South Covington Cincinnati Street Railway Company v. City of Covington

• Decision Date: 05 January 1915
• Docket Number: No. 28,28
• Citation: 59 L.Ed. 350,35 S.Ct. 158,235 U.S. 537
• Parties: SOUTH COVINGTON & CINCINNATI STREET RAILWAY COMPANY, Plff. in Err., v. CITY OF COVINGTON, John J. Craig, Mayor, and Henry B. Schuler, Chief of Police
• Court: U.S. Supreme Court

235 U.S. 537

35 S.Ct. 158

59 L.Ed. 350

SOUTH COVINGTON & CINCINNATI STREET RAILWAY COMPANY, Plff. in Err.,

v CITY OF COVINGTON, John J. Craig, Mayor, and Henry B. Schuler, Chief of Police.

No. 28.

Argued October 30, 1914.

Decided January 5, 1915.

Messrs. Alfred C. Cassatt, Frank W. Cottle, and Richard P. Ernst for plaintiff in error.

[Argument of Counsel from page 538 intentionally omitted] Mr. Frederick W. Schmitz for defendants in error.

[Argument of Counsel from pages 539-541 intentionally omitted] Mr. Justice Day delivered the opinion of the court:

This case originated in a petition filed by the South Covington & Cincinnati Street Railway Company, a corporation of the state of Kentucky, having for its purpose to enjoin the city of Covington from enforcing a certain ordinance regulating the operation of the street cars of the company. The features of the ordinance essential to be considered here are found in its first seven sections, which are:

'Section 1. That it shall be unlawful for any person corporation, or company owning or operating street cars for the carriage of passengers for hire in or through or over the public streets of the city of Covington, to permit more than one-third greater in number of passengers to ride or to be transported within such cars over and above the number for which seats are provided in the same, provided that this section shall not apply to or be enforced on the days celebrated as Fourth of July, Decoration Day, or Labor Day.

'Section 2. No such person, company, or corporation shall suffer or permit any passenger or person to ride upon the rear platform of any such car unless the same be provided with a suitable rail or barrier so arranged as to provide an open space reasonably sufficient for egress and ingress of passengers to and from such car, and no one shall be permitted to stand in such place so provided for such ingress and egress, but the same shall at all times be kept clear, free, and open. Any person refusing to vacate such open space provided for egress and ingress upon request of the conductor in charge of said car shall be guilty of a misdemeanor, and be subject to a fine of not less than $5 nor more than $50, recoverable in the police court of said city.

'Section 3. No such person, company, or corporation shall suffer or permit any person or passenger to ride upon the front platform of any such car unless a rail or barrier be provided, separating the motorman from the balance of said front platform, said space allowed for the motorman shall in all cases be sufficient to permit him to properly and conveniently operate the mechanism controlling said car without interfering or crowding from the other person upon said platform, if any, and no person or passengers shall be ever permitted to stand by or remain within the enclosure thus provided for the motorman.

'Section 4. It shall be the duty of every such person company, or corporation to at all times keep its car thoroughly cleaned and ventilated, and shall at least once a week fumigate the inside of said cars with efficient disinfectant, and the board of health of the city of Covington shall have power and authority to prescribe reasonable rules providing for the cleanliness, ventilation, and fumigation of such cars, and all such persons, companies, or corporations shall comply with such reasonable rules.

'Section 5. The temperature of such cars shall never be permitted to be below 50 degrees Fahrenheit.

'Section 6. It is hereby made the duty of every company, person, or corporation operating street cars and the street car lines within the corporate limits of the city of Covington, to run and operate cars in sufficient numbers at all times to reasonably accommodate the public within the limits of this ordinance as to the number of passengers permitted to be carried, and the general council of the city of Covington may, by resolution, at any time direct that the number of cars operated upon any line or route be increased to a sufficient number to so accommodate the public, if there is failure in that respect. Any such person, company, or corporation failing or refusing to run or operate sufficient cars as by this section provided shall be subject to the penalties provided by § 2 hereof.

'Section 7. Any person, company, or corporation violating either of the provisions of this ordinance shall be deemed guilty of a misdemeanor, and shall be punished by a fine of not less than fifty nor more than one hundred dollars for each offense, recoverable in the police court of the city of Covington, and each car operated in violation of this ordinance shall constitute a separate offense for each day it is so operated, and it is hereby made the duty of all police officers of such city, and others exercising police power, to see to the enforcement of this ordinance, and to arrest or to cause the arrest of all persons guilty of its infraction. And the chief of police is hereby directed to assign at least one police officer to the special enforcement of this ordinance. It shall be the duty of such officer to examine and observe street cars in operation, and to make arrests and cause proper prosecutions to be started against offenders violating this ordinance.'

The circuit court of Kenton county, Kentucky, refused the injunction and dismissed the petition, and this decree was affirmed by the court of appeals of Kentucky (146 Ky. 592, 143 S. W. 28), and the case is brought here.

It was set up in the petition and amended petition that the ordinance is an unlawful interference with interstate commerce, in violation of the Federal Constitution, article I., § 8, giving exclusive authority to Congress over that subject; that it deprives plaintiff of its property without due process of law, in violation of the 14th Amendment; and that it impairs the obligation of a certain contract previously entered into between the plaintiff and the city of Covington, in violation of article I., § 10, of the Constitution.

The testimony shows that the plaintiff is a Kentucky corporation, and its principal occupation is the carrying of passengers in connection with an Ohio corporation which operates on the other side of the Ohio river, upon continuous and connecting tracks, and across a bridge from Covington to Cincinnati, which this court has held to be an instrument of interstate commerce (Covington & C. Bridge Co. v. Kentucky, 154 U. S. 204, 38 L. ed. 962, 4 Inters. Com. Rep. 649, 14 Sup. Ct. Rep. 1087). This traffic is conducted by means of continuous trips and for a single fare, between points on the lines of the railway in Covington and Fourth street or Fountain square in the city of Cincinnati or from any point between Fourth street or Fountain square in the city of Cincinnati to points in the city of Covington. Practically every car is thus engaged in going to or coming from Cincinnati, and from 75 to 80 per cent of the passengers carried in the city of Covington are being transported from Covington to Cincinnati, or from Cincinnati to Covington, or farther in Kentucky. The cars operate without change...