1. A ferry franchise on the Ohio is grantable, under the laws of
Kentucky, to a citizen of that state who is a riparian owner on the
Kentucky side, and it is not necessary to the validity of the grant
that the grantee should have a right of landing on the other side
or beyond the jurisdiction of the state.
2. The concurrent action of two states is not necessary to the
grant of a ferry franchise on a river that divides them. A ferry is
in respect to the landing, not to the water; the water may be to
one, and the ferry to another.
3. After a citizen of Kentucky has become the grantee of a ferry
franchise, and his riparian rights have been repeatedly held
sufficient to sustain the grant by the highest legal tribunal of
the state, the same question is not open here; the adjudications of
the state courts are a rule of property and a rule of decision
which this Court is bound to recognize.
4. A license to establish a ferry which does not extend across
the river may be less valuable for that reason, but not less valid
as far as it goes.
5. The laws of Kentucky relating to ferries on the Ohio and
Mississippi are like the laws of most, if not all, the other states
bordering on those rivers: they do not leave the rights of the
public unprotected, and are not unconstitutional. The franchises
which the state grants are confined to the transit from her own
shores, and she leaves other states to regulate the same rights on
their side.
6. A ferry franchise is property, and as sacred as other
property.
7. An injunction to protect the exclusive privilege to a ferry
does not conflict or interfere with the right of a boat to carry
passengers or
Page 66 U. S. 604
goods in the ordinary prosecution of commerce without the
regularity or purpose of ferry trips; that remedy applies only to
one which is run openly and avowedly as a ferry boat.
8. The authority to establish and regulate ferries is not
included in the power of the federal government to "regulate
commerce with foreign nations and among the several states and with
the Indian tribes."
9. The authority to regulate ferries has never been claimed by
the general government, has always been exercised by the states,
never by Congress, and is undoubtedly a part of the immense mass of
undelegated powers reserved to the states respectively.
James Taylor, executor of James Taylor, deceased, and Robert
Air, filed their bill in equity in the Circuit Court of Campbell
County, Kentucky, against Peter Conway, John J. Simmons, John
Sebree, Ernest Klinschmidt, Bernard Delmar, John Schenburg, Thomas
Dodsworth, Daniel Wolff, and the Common Council of the City of
Newport. The prayer of the bill was that defendants might be
enjoined from invading certain ferry rights claimed by plaintiffs
as set forth in their bill. An account was also prayed for, and a
decree against the defendants in respect of the moneys received by
them in violation of the rights of complainants. The defendants
filed answers to the bill, and after the taking of much testimony
and hearing of the cause, a decree was passed for plaintiffs in
accordance with the prayer of their bill. From this decree
defendants appealed to the Court of Appeals of the State of
Kentucky, where an order was entered modifying the decree of the
court below, but still adverse to defendants. The cause was then
removed to the Supreme Court of the United States upon a writ of
error under the 25th section of the judiciary act.
All the leading facts of the case are stated in the opinion of
MR. JUSTICE SWAYNE.
Page 66 U. S. 622
MR. JUSTICE SWAYNE.
The appellees filed their bill in equity in the Circuit Court of
Campbell county, Kentucky, seeking thereby to enjoin the appellants
from invading the ferry rights claimed by them as set forth in
their bill, and also praying for an account and a decree against
the appellants in respect of the moneys received by them in
violation of the alleged rights of the complainants. The appellants
answered, proofs were taken, and the case brought to hearing.
The Circuit Court of Campbell county entered a decree
Page 66 U. S. 623
against the appellants. They removed the cause to the Court of
Appeals of Kentucky. That court modified the decree of the court
below, but also decreed against them. They thereupon brought the
cause to this Court by a writ of error under the 25th section of
the Judiciary Act of 1789. It is now presented here for
adjudication.
The case made by the pleadings and proofs is substantially as
follows:
On the 29th of April, 1787, James Taylor of Virginia, received
from that state a patent for 1,500 acres of land lying upon the
Ohio and Licking Rivers at the confluence of those streams and
above the mouth of the latter.
In 1792, James Taylor, the patentee, by his agent, Hubbard
Taylor, laid out the Town of Newport at the confluence of the two
rivers upon a part of the tract of fifteen hundred acres.
According to the map of the town as surveyed and thus laid out,
the lots and streets did not extend to either of the rivers. A
strip of land extending to the water line was left between the
street running parallel with and nearest to each river.
In July, 1793, John Bartle applied to the Mason County Court for
the grant of a ferry from his lot in Newport, on Front Street
across the Ohio to Cincinnati. An order was made accordingly, but
the appellate court of Kentucky reversed and revoked it on the 15th
of May, 1798, upon the ground that it did not appear that his lot
extended to the Ohio River.
On the 29th of January, 1794, a ferry was granted to James
Taylor of Virginia, by the Mason County Court, from his landing in
front of Newport, across the Ohio River, with authority to receive
the same fares which were allowed upon transportation from the
opposite shore. A ferry across the Licking was also
granted to him.
On the 20th August, 1795, a re-survey and plat of the Town of
Newport was made by which the eastern limits of the town were
extended to "Eastern Row," and the strip of ground between the Ohio
River and the northern boundary of the town, and between Licking
River and the western boundary of the town, were endorsed "Common
or
esplanade, to remain common forever." This plat was
made by Roberts.
Page 66 U. S. 624
On the 14th December, 1795, an act was passed by the Legislature
of Kentucky incorporating the Town of Newport in conformity with
the re-survey and plat of Roberts.
The preamble and so much of the act as is deemed material in
this case are as follows:
"Whereas it is represented to the present general assembly that
one hundred and eighty acres of land, the property of James Taylor,
in the County of Campbell, have been laid off into convenient lots
and streets by the said James Taylor for the purpose of a town, and
distinguished by the name of Newport, and it is judged expedient to
vest the said land in trustees and establish the town:"
"§ 1.
Be it therefore enacted by the general assembly
that the
land comprehending the said town, agreeably to a
plat made by John Roberts, be vested in Thomas Kennedy and others,
'who are hereby appointed trustees for the same, except such parts
as are hereafter excepted.'"
"§ 7.
Be it further enacted that such part of said town
as lies between the lots and Rivers Ohio and Licking, as will
appear by a reference to the said plat, shall forever remain for
the use and benefit of said town for a common,
reserving to the
said James Taylor, and his heirs and assigns, every advantage and
privilege which he has not disposed of or which he would by law be
entitled to."
The streets and lots exhibited by the Roberts' plat of 1795, as
by that of 1792, did not extend to either the Ohio or Licking
River.
The disputed ground between the northern boundary of Front
Street and the Ohio River varies in width according to the
inflexions in the line bounding the margin of the river at high
water mark, from five to ten poles, and the distance from high to
low water mark varies from seventeen to two hundred yards, and was
not included in the 180 acres laid out for the town. This area is
denominated "the esplanade."
In 1799, James Taylor of Virginia, the patentee, conveyed to his
son, James Taylor of Kentucky, this strip of ground, between Front
Street and the Ohio River, together with the other land adjacent to
the 180 acres laid out in the plat of the town in 1795, and also
the ferry franchise.
Page 66 U. S. 625
James Taylor of Kentucky, from the time of the conveyance by his
father to him, in 1799, continued to run the ferry from the ground
in front of Newport, on which it was originally established.
In consequence of the passage of the act of 1806 by the
Legislature of Kentucky, concerning ferries, James Taylor of
Kentucky applied to the Campbell County Court in 1807 for the
establishment of the ferry granted to his father, and the ferry was
reestablished in his name, and he executed a bond, and continued to
run the ferry from almost every part of the ground or esplanade, in
front of the Town of Newport, from that period to the time of the
filing of the bill in this case.
In 1830, the Town of Newport applied to the Campbell County
Court for the grant to said town of a ferry, from the esplanade
across the Ohio River to Cincinnati, which application was refused.
An appeal was taken to the Court of Appeals, and at the June term,
1831, the order of the Campbell County Court was affirmed.
This case is reported in 6 J. J. Marshall 134.
James Taylor of Virginia, and his grantee and son, James Taylor
of Kentucky, continued therefore uninterruptedly to run this ferry
from 1794 until the commencement of this suit. The proof shows also
that he constantly exercised acts of ownership over the whole
common in front of Newport, and did not permit even the quarrying
of stone without his consent; that he was in the habit of landing
his ferry boats at various points on this common or esplanade from
time to time, and that he acquiesced in its free use as a common
for egress and ingress by the people of the town, but always
claimed and exercised the exclusive ferry privilege.
"After the incorporation of the Town of Newport as a city, the
City of Newport applied in 1850, at the February term of the
Campbell County Court, for the grant of a ferry across the Ohio
River, to the president and Common Council of the City of Newport.
No notice was given of the application, and the ferry was
granted."
At the time of this application, James Taylor of Kentucky
Page 66 U. S. 626
had departed this life, leaving a will and appointing his son,
James Taylor, his executor, and making a particular devise of this
ferry and requiring his executor to rent it until the taking effect
of the devise, as provided in the will.
As soon as the action of the Campbell County Court granting a
ferry to the City of Newport was known, a writ of error was sued
out from the
circuit court by the executor and devisees of
James Taylor of Kentucky to reverse the order of the
county
court whereby the ferry was granted. The order was reversed.
The City of Newport took the case to the Court of Appeals of
Kentucky. That court, in March, 1850, affirmed the judgment of the
circuit court. This case is reported in 11 B.Monroe 361.
It appears in the proofs that the ferry boats used by the
appellees were duly enrolled, inspected, and licensed under the
laws of the United States.
No claim is set up in the bill as to any ferry license from Ohio
or to any right of landing on the Ohio side.
In 1853, the appellants built the steamer
Commodore and
constituted themselves "The Cincinnati and Newport Packet company"
for the purpose of running that steamer as a ferry boat from
Cincinnati to Newport and from Newport to Cincinnati. They rented
for five years a portion of the esplanade in front of Monmouth
Street,
in the City of Newport, from the common council of
that city.
The
Commodore was a vessel of 128 tons burden and in
all respects well appointed and equipped.
The appellants caused her to be enrolled on the 4th of January,
1854, at the custom house at Cincinnati, under the act of Congress
for enrolling and licensing vessels to be employed in the coasting
trade and fisheries, with Peter Conway as master, and obtained on
the same day, from the surveyor of customs at the port of
Cincinnati, a license for the employment and carrying of the
coasting trade.
They commenced running her as a ferry boat from Cincinnati to
Newport and from Newport to Cincinnati on the 5th of January,
1854.
Page 66 U. S. 627
Her landings were at the wharves on each side of the river,
opposite to each other, the landing in Newport being at the foot of
Monmouth Street.
The right of the
Commodore to land there for all lawful
purposes was not contested in the Court of Appeals, and was not
questioned in the argument here.
In January, 1854, the appellees exhibited their bill in equity
against the appellants.
In the same month, a preliminary injunction was granted
restraining the appellants from running the
Commodore as a
ferry boat between the Cities of Cincinnati and Newport.
In the progress of the cause, proceedings were instituted
against the appellants for contempt of the court in violating this
injunction. It was then made to appear that the appellants had, on
the 6th of March, 1854, obtained a ferry license under the laws of
Ohio. This fact appears in the record, and is adverted to in the
judgment of the Court of Appeals.
Upon the final hearing, the Campbell Circuit Court decreed, that
an account should be taken of the ferriages received by the
appellants on account of the
Commodore, and that they
"be and they are, each and all of them, perpetually enjoined
from landing the boat called in the pleadings and proof the
'Commodore,' or any other boat or vessel, upon that part
of the Kentucky shore of the Ohio River lying between the lots of
the City of Newport and the Ohio River designated upon the plat of
the Town of Newport as the 'esplanade,' and including the whole
open space so designated, for the purpose of receiving or landing
either persons or property
ferried from or to be ferried to the
opposite shore of the Ohio River."
"It being hereby adjudged against all the defendants to this
action that the entire privilege and franchise of ferrying persons
and property to and from said part of the Kentucky shore of the
Ohio River is in the plaintiffs alone, and it is hereby adjudged
that the receiving of persons, animals, carriages, wagons, carts,
drays, or any other kind of vehicle, either loaded or empty, upon
said boat or any other vessel at said part of the Kentucky shore
for the purpose of being transported and landed upon the opposite
shore of the Ohio River and
Page 66 U. S. 628
the landing of persons, animals, and the kind of property above
described, which had been received upon said boat or other vessel
at or from the opposite shore of the Ohio River, and transported
across said river, upon said part of the Kentucky shore, is an
infringement of the ferry franchise of the plaintiffs, and is
hereby perpetually enjoined, and this injunction shall extend to
and embrace all persons claiming under the defendants to this
action."
In reviewing this adjudication, the Court of Appeals held:
"The judgment is erroneous in the extent to which it perpetuates
the injunction and to which it restrains the
Commodore and
the defendants in landing upon the slip in question persons and
property transported from the Ohio shore, and in adjudging, as it
seems to do, the exclusive right of ferrying from both sides of the
river to be in plaintiffs alone.
The transportation as carried
on was illegal and properly enjoined, and the injunction
should have been perpetuated against future
transportation of a
like kind, either under color of any license obtained, or to
be obtained, from the authorities of the United States under the
existing laws, or without such license, unless authorized to
transport from the Ohio shore from a ferry established on that side
under the laws of that state, and they might have been restrained
or prohibited, under all or any circumstances, from transporting
persons or property from this to the other side, within the
interdicted distance above or below an established ferry on this
side, unless authorized under the laws of this state to do so, and
the exclusive right of ferrying from the Kentucky side should have
been declared to be in the plaintiffs."
"Wherefore the judgment perpetuating said injunction and
adjudging the exclusive right of ferrying from both sides of the
river to be in the plaintiffs is reversed, and the cause as to that
is remanded with directions to perpetuate the injunction to the
extent just indicated, and to adjudge the right as above
directed."
"And afterwards, to-wit, on the 9th day of February, 1860, the
following order was entered on the records of this Court:"
"
City of Newport v. Taylor's Executors et al. Judge
Campbell. "
Page 66 U. S. 629
"It is ordered that the mandate be amended as follows: that the
judgment perpetuating the said injunction is reversed, and the
cause as to that is remanded with directions to perpetuate the
injunction to the extent just indicated, and to adjudge the right,
as above directed."
It is objected by the appellants that no such ferry franchise
exists as was sought to be protected by this decree, because it was
granted under the laws of Kentucky, and did not embrace a landing
on the Ohio shore. It is insisted that such a franchise, when
confined to one shore, is a nullity, and that the concurrent action
of both states is necessary to give it validity.
Under the laws of Kentucky, a ferry franchise is grantable only
to riparian owners. The franchise in this instance was granted in
pursuance of those laws. Any riparian ownership, or right of
landing, or legal sanction of any kind beyond the jurisdiction of
that state, is not required by her laws.
The riparian rights of James Taylor, deceased, and of his
executor and devisees in respect of the Kentucky shore have been
held sufficient to sustain a ferry license by the highest legal
tribunal of that state whenever the subject has been presented. The
question came under consideration and was discussed and decided in
the year 1831 in 6 J.J.Marshall 134,
Trustees of Newport v.
James Taylor; in 1850 in B.Monroe 361,
City of Newport v.
Taylor's Heirs; in 1855 in this case, 16 B.Monroe 784; and
finally, in 1858, in the
City of Newport v. Air &
Wallace (Pamphlet copy of Record).
These adjudications constitute a rule of property, and a rule of
decision which this Court is bound to recognize. Were the question
an open one and now presented for the first time for determination,
we should have no hesitation in coming to the same conclusion. We
do not see how it could have been decided otherwise. This point was
not pressed by the counsel for the appellants. The judgments
referred to exhaust the subject. We deem it unnecessary to go again
over the same ground.
The concurrent action of the two states was not necessary. "A
ferry is in respect of the landing place, and not of the
Page 66 U. S. 630
water. The water may be to one, and the ferry to another." 13
Viner's Ab. 208, A.
In 11 Wend. 590,
People v. Babcock, this same objection
was urged, in respect of a license under the laws of New York, for
a ferry across the Niagara River. The court said:
"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 point has been ruled in the same way in a large number of
other cases:
2 McLean 377,
Bowman's Devisees v. Burnley; 3 Yerger
390,
Memphis v. Overton; 1 Green's Iowa 498,
Phelps v.
Bloomington; 4 Zabriskie 723,
Freeholders v.
State; 49 U. S. 8 How.
569,
Wills v. St. Clair County; 57 U. S. 16 How.
524,
Fanning v. Gregoire.
In the case last cited,
Fanning v.
Gregoire, 16 How. 524, the arguments on file show
that this objection was pressed with learning and ability. In the
opinion delivered, the Court seems to have assumed the validity of
such a license without in terms adverting to the question. Another
question was fully discussed and expressly decided. This point does
not appear in the report of the case.
Our attention has been earnestly invited to the following
provisions of the ferry laws of Kentucky, under which the license
of the appellees was granted:
"None but a resident of Kentucky can hold the grant of a ferry.
Sec. 5, Stanton's Revised statutes, 540."
"Any sale or leasing of a ferry right, or contract not to use
it, made with the owner of a ferry established on the other side of
the Ohio or Mississippi, shall be deemed and abandonment, for which
the right shall be revoked. Sec. 12."
"Anyone who shall, for reward, transport any person or thing
across a watercourse from or to any point within one mile of an
established ferry, unless it be the owner of an established ferry
on the other side of the Ohio and Mississippi
Page 66 U. S. 631
Rivers so transporting to such point on this side, and any owner
or lessee or servant of the owner of a ferry on the other side of
either of those rivers, who shall so transport from this side,
without reward, shall forfeit and pay to the owner of the nearest
ferry the sum of sixteen dollars for every such offense,
recoverable before a justice of the peace. Sec. 14."
"No ferry shall be established on the Ohio River within less
than a mile and a half, nor upon any other stream within less than
a mile of the place in a straight line, where any existing ferry
was pre-established, unless it be a town or city, or where an
impassable stream intervenes."
"No new ferry shall be so granted within a city or town unless
those established therein cannot properly do all the business or
unless public convenience greatly requires a new ferry at a site
not within four hundred yards of that of any other. Sec. 15."
We have considered these in connection with the other provisions
of those laws. Whether they are wise and liberal of the opposite
are inquiries that lie beyond the sphere of out powers and
duties.
Considered all together, they have not seemed to us to de serve
the character which has been ascribed to them. While they fence
about with stringent safeguards the rights of the holder of the
ferry franchise, they do not leave unprotected the rights of the
public. If they give the franchise only to the riparian owner and
citizen of the state, they surround him with sanctions designed to
secure the fulfillment of his obligations.
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. She has thrown no obstacle in the way of the transit from
the states lying upon the other side of the Ohio and Mississippi.
She has left that to be wholly regulated by their ferry laws. We
have heard of no hostile legislation and of no complaints by any of
those states. 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.
Page 66 U. S. 632
Very few adjudged cases have been brought to our notice in which
the ferry rights they authorize to be granted have been challenged,
none in which they have been held to be invalid.
A ferry franchise is as much property as a rent or any other
incorporeal hereditament, or chattels, or realty. It is clothed
with the same sanctity and entitled to the same protection as other
property.
"An estate in such a franchise and an estate in land rest upon
the same principle." 3 Kent's Com. 459.
Lastly, it is urged that, the
Commodore having been
enrolled under the laws of the United States and licensed under
those laws for the coasting trade, the decree violates the rights
which the enrollment and license gave to the appellants in respect
of that trade by obstructing the free navigation of the Ohio.
Here it is necessary to consider the extent of the injunction
which the decree directs to be entered by the court below.
The counsel for the appellants insists that,
"as respects transportation from the Kentucky side, and from the
Commodore's wharf at the foot of Monmouth Street, that
vessel is enjoined, under
'all or any circumstances, from
transporting persons or property' to the opposite shore unless
under the authority of the State of Kentucky."
We do not so understand the decree. If we did, we should without
hesitation reverse it. An examination of the context leaves no
doubt in our minds that the court intended only to enjoin the
Commodore under "all or any circumstances from
transporting persons or property" from the Kentucky shore in
violation of the ferry rights of the appellees, which it
was the purpose of the decree to protect. The bill made no case,
and asked nothing, beyond this. The court could not have intended
to go beyond the case before it. That the appellants had the right
after as before the injunction, in the prosecution of the carrying
and coasting trade and of ordinary commercial navigation, to
transport "persons and property" from the Kentucky shore, no one,
we apprehend, will deny. The limitation is the line which protects
the ferry rights of the appellees.
Page 66 U. S. 633
Those rights give them no monopoly, under "all circumstances,"
of all commercial transportation from the Kentucky shore. They have
no right to exclude or restrain those there prosecuting the
business of commerce in good faith, without the regularity or
purposes of ferry trips, and seeking in nowise to interfere with
the enjoyment of their franchise. To suppose that the Court of
Appeals, in the language referred to, intended to lay down the
converse of these propositions would do that distinguished tribunal
gross injustice.
The
Commodore was run openly and avowedly as a ferry
boat; that was her business. The injunction as to her and her
business was correct.
The language of the court must be considered as limited to that
subject. The zeal with which this point was pressed by the counsel
for the appellants has led us thus fully to consider it.
The enrollment of the
Commodore ascertained her
ownership and gave her a national character.
The license gave her authority to carry on the coasting trade.
Together, they put the appellants in a position to make the
question here to be considered.
The language of the Constitution to which this objection refers
is as follows: "The Congress shall have power to regulate commerce
with foreign nations and among the several states, and with the
Indian tribes." Art. I, § 8, clause 4.
The character and extent of the power thus conferred, and the
boundaries which separate that power from the powers of the states
touching the same subject, came under discussion in this Court for
the first time in
Gibbons v.
Ogden, 9 Wheat. 1. It was argued on both sides with
exhaustive learning and ability. The judgment of the Court was
delivered by Chief Justice Marshall. 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 internal commerce of a state,
and
Page 66 U. S. 634
those which respect turnpike roads, ferries &c., are parts
of this mass."
The proposition thus laid down has not since been questioned in
any adjudicated case.
The same principle has been repeatedly affirmed in other cases
both in this and the state courts.
In
Fanning v.
Gregoire, 9 How. 534, before referred to, this
Court held:
"The argument that the free navigation of the Mississippi,
guaranteed by the ordinance of 1787, or any right which may be
supposed to arise from the exercise of the commercial power of
Congress, does not apply in this case. Neither or these interferes
with
the police powers of a state in granting ferry
licenses. When navigable rivers within the commercial powers of the
Union may be obstructed, one or both of these powers may be
invoked."
Rights of commerce give no authority to their possessor to
invade the rights of property. He cannot use a bridge, a canal, or
a railroad without paying the fixed rate of compensation. He cannot
use a warehouse or vehicle of transportation belonging to another
without the owner's consent. No more can he invade the ferry
franchise of another without authority from the holder. The
vitality of such a franchise lies in its exclusiveness. The moment
the right becomes common, the franchise ceases to exist.
We have shown that it is property, and as such rests upon the
same principle which lies at the foundation of all other
property.
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.
54 U. S. 13
How. 519,
Wheeling Bridge case. The function is one of
extreme delicacy, and only to be performed where the infraction is
clear. The ferry laws in question in this case are not of that
character. We find nothing in them transcending the legitimate
exercise of the legislative power of the state.
The authorities referred to must be considered as putting the
question at rest. The ordinance of 1787 was not particularly
Page 66 U. S. 635
brought to our attention in the discussion at bar. Any argument
drawn from that source is sufficiently met by what has been already
said.
The counsel for the appellees has invoked the authority of
Cooley v. Board of Wardens of
Philadelphia, 12 How. 299, in which a majority of
this Court held that upon certain subjects affecting commerce as
placed under the guardianship of the Constitution of the United
States, the states may pass laws which will be operative till
Congress shall see fit to annul them.
In the view we have taken of this case, we have found it
unnecessary to consider that subject.
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
the power to establish and regulate ferries -- Congress never. We
have sought in vain for any act of Congress which involves the
exercise of this power.
That the authority lies within the scope of "that immense mass"
of undelegated powers which "are reserved to the states
respectively" we think too clear to admit of doubt.
We place our judgment wholly upon that ground.
There is no error in the decree of the Court of Appeals. It
is therefore affirmed, with costs.