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of that law, an appeal was taken to the Supreme Court of the United States, where the decision of the Kentucky court was affirmed.299 In this case, both the long and the short hauls were within the state of Kentucky. In holding that the Kentucky law did not illegally affect interstate commerce, the court said:

"It is plain that the provision in question does not in terms embrace the case of interstate traffic. It is restricted in its regulation to those who own or operate a railroad within the state, and the long and short distances mentioned are evidently distances upon the railroad line within the state. The particular case before us is one involving only the transportation of coal from one point in the state of Kentucky to another by a corporation of that state.

"It may be that the enforcement of the state regulation forbidding discrimination in rates in the case of articles of a like kind carried for different distances over the same line may somewhat affect commerce generally; but we have frequently held that such a result is too remote and indirect to be regarded as an interference with interstate commerce; that the interference with the commerce power of the general government, to be unlawful, must be direct, and not the merely incidental effect of enforcing the police powers of a state."

In another case, where the state court held that the law applied where the long haul was interstate commerce, the Supreme Court reversed the state court and held that the Kentucky law so construed was invalid. The court, Mr. Justice Peckham delivering the opinion (and Mr. Justice Brewer and Mr. Justice Gray, dissenting), said:300

"Congress does not directly or indirectly interfere with local rates by adopting their sum as the interstate rate.

"In the case at bar the state claims only to regulate its local rates by the standard of the interstate rate, and says the

299 Louisville & N. R. Co. v. Kentucky, 183 U. S. 503, 46 L. Ed. 298, 22 Sup. Ct. 95.

300 Louisville & N. R. Co. v. Eubank, 184 U. S. 27, 46 L. Ed. 416, 22 Sup. Ct. 277. See Louisville & N. R.

Co. v. Com. of Ky., 106 Ky. 633, 51 S. W. 164, 1012, 90 Am. St. Rep. 236, 183 U. S. 503, 46 L. Ed. 298, 22 Sup. Ct. 95; Louisville & N. R. Co. v. Garrett, 231 U. S. 298, 58 L. Ed. 229, 34 Sup. Ct. 48, 51.

former shall be no higher than the latter, but the direct effect of that provision is, as we have seen, to regulate the interstate rate, for to do any interstate business at the local rate is impossible, and if so, it must give up its interstate business or else reduce the rate in proportion. That very result is a hindrance to, an interference with, and a regulation of, commerce between the states, carried on, though it may be, by only a single company."

In the Minnesota Rate cases,301 at pages 428 and 429, the Supreme Court reviewed the Kentucky decisions and held that the first case was not affected by the later or the Eubanks The review of the two decisions concludes with this

statement:

"The authority of the former decision upholding the state law, as applied to places all of which were within the state, was in no way impaired and the court fully recognized the power of the state to prescribe maximum charges for intrastate traffic although carried over an interstate road to points on the state line."

The reservation in this quotation has been applied and the right to recover damages for a violation of an absolute prohibition in state laws of a greater charge for the shorter hauls sustained by the federal courts.302

§ 53. Ferries.-The Supreme Court quotes as a definition of an ordinary ferry the following:303

"A ferry is a continuation of the highway from one side of the water over which it passes to the other, and is for transportation of passengers or of travellers with their teams and

301 Simpson, et al., R. R. Com. of Minnesota v. Shepard, 230 U. S. 352, 57 L. Ed. 1511, 33 Sup. Ct. 729. See also Chicago, B. & Q. R. Co. v. Anderson, 72 Neb. 586, 101 N. W. 1019. For a full discussion of the general subject and of discrimination in general, see McGrew v. Missouri Pac. Ry. Co., 230 Mo. 496, 132 S. W. 1076.

302 Missouri Pac. R. Co. v. McGrew Coal Co., 244 U. S. 191, 61 L.

Ed. 1075, 37 Sup. Ct. 518; Sou. Pac.
Co. v. California Adjustment Co., 237
Fed. 954, 150 C. C. A. 604.

303 St. Clair County v. Interstate Transp. Co., 192 U. S. 454, 466, 48 L. Ed. 518, 24 Sup. Ct. 300, citing Mayor of New York v. Starin, 106 N. Y. 1, 12 N. E. 631; Brodnax v. Bake, 94 N. C. 675; see also Mayor of New York V. New England Transp. Co., 14 Blatch, 159 Fed. Cas. 10197.

vehicles and such other property as they may carry or have with them."

At page 468 the opinion distinguishes such a ferry from one used by a railroad as a means of transporting cars, passengers and freight. Whatever doubt there may have been on the subject of the right of regulation by a state of a railroad ferry across a stream which is the boundary between two states, has been set at rest by a decision of the Supreme Court. In this decision, the court quotes the definition of "railroad" contained in the Interstate Commerce Act,304 and says: 305

"The inclusion of railroad ferries within the text is so certain and so direct as to require nothing but a consideration of the text itself. Indeed, this inevitable conclusion is not disputed in the argument for the defendant in error, but it is insisted that as the text only embraces railroad ferries and the ordinances were expressly decided by the court below only to apply to persons other than railroad passengers, therefore the action by Congress does not extend to the subject embraced by the ordinances. But as all the business of the ferries between the two states was interstate commerce within the power of Congress to control and subject in any event to regulation by the state as long only as no action was taken by Congress, the result of the action by Congress leaves the subject, that is, the interstate commerce carried on by means of the ferries, free from control by the state. We think the argument by which it is sought to limit the operation of the act of Congress to certain elements only of the interstate commerce embraced in the business of ferriage from state to state is wanting in merit. In the absence of an express exclusion of some of the elements of interstate commerce entering into the ferriage, the assertion of power on the part of Congress must be treated as being coterminous with the authority over the subject as to

304 Post, Sec. 403.

305 New York Cent. & H. R. R. Co. v. Board, etc., of Hudson County, 227 U. S. 248, 263, 264, 57 L. Ed. 499, 33 Sup. Ct. 269, reversing same styled case, 76 N. J. Law 664, 74 Atl. 954. This case and the St. Clair case, Note

255, ante, cite and discuss many authorities. To the same effect, see Port Richmond & B. P. F. Co. v. County of Hudson, 234 U. S. 317, 58 L. Ed. 1330, 34 Sup. Ct. 821; reversing same styled case, 82 N. J. L. 536, 82 Atl. 729.

which the purpose of Congress to take control was manifested."

While the language above quoted was used with reference to a railroad ferry, it would seem to be broad enough to include an ordinary ferry, and the law is that states have no greater power to regulate a ferry between two states than they have to regulate an interstate railroad.306 Nor can a state close navigation.307 Fish, sponges, oysters, etc., in local waters belong to the states and are subject to their control.308

A municipality, and, by parity of reasoning, a state, cannot lawfully require a Canadian corporation operating a ferry over a boundary stream lying between Canada and the state in which the municipality is located to take out a license and pay a fee as a condition precedent to receiving and landing passengers and property in said municipality.309 The rates for ferriage between two ports in the same state may be regulated by the state, notwithstanding the transportation is over a course which traverses the open sea;310 but a ferry across the Mississippi River between two States, the Circuit Court of Appeals, in Long v. Miller, 262 Fed. 362, holds, is subject to regulation only by Congress.

§ 54. Bridges.-Bridges across a stream which is a boundary between two states accommodate interstate commerce, and, like ferries, are included in the definition of rail

306 See Gloucester Ferry Co. v. Penna., 114 U. S. 196, 29 L. Ed. 158, 5 Sup. Ct. 826; Covington Bridge Co. v. Kentucky, 154 U. S. 204, 38 L. Ed. 962, 14 Sup. Ct. 1087; St. Clair County v. Interstate Transp. Co., 192 U. S. 454, 48 L. Ed. 518, 24 Sup. Ct. 300; Lake Shore & M. S. Ry. Co. v. Ohio, 165 U. S. 365, 41 L. Ed. 747, 17 Sup. Ct. 357; United States V. Union Bridge Co., 143 Fed. 377, affirmed, 204 U. S. 364, 51 L. Ed. 523, 27 Sup. Ct. 367; Manigault v. S. M. Word & Co., 123 Fed. 707, affirmed, Manigault v. Springs, 199 U. S. 473, 50 L. Ed. 274, 26 Sup. Ct. 227.

307 Levy v. United States, 92 Fed. 344, 34 C. C. A. 392, reversed, Levy v. United States, 177 U. S. 621, 44 L. Ed. 914, 20 Sup. Ct. 797, holding that the evidence was insufficient to show that the waters were used in interstate commerce.

308 The Abby Dodge, 223 U. S. 166, 56 L. Ed. 390, 32 Sup. Ct. 310, and cases cited and discussed in the opinion.

309 Sault Ste. Marie v. International Transit Co., 234 U. S. 333, 58 L. Ed. 1337, 34 Sup. Ct. 826.

310 Wilmington Trans. Co. v. R. R. Com. of Calif., 236 U. S. 151, 59 L. Ed. 508, 35 Sup. Ct. 276.

roads in the Interstate Commerce Act.311 The rules of law stated in the preceding section as applicable to ferries apply equally to such bridges. There are, however, bridges across navigable streams which are wholly within the boundaries of a state. As to these, Mr. Justice Field said that the states had full power312 to regulate within their limits matters of internal police, which embraces among other things the construction, repair and maintenance of roads and bridges, and the establishment of ferries; that the states are more likely to appreciate the importance of these means of internal communication and to provide for their proper management, than a government at a distance; and that, as to bridges over navigable streams, their power is subordinate to that of Congress, as an act of the latter body is, by the Constitution, made the supreme law of the land; but that until Congress acts on the subject their power is plenary. When Congress acts directly with reference to the bridges authorized by the state, its will must control so far as may be necessary to secure the free navigation of the streams."

The same principle is announced by Mr. Justice Hughes in the Minnesota Rate cases, as follows:313

"A state is entitled to protect its coasts, to improve its harbors, bays and streams, and to construct dams and bridges across navigable rivers within its limits, unless there is conflict with some act of Congress. Plainly, in the case of dams and bridges, interference with the accustomed right of navigation may result. But this exercise of the important power to provide local improvements has not been regarded as constituting such a direct burden upon intercourse or interchange of traffic as to be repugnant to the federal authority in its dormant state."

311 Note 256, ante.

312 Cardwell v. American Bridge Co., 113 U. S. 205, 208, 209, 28 L. Ed. 959, 5 Sup. Ct. 423. See also Wilson v. Blackbird Creek Marsh Co., 2 Pet., 27 U. S. 245, 7 L. Ed. 412; Pennsylvania v. Wheeling Bridge Co., 13 How., 54 U. S. 518, 564, 14 L. Ed. 249; Gilman v. Philadelphia, 3 Wall.,

70 U. S. 713, 18 L. Ed. 96; Pound v. Turck, 95 U. S. 459, 24 L. Ed. 525; Escanaba Co. v. Chicago, 107 U. S. 678, 27 L. Ed. 442, 2 Sup. Ct. 185; Miller v. Mayor of New York, 109 U. S. 385, 27 L. Ed. 971, 3 Sup. Ct. 270.

313 Simpson v. Shepard, 230 U. S. 352, 403, 58 L. Ed. 151, 33 Sup. Ct. 729, citing authorities.

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