Next in order of time and as determining the boundary line of Kentucky is the judg ment of this court in Handly's Lessee v. Anthony, 5 Wheat. 374, 379, 380 [5: 113, 114] (1820) which case involved the question of the western and northwestern boundaries of that commonwealth. This court adjudged, upon a review of the legislative acts and public documents bearing upon the questionChief Justice Marshall delivering its cpinion-that although a certain peninsula or island on the western or northwestern bank of the Ohio, separated from the mainland by only a narrow channel or bayou which was not filled with water except when the river rose above its banks, was not within Kentucky as originally established, the boundary of that commonwealth did extend to low-water mark on the western and northwestern banks of the Ohio. "When a great river," said the chief justice, "is the boundary between two nations or states, if the original property is in neither, and there be no convention respecting it, each holds to the middle of the stream. But when, as in this case, one state [Virginia] is the original proprietor, and grants the territory on one side only, it retains the river within its own doinain, and the newly created state extends to the river only. The river, however, is its boundary." "Whenever the river is a boundary between states, it is the main, the permanent river, which constitutes that boundary; and the mind will find itself embarrassed with insurmountable difficulty in attempting to draw any other line than the low-water mark."

Concerning the Erection of the district of margin of the southeast side is the limit of Kentucky into an Independent State." That the counties; to explain which Be it enacted act provided for a convention in Kentucky to by the General Assembly, That each county consider and determine whether that district of this commonwealth, calling for the river[612] should be formed into an independent state. Ohio as the boundary line, shall be considIts eleventh, fourteenth, fifteenth, and eigh-ered as bounded in that particular by the teenth sections were in these words: "§ 11. state line on the northwest side of said river, That the use and navigation of the river and the bed of the river and the islands Ohio, so far as the territory of the proposed therefore shall be within the respective counstate, or the territory which shall remain ties holding the main land opposite thereto, within the limits of this commonwealth, lies within this state, and the several county trithereon, shall be free and common to the citi- bunals shall hold jurisdiction accordingly." zens of the United States; and the respective Ky. Sess. Laws 1810, p. 100. jurisdictions of this commonwealth and of the proposed state on the river as aforesaid, shall be concurrent only with the states which may possess the opposite shores of the said river." "§ 14. That if the said convention shall approve of the erection of the said district into an independent state on the foregoing terms and conditions, they shall and may proceed to fix a day posterior to the first day of November, one thousand seven hundred and ninety-one, on which the [611]authority of this *commonwealth, and of its laws, under the exceptions aforesaid, shall cease and determine forever over the pro posed state, and the said articles become solemn compact, mutually binding on the parties, and unalterable by either without the consent of the other. § 15. Provided, however, That, prior to the first day of November, one thousand seven hundred and ninety-one, the general government of the United States shall assent to the erection of the said district into an independent state, shall release this commonwealth from all its Federal obligations arising from the said district as being part thereof, and shall agree that the proposed state shall immediately after the day to be fixed as aforesaid, posterior to the first day of November, one thousand seven hundred and ninety-one or at some convenient time future thereto, be admitted into the Federal Union." "g 18. This act shall be transmitted by the Executive to the representatives of this commonwealth in Congress, who are hereby instructed to use their endeavors to obtain from Congress a speedy act to the effect above specified." 13 Hening's Stat. 17. This was fol- The question of boundary was again before lowed by an act of Congress approved Febru- this court in Indiana v. Kentucky, 136 U. S. ary 4, 1791, which referred to the above Vir-479, 505, 519 [34: 329, 331, 336]. That was ginia act of December 18, 1789, and expressed the consent of Congress that the said district of Kentucky, "within the jurisdiction of the commonwealth of Virginia, and according to its actual boundaries on the 18th day of December, 1789;" should, on the 1st day of June, 1792, be formed into a new state, separate from and independent of the commonwealth of Virginia. 1 Stat. at L. 189, chap. 4.

Early in the history of Kentucky some doubts were expressed as to the location of the western and northwestern boundaries of that commonwealth, and to quiet those doubts its legislature passed the following act, which was approved January 27, 1810: "Whereas doubts are suggested whether the counties calling for the river Ohio as the boundary line extend to the state line on the northwest side of said river, or whether the

a controversy between Kentucky and Indi-
ana as to the boundary lines of the two
states at a particular point on the Ohio riv-
er. Mr. Justice Field, delivering the unani-
mous judgment *of the court, after referring[613]
to all the documentary evidence relating to
the question and to the decision in Handly's
Lessee v. Anthony, above cited, said: "As
thus seen, the territory ceded by the state of
Virginia to the United States, out of which
the state of Indiana was formed, lay north-
west of the Ohio river. The first inquiry
therefore is as to what line on the river must
be deemed the southern boundary of the ter-
ritory ceded, or, in other words, how far did
the jurisdiction of Kentucky extend on the
other side of the river." Referring to the
channel of the Ohio river as it was when
Kentucky was admitted into the Union, this
court stated its conclusion to be that "the

jurisdiction of Kentucky at that time extend- | tion by the authorities of the city of Hender-
ed, and ever since has extended, to what was
then low-water mark on the north side of
that channel."

The same view of the question of boundary
was taken by the court of appeals of Ken-
tucky in Fleming v. Kenney, 4 J. J. Marsh. |
155, 158, Church v. Chambers, 3 Dana, 274,
278, McFarland v. McKnight, 6 B. Mon. 500,
510, and McFall v. Commonwealth, 2 Met.
(Ky.) 394, 396, and by the general court of
Virginia in Commonwealth v. Garner, 3
Gratt. 655, 667.

Upon this question of boundary nothing
can be added to what was said in the cases
cited; and it must be assumed as indisputa-
ble that the boundary of Kentucky extends
to low-water mark on the western and north-
western banks of the Ohio river.

Such being the case, it necessarily follows that the jurisdiction of that commonwealth for all the purposes for which any state possesses jurisdiction within its territorial limits is coextensive with its established boundaries, subject, of course, to the fundamental condition that its jurisdiction must not be exerted so as to intrench upon the authority of the National government or to impair rights secured or protected by the National Constitution.

3. But the plaintiffs in error insist that although the jurisdiction of Kentucky may extend to low-water mark on the opposite shore of the Ohio river, the city of Henderson cannot assess for taxation any part of the roperty of the bridge company between [614] w-water mark on the Kentucky shore *and ow-water mark on the Indiana shore with out violating the Constitution of the United States in particulars to be adverted to presently.

In considering this objection so far as it rested on Federal grounds, we shall assume that the action of the city of Henderson was authorized by the terms of its charter and was in no respect forbidden by any principle of local law. Upon these points we accept the decision of the highest court of Kentucky as conclusive. We accept also as binding upon this court the declaration of the state court that Kentucky intended by its legislation to confer upon the city of Henderson a power of taxation for local purposes coextensive with its statutory boundary. But we may add, as pertinent in the consideration of the Federal questions presented, that if the commonwealth of Kentucky could tax for state purposes the bridge property so far as it was between low-water mark on the Kentucky shore and low-water mark on the Indiana shore, it could confer upon one of its municipal corporations the power to tax the same property for local purposes. So that a judgment declaring the taxation of such property by the city of Henderson for local purposes, under the authority of the state, to be forbidden by the Constitution of the United States, would in effect declare that like taxation by the state for state purposes would be forbidden by that instrument.

It is said that the bridge property outside of low-water mark on the Kentucky shore is so far beyond the reach of municipal protec

son that it cannot be said to receive any ben-
efits whatever from the municipal govern-
ment, and that to impose taxes for the bene-
fit of the city upon such property is a taking
of private property for public use without
just compensation, and therefore inconsist
ent with the due process of law ordained by
the Fourteenth Amendment of the Constitu-
tion of the United States. Chicago, Burling-
ton & Q. R'd Co. v. Chicago, 166 U. S. 226,
241 [41: 979, 986]. It is conceivable that
taxation may be of such a nature and so bur-
densome as properly to be characterized a
taking of private property for public use
without just compensation.

But in order to bring taxation imposed by
a state or under its authority within the[615]
scope of the Fourteenth Amendment of the
National Constitution the case should be so
clearly and palpably an illegal encroach-
ment upon private rights as to leave no
doubt that such taxation by its necessary op-
eration is really spoliation under the guise
of exerting the power to tax. As an act of
Congress should not be declared unconstitu-
ticnal unless its repugnancy to the supreme
law of the land is too clear to admit of dis-
pute, so a local regulation under which taxes
are imposed should not be held by the courts
of the Union to be inconsistent with the
National Constitution unless that conclusion
be unavoidable. All doubt as to the valid-
ity of legislative enactments must be re-
solved, if possible, in favor of the binding
force of such enactments. In the case be-
fore us the state court rejected the idea that
the bridge property in question was entirely
beyond municipal protection and could not
receive any of the benefits derived from the
municipal government of the city of Hender-
son. We cannot adjudge that view to be so
clearly untenable as to entitle the defend-
ants to invoke the principle that private
property cannot be taken for public use with-
out just compensation.

On the contrary the property which it is contended was illegally taxed is all within the territorial limits of Kentucky, within the statutory boundary of the city of Henderson, and within reach of the police protection afforded by that city for the benefit and safety of all persons and property within its limits; not perhaps as much or as distinctly so as that part of the bridge on the Kentucky bank south of low-water mark on that shore; but this difference does not constitute a reason why the city may not regard the bridge and its appurtenances within its statutory boundaries as an entirety for purposes of taxation, nor afford any proper ground for holding that the constitutional right to compensation for private property taken for public use has been violated. The court of appeals of Kentucky in its opinion in this case said: "Applying the just and equitable rule of making burdens and benefits of government reciprocal, we think the whole bridge structure within the corporate limits of the city of Henderson is liable for municipal taxes, for neither the benefits to the bridge company are lessened nor its cor-(616) 'responding duty to bear its full share of the

burden is impaired or affected by the fact | tract an exemption from local taxation in
that a portion of the bridge is over water."
We are unwilling to hold that the state
court in so adjudging has prescribed any
rule of taxation inconsistent with the su-
preme law of the land.

In determining a question of this character, the power to tax existing, a judicial tribunal should not enter into a minute calculation as to benefits and burdens, for the purpose of balancing the one against the other, and ascertaining to what extent the burdens imposed are out of proportion to the benefits received. Exact equality and absolute justice in taxation are recognized by all as unattainable under any system of government. The court of appeals of Kentucky, speaking by Chief Justice Marshall, in Cheaney v. Hooser, 9 B. Mon. 330, 345, after observing that there must necessarily be vested in the legislature a wide range of discretion as to the particular subjects or species of property which should be the subject of general or local taxation, as well as to the extent of the territory within which a local tax shall operate, well said: "There must be a palpable and flagrant departure from equality in the burden as imposed upon the persons or property bound to contribute, or it must be palpable that persons or their property are subjected to a local burden for the benefit of others or for purposes in which they have no interest, and to which they are therefore not justly bound to contribute. The case must be one in which the operation of the power will be at first blush pronounced to be the taking of private property without compensation, and in which it is apparent that the burden is imposed without any view to the interest of the individual in the objects to be accomplished by it."

Proceeding upon the ground distinctly affirmed by the highest court of Kentucky that the city of Henderson was authorized by the state to exert its power of taxation as to all property within its statutory boundary, and assuming it to be conclusively established by judicial decisions that the boundary and jurisdiction of Kentucky extend to low-water mark on the Indiana side of the Ohio river, we adjudge that the taxation by the city as property of the bridge and its ap1017]purtenances within the fixed boundary of the city, between low-water mark on the two sides of the Ohio river, was not a taking of private property for public use without just compensation in violation of the Constitution of the United States.

respect of its bridge situated between low-
water mark on the two shores of the Ohio
river? We think not. The charter of the
city of Henderson shows that its boundary
extended to low-water mark on the Indiana
shore of that river, and that the common
council was invested with authority to levy
and collect taxes at a prescribed rate upon
all property "within the limits of the city"
which was taxable by law for state purposes,
with certain specified exceptions that have
no relation to the particular question just
stated. So that the grant made in 1882 to
the bridge company was made subject to the
taxing power thus possessed by the municipal
authorities of the city of Henderson. And
that there was no purpose on the part of the
city to waive any right it possessed to tax
property for municipal purposes is made
clear by the express stipulation that the
grant to the bridge company should not be
construed "as waiving the right of the city
of Henderson to levy and collect taxes on
the approaches to said bridge, or any build-
ing erected by said bridge company within
the corporate limits of said city, the bridge
itself and all appurtenances thereto within
the limits of said city." This stipulation
properly interpreted not only saved any
right the city then had to impose taxes, but
any right that might subsequently be law-
fully conferred upon it. An exemption *from[618]
taxation cannot arise from mere implication,"
but only from words clearly and unmistaka
bly granting such an immunity.

But let it be assumed, for the purposes 01
the present case, that the stipulation only
embraced such right of taxation as the city
had at the time it granted authority to con-
struct the bridge within its limits. In that
view, the defendants insist that interpreting
the charter of the city and the grant to the
bridge company in the light of the law of
Kentucky, as established at the date of that
grant by repeated decisions of its highest
court, property such as this bridge situated
between low-water mark on the two shores of
the Ohio river, although within the statu-
tory boundary of the city, was not within the
limits of the city for purposes of municipal
taxation; for, it is contended, the bridge
structure so taxed, did not and could not re-
ceive from the municipal government any ben-
efits, actual or presumed. The cases in the
court of appeals of Kentucky, decided before
the bridge company accepted its charter, upon
which defendants rely in support of this con-
tention are Cheaney v. Hooser, 9 B. Mon.
4. Another contention of the defendants is 330 (1848), Covington v. Southgate, 15 B.
that the acceptance by the bridge company Mon. 498 (1854), Marshall v. Donovan, 10
of its charter and the construction of the Bush, 681, 692 (1874), and Courtney v.
bridge under it created a contract between Louisville, 12 Bush, 419 (1876). These
that company and the state, whereby the cases related to the taxation by municipal
bridge structure north of low-water mark corporations of lands which, it was alleged,
on the Kentucky shore of the river was ex- were so situated as not to receive any benefit
empted from taxation for any local purpose; whatever from the government of such cor-
and that the tax ordinances of the city of porations. The general principle to be de-
Henderson, on which the taxation in ques-duced from them is that the taxation of
tion is based, impair the obligation of that
contract, and for that reason are repugnant
to the Constitution of the United States.

Did the bridge company acquire by con

lands for local purposes which do not re ceive any benefit, actual or presumed, from the municipal government imposing the taxation, is a taking of private property for pub

lic use without compensation, and therefore | bridge company and the railroad company in violation of the constitutional provision was necessarily subject to the exercise by on that subject. So that if the charter of the city of any authority it had or might the bridge company was accepted with ref- have touching the taxation of the bridge for erence to the law of Kentucky as it was then local purposes. judicially declared by its highest court-as may well be assumed-the utmost that can be asserted is that the company had a contract with the state which prohibited it or any municipal corporation acting under its authority from subjecting such of the bridge property to local taxation as could not re[619]ceive any *benefit, actual or presumed, from the government of that corporation.

5. The assignments of error embrace the contention that the judgment below denies to the bridge company the equal protection of the laws, "in that its property has been subjected to taxation from which all other. land not divided into lots has been exempted, although the only reasons for exemption apply with much greater force to the property of the plaintiff in error than to the property which enjoys the exemption."

This contention is based upon the proviso in the city's charter declaring that "no land embraced within the city limits, and outside of ten-acre lots as originally laid off, shall be assessed and taxed by the city council, unless the same is divided or laid out into lots of five acres or less, and unless all of same is actually used and devoted to farming purposes." Ky. Acts 1887-88, vol. 2, p. 991.

In those cases the court wisely refrained from laying down any general rule that would control every controversy that might arise touching the application of the constitutional provision prohibiting as did the Constitution of Kentucky as well as that of the United States-the taking of private property for public use without just compensation. So far as those adjudications are concerned, it is competent for the court to inquire in every case as it arises whether particular property taxed for local purposes is so situated that it cannot receive any benefit, actual or presumed, from the government of the municipal corporation imposing such taxation. The argument of the learned counsel assumes it to be incontrovertible that the bridge property here taxed cannot receive any such benefit from the government of the city of Henderson. As already indicated, this court does not accept that view, and is of opinion that the bridge property within the statutory limits of that city, and looked at in its entirety, may be regarded as so situated with reference to the city that it enjoys and must continue to enjoy as long as the bridge exists such benefits from the government of the city that, consistently with the Constitution of the United States, and consistently with the rule heretofore adverted to for determining the validity of legislative enactments, it may be subjected to municipal taxes under any system established by the state for the assessment of property for taxation. In this view there is no ground upon which to base the contention that the ordinance of the city imposing the taxation in question impairs the obligation of any contract between the bridge company and the state arising from the acceptance by that company of its charter and the construction of the bridge under it.

6. Another contention of the plaintiffs in error is that the assertion of the right of the commonwealth of Kentucky or of any municipal corporation acting under its authority to tax bridge structures permanently located with the consent of Congress in or over the bed of the Ohio river is the assertion of authority over that stream inconsistent with the congressional and legislative compact concerning its use, and inconsistent with the concurrent jurisdiction over the river of the states on either side of it. Indeed, the defendants insist that if the power to tax the bridge structure north of low-water mark

What has been said disposes of the contention that to sustain the validity of the ordinances under which the bridge was taxed would impair the obligation of the contract between the bridge company and the Louisville & Nashville Railroad Company. It is [620]scarcely necessary to observe that no contract between the bridge company and the railroad company could stand in the way of the on the Kentucky side and south of low-wacity exerting, as between it and the bridge ter mark on the Indiana side of the Ohio company, any power of taxation it legally river exists at all, it rests in Congress and possessed. If the taxation in question did could not be exercised even by the concurrent not impair the obligation of any contract be- action of two states, much less by the indetween the city and the bridge company-and pendent action of one. we have held that it did not-it results that the railroad company cannot complain of such taxation. The agreement between the 173 U. S. U. S., Book 43.

The present case does not require any decision by this court as to the extent and character of the jurisdiction which may be exer

53

833

We are of opinion that this proviso has no reference to bridges, their approaches, piers, etc., but refers only to lands capable of being cultivated or used and divided into lots upon which buildings may be erected or over which streets or other highways may be constructed. This is the better interpretation of both the old and the new charter of the city. Besides, the construction placed by the state court upon the charter of the city in respect of its power to tax the bridge property necessarily leads to the conclusion that the provision forbidding the taxation of lands not divided into lots of five acres or less does not apply to a bridge erected over the Ohio river within the city's limits. In this view there is no basis for the suggestion [621] of a denial of the equal protection of the laws, particularly as it is not contended that the city applies to the assessment of the bridge and its approaches for taxation any rule that is not applied to all property within its limits. As in the case of the property of others, the bridge and its approaches are required to be taxed upon their value.

cised over the Ohio river by the states whose its it is permanently located. The state boundaries come to low-water mark on its cannot by its laws impose direct burdens shore opposite to Kentucky. The only ques- upon the conduct of interstate commerce tion for determination is whether the taxa- carried on ever the bridge. But, as the deci-[623] tion under the authority of Kentucky of this sions of this court show, it may subject to bridge within its jurisdiction involves any en- taxation property permanently located withcroachment upon Federal authority, or any in- in its territorial limits and employed in such fringement of rights secured to the defend-commerce by individuals and by private corants by the Constitution of the United States. porations. In Covington & C. Bridge Co. v. Touching the first branch of this question, Kentucky, 154 U. S. 204, 212 [38: 962, 967, 4 it is to be observed that Kentucky was ad- Inters. Com. Rep. 649], it was said: "As mitted into the Union with its "actual boun- matter of fact, the building of bridges over daries" as they existed on the 18th day of waters dividing two states is now usually December, 1789, that is, with its northern done by congressional sanction. Under this and western boundary extending to low-power the state may also tax the instruwater mark on the opposite side of the Ohio ments of interstate commerce as it taxes river. That state came into the Union equal other similar property, provided such tax is in all respects with the states that had ac- not laid upon the commerce itself." See also cepted the National Constitution and with Henderson Bridge Co. v. Henderson City, 141 every power that belonged to any existing U. S. 679, 689 [35: 900, 904]; Pittsburgh, C. state, and therefore its power of taxation C. & St. L. Railway Co. v. Board of Public [622]was in no respect *limited or restrained, ex- Works, 172 U. S. 32 [ante, 354]. In Thomson cept as its exercise was expressly or implied- v. Union Pacific Railroad Co. 9 Wall. 579 ly limited or restrained by that instrument. [19: 792], the question was as to the liabiliBut what clause of that instrument declares ties and rights of a railroad company in rethat a state may not tax for state purposes spect to taxation under state legislation. It any property within its territorial limits was contended in that case that the road havwhich is owned and operated by one of its ing been constructed under the direction and own private corporations? In McCulloch v. authority of Congress for the purposes and Maryland, 4 Wheat. 316, 429 [4: 579, 582], uses of the United States, and being a part it was said by the Chief Justice to be obvious of a system of roads thus constructed, was that the power of taxation was an incident exempt from taxation under state authoriof sovereignty, was coextensive with that to ty; that the road was an instrument of the which it was an incident, and that "all sub- general government and as such not subject jects over which the sovereign power of a to taxation by the state. That contention state extends are objects of taxation." The was overruled, tais court saying: "We are subject of taxation in this case is a bridge not aware of any case in which the real esstructure within the territorial limits of tate, or other property of a corporation, not Kentucky. It is therefore property over organized under an act of Congress, has been which the state may exert its authority, pro- held to be exempt, in the absence of express vided it does not encroach upon Federal legislation to that effect, from just contripower or entrench upon rights secured by the bution, in common with other property, to Constitution of the United States. It is the general expenditure for the common benenone the less property although the state fit, because of the employment of the corpodoes not own the soil in the bed of the river ration in the service of the government." upon which the piers of the bridge rest. "There is a clear distinction between the Whatever jurisdiction the state of Indiana means employed by the government, and the may properly exercise over the Ohio river, property of agents employed by the governit cannot tax this bridge structure south of ment. Taxation of the agency is taxation low-water mark on that river, for the obvi- of the means; taxation of the property of the ous reason that it is beyond the limits of that agent is not always or generally taxation of state and permanently within the limits of the means.' In the same case the court said Kentucky. that "no one questions that the power to tax all property, business, and persons within their respective limits is original in the states, and has never been surrendered," although that power cannot be so used "as to defeat or hinder the operations of the national government." The same principles [624] have been maintained in other cases in this court. If a state may tax the property of one of its corporations, engaged in the service of the United States, such property being within its limits, there is no sound reason why the bridge property in question, although erected with the consent of Congress over one of the navigable waters of the United States, should be withdrawn from the taxing power of the state which created the corporation owning it and within whose limits it is permanently located.

Nor do we perceive that the power of Kentucky to tax this bridge structure as property is any the less by reason of the fact that it was erected in and over the Ohio river under the authority or with the consent of Congress. The taxation of the bridge by Kentucky is in no proper sense inconsistent with the power of Congress to regulate the use of the river as one of the navigable waters of the United States. This taxation does not interfere in any degree with the free use of the river by the people of all the states, nor with any jurisdiction that the state of Indiana may properly exercise over that