United States v. Burlington & H. County Ferry Co.

• Decision Date: 01 January 1884
• Citation: 21 F. 331
• Parties: UNITED STATES v. BURLINGTON & HENDERSON COUNTY FERRY CO.
• Court: U.S. District Court — Southern District of Iowa

21 F. 331

UNITED STATES v. BURLINGTON & HENDERSON COUNTY FERRY CO.

United States District Court, S.D. Iowa.

June Term, 1884

John S Runnells, Dist. Atty., and William T. Rankin, for libelant.

Newman & Blake, for respondents.

LOVE J.

It thus appears that the boat in question was propelled by steam, and that she was engaged in navigating the Mississippi river, carrying passengers from one place in the state of Iowa to another place in the same state. It does not appear that she was engaged in any interstate commerce whatever. 'Commerce,' says the supreme court of the United States in Gibbons v. Ogden, 9 Wheat. 1, 'is more than traffic: it is intercourse;' and the carrying of passengers is commercial intercourse. The navigation in question was within a 'water of the United States,' as contradistinguished from 'a water of the states;' but the commerce in which the boat was engaged was 'completely internal' to the state of Iowa. Such being the facts, the counsel for the respondents contend that the case is not within the jurisdiction of the district court of the United States. It is necessary, in the decision of this case, to keep clearly in view the definition of the terms 'waters of the United States,' as given by the supreme court of the United States. In The Daniel Ball, 10 Wall. 563, the supreme court say that our rivers are 'navigable waters of the United States, within the meaning of the acts of congress, in contradistinction from the navigable rivers of the states, when they form in their ordinary condition by themselves, or by uniting with other rivers, a continued highway over which commerce is or may be carried on with other states or foreign countries, in the customary modes in which commerce is conducted by water ' Within this definition the court has held the Fox river, and also the Grand river, a small navigable stream wholly within the state of Michigan, flowing into Lake Michigan, to be a 'navigable water' of the United States. See, also, The Montello, 11 Hall. 411, and particularly the same case, 20 Wall. 430. In Ex parte Boyer 109 U.S. 629, S.C. 3 S.Ct. 434, the supreme court approved the dicta of these cases, and held that the Illinois and Michigan canal, though a water-way wholly artificial, is public water of the United States, and within the legitimate scope of the admiralty jurisdiction. It follows that a lake or river which is completely within the limits of a state, without any navigable outlet to any other state or country, is a navigable water of the state not within the jurisdiction of the federal government. It thus appears that the so-called waters of the United States include navigable streams without number; indeed, the whole river system of our country, where navigation exists with a flowage to the sea, or either directly or indirectly from one state to another. Now, suppose a boat or vessel to be plying between two ports in the same state upon any navigable water of the United States as thus defined, but engaged exclusively in the domestic commerce of the state, is she within the admiralty jurisdiction of the United States? Counsel insist that she is not. Is it, then, the character of the river, as a navigable water of the United States, or the particular kind of commerce in which the boat is engaged, that determines the jurisdiction? That the boat, in the case now before the court, was locally within the admiralty jurisdiction of this court, there is, of course, no doubt whatever, for she was afloat upon the Mississippi river. But counsel contend that the 'subject-matter' as well as the locality must be taken into account in determining the jurisdiction; that the boat in question was employed exclusively in the domestic commerce of the state of Iowa; that she was not, therefore, within the grant of power to congress to regulate commerce among the states, which is the only source of power in the constitution applicable to the case.

It will be seen, as we proceed, that the argument of counsel would have had great, perhaps conclusive, force, if it had been made prior to the decision of the supreme court in the case of The Genesee Chief, 12 How. 443, in the year 1851. That decision, it is well known, worked a great change in the jurisdiction of the federal courts with respect to cases growing out of the navigation of the rivers of the United States above tide-water. The effect of that decision will be presently considered.

In order to give jurisdiction to a federal court in any case whatever, the constitution and the statute law must concur. It is not sufficient that the jurisdiction may be found in the constitution or the law. The two must co-operate; the constitution as the fountain, and the laws of congress as the streams from which and through which the waters of jurisdiction flow to the court. This results necessarily from the structure of the federal government. It is a government of granted and limited powers. All powers not granted by the constitution to the federal government nor prohibited to the states are reserved to the states or the people. The great residuum of legislative, executive, and judicial power remains in the states. With respect to the federal government, the question always is, what powers are granted? with regard to the states, what powers are prohibited? There are in the federal constitution two distinct and independent provisions touching the subject of navigation and commerce. Article 1, Sec. 8, as follows: 'Congress shall have power to regulate commerce with foreign nations, and among the several states and among the Indian tribes,' etc. Article 3, Sec. 2: 'The judicial power shall extend to all cases of admiralty and maritime jurisdiction,' etc.

For more than 50 years after the organization of the American courts it was the received doctrine that admiralty jurisdiction was limited to tide-water. This doctrine was inherited with the law of admiralty from the mother country. It received the sanction of the supreme court of the United States in the year 1825, in the case of The Thomas Jefferson, 10 Wheat. 428. The flow of the tides is well adapted to measure the necessity of admiralty jurisdiction in England, where navigation and tide-water are practically co-extensive. But with the vast expansion of commerce by steam navigation upon our great tideless lakes and far-flowing rivers, it became in time apparent that the flux and reflux of the tides as a test of admiralty jurisdiction was wholly unsuited to the necessities of commerce and navigation in this country. It was like an attempt to clothe a giant with garments adapted to the form of a dwarf. Hence the decision of the supreme court of the United States in The Genesee Chief, 12 How. 452. This decision was rendered in 1851. It wholly overruled The Thomas Jefferson, and established the doctrine that henceforth navigability, not tide-water, was to be the true test of admiralty jurisdiction in this country. The result of this decision was to extend the admiralty jurisdiction of our courts over all the navigable waters of the United States. The court, in this case, also distinctly repudiated the doctrine that admiralty jurisdiction depends upon the commercial power of the constitution. The court say:

'Nor can the jurisdiction of the courts of the United States be made to depend on regulations of commerce. They are entirely distinct things, having no necessary connection with one another, and are conferred in the constitution by separate and distinct grants. ' See 12 How. 452.

It is manifest that prior to the decision in The Genesee Chief there was apparently but one source of federal jurisdiction over commerce and navigation above tide-water, namely, the power of congress to regulate commerce among the states. The supreme court, in Gibbons v. Ogden, 9 Wheat. 217 held that navigation is necessarily involved in maritime commerce, and therefore that congress was fully competent to pass laws regulating the navigation of vessels engaged in interstate commerce; but the court traced the power to regulate navigation to the power to regulate commerce. The court at the same time held that the power to regulate interstate commerce does not comprehend that commerce which is completely internal to the states. It is a necessary inference that congress had no power, as the law was understood prior to the decision in question, to regulate navigation above tide-water when it was concerned exclusively with the domestic commerce of the states, even when the vessel carrying it on was afloat in the navigable waters of the United States. But whoever will take the pains to examine the decisions of the supreme court subsequent to The Genesee Chief will find a marked change in the course of judicial thought in that tribunal with respect to navigation above tide-water. It is apparent that a new source of jurisdiction above tide-water was discovered. It became necessary to take into view the clause of the constitution extending the judicial power of the United States to all questions of admiralty and maritime jurisdiction. The result, in my opinion, is that, navigability being the test of admiralty jurisdiction, the true doctrine now is that the admiralty jurisdiction extends to all vessels navigating the waters of the United States, as contradistinguished from the waters of the states, whatever may be the character of the commerce in which they are engaged, whether foreign, interstate, or completely internal to the states. All admiralty jurisdiction refers directly or indirectly to navigation. It is the vessel and its navigation, and the crimes, torts, and contracts growing out of it, that form the objects of admiralty jurisdiction. Commerce is only so far an object of admiralty jurisdiction as it is connected incidentally with...