Chilvers v. People, 11 Mich. 43

Chilvers v. People

11 Mich. 43 | Mich. | 1862

Manning J.:

Chilvers, the plaintiff in error, was prosecuted in the Recorder’s Court of the city of Detroit, under a city ordinance, for keeping a ferry over Detroit river, between the city and Windsor on the opposite side of the river, in Canada, without a license from the city for that purpose, and was fined one dollar and the costs.

Several objections are taken to the proceedings before the Recorder.

The first objection relates to the form of the complaint; but as that has been waived we shall pass over it without further noticing it, and proceed to the consideration of the several objections going to the merits of the case.

The first of these .objections is a want of power in the Common Council of the city to pass the ordinance in question.

By the charter power is given the Common Council to license, continue and regulate so many ferries from within said city to the opposite shore of the Detroit river as shall seem most conducive to the public good:— Laws of 1857, p. 95, § 21, 6th.

The first section of the city ordinance provides that no person shall keep a ferry or boat for carrying and transporting persons and property across the Detroit river to the opposite shore without a license therefor from the Mayor.

By the second section, the Mayor is authorized to grant a license to any person or company, to keep a ferry or boat to carry and transport persons and property across the river to the opposite shore, on his or their paying into the city Treasury the sum of fifty dollars for each boat which carries and transports passengers, teams and animals, and the sum of twenty-five dollars for each boat which carries and transports passengers only, &a.

*49And by the eleventh section, any violation of or failure to comply with any of the provisions of the ordinance, is to be punished by a fine not exceeding $200.

It is argued that the power granted does not authorize the prohibition. That is, if we understand the proposition advanced by counsel, that the power given by the charter does not authorize the Common Council to pass a by-law that no person shall keep a ferry without a license. That the Common Council may license a ferry, but that they cannot prevent any one keeping a ferry without a license.

The object of a license is to confer a right that does not exist without a license. And consequently a power to license involves, in the exercise of it, a power to prohibit under a pain or penalty without a license. Otherwise a license would be an idle ceremony — giving no right, conferring no privilege, and exempting from no pain or penalty. If the right existed previous to the law requiring the license, it would not exist afterwards without such license. The fact that a license is required to do an act, is of itself a prohibition of such act without a license. In prohibiting the keeping of a ferry without a license, the ordinance only follows what has been the statute law on that subject from 1827 to the present time, and how much longer we know not:— Laws of 1827, p. 463; Laws of 1833, p. 522; R. S. of 1838, p. 132; R. S. of 1846 p. 141; Comp. L. p. 375.

' The next objection is want of power in the city to charge a license fee of $50, or any other sum for the license. It is said the power to license does not carry with it a power to charge for the privilege conferred by the license. That a sum sufficient to cover the cost of making out the license may be charged, but nothing more.

The charter is not silent on this point. By it the Common Council are authorized to “direct the manner of issuing and registering the same (the license), and to prescribe the sum of money to be paid therefor into the *50treasury of the corporation:” — Laws of 1857, p. 107, 63d These last words — to prescribe the suin of money to be paid therefor into the treasury of the corporation — we think Show a clear intent to make licenses a source of revenue to the city. And we see nothing unreasonable in the amount charged as a license fee.

But it is said the license fee is a tax. It is not a tax, within the meaning of that term as used in the State Constitution (Art. 14, §11), and city charter (Laws 1857, p. 107, 64th). It is a price paid for a franchise or public right vested in an individual. Bouvier in speaking of franchises says: “The most common are the grant of a right or privilege of making roads, bridges, establishing ferries, and taking toll for the use of the same:” — 2 Bouv. Inst. p. 214.

The only remaining objection, and the one most relied on for a reversal of the judgment, is, that the license fee is a regulation of commerce within the Constitution of the United States, which gives Congress power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes: — Art. 8, § 3.

In Gibbons v. Ogden, the power of Congress under this clause of the Constitution was stated in the broadest terms. Not that it was necessary to the decision of that case, but in the argument of the Court in support of its decision. And yet it was conceded by the Court in that case that it did not extend to inspection laws, quarantine laws, turnpikes, ferries, &c.: —9 Wheat. 203. And in The City of New York v. Miln, 11 Pet. 133, the concession made in that case was referred to with approbation by the same Court. The question was whether a statute of the State of New York requiring under a certain penalty the master of every vessel arriving from a foreign port, within twenty-four hours after his arrival, to make a report in writing, containing the names, ages, and last legal settlement of every person on board, was a regulation of *51commerce within the Federal Constitution. It. was held to-be a police regulation of the State only, and not within the power delegated to Congress. And in The People v. Babcock, 11 Wend. 586, it was held that the Common Pleas of Niagara county had power to grant licenses to keep ferries on the Niagara River, although the jurisdiction of' the State extended only to the center of the river; and that to maintain a ferry upon that river for transporting across the stream persons or goods for hire or profit, unless author-, ized in the manner prescribed by law, would subject the offender to punishment as for a misdemeanor.

The object of the constitutional grant is too obvious to be mistaken. It was not intended for the regulation of commerce within a State. This is universally conceded; and the power could not have been given without danger of' absorbing the legislative power of the States.

Roads, and bridges when a part of a public highway, and turnpikes within a State, are clearly subjects of local legislation. It is difficult to conceive of any more so. And. what is a ferry? It is a public highway or thoroughfare across a stream of water or river by boat instead of by a bridge. Now suppose no river separating the city of Detroit from Canada, and a turnpike running into the city from the boundary line between the two; and suppose further, that all commerce between the United States and a foreign country, where there is no stream of water or river separating the two, by an act of Congress was required to. be by a certain description of wagons licensed for the purpose; would any one suppose the owners of such wagons would have a right to enter the city from Canada by the turnpike without paying toll? Suppose the dividing line between Canada and the State to be the Canada shore of' the Detroit river, and the turnpike to cross the river by a bridge, could the bridge be crossed without paying toll? Now the ferry boat is as much a part of the ferry as the-bridge is a part of the turnpike. The one is stationary, while-*52'the other moves to and fro, it may be said. Is not the draw of a bridge, that is moved to and fro as a vessel or •la team may want to pass, as much a part of the bridge ’as the timbers that remain stationary? It is the same with the ferry boat. It is as much a part of the ferry as the landings on the shore. And as there can not be a whole without all its parts, there can not be a ferry without a boat.

The fallacy of the doctrine contended for consists in supposing that the license of a vessel for the coasting and foreign trade confers on it the franchise of a ferry.

Ferries are as clearly creatures of local legislation as roads and bridges. And the establishment and regulation *of them are as necessary for the convenience of the traveling and business public.

It is only that part of the ferry lying within the State the ordinance can control, except as a condition of the license the point of landing may be fixed on the opposite shore. It in no way interferes with vessels passing from one side of the river to the other, engaged in commerce under the laws of Congress.

The judgment of the Recorder’s Court must be affirmed.

Since drawing up this opinion we have seen the case of Conway v. Taylor, 1 Black, 603, decided by the Supreme Court of the United States at its last term, in which it is held that the authority to establish and. regulate ferries is not included in the power of the Federal Government to regulate commerce under the Constitution of the United •States.

Christiancy and Campbell JJ. concurred. Martin Ch. J.:

The Gem is a boat duly enrolled and licensed under the laws of-the United States, for the coasting and foreign trade. That the regulation of such trade is exclusively *53within the jurisdiction of the United States will not be questioned. The power having been exercised in the case of the Gem, the license conveyed the right of engaging, in commerce to her as fully as to every other vessel or boat employed in foreign trade; and as the power to regulate commerce with foreign nations is exclusively in Congress, and has been exercised, no concurrent power exists in the State respecting it. These propositions are not questioned, but their application is denied in this case, because it is said the Gem is a ferry boat, and that ferries, are not within the jurisdiction of Congress. Now what is a ferry? It is a species of franchise, being a liberty or-privilege arising from grant or prescription, to have a boat or boats for carrying men and horses across a. river for-reasonable fare or toll (Burrill). If the river be a boundary between this and a foreign nation, I can not see why the ferriage is not foreign commerce, and exclusively within the jurisdiction of the United States. Commerce, says Mr. Justice Grier in the passenger cases (7 Howard), means something more than traffic — it is intercourse; and the power committed to Congress to regulate commerce is exercised by prescribing rules for carrying on that intei> course; and Mr. Justice McLean says it includes navigation and intercourse, and that the transportation of men is a part of commerce is not now an open question. In Gibbons v. Ogden, it is said that no clear distinction is perceived,, between the power to regulate vessels in transporting men for hire and property for hire; and that a power to regulate navigation is as expressly granted as if that term had been added to the word commerce. If therefore the United States had authority to grant a license .to the Gem, and under and by virtue of the laws of the United States such license has been granted, I do not clearly see how any license from the city of Detroit to do the same thing can be otherwise than wholly nugatory and inoperative. A license either conveys the right to do a thing or it conveys no-*54right; and if it conveys a right it conveys the whole right.

But it is contended by the attorneys for the People, that while they concede that the right to regulate com_ merce includes the right to regulate navigation, and that the transportation of passengers falls within this power, yet the conveyance of passengers from a foreign country to the United States, in the ordinary operations of commerce, or their transportation from one State to another in the operations of a proper coasting trade,- is a very different matter from the running of a ferry for carrying them. I can not perceive the distinction. The delivery of a cargo at a foreign port makes a foreign voyage; and Windsor and Detroit are, as respects each other, as much foreign ports as Boston and Liverpool. The length of the voyage has nothing to do with this question; and the Gem has, under her license and' enrolment, as just right to perform voyages from Detroit to Windsor as to Chatham or Quebec, and with the same privileges and immunities.

But it is said that the city of Detroit may license ferries at least as far as the center of the river, for her jurisdiction extends thus far; and that the ferry is in respect to the landing and not to the water; and that although a license to establish a ferry which does not extend across the river may be less valuable for that reason, it is not the less valid as far as it goes. To the first part of this proposition it is a sufficient reply, that the city of Detroit does not assume to grant licenses to ferry passengers to the middle of the stream, but to the Canada shore; and prohibits under a penalty the keeping a ferry or boat for the purpose of transporting persons and property across the Detroit river to the opposite shore without a license. If this be not a restraint upon foreign commerce, and an infringement upon the jurisdiction of the United States, I confess my inability to determine what *55is. And although there is good authority for saying that the ferry is in respect to the landing and not to the water, and the landing may belong to one and the water to another, and that though the license to establish a ferry which does not extend across the river may be less valuable for that reason, it is not the less valid as far as it goes (see People v. Babcock, 11 Wend. 586; Conway v. Taylor, 1 Black, 603); still I am at a loss to understand the reasoning which confines it to our shores, or that which applies it to a case of foreign intercourse and navigation. I can not conceive of a ferry without landings upon both banks of the river; and it is to my mind an absurdity to talk of a ferry which carries passengers to the middle of a stream and leaves them there, or returns them to the landing from which they were taken. A ferry is an entirety, and can not be divided by the thread of a stream. It must extend across or be no ferry. It is held in Peter v. Kendal, 6 B. & C. 703, that the owner of a ferry must, as an incident to the ferry, have such right to use the land on both sides as to enable him to embark and disembark passengers, but he need not for that purpose have any property in the soil, it being sufficient if he has a right to use the land for all the purposes of his ferry. How far this rule is applicable to ferries upon our interior rivers, forming the boundary line of States, it is •unnecessary to inquire; but it establishes the principle for which I contend, viz: that there can be no ferry which ■does not extend from bank to bank. I hold, therefore, that if the ordinance controls any part it controls the entire ferry, from bank to bank; for it prohibits landing and departure, and what is a ferry without these? It therefore controls and assumes to regulate commerce with a foreign nation, and is unconstitutional.

But it. is contended that the city may grant these .licenses as police regulations. I can not coincide in this view. To me the transaction seems to be only the sale *56of a franchise; a source of revenue from interference with commerce. It has no connection with the good order and security of the city or the citizen (however it may be in the case of judicious regulations independent of the franchise) — hut is entirely outsideand the police power ' of the city can not draw within its jurisdiction objects which lie beyond it, under this or any other pretence. It might, for any reason that I can see, assume as well to grant licenses to boats running to Malden or to Goderich as to those running to Windsor; for it is not the cargo, but the voyage, which determines the character of the commerce; and I can not well see how a voyage directly across a stream of water, if destined to a foreign port, is any more subject to the jurisdiction of the city than one up or down the .stream.

I refer, in further illustration of my views, to Sinnot v. Davenport, 22 How. 227; Foster v. Davenport, Ibid. 244; Prigg v. Pennsylvania, 16 Pet. 617; Fitch v. Livingston, 4 Sandf. 492.

I think the judgment ‘ should be reversed.

Judgment affirmed,»