actments, 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 (Simpson v. Shepard) 230 U. S. 352, 57 L. ed. 1511, 48 L.R.A. (N.S.) 1151, 33 Sup. Ct. Rep. 729, 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 or 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 discre-, tion 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. [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 [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, 489, 24 L. ed. 547, 548, "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 subjectmatter 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, 41 L. ed. 853, 17 Sup. Ct. Rep. 418; Lake Shore & M. S. R. Co. v. Ohio, 173 U. S. 285, 43 L. ed. 702, 19 Sup. Ct. Rep. 465; Atlantic Coast Line R. Co. v. Georgla, 234 U. S. 280, 291, 292, 58 L. ed. 1312, 1317, 1318, 34 Sup. Ct. Rep. 829. 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 [549] shows that it is impossible in the operation of the curs 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 num

ber 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.

PEOPLE OF THE STATE OF NEW YORK ON THE RELATION OF CORNELL STEAMBOAT COMPANY, Plff. in Err.,

V.

WILLIAM H. SOHMER, as Comptroller of the State of New York.

(See S. C. Reporter's ed. 549-561.)

Commerce -carriers by water-state and Federal licenses.

portation and transmission corporations and associations for the privilege of carrying on business in the state in a corporate or organized capacity, is not an invalid regulation of commerce as applied to a navitowing upon the Hudson river under the gation company engaged in the business of authority of a license granted by the United States, since the charge is not upon the navigation of the river, but upon the doing of business within the state as a corporation of the state, which may be carried on For other cases, see Commerce, 295-307, in by individuals without paying any charge.

Digest Sup. Ct. 1908.] Commerce

gross

state regulation earnings of navigation company route partly in other state.

2. No taxation of interstate commerce results from including the earnings derived vessels between ports in that state over a by a New York corporation from towing course in the Hudson river lying partly in the state of New Jersey when computing the annual excise or license tax equal to fo of 1 per cent upon gross earnings from transportation originating and terminating within the state, which is imposed by N. Y. tax law, § 184, upon transportation and

NOTE. As to state licenses or taxes, generally, as affecting interstate commerce -see notes to Rothermel v. Meyerle, 9 L.R.A. 366; American Fertilizing Co. V. Board of Agriculture, 11 L.R.A. 179; Gibbons v. Ogden, 6 L. ed. U. S. 23; Brown v. Maryland, 6 L. ed. U. S. 678; Ratterman v. Western U. Teleg. Co. 32 L. ed. U. S. 229; Cleveland, C. C. & St. L. R. Co. v. Backus, Harmon v. Chicago, 37 L. ed. U. S. 217; 38 L. ed. U. S. 1041; Postal Teleg. Cable Co. v. Adams, 39 L. ed. U. S. 311; and Pittsburg & S. Coal Co. v. Bates, 39 L. ed. U. S. 538.

On state regulation of interstate or foreign commerce-see notes to Norfolk & W. R. Co. v. Com. 13 L.R.A. 107, and Gloucester

Ferry Co. v. Pennsylvania, 29 L. ed. U. S.

158.

clause see note to Sandford v. Poe, 60 On corporate taxation and the commerce

L.R.A. 641.

On taxation of corporate franchises-see note to Louisville Tobacco Warehouse Co. v. Com. 57 L.R.A. 33.

As to whether a state may regulate the transportation between points within the state over route which passes outside the state see note to Hanley v. Kansas City Southern R. Co. 47 L. ed. U. S. 333.

As to whether shipments between points in the same state lose their character of domestic commerce by passing out of the state during transit-see note to Campbell v. Chicago, M. & St. P. R. Co. 17 L.R.A. 443.

As to whether transportation between points in the same state, over a route part of which is another state, constitutes interstate commerce see note to Missouri, K. & T. R. Co. v. Leibengood 28 L.R.A. (N.S.)

Post v. Kendall County, 105 U. S. 667, 26 L. ed. 1204; Manley v. Park, 187 U. S. 547, 47 L. ed. 296, 23 Sup. Ct. Rep. 208; Wilkes County v. Coler, 180 U. S. 506, 45 L. ed. 642, 21 Sup. Ct. Rep. 458; Louisville & N. R. Co. v. Kentucky, 183 U. S. 503, 46 L. ed. 298, 22 Sup. Ct. Rep. 95; Baccus v. Louisiana, 232 U. S. 337, 58 L. ed. 629, 34 Sup. Ct. Rep. 439.

It is not everything that affects commerce that amounts to a regulation of it, within the meaning of the Constitution.

A tax imposed under § 184 of the tax law of the state of New York, on a domestic corporation of the state of New York, for the privilege of exercising its corporate franchise, measured by the gross earnings of business done on navigable waters of the United States, is not an interference with Federal control of such waters.

Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 211, 29 L. ed. 164, 1 Inters. Com. Rep. 382, 5 Sup. Ct. Rep. 826; Maine v. Grand Trunk R. Co. 142 U. S. 217, 35 L. ed. 994, 3 Inters. Com. Rep. 807, 12 Sup. Ct. Rep. 121, 163; Hanley v. Kansas City Southern R. Co. 187 U. S. 617, 47 L. ed. 333, 23 Sup. Ct. Rep. 214; Michigan C. R. Co. v. Powers, 201 U. S. 245, 296, 50 L. ed. 744, 762, 26 Sup. Ct. Rep. 459; Galveston, H. & S. A. R. Co. v. Texas, 210 U. S. 217, 226, 52 L. ed. 1031, 1037, 28 Sup. Ct.

The tax imposed by § 184 is a tax upon the exercise of corporate franchises, and not a tax directly on property or gross earnings.

Flint v. Tracy Co. 220 U. S. 108, 163, 55 L. ed. 389, 418, 31 Sup. Ct. Rep. 342; People ex rel. Connecting Terminal R. Co. v. Miller, 178 N. Y. 194, 70 N. E. 472; People ex rel. Pennsylvania R. Co. v. Knight, 171 N. Y. 354, 98 Am. St. Rep. 610, 64 N. E. 152; People v. Home Ins. Co. 92 N. Y. 328, affirmed in 134 U. S. 594, 33 L. ed. 1025, 10 Sup. Ct. Rep. 593; People ex rel. United States Aluminum Printing Plate Co. v. Knight, 174 N. Y. 475, 63 L.R.A. 87, 67 N. E. 65.

The power of Congress over navigable streams is derived from two clauses in the Constitution: (1) The commerce clause, giving Congress power "to regulate commerce with foreign nations, and among the several states," and (2) the clause providing that the judicial power of the United States "shall extend to all cases of admiralty and maritime jurisdiction." The latter clause is held to give Congress power to enact and amend the general maritime code of the country, although the clause itself relates only to the jurisdiction of the courts. Butler v. Boston & S. S. S. Co. 130 U. S. 527, 32 L. ed. 1017, 9 Sup. Ct. Rep. 612; Re Garnett, 141 U. S. 1, 35 L. ed. 631, 11 Sup. Ct. Rep. 840.

The state of New York succeeded after the Revolution to all the powers of the King and Parliament with respect to navigable waters within its boundaries, subject only to the limitations placed on those powers by the United States Constitution.

S. 107, 165, 55 L. ed. 389, 419, 31 Sup. Ct. Rep. 342; Meyer v. Wells, F. & Co. 223 U. S. 298, 201, 56 L. ed. 445, 447, 32 Sup. Ct. Rep. 218; United States Exp. Co. v. Minnesota, 223 U. S. 335, 344, 56 L. ed. 459, 464, 32 Sup. Ct. Rep. 211; Ewing v. Leavenworth, 226 U. S. 464, 469, 57 L. ed. 303, 305, 33 Sup. Ct. Rep. 169; Baltic Min. Co. v. Massachusetts, 231 U. S. 68, 83, 58 L. ed. 127, 133, L.R.A. —, 34 Sup. Ct. Rep. 15; New York ex rel. Annan v. Walsh, 143 U. S. 517, 36 L. ed. 247, 4 Inters. Com. Rep. 45, 12 Sup. Ct. Rep. 468.

The comptroller's determination must stand unless clearly shown to be erroneous.

People ex rel. John A. Roebling's Sons' Co. v. Wemple, 138 N. Y. 587, 34 N. E. 386; People ex rel. Western Electric Co. v. Campbell, 145 N. Y. 587, 40 N. E. 239; New York ex rel. Pennsylvania R. Co. v. Knight, 192 U. S. 21, 27, 48 L. ed. 325, 327, 24 Sup. Ct. Rep. 202, affirming 171 N. Y. 354, 98 Am. St. Rep. 610, 64 N. E. 152.

The gross earnings by which the tax on the corporate franchises of the relator is measured were not derived from business of an interstate character.

Lehigh Valley R. Co. v. Pennsylvania, 145 U. S. 192, 36 L. ed. 672, 4 Inters. Com. Rep. 87, 12 Sup. Ct. Rep. 806; United States ex rel. Kellogg v. Lehigh Valley R. Co. 115 Fed. 373; United States ex rel. Interstate Commerce Commission v. Chicago, K. & S. R. Co. 81 Fed. 783; Chicago & N. W. R. Co. v. Osborne, 4 Inters. Com. Rep. 257, 3 C. C. A. 347, 10 U. S. App. 430, 52 Fed. 912; People ex rel. Pennsylvania R. Co. v. Knight, 171 N. Y. 364, 98 Am. St. Rep. 610, 64 N. E. 152, affirmed in 192 U. S. 21, 27, 48 L. ed. 325, 327, 24 Sup. Ct. Rep. 202;