Whether given commerce is of an interstate character or not is
to be determined by what is actually done, and if really and in
fact between states, mere arrangements of billing and plurality of
carriers do not enter into the conclusion.
An uninterrupted transportation of passengers between states, on
the same cars, under practically the same management and for a
single fare, constitutes interstate commerce although the track in
each state is owned by a separate corporation.
Missouri Pacific
R. Co. v. Kentucky, 216 U. S. 262,
distinguished.
Although the state may not directly regulate or burden
interstate commerce, it may, in the exercise of its police power,
in the interest of public health and safety, and in the absence of
legislation by Congress, enact regulations which incidentally or
indirectly affect interstate commerce.
Minnesota Rate
Cases, 230 U. S. 352.
A municipal ordinance regulating the number of passengers to be
carried in, temperature, and method of loading and unloading, and
other details regarding, cars used in interstate transportation may
be valid as to those regulations which are within the scope of the
police power of the state and only incidentally or indirectly
affect interstate commerce as to matters in regard to which
Congress has not legislated, and invalid as to those regulations
which directly affect, and are a burden on, interstate
commerce.
Regulations in the ordinance involved in this case as to
passengers
Page 235 U. S. 538
riding on platforms of motor cars and in regard to fumigation,
ventilation, and cleanliness are, in the absence of legislation by
Congress, within the scope of the police power of the state, and,
as they only incidentally affect interstate commerce, are not void
under the commerce clause of the federal Constitution.
Regulations in the ordinance involved in this case as to number
of cars to be run and the number of passengers allowed in each car
between interstate points directly affect and are a burden on
interstate commerce and void under the commerce clause of the
federal Constitution.
A regulation in a municipal ordinance requiring the temperature
in motor cars never to be below 50� Fahrenheit
held, in
this case, to be impracticable and unreasonable and void.
The various provisions in the ordinance of South Covington,
Kentucky, in regard to motor cars running between that place and
Cincinnati, Ohio,
held to be separable, and the ordinance
held to be a valid exercise of the police power as to
those provisions which are reasonable and only incidentally affect
interstate commerce, and void as to those which directly affect
interstate commerce and those which are unreasonable.
146 Ky. 592 reversed.
The facts, which involve the constitutionality under the
commerce and due process clauses of the federal Constitution of a
municipal ordinance of Covington, Kentucky, regulating street cars
running between that city and Cincinnati, Ohio, are stated in the
opinion.
Page 235 U. S. 541
MR. JUSTICE DAY delivered the opinion of the Court.
This case originated in a petition filed by the South Covington
& Cincinnati Street Railway Company, a corporation of the State
of Kentucky, having for its purpose to enjoin the City of Covington
from enforcing a certain ordinance regulating the operation of the
street cars of the company. The features of the ordinance essential
to be considered here are found in its first seven sections, which
are:
"Section 1. That it shall be unlawful for any person,
Page 235 U. S. 542
corporation, or company owning or operating street cars for the
carriage of passengers for hire in or through or over the public
streets of the City of Covington to permit more than one-third
greater in number of passengers to ride or to be transported within
such cars over and above the number for which seats are provided in
the same, provided that this section shall not apply to or be
enforced on the days celebrated as Fourth of July, Decoration Day,
or Labor Day."
"Section 2. No such person, company, or corporation shall suffer
or permit any passenger or person to ride upon the rear platform of
any such car unless the same be provided with a suitable rail or
barrier so arranged as to provide an open space reasonably
sufficient for egress and ingress of passengers to and from such
car, and no one shall be permitted to stand in such place so
provided for such ingress and egress, but the same shall at all
times be kept clear, free, and open. Any person refusing to vacate
such open space provided for egress and ingress upon request of the
conductor in charge of said car shall be guilty of a misdemeanor,
and be subject to a fine of not less than five dollars nor more
than fifty dollars, recoverable in the police court of said
city."
"Section 3. No such person, company, or corporation shall suffer
or permit any person or passenger to ride upon the front platform
of any such car unless a rail or barrier be provided, separating
the motorman from the balance of said front platform, said space
allowed for the motorman shall in all cases be sufficient to permit
him to properly and conveniently operate the mechanism controlling
said car without interfering or crowding from the other person upon
said platform, if any, and no person or passengers shall be ever
permitted to stand by or remain within the enclosure thus provided
for the motorman."
"Section 4. It shall be the duty of every such person,
Page 235 U. S. 543
company, or corporation to at all times keep its car thoroughly
cleaned and ventilated, and shall at least once a week fumigate the
inside of said cars with efficient disinfectant, and the Board of
Health of the City of Covington shall have power and authority to
prescribe reasonable rules providing for the cleanliness,
ventilation, and fumigation of such cars, and all such persons,
companies, or corporations shall comply with such reasonable
rules."
"Section 5. The temperature of such cars shall never be
permitted to be below 50 degrees Fahrenheit."
"Section 6. It is hereby made the duty of every company, person,
or corporation operating street cars and the street car lines
within the corporate limits of the City of Covington to run and
operate cars in sufficient numbers at all times to reasonably
accommodate the public within the limits of this ordinance as to
the number of passengers permitted to be carried, and the General
Council of the City of Covington may, by resolution at any time
direct that the number of cars operated upon any line or route be
increased to a sufficient number to so accommodate the public if
there is failure in that respect. Any such person, company, or
corporation failing or refusing to run or operate sufficient cars
as by this section provided shall be subject to the penalties
provided by Section 2 hereof."
"Section 7. Any person, company, or corporation violating either
of the provisions of this ordinance shall be deemed guilty of a
misdemeanor, and shall be punished by a fine of not less than fifty
nor more than one hundred dollars for each offense, recoverable in
the police court of the City of Covington, and each car operated in
violation of this ordinance shall constitute a separate offense for
each day it is so operated, and it is hereby made the duty of all
police officers of such city, and others exercising police power,
to see to the enforcement of this ordinance, and to arrest or to
cause the arrest of all persons
Page 235 U. S. 544
guilty of its infraction. And the chief of police is hereby
directed to assign at least one police officer to the special
enforcement of this ordinance. It shall be the duty of such officer
to examine and observe street cars in operation, and to make
arrests and cause proper prosecutions to be started against
offenders violating this ordinance."
The Circuit Court of Kenton County, Kentucky, refused the
injunction and dismissed the petition, and this decree was affirmed
by the Court of Appeals of Kentucky (146 Ky. 592), and the case is
brought here.
It was set up in the petition and amended petition that the
ordinance is an unlawful interference with interstate commerce in
violation of the federal Constitution, Article I, § 8, giving
exclusive authority to Congress over that subject, that it deprives
plaintiff of its property without due process of law, in violation
of the Fourteenth Amendment, and that it impairs the obligation of
a certain contract previously entered into between the plaintiff
and the City of Covington in violation of Article I, § 10, of the
Constitution.
The testimony shows that the plaintiff is a Kentucky
corporation, and its principal occupation is the carrying of
passengers in connection with an Ohio corporation which operates on
the other side of the Ohio River, upon continuous and connecting
tracks, and across a bridge from Covington to Cincinnati, which
this Court has held to be an instrument of interstate commerce
(
Covington &c. Bridge Co. v. Kentucky, 154 U.
S. 204). This traffic is conducted by means of
continuous trips and for a single fare, between points on the lines
of the railway in Covington and Fourth Street or Fountain Square in
the City of Cincinnati or from any point between Fourth Street or
Fountain square in the City of Cincinnati to points in the City of
Covington. Practically every car is thus engaged in going to or
coming from Cincinnati, and from seventy-five to eighty percent of
the passengers carried
Page 235 U. S. 545
in the City of Covington are being transported from Covington to
Cincinnati, or from Cincinnati to Covington, or farther in
Kentucky. The cars operate without change of motormen or
conductors, and under the direction of the same officers.
This Court has repeatedly held that whether given commerce is of
an interstate character or not is to be determined by what is
actually done, and if the transportation is really and in fact
between states, the mere arrangements of billing or plurality of
carriers do not enter into the conclusion. Here is an uninterrupted
transportation of passengers between states, on the same cars, and
under practically the same management, and for a single fare. We
have no doubt that this course of business constitutes interstate
commerce.
Texas & New Orleans R. Co. v. Sabine Tram
Co., 227 U. S. 111;
St. Louis, S. F. & T. R. Co. v. Seale, 229 U.
S. 156;
Railroad Commission of Ohio v.
Worthington, 225 U. S. 101;
Omaha & Council Bluffs Street R. Co. v. Interstate Commerce
Commission, 230 U. S. 324,
230 U. S. 336.
A contrary conclusion was reached in this case by the Kentucky
Court of Appeals upon the authority of
Missouri Pacific R. Co.
v. Kansas, 216 U. S. 262, but
that case concerns an order under authority of the State of Kansas,
requiring the running of a passenger train wholly within the state.
It was pointed out in the course of the opinion that the order did
not deal with an interstate train, or put a burden upon such train,
but simply required the operation within the State of a local
train, the duty of operating such train arising from the charter
obligation of the company.
Reaching the conclusion that the traffic here regulated is of an
interstate character, and therefore within the control of the
federal Congress, the further question is presented: does the case
come within that class wherein the state may regulate the matter
legislated upon until Congress has acted by virtue of the supreme
authority given it by virtue of the commerce clause of the
Constitution?
Page 235 U. S. 546
In numerous instances, this Court has sustained local
enactments, passed in the exercise of the police power of the
state, in the interest of the public health and safety,
notwithstanding the regulation may incidentally or indirectly
affect interstate commerce. The subject was given much
consideration in the
Minnesota Rate Cases, 230 U.
S. 352, and the previous cases dealing with this subject
are therein collected and reviewed. In the light of these cases,
and upon principle, the conclusion is reached that it is competent
for the state to provide for local improvements of facilities, or
to adopt reasonable measures in the interest of the health, safety,
and welfare of the people notwithstanding such regulations might
incidentally and indirectly involve interstate commerce. Summing up
the matter, it is there stated.
"Our system of government is a practical adjustment by which the
national authority, as conferred by the Constitution, is maintained
in its full scope without unnecessary loss of local efficiency.
Where the subject is peculiarly one of local concern, and from its
nature belongs to the class with which the state appropriately
deals in making reasonable provision for local needs, it cannot be
regarded as left to the unrestrained will of individuals because
Congress has not acted, although it may have such a relation to
interstate commerce as to be within the reach of the federal power.
In such case, Congress must be the judge of the necessity of
federal action. Its paramount authority always enables it to
intervene at its discretion for the complete and effective
government of that which has been committed to its care, and for
this purpose and to this extent, in response to a conviction of
national need, to displace local laws by substituting laws of its
own. The successful working of our constitutional system has thus
been made possible."
In the light of the principles settled and declared, the various
provisions of this ordinance must be examined.
Page 235 U. S. 547
That embodied in §§ 1 and 6 makes it unlawful for the company to
permit more than one third greater in number of the passengers to
ride or be transported within its cars over and above a number for
which seats are provided therein, except this provision shall not
apply or be enforced on the Fourth of July, Decoration Day, or
Labor Day, and by § 6 it is made the duty of the company operating
the cars within the City of Covington to run and operate the same
in sufficient numbers at all times to reasonably accommodate the
public, within the limits of the ordinance as to the number of
passengers permitted to be carried, and the council is authorized
to direct the number of cars to be increased sufficiently to
accommodate the public if there is a failure in this respect. To
comply with these regulations, the testimony shows, would require
about one half more than the present number of cars operated by the
company, and more cars than can be operated in Cincinnati within
the present franchise rights and privileges held by the company, or
controlled by it, in that city. Whether, in view of this situation,
this regulation would be so unreasonable as to be void we need not
now inquire. These facts, together with the other details of
operation of the cars of this company, are to be taken into view in
determining the nature of the regulation here attempted, and
whether it so directly burdens interstate commerce as to be beyond
the power of the state. We think the necessary effect of these
regulations is not only to determine the manner of carrying
passengers in Covington and the number of cars that are to be run
in connection with the business there, but necessarily directs the
number of cars to be run in Cincinnati and the manner of loading
them when there, where the traffic is much impeded and other lines
of street railway and many hindrances have to be taken into
consideration in regulating the traffic. If Covington can regulate
these matters, certainly Cincinnati can, and interstate
business
Page 235 U. S. 548
might be impeded by conflicting and varying regulations in this
respect, with which it might be impossible to comply. On one side
of the river, one set of regulations might be enforced, and on the
other side, quite a different set, and both seeking to control a
practically continuous movement of cars. As was said in
Hall v.
DeCuir, 95 U. S. 485,
95 U. S. 489,
"commerce cannot flourish in the midst of such embarrassments."
We need not stop to consider whether Congress has undertaken to
regulate such interstate transportation as this, for it is clearly
within its power to do so, and absence of federal regulation does
not give the power to the state to make rules which so necessarily
control the conduct of interstate commerce as do those just
considered.
There are other parts of the ordinance which we are of opinion
are within the authority of the state, and proper subject matter
for its regulation, at least, until the federal authority is
exerted. These are the provisions with reference to passengers
riding on the rear platform unless the same be provided with a
suitable rail or barrier, etc., and as to persons riding upon the
front platform unless a rail or barrier be provided, separating the
motorman from the balance of the front platform, as well as those
provisions with reference to the requirement to keep the cars clean
and ventilated and fumigated. We think these regulations come
within that class in which this Court has sustained the right of
the local authorities to safeguard the traveling public, and to
promote their comfort and convenience, only incidentally affecting
the interstate business, and not subjecting the same to
unreasonable demands.
New York, N.H. & H. R. Co. v. New
York, 165 U. S. 628;
Lake Shore & Michigan Southern Ry. v. Ohio,
173 U. S. 285;
Atlantic Coast Line v. Georgia, 234 U.
S. 280,
234 U. S.
291-292. As to the regulation affecting the temperature
of the cars, and providing that they shall never be permitted to be
below 50� Fahrenheit, the undisputed testimony
Page 235 U. S. 549
shows that it is impossible in the operation of the cars to keep
them uniformly up to this temperature, owing to the opening and
closing of doors and other interferences that make it
impracticable. We therefore think, upon this showing, this feature
of the ordinance is unreasonable, and cannot be sustained.
Our conclusion is that the Court of Appeals of Kentucky erred in
refusing the injunction as against the provisions of the ordinance
regulating the number of passengers to be carried in a car and the
number of cars to be provided, and the requirement as to heating,
in view of the testimony as heretofore stated. In these respects,
its decision should be reversed. We think the other provisions of
the ordinance separable, and concerning them the plaintiff in error
was not entitled to an injunction in the state court.
Judgment is reversed in part, and the case remanded to the state
court for further proceedings not inconsistent with this
opinion.
Reversed.