Argument for Plaintiff in Error. 234 U. S. of ferriage on a boundary ferry as requiring the issuing of round trip tickets, and this court does not so construe it, the ordinance may be valid as limiting the amount which may be charged if such trip tickets are issued; and so held in this case. Quare as to whether a State may require round trip tickets to be issued on a boundary ferry. S2 N. J. Law, 536, affirmed. THE facts, which involve the power of a State, or a municipality acting under its authority, to establish rates of transportation on ferries plying between one of its ports and a port of another State, are stated in the opinion. Mr. Frank Bergen for plaintiff in error: A State cannot prescribe rates to be charged by a person or corporation operating an interstate ferry not in connection with a railroad, because a ferry across an interstate stream is an instrument of interstate commerce; the transportation of passengers, vehicles, horses and cattle from one State to another, is interstate commerce; prescribing rates for such transportation is a direct regulation of interstate commerce; and the power to regulate directly commerce among the States can be exercised only by authority of Congress. Covington Bridge Co. v. Kentucky, 154 U. S. 204; Covington Elevated R. R. Co. v. Kentucky, 154 U. S. 224. A ferry operated in connection with a railroad and carrying passengers who arrive at the ferry by rail, and also passengers who arrive at the ferry otherwise, is not subject to regulation as to its rates by authority of a State. N. Y. Central Case, 74 N. J. Law, 367; 76 N. J. Law, 664; 80 N. J. Law, 305; and see International Transit Co. v. Sault Ste. Marie, 194 Fed. Rep. 522; Charles River Bridge v. Warren Bridge, 11 Pet. 420, 620; Gloucester Ferry Case, 114 U. S. 196. States have indeed exercised control in some instances over commerce by means of interstate ferries and bridges 234 U. S. Argument for Plaintiff in Error. since the Federal Constitution was adopted, and there are expressions in a few opinions of this court that have been supposed to recognize the authority of the States to do so (see Fanning v. Gregoire, 16 How. 524; Conway v. Taylor, 1 Bl. 603; Wiggins Ferry Co. v. East St. Louis, 107 U. S. 365), but there is no decision of this court to that effect. Gibbons v. Ogden, 9 Wheat. 1, 203, does not support this, although sometimes cited to that effect, and see St. Clair County v. Interstate Transfer Co., 192 U. S. 454; Covington Bridge Co. v. Kentucky, 154 U. S. 204; N. Y. Cent. R. R. Co. v. Hudson County, 227 U. S. 248; Wabash Ry. Co. v. Illinois, 118 U. S. 557. Nearly every important instrument of interstate commerce was created by authority of the States; but that fact does not justify or support the conclusion that commerce carried on by those instruments may be directly regulated by the States. Covington Bridge Co. v. Kentucky, supra, at p. 219; New York v. New Jersey Nav. Co., 106 N. Y. 28. The States may make and enforce regulations that indirectly and in minor particulars affect interstate commerce until Congress takes action, after that, as to all matters covered by congressional action, state regulations must give way. Gloucester Ferry Case, supra, at p. 214; Covington Bridge Co. v. Kentucky, supra; Robbins v. Shelby Taxing District, 120 U. S. 489; Minnesota Rate Cases, 230 U. S. 352, 398-412. For cases in New Jersey in which the authority of the State to prescribe rates to be charged by owners of interstate ferries has been considered, see State v. Freeholders of Hudson, 23 N. J. Law, 206, aff'd, 24 N. J. Law, 718; New York Central Case, 74 N. J. Law, 367; 76 N. J. Law, 664, 679; 227 U. S. 248. The history of the commerce clause of the Constitution confirms the opinion that it was intended to transfer the power to regulate directly foreign commerce and commerce among the States of all kinds and by every means, from the States to the National Government. See letters by Madison to Cabell (1829), and to Davis (1832); Letters and Writings of Madison, vol. iv, pp. 14 and 247; Curtis' Const. Hist. U. S., vol. 1, p. 231, note; Elliot's Debates, vol. 1, p. 115, ed. 1876; Webster's Works, vol. vi, p. 9, 8th ed. 1854; 9 Wheat. at p. 226, and 12 Wheat. at p. 445. If the power to regulate foreign commerce was transferred to Congress by the Constitution, it cannot be denied that power to regulate interstate commerce was also transferred at the same time. Story's Constitution, § 1065; Crutcher v. Kentucky, 141 U. S. 47, 57; West. Un. Tel. Co. v. Kansas, 216 U. S. 1. Rev. Stat., § 2792, evidently relates to ferries between points in Canada and Mexico and the United States, but § 4426 applies to all ferryboats, and see § 4400; Hall v. De Cuir, 95 U. S. 485, 488. Mr. James J. Murphy for defendant in error. MR. JUSTICE HUGHES delivered the opinion of the court. The plaintiff in error, Port Richmond and Bergen Point Ferry Company, was incorporated in 1848 (c. 306) by special act of the legislature of New York for the purpose of maintaining a ferry across the Kill von Kull from Port Richmond, Staten Island, New York, to Bergen Point, Hudson County, New Jersey. This act prescribed rates of ferriage as did also the amendatory acts of 1857 (c. 692) and 1868 (c. 778). The ferry is not operated in connection with any railroad. In July, 1905, the Board of Chosen Freeholders of the County of Hudson, New Jersey, passed two resolutions 1 See also Laws of New York, 1857, chap. 692; 1860, chap. 266; 1864, chap. 290; 1868, chap. 778; 1873, chap. 300; 1881, chap. 652. 234 U.S. Opinion of the Court. fixing the rates to be taken at the ferry of this company within the County of Hudson for the transportation of foot passengers for single trips to the New York terminal, and for round trips to that terminal and return, respectively. This action was taken under the authority of an act of the legislature of New Jersey passed in 1799, providing as follows: "That the board of chosen freeholders shall be, and they hereby are empowered and directed to fix the rates to be taken at the several ferries within their respective counties, and the same, from time to time, to revise, alter, amend, or make anew at their discretion." Comp. Stat. (N. J.) p. 2308. On certiorari, the Supreme Court of the State of New Jersey sustained the validity of these resolutions against the objection that they were repugnant to the commerce clause of the Federal Constitution (80 N. J. Law, 614) and its judgment was affirmed by the Court of Errors and Appeals. 82 N. J. Law, 536. This writ of error is prosecuted. The plaintiff in error contends that the action of the board is void for the reason that the transportation is interstate and the fixing of rates therefor is a direct regulation of interstate commerce. At common law, the right to maintain a public ferry lies in franchise; in England such a ferry could not be set up without the King's license, and, in this country, the right has been made the subject of legislative grant. Blissett v. Hart, Willes, 508; Fay, Petitioner, 15 Pick. 243, 249, 253; Mayor &c. of New York v. Starin, 106 N. Y. 1, 10, 11; 3 Kent's Com. 458; 2 Washburn, Real Prop., 4th ed., 292. The States have been accustomed to grant such franchises not only for ferries wholly intrastate but also for those to be operated from their shores to other States. Cooley, Const. Lim. 740. They have fixed the rates for such ferriage; and this has been done both directly by the legislature and also through designated courts and local boards acting under legislative sanction. The pracVOL. CCXXXIV-21 Opinion of the Court. 234 U.S. tice has had continuous illustration in a great variety of instances from the foundation of the Government to the present day.1 The Court of Errors and Appeals of New Jersey in the case of Chosen Freeholders of Hudson County v. The State (1853), 4 Zab. 718, sustained the authority of the board to prescribe ferry rates between New Jersey and New York. Speaking through Elmer, J., the court thus described conditions existing at the time of the passage of the above-mentioned act of 1799 and its purpose: "When the act was passed, long before the invention of steamboats, ferries were generally the property of one or two individuals, established for the public convenience and private gain, by the owners of the shore, sometimes by virtue of a grant or law, and sometimes without any public authority. The owner or keeper resided on the one bank or the other of the river over which the ferry passed, and kept his boats and other apparatus where he resided. The ferry was commonly known and designated by the name of the place from which it started, and where such owner resided, as Paulus Hook ferry; or from the name of the 1 A few of these instances may be cited: New York.-Across Lake Champlain: Laws of 1803, chap. 37; 1810, chap. 61; 1812, chap. 60. (These are referred to in the argument of counsel in Gibbons v. Ogden, 9 Wheat. 1, 97; see 3 C. R. & G. Webster ed. Laws of New York, p. 321; 6 Websters & Skinner ed., p. 16; id., p. 394.) See also Laws of 1831, chap. 105; 1847, chap. 288; 1886, chap. 674; 1901, chap. 442; 1907, chap. 392. Between New York and New Jersey: Laws of 1850, chap. 314; 1870, chap. 731. Vermont.-Across Lake Champlain: Laws of 1799, p. 63; 1801, p. 72; 1820, chap. 115; 1890, chap. 116; 1896, chap. 298. New Hampshire. -Across Connecticut River: Laws of 1863, chap. 2822; 1867, chap. 86. Missouri.-Mississippi River: Laws of 1855, p. 516; 1870, p. 231. Des Moines River: Laws of 1855, p. 517. Missouri River: Laws of 1855, p. 229; 1863–64, p. 312. Nebraska.-Compiled Statutes of 1907, § 3549. |