Congress, by passing the Act to Regulate Commerce, has taken
control of interstate railroads, and, having expressly included
ferries used in connection therewith, has destroyed the power of
the states to regulate such ferries.
Gloucester Ferry Co. v.
Pennsylvania, 114 U. S. 196,
distinguished.
Quaere whether
Covington Bridge Co. v.
Kentucky, 154 U. S. 204,
overruled
Gloucester Ferry Co. v. Pennsylvania,
114 U. S. 196.
An assertion of power by Congress over a subject within its
domain must be treated as coterminous with its authority over the
subject, and leaves no element of the subject to control of the
state.
The operation at one time of both the power of Congress and that
of the state over a matter of interstate commerce is inconceivable;
the execution of the greater power takes possession of the field,
and leaves nothing upon which the lesser power can operate.
Page 227 U. S. 250
No portion of the business of a ferry which is part of an
interstate railway is under the control of the state, and so
held that the state authorities have no power to regulate
the fare of passengers, whether railroad passengers or not, on the
ferry between Weehawken, New Jersey, and New York City, known as
the West Shore Ferry and operated by the New York Central &
Hudson River Railroad.
76 N.J.L. 664 reversed.
The facts, which involve the constitutionality under the
commerce clause of an ordinance of Hudson County, New Jersey,
fixing rates of ferriage across the Hudson River to New York city
on the ferry operated by the New York Central & Hudson River
Railroad as lessee of the West Shore Railroad Company, are stated
in the opinion.
Page 227 U. S. 256
MR. CHIEF JUSTICE WHITE delivered the opinion of the Court.
The rails of the main line of the West Shore Railroad Company
extend from Buffalo to Albany, New York, and beyond, through the
State of New York into New Jersey, to the terminus of the road at
Weehawken, on the west
Page 227 U. S. 257
bank of the Hudson River. From Weehawken, steam ferries known as
the West Shore Railroad ferries are operated over the river to
several terminal points in New York city for the purpose of
carrying railroad passengers and traffic from Weehawken to New York
and from New York to Weehawken. Although these ferries are known as
West Shore Railroad ferries, and are operated as railroad ferries,
their business is not limited to incoming persons or traffic
carried over the lines of the railroad, or to persons or traffic
conveyed from New York to Weehawken, to be transported from there
over the railroad. Indeed, from both directions, a very large
number of persons besides considerable traffic "constantly move to
and fro between the two states, not having used or intending to use
the lines of the West Shore Railroad."
In 1905, the Board of Chosen Freeholders of Hudson County, New
Jersey, adopted two ordinances: one fixing the rate for foot
passengers ferried from New Jersey to New York, and the other for a
round trip commencing on the New Jersey shore, which rates were
applicable to the ferries in question. The New York Central &
Hudson River Railroad, engaged as a lessee in operating the lines
of the West Shore Railroad, and its railroad ferries, commenced
this proceeding to prevent the enforcement of the rates fixed by
the ordinances. The contention was that the ordinances were an
unwarranted interference with the interstate business of the
company, and that the enforcement of the ordinances would
constitute a direct burden on interstate commerce, which could not
be done consistently with the Constitution. The Supreme Court of
New Jersey maintained the contentions of the railroad company. The
Court of errors and appeals reversed the judgment of the supreme
court. 76 N.J.L. 664. The case is now here, the writ of error
having been directed to the supreme court, to which the record was
remitted from the court of errors and appeals.
Page 227 U. S. 258
At the outset, it is to be observed that the contentions pressed
in argument by both parties take a wider range than the necessities
of the case require. We make a very brief reference to certain
decisions of this Court referred to in argument by both parties in
order that they may aid us to plainly mark the boundaries of the
real issues required to be decided, thus enabling us to put out of
view irrelevant considerations and confine our attention to things
essential.
Fanning v.
Gregoire, 16 How. 524, required a consideration of
the right of the Legislature of Iowa to authorize a ferry across
the Mississippi River at Dubuque. Without going into details, it
suffices to say that the subject was elaborately considered, and
the power of the state to grant the ferry right was sustained. In
Conway v.
Taylor, 1 Black 603, the right of the State of
Kentucky to grant franchises for ferrying across the Ohio River was
considered and the power was upheld, the general reasoning stated
in
Fanning v. Gregoire being reiterated and approved. It
is undoubtedly true that, in the course of the reasoning of both
the cases just referred to, expressions were made use of which give
some support to the view that the power to regulate ferriage, even
as to a stream bounding two states, was purely local, not
transferred by the states to Congress, and therefore not within the
grant of power to Congress to regulate commerce.
Gloucester Ferry Co. v. Pennsylvania, 114 U.
S. 196, concerned the validity of a tax imposed by the
State of Pennsylvania on a ferry company operating between
Gloucester, New Jersey, and the City of Philadelphia. The tax was
resisted on the ground that it was a direct burden on interstate
commerce, and therefore void as an interference with the power of
Congress to regulate commerce. The contention was sustained. The
whole subject of ferriage was elaborately considered, and, in the
course of the opinion, it was expressly declared, after
Page 227 U. S. 259
considering the decisions in
Fanning v. Gregoire and
Conway v. Taylor, that ferriage over a stream constituting
a boundary between two states was within the grant to Congress to
regulate commerce, and therefore not subject to be directly
burdened by a state. It was also, however, held that, in view of
the character of such ferries and the diversity of regulation which
might be required, the right to regulate them came within that
class of subjects which, although within the power of Congress, the
states had the right to deal with until Congress had manifested its
paramount and exclusive authority.
In
Covington Bridge Co. v. Kentucky, 154 U.
S. 204, the right of the State of Kentucky to impose
tolls for use of a bridge across the Ohio River was challenged on
the ground that the state had no authority to fix the tolls because
to do so was the assertion of a power to regulate commerce, and
therefore was an interference with the exclusive power of Congress
on that subject. The tolls were held to be invalid. The opinion
beyond question reasserted the principle enforced in the
Gloucester Ferry case, that the movement across a stream,
the boundary between two states, was within the grant of power to
Congress to regulate commerce, and therefore, generically speaking,
not subject to the exertion of state authority. Indeed, in view of
the fact that there was no act of Congress dealing with the subject
of the tolls which were under review in the
Covington
case, it is true to say that there are expressions in the opinion
in that case which have been considered, whether rightly or wrongly
we do not feel called upon to say, as qualifying or overruling the
conclusion expressed in the
Gloucester case as to the
power of a state to regulate ferries upon a stream bordering two
states until Congress had manifested its purpose to exert its
authority over the subject.
In
St. Clair County v. Interstate Transfer Co.,
192 U. S. 454, the
question considered was the liability of the
Page 227 U. S. 260
transfer company to penalties imposed by the County of St.
Clair, a municipal corporation of the State of Illinois, for having
failed to obtain a license
"for carrying on a ferry for transferring railroad cars, loaded
or unloaded, over the County of St. Clair, in Illinois, to the
Missouri shore, and from the Missouri shore to the County of St.
Clair."
It was decided that there was no liability for the penalty (a)
because the business of transferring freight cars in the sense
disclosed was not ferriage in the proper meaning of that word, and
was the transaction of interstate commerce not in any view subject
to state control, and (b) because the particular ordinance relied
upon as the basis for imposing the penalty was void because of
provisions discriminating against interstate commerce which it
contained. The cases of
Fanning v. Gregoire, Conway v. Taylor,
Gloucester Ferry Co. v. Pennsylvania, and the
Covington
Bridge case were referred to. It was expressly declared, in
view of the special grounds upon which the case was decided, that
it was unnecessary to consider whether the decision in the
Covington Bridge case had established the doctrine that
the interstate business of ferrying over navigable rivers bordering
two states was exclusively within the authority of Congress to
regulate, and therefore was not, as declared in the
Gloucester
Ferry case, subject to state regulation until Congress had
exerted its authority over the matter.
In the light of this statement, we come to state the contentions
of the parties. The plaintiff in error insists, not following the
exact order of their argument, (a) that the assailed ordinances are
repugnant to the commerce clause because Congress has legislated
concerning railroad ferries, and thereby manifested its purpose
that there should be no longer room for the exertion of state power
on the subject, and (b) that, if this is not so, it is now
necessary to pass on the question reserved in the
St.
Clair case, and to decide that the ruling in the
Covington
Bridge case
Page 227 U. S. 261
affirmatively established that interstate ferriage like that
here in question is so absolutely within the power of Congress as
to exclude, even in case of the inaction of Congress, the
presumption of a license for the exercise of state power. On the
other hand, the argument for the defendant in error is this: that
the carrying on of the business of ferriage on navigable rivers
constituting a boundary between states is not interstate commerce,
that the power to regulate it was not surrendered by the states,
and consequently no authority was given over the subject to
Congress. This is sought to be shown by a copious review of
adjudged cases, by an analysis of what it is urged was the clear
intendment of the opinion in
Gibbons v.
Ogden, 9 Wheat. 1, especially as elucidated by the
opinions in
Fanning v. Gregoire and
Conway v.
Taylor. It is not denied that these theories are directly
contrary to the ruling in the
Gloucester Ferry case, but
it is urged that that case for the first time announced the
doctrine of a national power over interstate ferriage, and
therefore practically amounted to making a new constitutional
provision on the subject. Obviously, however, the views just stated
are advanced in a mere academic sense, since the argument admits
that the ruling in the
Gloucester Ferry case is now
conclusive, and has settled the significance of the Constitution
contrary to the views mentioned. Thus, at the very outset of the
argument, after stating and elaborating the theory of exclusive
state power over interstate ferriage, it is said:
"The decision of the
Gloucester Ferry case,
114 U. S.
196, decided in 1885, established federal jurisdiction
to legislate concerning ferriage over boundary streams, but did not
turn what had been an exclusive state jurisdiction into an
exclusive federal jurisdiction. State laws on this subject are
still valid until superseded by a federal statute."
Again, after copiously reiterating the conceptions as to the
novelty of the ruling in the
Gloucester Ferry case and its
assumed
Page 227 U. S. 262
conflict with what had gone before, it is said:
"The result of the
Gloucester Ferry case, therefore,
with the other cases which have followed, has probably been to so
extend the federal authority over interstate ferriage as to bring
the subject within the concurrent jurisdiction of Congress and of
the states. It is a concurrent jurisdiction only, however, which
has been established. In the absence of federal legislation, the
states have have all the power that they have been accustomed to
exercise."
Thus, conceding the controlling force of the
Gloucester
Ferry case, and therefore not questioning the power of
Congress which that case upheld, it is urged that the
Covington
Bridge case should not be now held to have overruled or
qualified the
Gloucester Ferry case so as to exclude the
states from any right to regulate interstate ferriage before and
until Congress has manifested its intention to exert its authority
by dealing with the subject. Upon the assumption thus stated, it is
insisted that the court below rightly upheld the assailed
ordinances because there has been no action by Congress exerting
its authority over the subject with which the ordinances deal, and
therefore no room for the contention that it was not within the
power of the state to enact them.
It is therefore apparent that the contentions of the plaintiff
in error primarily invoke only the controlling effect of the ruling
in the
Gloucester Ferry case, and insist that there has
been action by Congress which destroys the presumption of authority
in the state to act. It follows that the proposition that the
Covington Bridge case overruled the
Gloucester
Ferry case is merely subordinate, and need not be considered
unless it becomes necessary in consequence of an adverse ruling on
the primary contention concerning the application of the
Gloucester Ferry case.
It is equally clear that the contention of the defendant in
error as to the absence of all power in Congress over
Page 227 U. S. 263
interstate ferries is merely academic. From this it necessarily
arises that the only ground relied upon to sustain the judgment
below is the ruling in the
Gloucester Ferry case, and the
further proposition that there has been no action of Congress over
the subject of the ferriage here involved which authorizes the
holding that state power no longer obtains. As, therefore, the
claim on the one side of an all-embracing and exclusive federal
power may be, temporarily at least, put out of view, and the
assertion on the other of an absolutely exclusive state power may
also be eliminated from consideration because not relied upon, or
because it is both demonstrated and admitted to be without
foundation, it follows that to dispose of the case we are called
upon only, following the ruling in the
Gloucester Ferry
case, to determine the single and simple question whether there has
been such action by Congress as to destroy the presumption as to
the existence in the state of vicarious and revocable authority
over the subject. We say simple question, because its decision is,
we think, free from difficulty in view of the express provision of
the first section of the Act to Regulate Commerce (Act of February
4, 1887, c. 104, 24 Stat. 379), subjecting railroads, as therein
defined, to the authority of Congress and expressly declaring
that
"the term 'railroad,' as used in this act, shall include all
bridges and ferries used or operated in connection with any
railroad, and also all the road in use by any corporation operating
a railroad, whether owned or operated under a contract, agreement,
or lease. . . ."
The inclusion of railroad ferries within the text is so certain
and so direct as to require nothing but a consideration of the text
itself. Indeed, this inevitable conclusion is not disputed in the
argument for the defendant in error, but it is insisted that, as
the text only embraces railroad ferries, and the ordinances were
expressly decided by the court below only to apply to persons other
than railroad passengers, therefore the action by Congress does not
extend
Page 227 U. S. 264
to the subject embraced by the ordinances. But, as all business
of the ferries between the two states was interstate commerce
within the power of Congress to control, and subject, in any event,
to regulation by the state as long only as no action was taken by
Congress, the result of the action by Congress leaves the subject
-- that is, the interstate commerce carried on by means of the
ferries -- free from control by the state. We think the argument by
which it is sought to limit the operation of the Act of Congress to
certain elements only of the interstate commerce embraced in the
business of ferriage from state to state is wanting in merit. In
the absence of an express exclusion of some of the elements of
interstate commerce entering into the ferriage, the assertion of
power on the part of Congress must be treated as being coterminous
with the authority over the subject as to which the purpose of
Congress to take control was manifested. Indeed, this conclusion is
inevitable, since the assumption of a purpose on the part of
Congress to divide its authority over the elements of interstate
commerce intermingled in the movement of the regulated interstate
ferriage would be to render the national authority inefficacious by
the confusion and conflict which would result. The conception of
the operation at one and the same time of both the power of
Congress and the power of the states over a matter of interstate
commerce is inconceivable, since the exertion of the greater power
necessarily takes possession of the field, and leaves nothing upon
which the lesser power may operate. To concede that the right of a
state to regulate interstate ferriage exists "only in the absence
of federal legislation," and at the same time to assert that the
state and federal power over such subject is concurrent, is a
contradiction in terms. But this view has been so often applied as
to cause the subject to be no longer open to controversy.
Chicago, Rock Island &
Pacific Ry. Co. v. Hardwick Farmers' Elevator
Company, 226 U.S.
Page 227 U. S. 265
426. Because, in the
St. Clair case,
supra, it
was decided that a particular character of transportation of
interstate commerce was not ferriage, and not within state power,
even where there had been no action by Congress, affords no reason
for in this case extending state authority to a subject to which,
consistently with the action of Congress, it cannot be held to
apply.
The judgment of the Supreme Court of the New Jersey will be
reversed and the case remanded for further proceedings not
inconsistent with this opinion.
Reversed.