Opinion of the Court.

Congress 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 lands 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. 51, note. Virginia, by an act passed December 20, 1788, c. 79, and which referred to the above ordinance, declared that "the afore-recited 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 concerning the erection of the District of Kentucky into an independent State." c. 14. That act provided for a convention in Kentucky to consider and determine whether that district should be formed into an independent State. Its eleventh, fourteenth, fifteenth and eighteenth sections were in these words: "§ 11. That the use and navigation of the river Ohio, so far as the territory of the proposed State, or the territory which shall remain within the limits of this Commonwealth, lies thereon, shall be free and common to the citizens of the United States; and the respective 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 authority of this

Opinion of the Court.

Commonwealth, and of its laws, under the exceptions aforesaid, shall cease and determine forever over the proposed State, and the said articles become a 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 followed by an act of Congress approved February 4, 1791, c. 4, 1 Stat. 189, which referred to the above Virginia 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.

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, c. 152: "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 margin of the southeast side is the limit of the counties; to explain which Be it enacted by the General Assembly, That each county of this Commonwealth, calling

Opinion of the Court.

for the river Ohio as the boundary line, shall be considered as bounded in that particular by the state line on the northwest side of said river, and the bed of the river and the islands therefore shall be within the respective counties holding the mainland opposite thereto, within this State, and the several county tribunals shall hold jurisdiction accordingly." Kentucky Sess. Laws 1810, p. 100.

Next in order of time and as determining the boundary line of Kentucky is the judgment of this court in Handly's Lessee v. Anthony, 5 Wheat. 374, 379, 380 (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 question -Chief Justice Marshall delivering its opinionthat 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 domain, and the newly created State extends to the river only. The river, however, is its boundary." "Wherever 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."

The question of boundary was again before this court in Indiana v. Kentucky, 136 U. S. 479, 505, 519. That was a controversy between Kentucky and Indiana as to the boundary lines of the two States at a particular point on the Ohio River. Mr. Justice Field, delivering the unanimous judgment

Opinion of the Court.

of the court, after referring 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 northwest of the Ohio River. The first inquiry therefore is as to what line on the river must be deemed the southern boundary of the territory 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 extended, and ever since has extended, to what was then lowwater mark on the north side of that channel."

The same view of the question of boundary was taken by the Court of Appeals of Kentucky 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. 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 indisputable that the boundary of Kentucky extends to low-water mark on the western and northwestern 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 property of the Bridge Company between low-water mark on the Kentucky shore

Opinion of the Court.

and low-water mark on the Indiana shore without violating the Constitution of the United States in particulars to be adverted to presently.

In considering this objection so far as it is 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 protection by the authorities of the city of Henderson that it cannot be said to receive any benefits whatever from the municipal government, and that to impose taxes for the benefit of the city upon such property is a taking of private property for public use without just compensation, and therefore inconsistent with the due process of law ordained by the Fourteenth Amendment of the Constitution of the United States. Chicago, Burlington &c. Railroad v. Chicago, 166 U. S. 226, 241. It is conceivable that taxation may be of such a nature and so burdensome 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