Opinion
No. 20730.
October 19, 1933.
Anthony Savage, U.S. Atty., and Hamlet P. Dodd, Asst. U.S. Atty., both of Seattle, Wash., for plaintiff.
Bogle, Bogle Gates, of Seattle, Wash., for defendant.
A ferry line is a creation of local franchise after finding of necessity, after notice and formal hearing by local authority, and may be intrastate, interstate, and, by the same token, international. Volume 6, title 32, §§ 5462-5483, Rem. Rev. Stat. of Washington. The type of the vessels and the service rendered, aside from the local license or franchise, obviously determine the character of the service. The vessels are of the ocean liner type, with a deck arrangement for automobiles with other cargo, all embarking and debarking at the side port or gangway. The spacious dining room service and berths and sleeping apartments indicate comfort and service, other than ferry service. A ferry is a service of necessity, for the common good, to reach a point across a stream, lagoon, or lake, or bay. The service of the vessels in issue predominates in no such service, but rather offers a privilege to view the scenic beauties afforded by the many islands of the San Juan Archipelago of Puget Sound, pronounced by tourists to equal the beauties of the Thousand Islands of the Gulf of St. Lawrence, and is said the picturesque sunset is not surpassed by the sunset of the Bay of Naples, and give, instead of a ferry service, a delightful scenic service and service competitive — not necessary — with the almost parallel line of the railway and the Pacific Highway, a public thoroughfare between Seattle and Vancouver, B.C., for a distance of approximately 145 miles. Nor does the service furnish a connecting link for highway traffic. Of course, highways emanate from each city terminus of the steamship line where the ships berth at the ocean docks. A ferry may be said to be a necessary service by specially constructed boat to carry passengers and property across rivers or bodies of water from a place on one shore to a point conveniently opposite on the other shore and in continuation of a highway making connections with a thoroughfare at each terminus. Anciently, a ferry performed the same service of carrying people and cargo across a river, small lagoon, or narrow lake on the water craft as was later, and is, carried by a bridge structure above the water. This service was extended to larger lakes and other larger bodies of water in extension of, or forming a connecting link to, highways.
The distance from Seattle to Vancouver over the defendant's route and the distance between the same points over the line of railway and public highway are approximately the same. The court judicially knows that the Pacific Highway is a construction according to the modern scientific conception of hard-surface highway, with the distance approximately the same as the railway or the steamboat route.
Defendant has no license or franchise to operate a ferry within the boundaries of the state of Washington. The police power of the state, no doubt, extends to regulation of a ferry operating in and into the state, if interstate or foreign commerce is not directly burdened. St. Clair County v. Interstate Sand Car Transfer Co., 192 U.S. 454, 24 S. Ct. 300, 48 L. Ed. 518. Nor has the Congress the power to interfere with police regulation relating exclusively to internal affairs. Regulation of operation of international ferries within the state is feasible without violation of international custom or law. United States v. De Witt, 9 Wall. (76 U.S.) 41, 19 L. Ed. 593. Nor is the United States concerned with conditions in which internal trade may be carried on, The Trade-Mark Cases, 100 U.S. 82, 25 L. Ed. 550; nor to the reasonable regulation of wharves, piers, docks, boat landings, etc., Cannon v. New Orleans, 20 Wall. (87 U.S.) 577, 22 L. Ed. 417; nor establishment of ferries, Conway v. Taylor's Executors, 1 Black (66 U.S.) 603, 17 L. Ed. 191.
It is obvious from the conventional sea-going construction of the vessels, the character of the service rendered, and absence of compliance or attempt to comply with local ferry laws, the defendant was not and is not operating the vessels in issue as an international ferry, and therefore within the exception, section 109b, title 8, USCA; and judgment must follow for the plaintiff.