pears that, on November 15, 1912, Johnson had given a bond, which had been approved by the district judge, and had been released from arrest under the indictment. The petitioner insists that the release on bail was known to the Government when the motion to advance was made, and not then having been urged he is now entitled to a decision on the constitutional question argued, so that if in his favor he would avoid re-arrest and trial.

The writ of habeas corpus is not intended to serve the office of a writ of error even after verdict, and, for still stronger reasons, it is not available to a defendant before trial, except in rare and exceptional cases as pointed out in Ex parte Royall, 117 U. S. 241. This is an effort to nullify that rule and to depart from the regular course of criminal proceedings by securing from this court, in advance, a decision on an issue of law which the defendant can raise in the District Court, with the right, if convicted, to a writ of error on any ruling adverse to his contention. That the orderly course of a trial must be pursued and the usual remedies exhausted, even where the petitioner attacks on habeas corpus the constitutionality of the statute under which he was indicted, was decided in Glasgow v. Moyer, 225 U. S. 420. That and other similar decisions have so definitely established the general principle as to leave no room for further discussion. Riggins v. United States, 199 U. S. 547.

It is claimed, however, that the defendant was required to give excessive bail, on prohibitive conditions, and that this fact, in connection with the attack on the validity of the statute, takes the case out of the general rule and brings it within the exceptional cases referred to in Ex parte Royall, 117 U. S. 241, so as to give petitioner the right to this hearing in advance of a trial. But even if it could be claimed that the facts relied on presented any reason for allowing him a hearing on the constitutionality of the act at this time, the defendant would not be entitled

to the benefit of the writ, because since the appeal he has given bond in the District Court and has been released from arrest under the warrant issued on the indictment. He is no longer in the custody of the marshal to whom the writ is addressed, and from whose custody he seeks to be discharged. The defendant is now at liberty, and having secured the very relief which the writ of habeas corpus was intended to afford to those held under warrants issued on indictments, the appeal must be

Dismissed.

NEW YORK CENTRAL & HUDSON RIVER RAILROAD COMPANY v. BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF HUDSON.

ERROR TO THE SUPREME COURT OF THE STATE OF NEW JERSEY.

No. 50. Argued November 13, 1912.-Decided February 24, 1913.

Congress, by passing the Act to Regulate Commerce, has taken control of interstate railroads, and having expressly included ferries used in connection therewith, has destroyed the power of the States to regulate such ferries. Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, distinguished.

Quare: Whether Covington Bridge Co. v. Kentucky, 154 U. S. 204, overruled Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196.

An assertion of power by Congress over a subject within its domain must be treated as coterminous with its authority over the subject, and leaves no element of the subject to control of the State. The operation at one time of both the power of Congress and that of the State over a matter of interstate commerce is inconceivable; the execution of the greater power takes possession of the field and leaves nothing upon which the lesser power can operate.

227 U. S.

Argument for Plaintiff in Error.

No portion of the business of a ferry which is part of an interstate railway is under the control of the State; and so held that the state authorities have no power to regulate the fare of passengers, whether railroad passengers or not, on the ferry between Weehawken, New Jersey, and New York City, known as the West Shore Ferry and operated by the New York Central & Hudson River Railroad. 76 N. J. L. 664, reversed.

THE facts, which involve the constitutionality under the commerce clause of an ordinance of Hudson County, New Jersey, fixing rates of ferriage across the Hudson river to New York City on the ferry operated by the New York Central & Hudson River Railroad as lessee of the West Shore Railroad Company, are stated in the opinion.

Mr. Albert C. Wall and Mr. Frank Bergen, with whom Mr. James B. Vredenburgh and Mr. Thomas Emery were on the brief, for plaintiff in error:

The regulation of the rates and fares for transportation via these ferries is inoperative because it conflicts with the commerce clause of the Constitution of the United States. Covington Bridge Co. v. Kentucky, 154 U. S. 204. Commerce national in character is for Congress to regulate. Non-action implies it shall be unregulated. Wabash Railway v. Illinois, 118 U. S. 557.

The Covington Bridge Case has been cited many times by the court. See The Lottery Case, 188 U. S. 352; The Gloucester Ferry Case, 114 U. S. 196; Hanley v. Kansas City Ry. Co., 187 U. S. 617; St. Clair County v. Interstate Transfer Co., 192 U. S. 454.

While Chosen Freeholders v. State, 3 Zab. 206, affirmed, 4 Zab. 718, purports to sustain the right and power of the state authorities to regulate the rates and fares chargeable for interstate ferry transportation, the cases cited as authority for the conclusion there announced did not involve and were not authoritative upon the point decided, and the absence of Federal legislation upon the

Argument for Plaintiff in Error.

227 U. S.

subject was superseded by the act of Congress of 1866, ch. 124, and of 1887, ch. 104, regulating interstate transportation. People v. Babcock, 11 Wend. 586; Gibbons v. Ogden, 9 Wheat. 203; Smith v. Turner, 7 How. 393; Cooley v. Board of Wardens, 12 How. 319, do not support the conclusion of that case.

Congress has legislated concerning ferries operated in connection with railroads. See § 1, Int. Comm. Act of February 4, 1887.

The Hepburn Amendment of 1906 leaves this language unchanged.

The railroad company has filed a copy of its tariff with the Commission.

By the requirement of the act of Congress of the filing of this tariff, and the filing of the tariff in obedience thereto, the tariff became a law governing the transportation precisely as if the tariff itself had been enacted by Congress in the same words and figures. Gulf, Colorado & Santa Fe R. Co. v. Hefley & Lewis, 158 U. S. 98; Texas & Pacific R. Co. v. Dryden, 202 U. S. 242; Missouri Pacific R. Co. v. Larabee Mills Co., 211 U. S. 612, 623; Poor v. C., B. & Q. R. Co., 12 I. C. C. Rep. 418, 422; Armour Packing Co. v. United States, 209 U. S. 56, 80.

The exercise of the power which the Board of Freeholders here asserts is in conflict with the exclusive power of regulation of the same subject-matter by Federal authority. Sinnott v. Davenport, 22 How. 227.

The ferryboats are subjects of admiralty jurisdiction. The St. Louis, 48 Fed. Rep. 312; Railroad Co. v. Richmond, 19 Wall. 584; Bowman v. Chi. & N. W. Ry. Co., 125 U. S. 465, 484; Illinois Cent. R. R. Co. v. Illinois, 163 U. S. 142.

The resolutions contain no provision in respect of the time at which they are to go into effect.

Obedience thereto would have been violative of the express inhibitions of the interstate commerce acts and

227 U. S.

Argument for Defendant in Error.

subjected the railroad company to the penalties therein. prescribed in respect of such violation.

Exercise by the State of its power to create corporations and confer upon them charter powers to maintain and operate instrumentalities of interstate transportation does not draw to the State the power of regulation of the rates of fares or tolls for such transportation.

Considering the ferry as the landing, the license and regulation of its maintenance and operation may be of state cognizance, and nevertheless, if the ferry be interstate the ferriage fare is the subject of United States governance.

The Board of Freeholders of the County of Hudson has not the power to fix the rates of ferriage of footpassengers on these ferries over the Hudson river, from New York to New Jersey.

Mr. E. Parmalee Prentice, with whom Mr. John Griffin and Mr. George Welwood Murray were on the brief, for defendant in error:

The resolutions of the Board of Freeholders are not invalid as a regulation of commerce among the States. Federal power over commerce among the States is exclusive only in matters of general concern.

In all local matters state statutes are valid until superseded by Congress. Cooley v. Port Wardens, 12 How. 310; Mobile v. Kimball, 102 U. S. 691, 702; Atlantic &c. Company v. Philadelphia, 190 U. S. 160; Bowman v. Railroad Co., 125 U. S. 465, 507; Leisy v. Hardin, 135 U. S. 100; Stoughtenburgh v. Hennick, 129 U. S. 141; Telegraph Co. v. Pendleton, 122 U. S. 347; Ouachita Packet Co. v. Aiken, 121 U. S. 444; Robbins v. Taxing District, 120 U. S. 489; Wabash Railway v. Illinois, 118 U. S. 557; Morgan v. Louisiana, 118 U. S. 455; Cardwell v. Bridge Co., 113 U. S. 205, 210; Willoughby on the Fed. Const., § 309. The power to regulate commerce is given to Congress,