County of St Clair v. Interstate Sand Car Transfer Company

• Decision Date: 23 February 1904
• Docket Number: No. 17,17
• Citation: 192 U.S. 454,24 S.Ct. 300,48 L.Ed. 518
• Parties: COUNTY OF ST. CLAIR, Plff. in Err. , v. INTERSTATE SAND & CAR TRANSFER COMPANY
• Court: U.S. Supreme Court

192 U.S. 454

24 S.Ct. 300

48 L.Ed. 518

COUNTY OF ST. CLAIR, Plff. in Err.,

v INTERSTATE SAND & CAR TRANSFER COMPANY.

No. 17.

Argued and submitted March 19, 20, 1903.

Decided February 23, 1904.

Mr.Charles W. Thomas for plaintiff in error.

Messrs. John F. Lee and George R. Lockwood for defendant in error.

[Argument of Counsel from page 455 intentionally omitted]

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:

'And plaintiff avers that the said defendant, in order to keep and use its said ferry at the time of its establishment as aforesaid, constructed and caused to be built a permanent landing place with certain cradles and roadways thereto, within the limits of said county, and has from thence hitherto maintained the same, by means whereof as well as by means of certain steamboats and barges, then and from thence hitherto used for that purpose by the defendant, it, the said defendant, was enabled to and did, at various times and continuously since the day last aforesaid, ferry for profit and hire, property, to wit, certain railroad cars, from said county across the Mississippi river aforesaid, and from the west bank of said river to the said county, and has so ferried said cars within the time aforesaid to the number of, to wit, 80,000 railroad cars across said river, without any license from the county board of the plaintiff so to do, whereby and by virtue of the statute in such case made and provided penalties have accrued to the plaintiff in the sum of $3 for each one of said cars so ferried, to wit, the sum of $240,000.'

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 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):

'Internal commerce must be that which is wholly carried on within the limits of a state; as where the commencement, progress, and termination of the voyage are wholly confined to the territory of the state. This branch of power includes a vast range of state legislation, such as turnpike roads, toll bridges, exclusive rights to run stage wagons, auction licenses, licenses to retailers, and to hawkers and peddlers, ferries over navigable rivers and lakes, and all exclusive rights to carry goods and passengers, by land or water. All such laws must necessarily affect, to a great extent, the foreign trade and that between the states, as well as the trade among the citizens of the same state. But, although these laws do thus affect trade and commerce with other states, Congress cannot interfere, as its power does not reach the regulation of internal trade, which resides exclusively in the states.'

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):

'Neither of these interfere with the police power of the states, in granting ferry licenses. When navigable rivers, within the commercial power of the Union may be obstructed, one or both of these powers may be invoked.'

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 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).

'The concurrent action of the two states was not necessary. 'A ferry is in respect of the landing place, and not of the water. The water may be to one and the ferry to another.' 13 Vin. Abr. 208a.

* * * * *

'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.'

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):

'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 those which respect turnpike roads, ...