L stitution of the United States, the laws of Congress and the rights of the defendants; and, not in accordance with the terms of said stream within the entire control and jurisordinance). The rights and privileges diction of Congress and the courts of the granted by the plaintiff to the defendant United States, and that assumption of conwere of great value, and the plaintiff was trol by the city of that part of the bridge influenced and induced to so grant them by for purposes of taxation or for any purpose the belief in the right on the part of the except for executing writs from its police plaintiff to tax said bridge as other prop-authorities, would be in violation of the Conerty is taxed within the city limits. By the building of said bridge through the rights and privileges so granted by the plaintiff the system of roads north of the Ohio River 597]has been connected with the Louisville & Nashville Railroad south of the river, and the said bridge company's property has become so valuable that its bonds to the amount of about $2,000,000 are worth a premium of 82 per cent." The assessment against the bridge company on account of the bridge and its approaches was upon a valuation of $600,000 in 1885 and $1,000,000 in each of the years 1886 and 1887. In its petition the city claimed a lien upon the bridge from the beginning of its approach at Main street in the city of Henderson to low-water mark on the Indiana side of the Ohio river for said taxes and the penalties thereon. The bridge company in its answer denied the material allegations of the petition and alleged That the city had no authority to levy taxes for the purposes indicated in the ordinances referred to; That the declaration in the ordinance granting the right to construct the bridge within the city's limits meant and was intended to mean nothing more than that the city did not waive any right to tax then possessed by it; That the bridge was built only for the purpose of laying a single railroad track on which to move locomotives and cars between Kentucky and Indiana over the Ohio river; That except as to that part of the bridge commencing at the west line of Main street. in the city of Henderson and extending to the main structure at Water street, the bridge company derived no assistance or protection from the city, and that part between the Kentucky and Indiana shores upon stone piers and pillars resting upon the bed of the Ohio river was not subject to taxation by the city; That the bridge was located and constructed in conformity with the two acts of the Congress of the United States, the one entitled "An Act to Authorize the Construction of Bridges across the Ohio River and to Prescribe the Dimensions of the Same," approved December 17th, 1872, and the other entitled "An Act Supplementary to an Act Approved December 17th, 1872," entitled "An Act to Authorize the Construction of Bridges across the Ohio River and to Prescribe the Dimensions of the Same," approved February 14, 1883, 17 Stat. at L. 398, chap. 4; 22 Stat. at L. 414, chap. 44. 598] *That the whole of said bridge between the Kentucky shore and the Indiana shore, 1,968 feet in length, was over the water of the Ohio river, except the piers or pillars that support it; That the Ohio river was a navigable That, as the bridge derived no profit, protection, or advantage from the government of the city, to subject it to city taxation would be to take private property for public use without just compensation, in violation of the Constitution of the United States as well as of the Constitution and laws of Kentucky and of the defendant's rights in the premises. The answer of the bridge company further alleged That the Louisville & Nashville Railroad Company was a necessary party to that suit; That when it constructed its bridge it was the settled law of Kentucky, as shown by the judgment of the court of appeals of Kentucky in Louisville Bridge Company v. City of Louisville, 81 Ky. 189, that the part of the bridge erected over and across the Ohio river was not liable to municipal taxation; That relying upon such being the law of Kentucky the defendant and the Louisville & Nashville Railroad Company entered into the above agreement of February 27, 1884; and, That to grant to the plaintiff the relief prayed for or any part thereof would be a direct impairment of the contract between the bridge company and the railroad company. The railroad company having been made a party, adopted the answer of the bridge company. The state circuit court adjudged that, the bridge being in an incomplete condition on the 10th day of January, 1885, the city was not entitled to tax it for that year. But as to the years 1886 and 1887, it was adjudged that the bridge and the approach thereto were subject to taxation for all the purposes and for the amounts claimed in the city's[599] petition; and that the city had a lien upon the bridge structure, masonry piers, and the approach thereto situated within its boundary extending to low-water mark on the Indiana side of the Ohio river, for the taxes assessed for the years 1886 and 1887 with interest and costs expended. The bridge company was directed to pay said sums, with interest and costs, to the plaintiff on or before a named day. In a brief opinion of the state circuit court it was said that the taxable boundary of the city was coextensive with its statutory boundary. Referring to the case of the Louisville Bridge Company v. City of Louisville, 81 Ky. 189, the court held that that case decided nothing more than that the legislature did not intend that the bridge there in question should be subject to taxation. It was further said: "Several cases are relied on where the courts of appeals have relieved parties from the payment of 1885." * taxes on agricultural lands when the city | the Louisville Bridge Case, in its municipal limits had been extended without the own- capacity had no right to tax that part of er's consent. The rule, if one has been es- the bridge over the water. Why, then, say tablished by those cases, should not be ex- that it did not waive the right to tax it? To tended to cases where property has been vol- waive a right there must be a claim of right untarily brought within such boundaries. to waive. Well, it is said, as the appellee The party thus bringing in his property had no right to tax the bridge, there was in should be treated as one who sanctioned the fact no right to waive. As an abstract propextension of a city so as to include his ag- osition of the right to tax the bridge on ricultural lands. All that can be deduced the water (according to said case), this confrom these cases is that in each extension of tention is true; but it is equally true that a town or city the court will hear the com- the appellee had the right, if asserted and plaints of any taxpayer and grant or not agreed to, to claim that the bridge should be[601] grant him relief, as the merits of his partic- taxed in consideration of the privileges ular case may demand.. In this case the de- granted. This claim of right, it must be fendants voluntarily placed their property presumed, was asserted and agreed to and within the legally established limits of the expressed in the contract by the term 'not city and should pay the taxes assessed on waiving the right.' If the contract does not other property holders of the city after mean this, then it means nothing. It is not supposed that the contracting parties only meant to reserve a right that they already had and about which there was no possible ground of dispute; but when it is considered that the right to tax the bridge to the Indiana shore might be legitimately obtained by contract, and that the appellee granted to the appellant rights and privileges essential to its enterprise, designed to make money and is making a large per cent, it is entirely reasonable to suppose that the appellees would contract for the right to thus tax the appellant in consideration of granting these essential rights and privileges, by which the appellant acquired the right to construct and operate so profitable a business enterprise. So it seems much more reasonable to suppose that the contracting parties intended to do this reasonable thing, to wit, to receive some consideration for the grant of privileges rather than indulge in a mere nudum pactum. The appellant, at least for the purpose of collecting taxes, should be considered as a part of a railroad; consequently, falls within the principle an The bridge company and the railroad company prosecuted an appeal to the court of appeals of Kentucky, and the city was granted a cross-appeal from so much of the judgment as disallowed its claim of taxes for 1885. In the court of appeals of Kentucky the judgment was affirmed. In its opinion it is apparently conceded that the city could not under its charter tax the bridge structure over the river for ordinary municipal pur[600]poses, that is, "for the support of its government proper." But it was said that if the city was created a taxing district it could do so. Referring to the contract or terms upon which the bridge company acquired the right to construct its bridge within its limits, and particularly to the clause declaring that the ordinance should not be construed as waiving the right of the city to tax the bridge and its appurtenances within the corporate limits of the city, the court said: Co. v. Trustees of Elizabethtown, 12 Bush, Chief Justice Holt delivered a separate "The appellant contends it was only meant to reserve the right to tax such prop-nounced in Elizabethtown & Paducah R. R. erty of the appellant as was theretofore subject to taxation by the city government, and, as that part of the bridge situated on the water of the Ohio river was not, for the reasor above indicated, subject to taxation, the reservation relates to that part of the bridge, etc., that the appellee had the right to tax under the law. It is evident that the contract was well considered and prudently drafted by men skilled in that kind of work, and it is not presumed that they engaged in a mere nudum pactum, but they meant to set forth a business transaction. Now, that business transaction was evidently this: The appellant desired rights and privileges that it did not possess and which it could not possess without the consent of the appellee. So it said to the appellee, Grant these privileges and you may tax what? Only the approach to said bridge? No; because the appellee already had the right to tax that, and it had made no concessions that could possibly be construed as waiving that right. What right, then, was granted? Why, the right to tax the 'bridge itself.' The bridge, as distinguished from its abutments and approaches, is that part that is over the water. Now, the appellee, according to The bridge company and the railroad company sued out a writ of error from this court, but the writ was dismissed *upon the[602] ground that although a Federal question may have been raised in the state court, the judgment of the latter court rested upon grounds broad enough to sustain the decision without reference to any such question. Mr. Justice Blatchford, delivering the opinion of the court, said: "The opinion of the state court is based wholly upon the ground that and meet the annual expenses of the public Under the above ordinances, the city caused the proper interpretation of the ordinance | sessed and taxed by the council, unless the By an act of the general assembly of Kentucky, approved April 9, 1888, the charter of the city of Henderson was repealed, and the city reincorporated with the following boundaries: "Beginning at a stone on the west side of the Madisonville road; thence north 48° 35′ east, five thousand six hundred and forty-one feet to a stone near the White bridge on the Henderson and Zion Gravel Road; thence in a straight line north 11° 35' [603]west to the dividing line of the ten-acre lots Nos. 4 and 5; thence with the dividing line of said lots north 71° west to low-water mark on the Ohio river on the Indiana shore; thence down the river with the meanders thereof at low-water margin to a point opposite the south line of Hancock street; thence across said river south 59° east along the south line of said Hancock street in a straight line to the beginning." Ky. Acts 1887-8, vol. 2, p. 937. That act, as did the original charter of the city, gave the common council power, within the limits of the city, to levy and collect taxes at a prescribed rate upon all property in the city subject to taxation under the revenue laws of the state for state purposes, with certain exceptions which need not be stated. The common council, by an ordinance passed in 1888 and providing for the annual tax levies for that year, imposed an ad valorem tax "on all property within the limits of the city of Henderson subject to taxation under the present revenue laws of the state of Kentucky for state purposes, to be paid by the owners of said property, respectively; provided, however, that no land embraced within the city limits and outside of the tenacre lots as originally laid off shall be as The present suit was instituted by the city against the bridge company and the Louisville & Nashville Railroad *Company to[604] recover the amount of taxes for the years 1888, 1889, and 1890 alleged to be due under the above assessments. It is not disputed that those assessments embraced the bridge and its piers between low-water mark on the Kentucky side of the Ohio river and lowwater mark on the Indiana shore. During the progress of the cause the plaintiff dismissed its suit so far as it related to taxes for the year 1890 without prejudice to any future action by it to recover those taxes. The bridge company filed its answer, in which-after stating some grounds of de fense which did not specifically rest on the Constitution or laws of the United States— it was averred That when it accepted its charter it was the settled law of Kentucky and had been for more than forty years, as declared in many cases by its highest court, that real estate within the boundaries of a town or city could not be taxed for municipal purposes unless it was capable of being profitably used and converted into town property and also received benefits, both actual and presumed, from the municipal government seeking to tax such property; That the defendant constructed its bridge on the faith of the law of the commonwealth as thus long established, and that the law thus established became a part of the contract between Kentucky and the defendant growing out of the granting and acceptance of its charter; That it was also the settled law of Kentucky when the bridge in question was constructed that in the case of bridges across the Ohio river from a point in a city or town whose boundary extended to a low-water mark on the northern shore of the Ohio river a city or town had no power or authority under a charter duly enacted authorizing the taxation of property by the municipal government within its corporate boundary to tax such bridge beyond low-water mark on the Kentucky or southern side of said river; That a city boundary fixed at low-water mark on the Indiana shore was not, in the meaning and intent of the legislative act so fixing it, intended to define the taxable | tiff on the Ohio river is the low-water mark [605]boundary of the city, but only to confer upon on the Kentucky shore. the city jurisdiction for police purposes upon the waters of the river to the Indiana shore, and that it was further settled by the court in the case of Louisville Bridge Company v. City of Louisville, 81 Ky. 189, that such an act, if intended to confer a taxing power over property erected in said stream beyond the low-water mark on the Kentucky side, was in violation of that provision of the Constitution of this state which prohibits the taking of private property for public purposes without just compensation, and of the like provision of the Constitution of the United States, and would, to the extent it conferred on the city such power, be absolutely null and void, and that the city could not tax said property for waterworks, school or railroad purposes, nor for any municipal purposes whatever; That the defendant, relying upon the law as thus established, went forward and built its bridge to low-water mark on the Indiana shore of the Ohio river, and the legislative acts and city ordinances pleaded by plaintiff as authority for the collection of the tax upon that part of the bridge beyond lowwater mark of the Ohio river on the Kentucky shore have all been passed since the law of Kentucky was settled as above stated, and are null and void as contrary to that provision of the Constitution of the United States forbidding any state to pass a law impairing the obligation of contracts, and as contrary to those constitutional provisions, state and Federal, that prohibit the taking of private property for public uses without just compensation; That the above legislative acts and ordinances constitute the only authority the plaintiff has for the assessment of defendant's property or the levy and collection of the taxes thereon sued for herein, and the said act of April 9, 1888, which constituted the only authority the city of Henderson has to levy or collect taxes for any purposes or upon any property, and the alleged city ordinances of May, 1888, and of April 24, 1889, and of May 24, 1890, were each and all passed and ordained subsequent to the acceptance by the defendant of its charter of incorporation and its expenditure of the large sums of money aforesaid in the con[606]struction of its bridge, and to the *extent that the said act or the said ordinances or either of them do or may authorize any portion of defendant's bridge structure situated north of low-water mark on the Kentucky shore to be taxed are null and void because repugnant to the Constitution of the United States; That the defendant has at all times been willing to pay taxes for the purposes set out in the petition on that portion of its bridge which is in fact and in the sense of the legislative acts referred to within the boundary of the city of Henderson, to wit, from the beginning of the approach on the west side of Main street to low-water mark of the Kentucky shore; and, That the taxable boundary of the plain The answer of the bridge company further averred: "The territory on both sides of the Ohio river was, prior to the year 1784, a part of the state of Virginia, in which year she ceded to the United States the territory north and west of said river. On the 18th of December, 1789, the Congress of the United States passed the 'Compact with Virginia,' which authorized the establishment of the state of Kentucky, and which compact defined the rights of the said state in and to the Ohio river. By the eleventh section of that compact it is provided that the use and navigation of the river Ohio, so far as the territory of the proposed state (Kentucky) or the territory which shall remain within the limits of this commonwealth (Virginia) lies thereon, shall be free and common to the citizens of the United States, and the respective jurisdiction of this commonwealth and the proposed state on the river aforesaid shall be concurrent only with the states which may possess the opposite shores of said river;' that by said compact, formed and ratified between the United States and the states of Virginia and Kentucky, the bed of the Ohio river, so far as it is permanently under water, is the common property of the people of the United States; that it forms a great interstate highway of commerce, in which a great part of the country has a direct interest, and cannot be made the subject of taxation by the state of Kentucky nor any municipal government created by said state, and is by the Constitution and laws of the United States under the ex-[607] clusive control of the government of the United States; that said stream is a navigable stream from its source to its mouth, and the defendant's bridge sought to be taxed by this proceeding is located and built under the permission and authority of and as required by an act of the Congress of the United States entitled 'An Act to Authorize the Construction of Bridges across the Ohio River and Prescribe the Dimensions of the Same,' approved December 17, 1872, and another act of said Congress entitled 'An Act Supplementary to an Act approved December 17, 1872, entitled "An Act to Authorize the Construction of Bridges across the Ohio River and Prescribe the Dimensions of Same, approved February 14th, 1883," and the defendant submits that the plaintiff has no jurisdiction over said stream to tax any property placed therein by authority of Congress, and for plaintiff to assume to tax said bridge thus situated would be violative of the Constitution of the United States, the laws of Congress, and of the defendant's rights in the premises." The bridge company defended the action upon the further ground that the relief asked by the city could not be granted without directly impairing the obligation of the contract between it and the railroad company; which contract, it was insisted, was to be interpreted in the light of the law of Kentucky as it was when such contract was made and without reference to subsequent legislative acts and ordinances inconsistent | the final judgment of the state court for the with its provisions. The railroad company adopted the answer of the bridge company-averring, among other things, that to grant the plaintiff the relief prayed for or any part thereof would be a direct impairment of the obligation of the contract between the railroad company and the bridge company and a violation of the tenth section of the first article of the Constitution of the United States. The city filed a reply, in which the material allegations of the answers were controverted. It accompanied its reply with a transcript of the proceedings in the above suit between it and the bridge and railroad companies brought in 1887 to recover the taxes assessed for the years 1885, 1886, and [608]1887, *including the proceedings in this court on the appeal prosecuted by those companies. The reply concludes: "The plaintiff says that the right of plaintiff to assess and collect the taxes sued for against the defendant the Henderson Bridge Company, its jurisdiction thereon, and all questions raised by the pleadings in this case, except as to the passage of the ordinances alleged, are now res judicata, and plaintiff pleads and relies upon same as a bar to defendants' pleas herein, and prays as in its petition." Judgment was rendered in favor of the city for the taxes (with interest and penalties) for the years 1888 and 1889; and it was adjudged that for the amounts found due the city "has a licn upon the bridge structure, masonry, and piers (mentioned in the petition) and the approach thereto situated within the boundary of the state of Kentucky and extending to low-water mark on the Indiana side of the Ohio river." That judgment having been affirmed by the court of appeals of Kentucky, the present writ of error was sued out. 1. If the state court had sustained the city's plea of res judicata upon some ground that did not necessarily involve the determination of a Federal right it might be that the present case would come within the rule, often acted upon, that this court in reviewing the final judgment of the highest court of a state will not pass upon a Federal question, however distinctly presented by the pleadings, if the judgment of the state court was based upon some ground of local or general law manifestly broad enough in itself to sustain the decision independently of any view that might be taken of such Federal question. But that rule cannot be applied to the judgment below. Upon examining the opinion of the court of appeals of Kentucky in this case we find that that court expressly waived any decision upon the plea of res judicata for the reason that some views were then pressed upon its attention that had not been presented in previous cases, and it reconsidered and discussed the main question suggested by the defense, namely, that the Constitution of the United States forbade the assessment of that part of [609]the *bridge property between low-water mark on the Kentucky shore and low-water mark on the Indiana shore of the Ohio river. This court therefore has jurisdiction to review purpose of ascertaining whether it deprived the defendant of any right, privilege, or immunity specially set up by them under that instrument. 2. Whether the city of Henderson had authority to tax so much of the property of the bridge company as was permanently between low-water mark on the Kentucky shore and low-water mark on the Indiana shore of the Ohio river depends primarily upon the question whether the boundary of Kentucky extended to low-water mark on the Indiana shore. That question has been settled by judicial decisions. But it may be well to restate here the grounds of those decisions. Pursuant to a resolution of Congress passed in 1780, recommending to the several states asserting title to waste and unappropriated lands “in the western country" that a liberal cession be made by them to the United States of a portion of their respective claims for the common benefit of the Union, the commonwealth of Virginia, by an act passed January 2d, 1781, surrendered to the United States all her right, title, and claim "to the lands northwest of the river Ohio," subject to certain conditions, one of which was that the ceded territory should be laid out into states. 10 Hening's Stat. 564. The United States having accepted that cession substantially according to the conditions named, Virginia by an act passed December 20, 1783, authorized her delegates in Congress to convey to the United States all her right, title, and claim, "as well of soil as jurisdiction," to the territory or tract of country within the limits of the Virginia charter situated "to the northwest of the river Ohio." 11 Hening's Stat. 326. Such a deed was executed in 1784 by Thomas Jefferson, Samuel Handy, Arthur Lee, and James Monroe, representing Virginia-the deed describing the territory conveyed as "situate, lying, and being to the northwest of the river Ohio." On the 13th day of July, 1787, *Con-[610] gress passed an ordinance for the government of the territory of the United States "northwest of the river Ohio." That ordinance provided, among other things, that "no tax shall be imposed on land the property of the United States," and that "the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well to the inhabitants of the said territory, as to the citizens of the United States, and those of any other states that may be admitted into the confederacy, without any tax, impost, or duty therefor." 1 Stat. at L. 51, note, chap. 8. Virginia, by an act passed in 1788, and which referred to the above ordinance, declared that "the aforerecited article of compact between the original states and the people and states in the territory northwest of the Ohio river, be and the same is hereby ratified and confirmed, anything to the contrary in the deed of cession of the said territory by this commonwealth to the United States notwithstanding." 12 Hening's Stat. 780. On the 18th day of December, 1789, the general assembly of Virginia passed the act entitled "An Act |