Covington & Cincinnati Bridge Co. v. Kentucky

after stating the case, 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

Congress has no power to interfere with police regulations relating exclusively to the internal trade of the States, United States v. Dewitt, 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 , 470, 471. 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 repug

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 , 641; The Lottawanna, 21 Wall. 558 , 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 Trade Mark Cases, 100 U. S. 82 .

Within the second class of cases — those of what maybe 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 McNiel, 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 , 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 wharfs, 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's Executors, 1 Black, 603 .

Of this class of cases it was said by Mr. Justice Curtis in Cooley v. Board of Wardens, 12 How. 299 , 318: “ If it were

' But wherever such laws, instead of being of a local nature and not affecting interstate commerce but incidentally, are national in their character, the non-action of Congress indicates its will that such commerce shall be free and untrammelled, and the case falls within the third class — of those laws wherein the jurisdiction of Congress is exclusive. Brown v. Houston, 114 U. S. 622 ; Bowman v. Chicago &c. Railway, 125 U. S. 465 . 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

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 Miunn 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, haekmen, 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. 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 itself 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

In the next case, viz., that of the Chicago, Burlington &c. Railroad v. Iowa, 94 U. S. 155 , 163, a bill was 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 Platsmouth 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 t>e 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

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 travelling 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, theréfore, 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

The prior Cases were all reviewed, and the subject exhaustively considered in the Wabash &c. Railway v. Illinois, 118 U. S. 557 , in which there came under review a statute of Illinois enacting that if ¿ny railroad company should, Within that State, charge or receive for transporting passengers of 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 observedr that “ the great question to be decided, and

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

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 , 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

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's Executors, 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 oridge 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

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 coulti not have been built without the consent of Ohio, since the north end of the bridge and its abutments rest upon Ohio soiland 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

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 , 217, “ freedom from such impositions 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 cdmmerce of either class between a statute which regulates the charges for transportation and a statute which

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 184-6, 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.