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Counsel for Plaintiff in Error.
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 per cent of net earnings on cost for first 23 years, 4.82; the per cent of net earnings on cost for the year 1889, 6.14; the estimated per cent of net earnings on cost for 1890, 41, 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%. 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 $1000, 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.
Mr. Solicitor General for plaintiff in error.
Mr. William M. Ramsey, Mr. James W. Bryan, Mr. John F. Fisk, and Mr. Charles II. Fisk were with him on his brief.
Opinion of the Court.
Mr. William J. Hendrick, Attorney General of the State of Kentucky, and Mr. William Goebel for defendant in
MR. JUSTICE Brown, 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
Opinion of the Court.
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 non-navigable 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; S. C. 20 Wall. 430. This is true notwithstanding the fact that the goods or passengers carried or travelling 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. 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.
Opinion of the Court.
nant 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, 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 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 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
Opinion of the Court.
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, (Federalist, No. 32,) 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 Sturges v. Crowninshield, 4 Wheat. 122, 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 and 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 States 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 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