Port Richmond Bergen Point Ferry Company v. Board of Chosen Freeholders of the County of Hudson, No. 225

CourtUnited States Supreme Court
Writing for the CourtHughes
Citation34 S.Ct. 821,58 L.Ed. 1330,234 U.S. 317
Docket NumberNo. 225
Decision Date08 June 1914
PartiesPORT RICHMOND & BERGEN POINT FERRY COMPANY, Plff. in Err., v. BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF HUDSON

234 U.S. 317
34 S.Ct. 821
58 L.Ed. 1330
PORT RICHMOND & BERGEN POINT FERRY COMPANY, Plff. in Err.,

v.

BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF HUDSON.

No. 225.
Argued March 4, 1914.
Decided June 8, 1914.

Page 318

Mr. Frank Bergen for plaintiff in error.

[Argument of Counsel from pages 318-320 intentionally omitted]

Page 320

Mr. James J. Murphy for defendant in error.

Mr. Justice Hughes delivered the opinion of the court:

The plaintiff in error, Port Richmond & Bergen Point Ferry Company, was incorporated in 1848 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.1 This act prescribed rates of ferriage, as did also the amendatory acts of 1857 (chap. 692) and 1868 (chap. 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

Page 321

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. L. 614, 77 Atl. 1046), and its judgment was affirmed by the court of errors and appeals. 82 N. J. L. 536, 82 Atl. 729. 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, Rep. 508; Re Fay, 15 Pick. 243, 249, 253; New York v. Starin, 106 N. Y. 1, 10, 11, 12 N. E. 631; 3 Kent, Com. 458; 2 Washb. 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. Coolly, 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 prac-

Page 322

tice has had continuous illustration in a great variety of instances, from the foundation of the government to the present day.2

The court of errors and appeals of New Jersey in the case of Hudson County v. State (1853) 24 N. J. L. 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

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owner or keeper, as Dunk's ferry, Corriel's ferry, etc. In many cases, where the river was not too wide, a bell or horn, or some other signal was established on the side of the river opposite to that where the owner lived, so that persons coming there who desired to pass over, could make known their wishes. Probably but few, if any, of the keepers, had a boat constantly running, or started at any particular hour. In some cases, there were ferry owners on both sides of the river; but the ferry or ferries on each side were considered and spoken of as distinct ferries, and had distinct owners

Page 324

In view of the extended consideration which the decisions of this court bearing upon the questions involved have received in recent opinions (St. Clair County v. Interstate Sand & Car Transfer Co. 192 U. S. 454, 48 L. ed. 518, 24 Sup. Ct. Rep. 300; New York C. & H. R. R. Co. v. Hudson County, 227 U. S. 248, 57 L. ed. 499, 33 Sup. Ct. Rep. 269), it is not necessary to review them at length. The authority of the state to grant franchises for ferries to be operated from its shores across boundary waters was distinctly recognized in Fanning v. Gregoire, 16 How. 524, 14 L. ed. 1043; Conway v. Taylor, 1 Black, 603, 17 L. ed. 191; and Wiggins Ferry Co.

Page 325

v. Fast St. Louis, 107 U. S. 365, 27 L. ed. 419, 2 Sup. Ct. Rep. 257. While in Fanning v. Gregoire, supra, the plaintiff's license for a ferry across the Mississippi river from Dubuque, Iowa, was held, under the terms of the grant, not to be exclusive as against the subsequent licensee, the court said that the commercial power of Congress did not 'interfere with the police power of the states in granting ferry licenses.' In Conway v. Taylor, supra, the court upheld a judgment which restrained the appellants (the owners of a ferry from Cincinnati, Ohio, to Newport, Kentucky) from conducting the ferry from the Kentucky shore to Ohio in violation of the rights of the appellees under their Kentucky franchise. Referring to the latter, the court said:

'The franchise in confined to the transit from the shore of the state. The same rights which she claims for herself she concedes to others. . . . 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.' With respect to 'ordinary commercial navigation,' the authority of the appellants to transport persons and property from the Kentucky shore was undoubted. The owners of the Kentucky franchise, it was said, had no right to exclude or restrain those who were prosecuting 'the business of commerce in good faith, without the regularity or purposes of ferry trips,' but, as the appellants' boat was run 'openly and avowedly as a ferryboat,' as 'that was her business,' the injunction was sustained. After referring to the commerce clause, the opinion concluded: '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. . . . 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

Page 326

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.' These cases were cited with approval in Wiggins Ferry Co. v. East St. Louis, 107 U. S. 365, 27 L. ed. 419, 2 Sup. Ct. Rep. 257. There, the ferry company was an Illinois corporation and held a franchise granted by the legislature of that state for the operation of a ferry from East St. Louis, Illinois to St. Louis, Missouri. The payment of a license tax imposed upon the company in Illinois, for the privilege of conducting the ferry, was resisted under the commerce clause, but the contention was overruled, the court holding that 'the levying of a tax upon vessels or other water-craft, or the exaction of a license fee by the state within which the property subject to the exaction has its situs, is not a regulation of commerce within the meaning of the Constitution.' (Id. p. 373.)

It is manifest, however, that the transportation of persons and property from one state to another is none the less interstate commerce because conducted by ferry; and it is not open to question that ferries maintained for that purpose are subject to the regulating power of Congress. It necessarily follows that whatever may properly be regarded as a direct burden upon interstate commerce, as conducted by ferries operating between states, it is beyond the competency of the states to impose. This was definitely decided in Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 29 L. ed. 158, 1 Inters. Com. Rep. 382, 5 Sup. Ct. Rep. 826. The commonwealth of Pennsylvania had imposed a tax upon the ferry company, based upon the estimated value of its capital stock, upon the ground that it was doing business within the state.

The company was incorporated in New Jersey and maintained a ferry from Gloucester, in that state, to Philadelphia. Save for the wharf that it leased at the latter place, its

Page 327

property, including its boats, had its situs in New Jersey; and its entire business consisted in ferrying. The tax upon the 'receiving and landing of passengers and freight at the wharf in Philadelphia,' which was a necessary incident to the transportation across the Delaware river, was a tax upon that transportation; and in this view the tax...

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51 practice notes
  • Wis. Labor Relations Bd. v. Fred Rueping Leather Co.
    • United States
    • United States State Supreme Court of Wisconsin
    • May 17, 1938
    ...U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327, 38 L.R.A.,N.S., 44; Port Richmond & Bergen Point Ferry v. Board of Freeholders of Hudson County, 234 U.S. 317, 34 S.Ct. 821, 58 L.Ed. 1330;Oregon-Washington R. & N. Co. v. Washington, 270 U.S. 87, 46 S.Ct. 279, 70 L.Ed. 482;Savage v. Jones, 225 U.......
  • Garner v. State of Louisiana Briscoe v. State of Louisiana Hoston v. State of Louisiana, Nos. 26
    • United States
    • United States Supreme Court
    • December 11, 1961
    ...enterprise falls when it discriminates against interstate commerce. Port Richmond Ferry v. Board of Chosen Freeholders of Hudson County, 234 U.S. 317, 34 S.Ct. 821, 58 L.Ed. 1330. State regulation of private enterprise that results in impairment of other constitutional Page 182 rights shoul......
  • McNeely & Price Co. v. Philadelphia Piers, Inc.
    • United States
    • United States State Supreme Court of Pennsylvania
    • January 24, 1938
    ...distinguishable from the case at bar. In Port Richmond & Bergen Point Ferry Co. v. Board of Chosen Freeholders of Hudson County, 234 U.S. 317, 34 S.Ct. 821, 826, 58 L.Ed. 1330, cited by plaintiff, the Supreme Court held that since the "transportation [was] for a short distance * * ......
  • Marsh v. State of Alabama, No. 114
    • United States
    • United States Supreme Court
    • January 7, 1946
    ...Richmond & Bergen Point Ferry Co. v. Board of Chosen Freeholders of Hudson County, supra, 234 U.S. at page 326, 34 S.Ct. at page 823, 58 L.Ed. 1330, and cases cited, 234 U.S. at pages 328, 329, 34 S.Ct. at pages 824, 825; cf. South Carolina State Highway Department v. Barnwell Brothers,......
  • Request a trial to view additional results
51 cases
  • Wis. Labor Relations Bd. v. Fred Rueping Leather Co.
    • United States
    • United States State Supreme Court of Wisconsin
    • May 17, 1938
    ...U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327, 38 L.R.A.,N.S., 44; Port Richmond & Bergen Point Ferry v. Board of Freeholders of Hudson County, 234 U.S. 317, 34 S.Ct. 821, 58 L.Ed. 1330;Oregon-Washington R. & N. Co. v. Washington, 270 U.S. 87, 46 S.Ct. 279, 70 L.Ed. 482;Savage v. Jones, 225 U.......
  • Garner v. State of Louisiana Briscoe v. State of Louisiana Hoston v. State of Louisiana, Nos. 26
    • United States
    • United States Supreme Court
    • December 11, 1961
    ...enterprise falls when it discriminates against interstate commerce. Port Richmond Ferry v. Board of Chosen Freeholders of Hudson County, 234 U.S. 317, 34 S.Ct. 821, 58 L.Ed. 1330. State regulation of private enterprise that results in impairment of other constitutional Page 182 rights shoul......
  • McNeely & Price Co. v. Philadelphia Piers, Inc.
    • United States
    • United States State Supreme Court of Pennsylvania
    • January 24, 1938
    ...distinguishable from the case at bar. In Port Richmond & Bergen Point Ferry Co. v. Board of Chosen Freeholders of Hudson County, 234 U.S. 317, 34 S.Ct. 821, 826, 58 L.Ed. 1330, cited by plaintiff, the Supreme Court held that since the "transportation [was] for a short distance * * ......
  • Marsh v. State of Alabama, No. 114
    • United States
    • United States Supreme Court
    • January 7, 1946
    ...Richmond & Bergen Point Ferry Co. v. Board of Chosen Freeholders of Hudson County, supra, 234 U.S. at page 326, 34 S.Ct. at page 823, 58 L.Ed. 1330, and cases cited, 234 U.S. at pages 328, 329, 34 S.Ct. at pages 824, 825; cf. South Carolina State Highway Department v. Barnwell Brothers,......
  • Request a trial to view additional results

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