burden is impaired or affected by the fact
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.

tract an exemption from local taxation in respect of its bridge situated between lowwater 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 In determining a question of this charac- shore of that river, and that the common ter, the power to tax existing, a judicial council was invested with authority to levy tribunal should not enter into a minute cal- and collect taxes at a prescribed rate upon culation as to benefits and burdens, for the all property "within the limits of the city" purpose of balancing the one against the which was taxable by law for state purposes, other, and ascertaining to what extent the with certain specified exceptions that have burdens imposed are out of proportion to no relation to the particular question just the benefits received. Exact equality and stated. So that the grant made in 1882 to absolute justice in taxation are recognized the bridge company was made subject to the by all as unattainable under any system of taxing power thus possessed by the municipal government. The court of appeals of Ken- authorities of the city of Henderson. And tucky, speaking by Chief Justice Marshall, that there was no purpose on the part of the in Cheaney v. Hooser, 9 B. Mon. 330, 345, city to waive any right it possessed to tax after observing that there must necessarily property for municipal purposes is made be vested in the legislature a wide range of clear by the express stipulation that the discretion as to the particular subjects or grant to the bridge company should not be species of property which should be the sub- construed "as waiving the right of the city ject of general or local taxation, as well as of Henderson to levy and collect taxes on to the extent of the territory within which the approaches to said bridge, or any builda local tax shall operate, well said: "There ing erected by said bridge company within must be a palpable and flagrant departure the corporate limits of said city, the bridge from equality in the burden as imposed up- itself and all appurtenances thereto within on the persons or property bound to contrib- the limits of said city." This stipulation ute, or it must be palpable that persons or properly interpreted not only saved any their property are subjected to a local bur-right the city then had to impose taxes, but den 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.

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 o
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 receive 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 purposcs." 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 We are of opinion that this proviso has particular property taxed for local purposes no reference to bridges, their approaches, is so situated that it cannot receive any ben- piers, etc., but refers only to lands capable efit, actual or presumed, from the govern- of being cultivated or used and divided into ment of the municipal corporation imposing lots upon which buildings may be erected or such taxation. The argument of the learned over which streets or other highways may be counsel assumes it to be incontrovertible that constructed. This is the better interpretation the bridge property here taxed cannot receive of both the old and the new charter of the any such benefit from the government of the city. Besides, the construction placed by oity of Henderson. As already indicated, the state court upon the charter of the city this court does not accept that view, and is in respect of its power to tax the bridge propof opinion that the bridge property within erty necessarily leads to the conclusion that the statutory limits of that city, and looked the provision forbidding the taxation of at in its entirety, may be regarded as so sit-lands not divided into lots of five acres or uated with reference to the city that it en-less does not apply to a bridge erected over joys 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.

What has been said disposes of the contention that to sustain the validity of the crdinances 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 city exerting, as between it and the bridge company, any power of taxation it legally possessed. If the taxation in question did not impair the obligation of any contract between the city and the bridge company-and 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.

53

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 ap-
proaches are required to be taxed upon their
value.

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 on the Kentucky side and south of low-water mark on the Indiana side of the Ohio river exists at all, it rests in Congress and could not be exercised even by the concurrent action of two states, much less by the independent action of one.

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

833

cised over the Ohio river by the states whose boundaries come to low-water mark on its shore opposite to Kentucky. The only question for determination is whether the taxation under the authority of Kentucky of this bridge within its jurisdiction involves any encroachment upon Federal authority, or any infringement of rights secured to the defendants by the Constitution of the United States. Touching the first branch of this question, it is to be observed that Kentucky was admitted into the Union with its "actual boundaries" as they existed on the 18th day of December, 1789, that is, with its northern and western boundary extending to low water mark on the opposite side of the Ohio river. That state came into the Union equal in all respects with the states that had accepted the National Constitution and with every power that belonged to any existing state, and therefore its power of taxation [622] was in no respect *limited or restrained, except as its exercise was expressly or impliedly limited or restrained by that instrument. But what clause of that instrument declares that a state may not tax for state purposes any property within its territorial limits which is owned and operated by one of its own private corporations? In McCulloch v. Maryland, 4 Wheat. 316, 429 [4: 579, 582], it was said by the Chief Justice to be obvious that the power of taxation was an incident of sovereignty, was coextensive with that to which it was an incident, and that "all sub-general government and as such not subject jects over which the sovereign power of a state extends are objects of taxation." The subject of taxation in this case is a bridge structure within the territorial limits of Kentucky. It is therefore property over which the state may exert its authority, provided it does not encroach upon Federal power or entrench upon rights secured by the Constitution of the United States. It is none the less property although the state does not own the soil in the bed of the river upon which the piers of the bridge rest. Whatever jurisdiction the state of Indiana may properly exercise over the Ohio river, it cannot tax this bridge structure south of low-water mark on that river, for the obvious reason that it is beyond the limits of that state and permanently within the limits of Kentucky.

its it is permanently located. The state
cannot by its laws impose direct burdens
upon the conduct of interstate commerce
carried on ever the "bridge. But, as the deci-[623]
sions of this court show, it may subject to
taxation property permanently located with-
in its territorial limits and employed in such
commerce by individuals and by private cor-
porations. In Covington & C. Bridge Co. v.
Kentucky, 154 U. S. 204, 212 [38: 962, 967, 4
Inters. Com. Rep. 649], it was said: "As
matter of fact, the building of bridges over
waters dividing two states is now usually
done by congressional sanction. Under this
power the state may also tax the instru-
ments of interstate commerce as it taxes
other similar property, provided such tax is
not laid upon the commerce itself." See also
Henderson Bridge Co. v. Henderson City, 141
U. S. 679, 689 [35: 900, 904]; Pittsburgh, C.
C. & St. L. Railway Co. v. Board of Publio
Works, 172 U. S. 32 [ante, 354]. In Thomson
v. Union Pacific Railroad Co. 9 Wall. 579
[19: 792], the question was as to the liabili-
ties and rights of a railroad company in re-
spect to taxation under state legislation. It
was contended in that case that the road hav-
ing been constructed under the direction and
authority of Congress for the purposes and
uses of the United States, and being a part
of a system of roads thus constructed, was
exempt from taxation under state authori-
ty; that the road was an instrument of the

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

stream.

Nor does the fact that the bridge between low-water mark on either side of the river is used by the corporation controlling it for purposes of interstate commerce exempt it from taxation by the state within whose lim

to taxation by the state. That contention
was overruled, tais court saying: "We are
not aware of any case in which the real es-
tate, or other property of a corporation, not
organized under an act of Congress, has been
held to be exempt, in the absence of express
legislation to that effect, from just contri-
bution, in common with other property, to
the general expenditure for the common bene-
fit, because of the employment of the corpo-
ration in the service of the government."
"There is a clear distinction between the
means employed by the government, and the
property of agents employed by the govern-
ment. Taxation of the agency is taxation
of the means; taxation of the property of the
agent is not always or generally taxation of
the means." In the same case the court said
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," al-
though that power cannot be so used "as to
defeat or hinder the operations of the na-
tional 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 serv-
ice of the United States, such property being
within its limits, there is no sound reason
why the bridge property in question, al-
though erected with the consent of Congress
over one of the navigable waters of the Unit-
ed States, should be withdrawn from the tax-
ing power of the state which created the
corporation owning it and within whose lim-
its it is permanently located.

The judgment of the Court of Appeals is
affirmed.

CERTIFICATE from the United States

HENDERSON BRIDGE COMPANY et Circuit Court of Appeals for the Eighth

Plffs. in Err.,

v.

CITY OF HENDERSON.

(See S. C. Reporter's ed. 624.)

Henderson Bridge Company et al. v. City of
Henderson, No. 32, ante, p. 823, followed.

[No. 31.]

Argued May 6, 9, 1898. Decided April 3, plaintiff to have come into its possession by

1899.

Mr. Justice Harlan delivered the opinion of the court:

This was an action by the city of Hendersor. to recover taxes (with interest and penalties) assessed by it upon the property of the Henderson Bridge Company within the limits of that city for the years 1890, 1891, 1892, and 1893. The case presents substantially the same questions that are disposed of in the opinion just delivered in case No. 32 between the same parties for taxes for the years 1888 and 1889.

For the reasons stated in that opinion the judgment of the Court of Appeals of Kentucky in the present case must be affirmed. It is so ordered.

Circuit certifying certain questions of law to this court for instruction in a suit brought by the Security Trust Company as assignee of the D. D. Merrill Company, a corporation organized under the laws of the state of Minnesota, against Dodd, Mead, & Company, a partnership resident in New York, for the conversion of certain personal property situate in Massachusetts, and claimed by the virtue of assignment by the said Merrill Company executed in Minnesota. The suit was first brought in the District Court of Minnesota for the Second Judicial District, and duly removed to the Circuit Court of the United States for the District of Minnesota, and to which a writ of error was issued from the United States Circuit Court of Appeals for the Eighth Circuit, at the suit of the Security Trust Company. Second question answered in the negative, which answer disposed of the first question without an an

swer.

Statement by Mr. Justice Brown:

*This was an action originally instituted [625]
in the district court for the second judicial
district of Minnesota, by the Security Trust
Company, as assignee of the D. D. Merrill
Company, a corporation organized under the
laws of Minnesota, against the firm of Dodd,
Mead, & Company, a partnership resident
in New York, to recover the value of certain
stereotyped and electrotyped plates for print-
ing books, upon the ground that the defend-
ants had unlawfully converted the same to
their own use. The suit was duly removed

from the state court to the circuit court of
the United States for the district of Minne-
sota, and was there tried. Upon such trial

SECURITY TRUST COMPANY, Assignee, the following facts appeared:

etc., Plff. in Err.,

v.

FRANK H. DODD et al.

(See S. C. Reporter's ed. 624-636.)

Effect of an assignment for the benefit of creditors in one state upon attaching creditors of property in another-Minnesota statute in regard to assignments.

1. An assignment executed in Minnesota pursuant to the general assignment law of that state, by a corporation there resident, is not available to pass personal property situated

in Massachusetts as against parties resident in New York, who, subsequent to the assignment, had seized such property upon an attachment against the insolvent corporation. 2. The Minnesota statute upon the subject of assignments, which limits the distribution of the insolvent debtor's property to such of his creditors as shall file releases of their demands, is in substance and effect an insolvent law, and is operative as to property in another state only so far as the courts of that state choose to respect it.

The D. D. Merrill Company having become insolvent and unable to pay its debts in the usual course of business, on September 23, 1893, executed to the Security Trust Company, the plaintiff in error, an assignment under and pursuant to the provisions of chapter 148 of the laws of 1881 of the state of Minnesota, which assignment was properly filed in the office of the clerk of the district court. The trust company accepted the same, qualified as assignee, took possession of such of the property as was found in Minnesota, and disposed of the same for the benefit of creditors, the firm of Dodd, Mead, & Company having full knowledge of the execution and filing of such assignment.

*At the date of this assignment, the D. D.[626] Merrill Company was indebted to Dodd, Mead, & Company of New York in the sum of $1,249.98, and also to Alfred Mudge & Sons, a Boston copartnership, in the sum of $126.80, which they duly assigned and transferred to Dodd, Mead, & Company, making the total indebtedness to them $1,376.78.

Prior to the assignment, the D. D. Merrill Company was the owner of the personal property for the value of which this suit was brought. This property was in the cusArgued and Submitted January 23, 1899. tody and possession of Alfred Mudge & Sons at Boston, Massachusetts, until the same was

[No. 188.]

Decided April 11, 1899.

attached by the sheriff of Suffolk county, as | clare the validity of this assignment in Mashereinafter stated. sachusetts.

The courts of Massachusetts have repeatedly held that an assignment in trust for the Hawkins v. Ireland, 64 Minn. 345; Covey benefit of creditors, whether statutory or by V. Cutler, 55 Minn. 18; Stahl v. Mitchell, 41 common law, the only consideration for which Minn. 327. is the acceptance of the trust by the asThe Massachusetts decisions clearly designee, is invalid against an attachment, ex