This Court will read pleadings as alleging what they fairly
would convey to an ordinarily intelligent lawyer by a fairly exact
use of English speech. Swift & Co. v. United States,
196 U. S.
This Court must take the judgment under review as it stands, and
if it is absolute and not conditional, it cannot be qualified by
speculation as to what may in fact happen.
An out and out order of a state court to remove a bridge that is
a necessary part of a line of interstate commerce is an
interference with such commerce and with a matter that is under the
exclusive control of Congress.
Interstate commerce is not a matter that is left to the control
of the states until further action by Congress; nor is the freedom
of that commerce from interference by the states confined to laws
only; it extends to interference by any ultimate organ.
A direct interference by the state with interstate commerce
cannot be justified by the police power, and so held
the destruction of a bridge across which an interstate railroad
line necessarily passes cannot be justified by the fact that it
helps the drainage of a district.
whether a consent by a drainage district to the
construction of a railroad bridge is not to be regarded as a
license, rather than an abdication of the continuing powers of the
district to require subsequent elevation of the bridge.
7 Kan. 272 affirmed.
The facts, which involve the construction and validity
Page 233 U. S. 76
under the commerce clause of the federal Constitution of orders
of the state courts of Kansas directing railroad companies to
remove bridges on lines of interstate commerce, are stated in the
MR. JUSTICE HOLMES delivered the opinion of the Court.
These cases arise upon petitions for mandamus filed by the
defendant in error, the Kaw Valley Drainage District. The
allegations are that the Kansas River flows through the district,
is a navigable stream, and in 1903 overflowed its banks, flooded a
large part of Kansas City, Kansas, and caused great loss; that the
harbor lines established by the United States and the lines for a
levee along the banks established by the plaintiff substantially
coincide; that the defendants respectively own bridges across the
river, which, at their present elevation, cause it to overflow, and
that the plaintiff, in pursuance of the power given to it by the
state, has ordered the defendants respectively to raise these
bridges to specified heights and to remove the old ones, which the
defendants have refused to do. On these petitions alternative writs
issued, and thereupon the defendants made return, each making a
general denial and setting up that its railway tracks across the
bridge were used in commerce among the states, and that such
commerce would be cut off and destroyed by enforcement of the
order, and claiming the protection of the Constitution, Art. I, § 8
(cl. 3). They each alleged also that to raise the bridges would
require a raising of the grades of the streets for the approaches,
and that the right to raise them depended on the consent of Kansas
City, which the city refused to give; that the raising would cut in
Page 233 U. S. 77
tracks of other roads, that this could not be done without the
consent of such roads, which they also refused; that the raising
would do permanent damage to private property abutting on the
streets that would have to be raised, and that the plaintiff had
taken no steps to compensate the owners; that the damage to the
defendant would exceed large sums mentioned, and that the plans for
the new bridges have not been approved by the Secretary of War. Act
of March 3, 1899, c. 425, § 9, 30 Stat. 1151. Each defendant relied
upon the Fourteenth Amendment. The Terminal Company also alleged a
contract with the drainage district which was thought to preclude
its present requirement, and to be protected by the Constitution,
Article I, § 10. The cases were heard on the alternative writs and
the returns, and the supreme court of the state issued peremptory
writs requiring the defendants to clear the channel to specified
heights. 87 Kan. 272.
Motions to dismiss were presented at the last term, but were
denied, as the record shows not only that rights under the
Constitution and laws of the United States were specially set up
and claimed, but that the questions concerning them are not of a
kind to be dismissed.
The supreme court recognized that it could not order the bridges
to be raised to the required height without the authority of the
Secretary of War. Therefore we may lay on one side the somewhat
surprising answer made to the allegations that the consent of the
city and other railroads was necessary and was refused -- the
suggestion, namely, that if the defendants wanted to do it, they
would find some way of reaching their end. See Louisville &
Nashville R. Co. v. Central Stock Yards Co., 212 U.
, 212 U. S. 144
It was not suggested that the railroads had the power to reach the
result by eminent domain. See Atlantic Coast Line R. Co. v.
North Carolina Corporation Commission, 206 U. S.
, 206 U. S. 27
lay on one side also various
Page 233 U. S. 78
over-refined objections to the defendants' pleadings made in the
argument here, saying only that we read them as alleging what they
fairly would convey to an ordinarily intelligent lawyer by a fairly
exact use of English speech. Swift & Co. v. United
States, 196 U. S. 375
196 U. S. 395
But the court went on, on the assumption that it would lead to the
elevation of the bridges, and seemingly for the purpose of
accomplishing indirectly what it admitted that it could not do
directly, to make an unqualified absolute order, as we have said,
that the defendants should clear the channel of all obstructions on
their lines up to the specified heights -- in other words, to
remove the bridges as they stand.
These judgments must be taken as they read upon their face. They
are not conditional orders to raise the bridge if the defendants
can obtain the consent of parties not before the court, and of one
authority at least, not subject to its control. They cannot be
qualified by speculation as to what is likely to happen in fact.
They are out-and-out orders to remove bridges that are a necessary
part of lines of commerce by rail among the states. But that
subject matter is under the exclusive control of Congress, and is
not one that it has left to the states until there shall be further
action on its part. The freedom from interference on the part of
the states is not confined to a simple prohibition of laws
impairing it, but extends to interference by any ultimate organ. It
was held that, under the permissive statute authorizing telegraph
companies to maintain lines on the post roads of the United States,
a state could not stop the operation of the lines by an injunction
for failure to pay taxes. Western Union Telegraph Co. v.
Attorney General of Massachusetts, 125 U.
. Williams v. Talladega, 226 U.
, 226 U. S.
-416. It would seem that the same principle applies
to railroads under the commerce clause of the Constitution,
especially if taken in connection with the somewhat similar statute
Page 233 U. S. 79
§ 5258. And so it is held. Atlantic Coast Line R. Co. v.
Wharton, 207 U. S. 328
207 U. S. 334
Mississippi R. Commission v. Illinois Central R. Co.,
203 U. S. 335
The decisions also show that a state cannot avoid the operation
of this rule by simply invoking the convenient apologetics of the
police power. It repeatedly has been said or implied that a direct
interference with commerce among the states could not be justified
in this way.
"The state can do nothing which will directly burden or impede
the interstate traffic of the company, or impair the usefulness of
its facilities for such traffic."
Illinois Central R. Co. v. Illinois, 163 U.
, 163 U. S. 154
Austin v. Tennessee, 179 U. S. 343
179 U. S. 349
Atlantic Coast Line R. Co. v. Wharton, 207 U.
, 207 U. S. 334
To destroy the bridges across which these railroad lines
necessarily pass is at least as direct an interference with such
commerce as to prohibit the importation of cattle or oleomargarin,
or the export of natural gas. Hannibal & St. Joseph R. Co.
v. Husen, 95 U. S. 465
Schollenberger v. Pennsylvania, 171 U. S.
; West v. Kansas Natural Gas Co., 221 U.
, 221 U. S. 262
Furthermore, in the present case, it is not pretended that local
welfare needs the removal of the defendants' bridges at the expense
of the dominant requirements of commerce with other states, but
merely that it would be helped by raising them. The fact that the
court cannot order them to be raised does not justify a judgment
that they be destroyed even in the avowed expectation that what it
wants but cannot command is all that will come to pass.
A strong argument was made for the plaintiffs in error that they
never had been allowed their day in court, as matters put in issue
by them, such as the necessity of the change, were assumed against
them. It was urged with seeming justice that, granting that, as was
said by the court, the order of the drainage district was prima
correct, still, when that order was challenged in the
pleadings, it could not be assumed to be valid at a hearing
Page 233 U. S. 80
the writs and returns. But we express no opinion upon this point
or upon claims under the Fourteenth Amendment, as what we have said
sufficiently decides the cases. The argument of the terminal
company upon the contract with the drainage district does not
impress us. By way of compromise, the Terminal Company's
predecessor agreed to build a permanent bridge according to a plan,
and the drainage district
"hereby consents to the construction of said permanent bridge .
. . and declares that the same when constructed shall constitute a
lawful structure . . . not waiving any right . . . to require the
construction of an additional span."
This, coming from a board created to exercise police power, not
unnaturally would be construed rather as a license than as an
abdication of a continuing duty, on which we are asked to take
notice that new light had been shed by a subsequent flood that has
given rise to cases before this court. But, for the reasons that we
have given, the judgment must be reversed.