This company was incorporated under an Act of the Legislature of
Kentucky, approved February 17, 1846, with authority to construct a
bridge across the Ohio at Cincinnati. The third section of the act
required its confirmation by the Ohio, before the corporation
should open its books for subscription, and the eighth section
declared that
"The president and directors shall have the rights to fix the
rates of toll for passing over said bridge, and to collect the same
from all and every person or persons passing thereon, with their
goods, carriages, or animals of every description or kind,
provided, however, that the said company shall lay before
the legislature of this state a correct statement of the costs of
said bridge, and an annual statement of the tolls received for
passing the same, and also the cost of keeping the said bridge in
repair, and of the other expenses of the company, and the said
president and directors shall, from time to time, reduce the rates
of toll, so that the net profits of the said bridge shall not
exceed fifteen percent per annum, after the proper deductions are
made for repairs and charges of other descriptions."
By an act of the Legislature of Ohio, enacted March 9, 1849,
this company was made a body corporate and politic of that state,
"with the same franchises, rights, and privileges, and subject to
the same duties and liabilities" as were specified in its original
incorporation. Some subsequent legislation took place not affecting
the matter in issue here. The bridge was completed in 1867 at a
cost much in excess of what had been contemplated, and has never
earned 15 percent on its cost. On the 31st of March, 1890, the
Legislature of Kentucky enacted that it should be unlawful to
charge, collect, demand, or receive for passage over the bridge
spanning the Ohio River, constructed under such act of
incorporation, any toll, fare, or compensation greater than or in
excess of certain rates prescribed by the act, which were much less
than the directors had fixed upon under the eighth section of the
act of incorporation, and made it obligatory upon the company to
maintain an office and sell tickets in Kentucky at those rates. The
company refusing to comply with the requirements of this act, an
indictment was found against it. This was demurred to, and such
proceedings were had thereafter that the defendant was adjudged
guilty and fined $1000, and the judgment was sustained as
constitutional by the Court of Appeals of the state. The case being
brought here by
Page 154 U. S. 205
writ of error, it is by the whole Court
held that the
Kentucky Act of March 3, 1890, in its effect upon the Bridge
Company, violated the provisions of the Constitution of the United
States.
The judges concurring in the opinion of the court, (BROWN,
HARLAN, BREWER, SHIRAS and JACKS0N, JJ.), after reviewing in detail
the course of the decisions, announce the following as their
grounds for concurring in this result and in the judgment:
(1) That the traffic across the river was interstate
commerce.
(2) That the bridge was an instrument of such commerce.
(3) That the statute was an attempted regulation of such
commerce which the state had no constitutional power to make.
(4) That Congress alone possesses the requisite power to enact a
uniform scale of charges in such a case, the authority of the state
being limited to fixing tolls on such channels of commerce as are
exclusively within its territory.
The minority of the Court (consisting of FULLER, C.J., and
FIELD, GRAY, and WHITE, JJ.) gave the reasons for their concurrence
in the result and the judgment as follows:
(1) The several states have the power to establish and regulate
ferries and bridges, and the rates of toll thereon, whether within
one state or between two adjoining states, subject to the paramount
authority of Congress over interstate commerce.
(2) By the concurrent acts of the Legislature of Kentucky in
1846 and of the legislature of Ohio in 1849, this bridge company
was made a corporation of each state, and authorized to fix rates
of toll.
(3) Congress, by the Act of February 17, 1865, c. 39, declared
this bridge "to be, when completed in accordance with the laws of
the States of Ohio and Kentucky, a lawful structure," but made no
provision as to tolls, and thereby manifested the intention of
Congress that the rates of toll should be as established by the two
states.
(4) The original acts of incorporation constituted a contract
between the corporation and both states, which could not be altered
by the one state without the consent of the other.
This was an indictment found by the grand jury of Kenton County,
Kentucky, against the defendant bridge company for demanding and
collecting illegal tolls, refusing to sell tickets at the rates
required by law, and for failing to keep an office for the sale of
tickets at its bridge in said county.
The Covington and Cincinnati Bridge Company was incorporated
under an act of the Legislature of Kentucky approved February 17,
1846, the third section of which required the confirmation of the
act by the State of Ohio before the corporation should open its
books for subscription,
Page 154 U. S. 206
and the eighth section of which declared that
"The president and directors shall have the right to fix the
rates of toll for passing over said bridge, and to collect the same
from all and every person or persons passing thereon, with their
goods, carriages, or animals of every description or kind,
provided however that the said company shall lay before
the legislature of this state a correct statement of the cost of
said bridge, and an annual statement of the tolls received for
passing the same, and also the cost of keeping the said bridge in
repair, and of the other expenses of the company, and the said
president and directors shall, from time to time, reduce the rates
of toll so that the net profits of the said bridge shall not exceed
fifteen percent per annum after the proper deductions are made for
repairs and charges of other descriptions."
By an act of the Legislature of Ohio enacted March 9, 1849, this
company was made a body corporate and politic of that state, "with
the same franchises, rights, and privileges, and subject to the
same duties and liabilities" as were specified in its original
incorporation and with a further proviso that
"nothing herein contained shall be construed to take away the
jurisdiction of this state to the center of the said bridge nor in
anywise to acknowledge the jurisdiction of the Commonwealth of
Kentucky this side of the said center."
On March 20, 1850, this act of confirmation was amended by the
Legislature of Ohio by granting the company
"power to enter upon any lands in the City of Cincinnati, from
low water mark in the Ohio River northwardly, not exceeding one
hundred feet in width, to Front Street, and appropriate the
same"
for passageways and abutments, etc.
The original act of incorporation was amended by the Legislature
of Kentucky by the following among other subsequent acts:
1. By Act of February 23, 1856, authority was given to increase
the capital stock from $300,000 to $700,000, with power in the City
of Covington to subscribe for and purchase $100,000.
2. By Act of February 6, 1858, the company was authorized
Page 154 U. S. 207
to issue preferred stock under certain restrictions, such
stockholders to receive dividends of 6 percent
3. By Act of February 5, 1861, the capital stock was increased
to $1,000,000, one-half of such amount in preferred stock, and to
pledge the revenues of the company for the payment of dividends
upon such preferred stock to the extent of 15 percent per
annum.
4. By Act of January 21, 1865, the capital stock was increased
to $1,250,000, the additional $250,000 being preferred stock, the
holders of which should enjoy all the benefits, privileges, and
immunities to which the holders of the existing stock were
entitled.
By the sixth section of this act, the legislature reserved the
right to change, alter, or amend the original charter, "but not so
as to abridge or injure legal or equitable rights acquired
thereunder."
5. By Act of February 25, 1865, the above sixth section was
repealed.
6, By Act of Congress of February 17, 1865, the bridge was
declared to be a lawful structure and post road for the conveyance
of the mails of the United States. 13 Stat. 431.
The bridge was completed and opened for travel January 1,
1867.
On April 9, 1890, the Legislature of Kentucky passed another act
amendatory of the act of incorporation, and out of which this
prosecution arose, providing that it should be unlawful for any
person or corporation to charge, collect, demand, or receive for
passage over the bridge spanning the Ohio River, constructed under
such act of incorporation, any toll, fare, or compensation greater
than, or in excess of, certain rates prescribed by the act, which
were much less than the directors had fixed upon under the eighth
section of the act of incorporation. The second section provided
that the company should sell passage tickets over their bridge at
these rates, entitling the holder to passage either way over said
bridge, and by the third section the company was required to keep
an office within the County of Kenton constantly open
Page 154 U. S. 208
for the sale of such tickets, and keep conspicuously posted a
schedule of the tolls fixed in pursuance of the act.
The company failing to conform to this last-mentioned act, this
indictment was filed May 9, 1890. Defendant demurred thereto, and
the case was submitted upon this demurrer and a statement of facts
showing the cost of the bridge structure and offices to have been
$1,855,462.36; the percent of net earnings on cost for first 23
years, 4.82; the percent of net earnings on cost for the year 1889,
6.14; the estimated percent of net earnings on cost for 1890, 4.09,
under the charges fixed by the directors; the estimated percentage
of net earnings on cost for the year 1890, under the act of which
complaint was made, 1.06. The court sustained the demurrer and
dismissed the indictments upon the ground that the act of 1890
impaired the obligation of the contract contained in the eighth
section of the original act. The commonwealth appealed to the Court
of Appeals, by which the judgment of the court below was reversed
and the case remanded with directions to overrule the demurrer, and
for further proceedings. The case was thereupon remanded to the
lower court and submitted without a jury. The court adjudged the
defendant guilty, and imposed a fine of $1,000, from which judgment
the defendant again appealed to the Court of Appeals, which
affirmed the judgment of the court below, and certified at the
request of the appellant, the following questions as arising under
the Constitution and laws of the United States:
1. Whether the act of 1890 was within the constitutional
inhibition of laws impairing the obligation of contracts.
2. Whether such acts were in violation of the exclusive power of
Congress to regulate commerce among the states.
3. Whether said act was in violation of the Fourteenth
Amendment, prohibiting the taking of private property without due
process of law.
Defendant thereupon sued out a writ of error from this
Court.
Page 154 U. S. 209
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
This case involves the power of a state to regulate tolls upon a
bridge connecting it with another state without the assent of
Congress and without the concurrence of such other state in the
proposed tariff.
The right of the Commonwealth of Kentucky to prescribe a
schedule of charges in this instance is contested not only upon the
ground that such regulation is an interference with interstate
commerce, but upon the further ground that it impairs the
obligation of the contract contained in the original charter of the
company.
The power of Congress over commerce between the states, and the
corresponding power of individual states over such commerce, have
been the subject of such frequent adjudication in this Court, and
the relative powers of Congress and the states with respect thereto
are so well defined that each case, as it arises, must be
determined upon principles already settled, as falling on one side
or the other of the line of demarcation between the powers
belonging exclusively to Congress and those in which the action of
the state may be concurrent. The adjudications of this Court with
respect to the power of the states over the general subject of
commerce are divisible into three classes: first, those in which
the power of the state is exclusive; second, those in which the
states may act in the absence of legislation by Congress; third,
those in which the action of Congress is exclusive, and the states
cannot interfere at all.
The first class, including all those wherein the states have
plenary power and Congress has no right to interfere, concern the
strictly internal commerce of the state, and, while the regulations
of the state may affect interstate commerce indirectly, their
bearing upon it is so remote that it cannot
Page 154 U. S. 210
be termed in any just sense an interference. Under this power,
the states may authorize the construction of highways, turnpikes,
railways, and canals between points in the same state and regulate
the tolls for the use of the same,
Railroad
v. Maryland, 21 Wall. 456, and may authorize the
building of bridges over nonnavigable streams and otherwise
regulate the navigation of the strictly internal waters of the
state -- such as do not, by themselves or by connection with other
waters, form a continuous highway over which commerce is or may be
carried on with other states or foreign countries,
Veazie v.
Moor, 14 How. 568;
The
Montello, 11 Wall. 411,
87 U. S. 20 Wall.
430. This is true notwithstanding the fact that the goods or
passengers carried or traveling over such highway between points in
the same state may ultimately be destined for other states, and, to
a slight extent, the state regulations may be said to interfere
with interstate commerce. The states may also exact a bonus, or
even a portion of the earnings of such corporation, as a condition
to the granting of its charter.
Society
for Savings v. Coite, 6 Wall. 594;
Provident
Institution v. Massachusetts, 6 Wall. 611;
Hamilton Company v.
Massachusetts, 6 Wall. 632;
Railroad
Company v. Maryland, 21 Wall. 456;
Ashley v.
Ryan, 153 U. S. 436.
Congress has no power to interfere with police regulations
relating exclusively to the internal trade of the states,
United States v. De
Witt, 9 Wall. 41;
Patterson v. Kentucky,
97 U. S. 501, nor
can it, by exacting a tax for carrying on a certain business,
thereby authorize such business to be carried on within the limits
of a state.
License Tax
Cases, 5 Wall. 462. The remarks of THE CHIEF
JUSTICE in this case contain the substance of the whole
doctrine:
"Over this [the internal] commerce and trade Congress has no
power of regulation, nor any direct control. This power belongs
exclusively to the states. No interference by Congress with the
business of citizens transacted within a state is warranted by the
Constitution except such as is strictly incidental to the exercise
of powers clearly granted to the legislature. The power to
authorize a business within a state is plainly
Page 154 U. S. 211
repugnant to the exclusive power of the state over the same
subject."
It was at one time thought that the admiralty jurisdiction of
the United States did not extend to contracts of affreightment
between ports of the United States, though the voyage were
performed upon navigable waters of the United States.
Allen v.
Newberry, 21 How. 244. But later adjudications have
ignored this distinction as applied to those waters.
The Belfast, 7
Wall. 624,
74 U. S. 641;
The
Lottawanna, 21 Wall. 558,
88 U. S. 587;
Lord v. Steamship Co., 102 U. S. 541.
Under this power, the states may also prescribe the form of all
commercial contracts, as well as the terms and conditions upon
which the internal trade of the state may be carried on.
The
Trademark Cases, 100 U. S. 82.
Within the second class of cases -- those of what may be termed
concurrent jurisdiction -- are embraced laws for the regulation of
pilots,
Cooley v. Philadelphia Board
of Wardens, 12 How. 299;
Steamship
Company v. Joliffe, 2 Wall. 450;
Ex Parte
McNeil, 13 Wall. 236;
Wilson v. McNamee,
102 U. S. 572;
quarantine and inspection laws and the policing of harbors,
Gibbons v.
Ogden, 9 Wheat. 1,
22 U. S. 203;
City of New York v.
Miln, 11 Pet. 102;
Turner v. Maryland,
107 U. S. 38;
Morgan Steamship Co. v. Louisiana, 118 U.
S. 455; the improvement of navigable channels,
County of Mobile v. Kimball, 102 U.
S. 691;
Escanaba Co. v. Chicago, 107 U.
S. 678;
Huse v. Glover, 119 U.
S. 543; the regulation of wharves, piers, and docks,
Cannon v. New
Orleans, 20 Wall. 577;
Packet Company v.
Keokuk, 95 U. S. 80;
Packet Company v. St. Louis, 100 U.
S. 423;
Packet Company v. Catlettsburg,
105 U. S. 559;
Transportation Company v. Parkersburg, 107 U.
S. 691;
Ouachita Packet Co. v. Aiken,
121 U. S. 444; the
construction of dams and bridges across the navigable waters of a
state,
Willson v. Blackbird Creek
Marsh Co., 2 Pet. 245;
Cardwell v. American
Bridge Co., 113 U. S. 205;
Pound v. Turck, 95 U. S. 459, and
the establishment of ferries,
Conway v.
Taylor, 1 Black 603.
Of this class of cases it was said by Mr. Justice Curtis in
Cooley v. Board of
Wardens, 12 How 299,
53 U. S.
318:
"If it were
Page 154 U. S. 212
admitted that the existence of this power in Congress, like the
power of taxation, is compatible with the existence of a similar
power in the states, then it would be in conformity with the
contemporary exposition of the Constitution and with the judicial
construction given from time to time by this Court, after the most
deliberate consideration, to hold that the mere grant of such a
power to Congress did not imply a prohibition on the states to
exercise the same power; that it is not the mere existence of such
a power, but its exercise by Congress, which may be incompatible
with the exercise of the same power by the states, and that the
states may legislate in the absence of congressional
regulations."
See also Sturgis v.
Crowninshield, 4 Wheat. 192,
17 U. S. 193.
But even in the matter of building a bridge, if Congress chooses to
act, its action necessarily supersedes the action of the state.
Pennsylvania v. Wheeling &
Belmont Bridge Co., 18 How. 421. As matter of fact,
the building of bridges over waters dividing two states is now
usually done by congressional sanction. Under this power, the state
may also tax the instruments of interstate commerce as it taxes
other similar property, provided such tax be not laid upon the
commerce itself.
But wherever such laws, instead of being of a local nature and
affecting interstate commerce but incidentally, are national in
their character, the nonaction of Congress indicates its will that
such commerce shall be free and untrammeled, and the case falls
within the
third class -- of those laws where in the
jurisdiction of Congress is exclusive.
Brown v. Houston,
114 U. S. 622;
Bowman v. Chicago &c. Railway, 125
U. S. 456. Subject to the exceptions above specified as
belonging to the first and second classes, the states have no right
to impose restrictions either by way of taxation, discrimination,
or regulation upon commerce between the states. That while the
states have the right to tax the instruments of such commerce as
other property of like description is taxed, under the laws of the
several states, they have no right to tax such commerce itself is
too well settled even to justify the citation of authorities. The
proposition was first laid down
Page 154 U. S. 213
in
Crandall v.
Nevada, 6 Wall. 35, and has been steadily adhered
to since. That such power of regulation as they possess is limited
to matters of a strictly local nature, and does not extend to
fixing tariffs upon passengers or merchandise carried from one
state to another, is also settled by more recent decisions,
although it must be admitted that cases upon this point have not
always been consistent.
The question of the power of the states to lay down a scale of
charges, as distinguished from their power to impose taxes, was
first squarely presented to the court in
Munn v. Illinois,
94 U. S. 113, in
which a power was conceded to the state to prescribe regulations
and fix the charges of elevators used for the reception, storage,
and delivery of grain notwithstanding such elevators were used for
the storage of grain destined for other states. The decision was
put upon the ground that elevators were property "affected with a
public interest," and that from time immemorial in England, and in
this country from its first colonization, it had been customary to
regulate ferries, common carriers, hackmen, bakers, millers,
wharfingers, innkeepers, etc., and in so doing to fix a maximum of
charge to be made for services rendered, accommodations furnished,
and articles sold. That the decision does not necessarily imply a
power in the states to prescribe similar regulations with regard to
railroads and other corporations directly engaged in interstate
commerce is evident from the remarks of The Chief Justice, p.
94 U. S. 135,
in delivering the opinion of the Court:
"The warehouses of these plaintiffs in error are situated and
their business carried on exclusively within the limits of the
State of Illinois. They are used as instruments by those engaged in
state as well as those engaged in interstate commerce, but they are
no more necessarily a part of commerce than the dray or the cart by
which but for them grain would be transferred from one railroad
station to another. Incidentally they may become connected with
interstate commerce, but not necessarily so. Their regulation is a
thing of domestic concern, and certainly, until Congress acts in
reference to their interstate relations, the state may exercise all
the powers of government over
Page 154 U. S. 214
them, even though in so doing it may operate upon commerce
outside its immediate jurisdiction."
The principle of this case has been recently affirmed in
Budd v. New York, 143 U. S. 517, and
reaffirmed in
Brass v. North Dakota, 153 U.
S. 391, though not without strong opposition from a
minority of the Court.
The next case,
viz., that of
Chicago, Burlington
&c. Railroad v. Iowa, 94 U. S. 155, was a
bill filed by the Chicago, Burlington and Quincy Railroad Company,
an Illinois corporation, to restrain the prosecution of suits
against it under "An act to establish reasonable maximum rates of
charges for the transportation of freight and passengers on the
different railroads of this state." The complainant was also the
lessee of the Burlington and Missouri Railroad, in Iowa, the two
roads being connected by a bridge which crossed the Mississippi
River at Burlington, thus making a continuous railroad from Chicago
to Plattsmouth on the Missouri River in Iowa. The case was held to
be covered by
Munn v. Illinois, the road, like the
warehouse in that case, being situated within the limits of a
single state. "Its business," said the Chief Justice,
"is carried on there, and its regulation is a matter of domestic
concern. It is employed in state as well as interstate commerce,
and, until Congress acts, the state must be permitted to adopt such
rules and regulations as may be necessary for the promotion of the
general welfare of the people within its own jurisdiction, even
though in so doing those without may be indirectly affected."
In short, the case was treated as one of internal commerce
only.
In the next case,
viz., Peik v. Chicago & Northwestern
Railway, 94 U. S. 164, it
was held that under the Constitution of Wisconsin, providing that
all acts creating corporations within the state "may be altered or
repealed by the legislature at any time after their passage," the
legislature had a right to prescribe a maximum of charges to be
made by the Chicago and Northwestern Railway Company for
transporting persons or property within the state, or taken up
outside the state and brought within it, or taken up inside
Page 154 U. S. 215
and carried without. The vital question is not discussed at any
length, but it was held that until Congress acted with reference to
the relations of this company to interstate commerce, it was within
the power of the State of Wisconsin to regulate its affairs so far
as they were of a domestic concern. These three cases were cited
with approval in
Ruggles v. Illinois, 108 U.
S. 526, in which the power of a state to limit the
amount of charges by a railroad company for fares and freight was
recognized.
A similar principle, though under quite a different state of
facts, was involved in
Hall v. De Cuir, 95 U. S.
485, which concerned an act of the Legislature of
Louisiana requiring those engaged in the transportation of
passengers among the states to give all persons traveling within
that state, upon vessels employed in such business, equal rights
and privileges in parts of the vessel, without distinction on
account of race or color. The act was held to be a regulation of
interstate commerce, and therefore unconstitutional and void. In
the
Railroad Commission Cases, 116 U.
S. 307, it was held that the right of a state to limit
the charges of a railroad company for the transportation of persons
or property within its jurisdiction could not be granted away by
its legislature unless by words of positive grant or words
equivalent in law, and that a statute which granted to a railroad
company the right from time to time to fix and regulate the tolls
and charges by them to be received for transportation did not
deprive the State of its power to act upon the reasonableness of
the tolls and charges so fixed and regulated. It was held that the
state might,
"beyond all question, by the settled rule of decision in this
Court, regulate freights and fares for business done exclusively
within the state, and it would seem to be a matter of domestic
concern to prevent the company from discriminating against persons
and places in Mississippi. . . . Nothing can be done by the
government of Mississippi which will operate as a burden on the
interstate business of the company or impair the usefulness of its
facilities for interstate traffic. . . . The commission is in
express terms prohibited by the Act of March 15, 1884, from
interfering
Page 154 U. S. 216
with the charges of the company for the transportation of
persons or property through Mississippi from one state to another.
The statute makes no mention of property taken up without the state
and delivered within, nor of such as may be taken within and
carried without."
The Court studiously avoided committing itself upon the question
of the power of the commission over interstate commerce.
The prior cases were all reviewed, and the subject exhaustively
considered, in
Wabash &c. Railway v. Illinois,
118 U. S. 557, in
which there came under review a statute of Illinois enacting that
if any railroad company should, within that state, charge or
receive for transporting passengers or freight of the same class
the same or a greater sum for any distance than it does for a
longer distance, it should be liable to a penalty for unjust
discrimination. The defendant in that case made such discrimination
in regard to goods transported over the same road or roads, from
Peoria, Illinois, and from Gilman, in Illinois, to New York,
charging more for the same class of goods carried from Gilman than
from Peoria, the former being eighty-six miles nearer the City of
New York than the latter, this difference being in the length of
line in the State of Illinois. The Court held that such
transportation was commerce among the states, even as to that part
of the voyage which lay within the State of Illinois, and that the
regulation of such commerce was confided to Congress exclusively
under its power to regulate commerce between the states, and that
the statute in question, being intended to regulate the
transmission of persons or property from one state to another, was
not within that class of legislation which the states may enact in
the absence of legislation by Congress. In delivering the opinion
of the Court, Mr. Justice Miller cited the prior cases and said
that it must be admitted that in a general way, the Court treated
the cases then before it as belonging to that class of regulations
of commerce which, like pilotage, bridging navigable rivers, and
many others, could be acted upon by the states in the absence of
any legislation by Congress upon the same subject. He further
observed that
"the great question to be decided, and
Page 154 U. S. 217
which was decided, and which was argued in all those cases, was
the right of the state in which the railroad company did business
to regulate or limit the amount of any of these traffic charges.
The importance of that question overshadowed all others, and the
case of
Munn v. Illinois was selected by the Court as the
most appropriate one in which to give its opinion on that subject,
because that case presented the question of a private citizen, or
unincorporated partnership, engaged in the warehouse business in
Chicago, . . . free from the question of continuous transportation
through the several states, . . . and the question how far a charge
made for a continuous transportation over several states, which
included a state whose laws were in question, may be divided into
separate charges for each state, in enforcing the power of the
state to regulate the fares of its railroads, was evidently not
fully considered."
The substance of the opinion was that if the prior cases were to
be considered as laying down the principle that the states might
regulate the charges for interstate traffic, they must be
considered as overruled.
See also Bowman v. Chicago &c.
Railway, 125 U. S. 465. In
none of the subsequent cases has any disposition been shown to
limit or qualify the doctrine laid down in the
Wabash
case, and to that doctrine we still adhere.
The real question involved here is whether this case can be
distinguished from the
Wabash case. That involved the
right of a single state to fix the charge for transportation from
the interior of such state to places in other states. This case
involves the right of one state to fix charges for the
transportation of persons and property over a bridge connecting it
with another state, without the assent of Congress or such other
state, and thus involving the further inquiries -- first whether
such traffic across the river is interstate commerce, and second
whether a bridge can be considered an instrument of such
commerce.
The first question must be answered in the affirmative upon the
authority of
Gloucester Ferry Co. v. Pennsylvania,
114 U. S. 196, in
which the State of Pennsylvania attempted to tax the capital stock
of a corporation whose entire business
Page 154 U. S. 218
consisted in ferrying passengers and freight over the River
Delaware between Philadelphia, in Pennsylvania, and Gloucester, in
New Jersey. This traffic was held to be interstate commerce, and,
inasmuch as it appeared that the ferry boats were registered in New
Jersey and were taxable there, it was held that there was no
property held by the company which could be the subject of taxation
in Pennsylvania except the lease of a wharf in that state.
"Congress alone," said the Court (page
114 U. S.
204),
"therefore can deal with such transportation; its nonaction is a
declaration that it shall remain free from burdens imposed by state
legislation. Otherwise, there would be no protection against
conflicting regulations of different states, each legislating for
its own interests and products, and against those of other
states."
If, as was intimated in that case, interstate commerce means
simply commerce between the states, it must apply to all commerce
which crosses the state line, regardless of the distance from which
it comes or to which it is bound, before or after crossing such
state line -- in other words, if it be commerce to send goods from
Cincinnati, in Ohio, to Lexington, in Kentucky, it is equally such
to send goods or to travel in person from Cincinnati to Covington.
And while the reasons which influenced this Court to hold in the
Wabash case that Illinois could not fix rates between
Peoria and New York may not impress the mind so strongly when
applied to fixing the rates of toll upon a bridge or ferry, the
principle is identically the same, and, at least in the absence of
mutual or reciprocal legislation between the two states, it is
impossible for either to fix a tariff of charges.
With reference to the second question, an attempt is made to
distinguish a bridge from a ferry boat, and to argue that, while
the latter is an instrument of interstate commerce, the former is
not. Both are, however, vehicles of such commerce, and the fact
that one is movable and the other is a fixture makes no difference
in the application of the rule. "Commerce" was defined in
Gibbons v.
Ogden, 9 Wheat. 1,
22 U. S. 189, to
be "intercourse," and the thousands of people who daily pass and
repass over this bridge may be as truly said to be engaged in
Page 154 U. S. 219
commerce as if they were shipping cargoes of merchandise from
New York to Liverpool. While the bridge company is not itself a
common carrier, it affords a highway for such carriage, and a toll
upon such bridge is as much a tax upon commerce as a toll upon a
turnpike is a tax upon the traffic of such turnpike, or the charges
upon a ferry a tax upon the commerce across a river. A tax laid
upon those who do the business of common carriers upon a certain
bridge is as much a tax upon the commerce of that bridge as if the
owner of the bridge were himself a common carrier.
Let us examine some of the cases which are supposed to
countenance the doctrine that ferries and bridges connecting two
states are not instruments of commerce between such states in such
sense as to exempt them from state control. In
Conway v.
Taylor, 1 Black 603, a ferry franchise on the Ohio
was held to be grantable under the laws of Kentucky to a citizen of
that state who was a riparian owner on the Kentucky side. It was
said not to be necessary to the validity of the grant that the
grantee should have the right of landing on the other side or
beyond the jurisdiction of the state. The opinion, however, did not
pass upon the question of the right of one state to regulate the
charge for ferriage, nor does it follow that because a state may
authorize a ferry or bridge from its own territory to that of
another state, it may regulate the charges upon such bridge or
ferry. A state may undoubtedly create corporations for the purpose
of building and running steamships to foreign ports, but it would
hardly be claimed that an attempt to fix a scale of charges for the
transportation of persons or property to and from such foreign
ports would not be a regulation of commerce and beyond the
constitutional power of the state. It is true the states have
assumed the right in a number of instances since the adoption of
the Constitution to fix the rates or tolls upon interstate ferries
and bridges, and perhaps in some instances have been recognized as
having the authority to do so by the courts of the several states.
But we are not aware of any case in this Court where such right has
been recognized. Of recent years, it has been the custom to obtain
the consent of
Page 154 U. S. 220
Congress for the construction of bridges over navigable waters,
and by the seventh section of the Act of September 19, 1890, c.
907, 26 Stat. 426, 454, it is made unlawful to begin the
construction of any bridge over navigable waters until the location
and plan of such bridge have been approved by the Secretary of War,
who has also been in frequent instances authorized to regulate the
tolls upon such bridges where they connected two states. So too, in
Wiggins Ferry Company v. East St. Louis, 107 U.
S. 365, it was held that a state had the power to impose
a license fee, either directly or through one of its municipal
corporations upon ferry keepers living in the state for boats which
they owned and used in conveying, from a landing in the state,
passengers and goods across a navigable river to another state. It
was said that
"the levying of a tax upon vessels or other water craft, or the
exaction of a license fee by the state within which the property
subject to the exaction has its situs, is not a regulation of
commerce within the meaning of the Constitution of the United
States."
Obviously the case does not touch the question here involved.
Upon the other hand, however, it was held in
Moran v. New
Orleans, 112 U. S. 69, that
a municipal ordinance of New Orleans imposing a license tax upon
persons owning and running towboats to and from the Gulf of Mexico
was void as a regulation of commerce.
It is clear that the State of Kentucky, by the statute in
question, attempts to reach out and secure for itself a right to
prescribe a rate of toll applicable not only to persons crossing
from Kentucky to Ohio, but from Ohio to Kentucky -- a right which
practically nullifies the corresponding right of Ohio to fix tolls
from her own state. It is obvious that the bridge could not have
been built without the consent of Ohio, since the north end of the
bridge and its abutments rest upon Ohio soil, and without authority
from that state to exercise the right of eminent domain, no land
could have been acquired for that purpose. It follows that if the
State of Kentucky has the right to regulate the travel upon such
bridge and fix the tolls, the State of Ohio has the same right, and
so long as their action is harmonious, there may be no room for
friction
Page 154 U. S. 221
between the states; but it would scarcely be consonant with good
sense to say that separate regulations and separate tariffs may be
adopted by each state (if the subject be one for state regulation),
and made applicable to that portion of the bridge within its own
territory. So far as the matter of construction is concerned, each
state may proceed separately by authorizing the company to condemn
land within its own territory, but in the operation of the bridge,
their action must be joint or great confusion is likely to result.
It may be for the interest of Kentucky to add to its own population
by encouraging residents of Cincinnati to purchase homes in
Covington, and to do this by fixing the tolls at such a rate as to
induce citizens of Ohio to reside within her borders. It might be
equally for the interest of Ohio to prescribe a higher rate of toll
to induce her citizens to remain and fix their homes within their
own state, and, as persons living in one state and doing business
in another would necessarily have to cross the bridge at least
twice a day, the rates of toll might become a serious question to
them. Congress, and Congress alone, possesses the requisite power
to harmonize such differences and to enact a uniform scale of
charges which will be operative in both directions. The authority
of the state, so frequently recognized by this Court, to fix tolls
for the use of wharves, piers, elevators, and improved channels of
navigation, has always been limited to such as were exclusively
within the territory of a single state, thus affecting interstate
commerce but incidentally, and cannot be extended to structures
connecting two states without involving a liability of
controversies of a serious nature. For instance, suppose the agent
of the bridge company in Cincinnati should refuse to recognize
tickets sold upon the Kentucky side, enabling the person holding
the ticket to pass from Ohio to Kentucky, it would be a mere
brutum fulmen to attempt to punish such agent under the
laws of Kentucky. Or suppose the State of Ohio should authorize
such agent to refuse a passage to persons coming from Kentucky who
had not paid the toll required by the Ohio statute, or that
Kentucky should enact that all persons crossing from Kentucky to
Ohio should be entitled to a free
Page 154 U. S. 222
passage, and thus attempt to throw the whole burden upon persons
crossing in the opposite direction. It might be an advantage to one
state to make the charge for foot passengers very low, and the
charge for merchandise very high, and for the other side to adopt a
converse system. One scale of charges might be advantageous to
Kentucky in this instance, where the larger city is upon the north
side of the river, while a wholly different system might be to her
advantage at Louisville, where the larger city is upon the south
side.
We do not wish to be understood as saying that in the absence of
congressional legislation or mutual legislation of the two states,
the company has the right to fix tolls at its own discretion. There
is always an implied understanding with reference to these
structures that the charges shall be reasonable, and the question
of reasonableness must be settled, as other questions of a judicial
nature are settled, by the evidence in the particular case. As was
said in
Gloucester Ferry Co. v. Pennsylvania, 114 U.
S. 196,
114 U. S.
217:
"Freedom from such imposition does not, of course, imply
exemption from reasonable charges, as compensation for the carriage
of persons, in the way of tolls or fares, or from the ordinary
taxation to which other property is subjected, any more than like
freedom of transportation on land implies such exemption.
Reasonable charges for the use of property, either on water or
land, are not an interference with the freedom of transportation
between the states secured under the commercial power of
Congress."
Nor are we to be understood as passing upon the question
whether, in the absence of legislation by Congress, the states may
by reciprocal action fix upon a tariff which shall be operative
upon both sides of the river.
We do hold, however, that the statute of the Commonwealth of
Kentucky in question in this case is an attempted regulation of
commerce which it is not within the power of the state to make. As
was said by Mr. Justice Miller in the
Wabash case:
"It is impossible to see any distinction in its effects upon
commerce of either class between a statute which regulates the
charges for transportation and a statute which
Page 154 U. S. 223
levies a tax for the benefit of the state upon the same
transportation."
The judgment of the Court of Appeals of Kentucky is
therefore reversed, and the case remanded to that court for further
proceedings in conformity with this opinion.
MR. CHIEF JUSTICE FULLER, MR. JUSTICE FIELD, MR. JUSTICE GRAY,
and MR. JUSTICE WHITE concurred in the judgment of reversal for the
following reasons:
The several states have the power to establish and regulate
ferries and bridges, and the rates of toll thereon, whether within
one state or between two adjoining states, subject to the paramount
authority of Congress over interstate commerce.
By the concurrent acts of the Legislature of Kentucky in 1846,
and of the Legislature of Ohio in 1849, this bridge company was
made a corporation of each state, and authorized to fix rates of
toll.
Congress, by the Act of February 17, 1865, c. 39, declared this
bridge "to be, when completed in accordance with the laws of the
states of Ohio and Kentucky, a lawful structure," but made no
provision as to tolls, and thereby manifested the intention of
Congress that the rates of toll should be as established by the two
states. 13 Stat. 431.
The original acts of incorporation constituted a contract
between the corporation and both states, which could not be altered
by the one state without the consent of the other.
