Broadway & Newport B. Co. v. Commonwealth

• Decision Date: 11 January 1917
• Citation: 173 Ky. 165
• Parties: Broadway & Newport Bridge Company v. Commonwealth.
• Court: Kentucky Court of Appeals

Page 165

173 Ky. 165

Broadway & Newport Bridge Company v. Commonwealth.

Court of Appeals of Kentucky.

Decided January 11, 1917.

Appeal from Campbell Circuit Court.

NELSON & GALLAGHER for appellant.

M. M. LOGAN, Attorney General; D. O. MYATT, Assistant Attorney General, and LAWRENCE J. DISKIN, Commonwealth Attorney, for appellee.

OPINION OF THE COURT BY JUDGE CARROLL — Reversing.

The Broadway and Newport Bridge Co. is a consolidated corporation created under section 843 of the Kentucky Statutes, and is a citizen of the State of Kentucky. It was formed by the consolidation of the Broadway and Newport Bridge Co., an Ohio corporation, and the Newport and Broadway Bridge Co., a Kentucky corporation. It maintains and operates a bridge across the Ohio river connecting Newport, Ky., and Cincinnati, O., which is used, in connection with other traffic, by foot passengers. Section 845, of the chapter under which this corporation was created, provides that it shall be unlawful for it or any other like bridge corporation to demand, charge or receive for foot passengers more than five cents for five crossings; or, in other words, the limit that the company may charge foot passengers who secure five tickets is five cents, or one cent for each crossing. But, notwithstanding this limitation, it appears that the company sold only four tickets entitling the purchaser to one crossing each for five cents, and the grand jury of Campbell county returned against it the indictment before us for violating in the manner stated, the statute.

After a demurrer to the indictment had been overruled, the case was submitted to the court on an agreed state of facts, and the court found the company guilty and assessed against it a fine of five hundred dollars as prescribed in the statute. From the judgment thus entered it prosecutes this appeal.

It appears from the agreed facts that the company is now and has been at all times selling only four tickets for five cents, each ticket entitling the purchaser to one crossing. It further appears that section 9312 of the Civil Code of Ohio authorizes toll to be collected on consolidated bridges over the Ohio river, and that this toll shall at no time exceed that collected at the Covington and Cincinnati bridge. It further appears that the rates of toll charged by the Covington and Cincinnati Bridge Co. for passage over said bridge are more than five cents for four tickets.

It will thus be seen that under the agreed state of facts the Ohio statute authorizes consolidated bridge companies such as the Broadway and Newport Bridge Co. to charge and collect more than five cents for four tickets, while the Kentucky statute provides that these consolidated bridge companies shall not charge more than five cents for five tickets. It will further be observed that this company charges more than the Kentucky statute authorizes but less than the Ohio statute permits.

On these facts, the only question in the case involving the merits is, has the State of Kentucky the power to regulate the rates of toll for foot passengers on this bridge?

In the case of Covington and Cincinnati Bridge Co. v. Commonwealth of Kentucky, decided by the Supreme Court of the United States and reported in 154 U. S. 204, 38 L. Ed. 962, it appears from the opinion that the bridge company operated a bridge across the Ohio river between Covington, Ky., and Cincinnati, O., and that an indictment was found against the bridge company by the grand jury of Kenton county, Ky., for demanding and collecting tolls in excess of the rate fixed by the Kentucky statute, and refusing to sell tickets at the rates required by law. It further appears that this bridge company was incorporated under an act of the legislature of Kentucky which required the confirmation of the act by the State of Ohio, and that thereafter by an act of the Ohio legislature the company was made a body corporate in that state. For a violation of the statute of this State fixing the rates of toll that might be charged, the bridge company was fined in the Kenton Circuit Court, and the judgment of that court having been affirmed by this court, the case was taken to the Supreme Court of the United States, which court reversed the judgment of this court, and in the course of the opinion, after holding that the bridge was an instrument of interstate commerce, said:

"It is clear that the State of Kentucky, by the statute in question attempts to reach out and secure for itself a right to prescribe a rate of toll applicable not only to persons crossing from Kentucky to Ohio, but from Ohio to Kentucky, a right which practically nullifies the corresponding right of Ohio to fix tolls from her own state. It is obvious that the bridge could not have been built without the consent of Ohio, since the north end of the bridge and its abutments rest upon Ohio soil; and without authority from the state to exercise the right of eminent domain, no land could have been acquired for that purpose. It follows that, if the State of Kentucky has the right to regulate the travel upon such bridge and fix the tolls, the State of Ohio has the same right, and so long as their action is harmonious there may be no room for friction between the states; but it would scarcely be consonant with good sense to say that separate regulations and separate tariffs may be adopted by each state (if the subject be one for state regulation), and made applicable to that portion of the bridge within its own territory. So far as the matter of construction is concerned, each state may proceed separately by authorizing the bridge company to condemn land within its own territory, but in the operation of the bridge their action must be joint or great confusion is likely to result."

After further pointing out the confusion that might exist by the enactment of inharmonious or conflicting legislation by the states of Kentucky and Ohio as to the manner in which the bridge should be operated and the rates of toll that should be charged thereon, and saying that "Congress, and Congress alone, possesses the requisite power to harmonize such differences, and to enact a uniform scale of charges which will be operative in both directions," the court said:

"We do not wish to be understood as saying that, in the absence of congressional legislation or mutual legislation of the two states, the company has the right to fix tolls at its own discretion. . . . . Nor are we to be understood as passing upon the question whether, in the absence of legislation by Congress, the states may by reciprocal action fix upon a tariff which shall be operative upon both sides of the river."

It is agreed by counsel that there is an absence of congressional legislation on the subject of the rates of toll that may be charged for passage over this bridge, and we think the opinion of the Supreme Court authorizes us to rule that if the states of Ohio and Kentucky enacted by reciprocal legislation laws fixing the rates of toll that might be charged foot passengers on this bridge, the State of Kentucky would have authority to maintain a prosecution against the bridge company for charging rates in excess of those fixed by the statute of each state, but that in the absence of such reciprocal action by the states of Kentucky and Ohio the courts of Kentucky have no power to impose penalties on the company for a violation of the Kentucky Statutes. Having this view of the matter, it only remains to be determined whether the states of Ohio and Kentucky have joined in the enactment of legislation fixing like rates of toll for passage over this bridge.

The solution of this question is to be determined by the agreed state of facts, and we think it apparent from these facts that there has been no such reciprocal legislation by the two states as would meet the requirements demanding such legislation before either state can enforce its penal statutes against bridge companies for charging excessive rates of toll in violation of the laws of either of the states. According to the agreed state of facts under the Kentucky statute, the bridge company must sell five tickets for five cents, while under the Ohio statute it may charge five cents for four tickets, or even more than five cents for four tickets. This mere statement is of itself, we think, sufficient to illustrate that there has been no reciprocal legislation on this subject between the two states. A person desiring to go from Newport to Cincinnati could, under the Kentucky law, demand five tickets for five cents, entitling him to passage from Newport to Cincinnati, but if a citizen of Cincinnati desired to go to Newport, Ky., the bridge collector at the Cincinnati end of the bridge could require him to pay five cents, or even more, for four tickets, entitling him to passage from Cincinnati to Newport.

We think the reciprocal legislation contemplated by the opinion of the Supreme Court must be such legislation as established precisely the same rates of toll for passage ever the bridge from Newport to Cincinnati as from Cincinnati to Newport, and that until such a joint rate is adopted by both states, neither state can enforce penalties for violations by the bridge company of the rate of toll it has fixed.

It is, however, further insisted by counsel for the Commonwealth that in the absence of congressional legislation or reciprocal legislation between the two states, the state of Kentucky by virtue of the police power at its command, may enforce obedience to its laws by this Kentucky corporation, notwithstanding the fact that it is engaged in interstate commerce.

In South Covington & Cincinnati Street Ry. Co. v. Covington, 235 U. S. 537, 59 L. Ed. 350, the Supreme Court had before it a case involving the power of the city of Covington to enact certain ordinances regulating the operation of street cars between Covington, Ky., and Cincinnati, O. These regulations consisted in limiting the number of passengers that...