridges and ferries, and directing attention to Proprietors of Bridges v. Hoboken Land & Improv. Co. 1 Wall. 116, 17 L. ed. 571, in which it was [192 U.S. 454, 468] held that a mere railroad bridge, utilized for the purpose of transporting cars across a navigable river, did not infringe an exclusive right to maintain a bridge for general purposes theretofore granted by state authority, and demonstrating the identity in principle between the case before it and that case, said (p. 167):
Second. As we conclude from the considerations previously expressed that the transportation of railroad cars-whether loaded ur 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 [192 U.S. 454, 469] is, Did the county have the power to require the obtaining of a license by the company as a prerequisite to the carrying on of such interstate commerce, and to impose the penalties sued for because a license had not been obtained? In examining this question we need not stop to determine how far, if at all, a state may, under its general police power, require the taking out of a license for the carrying on of the business of interstate commerce to the extent necessary to enable the state or its subdivisions to exercise such supervision as may be required for the safety of life and property. This results because, even conceding, arguendo, such power, we think it clear that such conditions were attached to the obtaining of a license in this case as relieved the company from the duty of complying with the requirements of the law under which liability is here asserted. That liability is contained in chapter 55 of the Revised Laws of Illinois, in force in 1874. By this law authority was conferred upon the county to grant a ferry license, and it was made the duty of a person or corporation desiring to carry on a ferry to make application for such license. But power was conferred upon the county to withhold the grant of a license in a particular case if deemed best, and to grant it, preferably, to a citizen of the state of Illinois; and the acceptance of the license imposed the absolute obligation upon the applicant to carry on a technical ferry business, to operate at designated hours during the day and during the entire night. In other words, the law under which license was required not only subjected the applicant for the license to discriminatory provisions, but in addition compelled the licensee, if he desired to carry on a purely interstate commerce business, to conduct a general ferry business. However valid these conditions may be when applied to a ferry business in the restricted sense, under the assumption which we have indulged in, arguendo, that the state had the power to regulate a ferry upon a navigable stream forming the boundary between two states, it is obvious that the conditions to which we have alluded were [192 U.S. 454, 470] illegal because a direct burden upon interstate commerce was made a condition precedent to the doing of business of that character.
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 v. Taylor, has not been modified by the rule subsequently laid down in the Gloucester Ferry and the Covington Bridge Cases. As this case has not required us to enter into those considerations we have not done so.