Page images

Concurring Opinion.

levies a tax for the benefit of the State upon the same transportation.” The judgment of the Court of Appeals of Kentucky is

therefore reversed, and the case remanded to that court for further proceedings in conformity with this opinion.

Mr. CHIEF JUSTICE FULLER, MR. JUSTICE FIELD, MR. JUSTICE Gray, and MR. JUSTICE WHITE concurred in the judgment of reversal, for the following reasons :

The several States have the power to establish and regulate ferries and bridges, and the rates of toll thereon, whether within one State, or between two adjoining States, subject to the paramount authority of Congress over interstate commerce.

By the concurrent acts of the legislature of Kentucky in 1846, and of the legislature of Ohio in 1849, this bridge company was made a corporation of each State, and authorized to fix rates of toll.

Congress, by the act of February 17, 1865, c. 39, declared this bridge “to be, when completed in accordance with the laws of the States of Ohio and Kentucky, a lawful structure;” but made no provision as to tolls; and thereby manifested the intention of Congress that the rates of toll should be as established by the two States. 13 Stat. 431.

The original acts of incorporation constituted a contract between the corporation and both States, which could not be altered by the one State without the consent of the other.

Opinion of the Court.



No. 1043. Argued April 25, 1894. – Decided May 26, 1894.

The judgment in this case is reversed on the authority of Covington & Cin

cinnati Bridge Co. v. Kentucky, ante, 204.

The case is stated in the opinion.

Mr. William H. Jackson, (with whom was Mr. W. H. Wadsworth on the brief,) for plaintiff in error.

Mr. William J. Tlendrick, Attorney General of the State of Kentucky, and Mr. William Goebel for defendant in error.

MR. JUSTICE Brown delivered the opinion of the court.

This case differs from the last only in the fact that the plaintiff in error was not incorporated until 1886, and subsequently to a general law of the State declaring that all charters and grants of or to corporations shall be subject to amendment or repeal at the will of the legislature. Conceding that these words became a part of its charter, and hence that no contract was impaired by the legislation of 1890, such legislation is still open to the objection found to exist in the former case, that it is in conflict with the interstate commerce clause of the Constitution.

The judgment of the Court of Appeals of Kentucky is, therefore, Reversed, and the case remanded to that court for further

proceedings. MR. CHIEF JUSTICE FULLER, MR. JUSTICE FIELD, MR. JusTICE Gray, and MR. JUSTICE WHITE concurred in the judgment of reversal, for the like reasons as in the case of Covington Bridge v. Kentucky, ante, 204, 223. .

Statement of the Case.





No. 331. Argued March 29, 30, 1894. – Decided May 26, 1894.

Under the operation of the act of the legislature of Illinois of February 27,

1833, for the making and recording of town plats, the interest in and control of the United States over the streets, alleys, and commons in the Fort Dearborn addition to Chicago ceased with the record of the plat

thereof and the sale of the adjoining lots. When a resort is made by individuals, or by the government of the United

States to the mode provided by the statute of a State where real property is situated, for the transfer of its title, the effect and conditions. prescribed by the statute will apply, and such operation will be given to the instrument of conveyance as is there designated.

This was an appeal from a decree of the Circuit Court, sustaining a demurrer on the part of the Illinois Central and the Michigan Central Railroad, to an information filed by the United States, and dismissing the information as to all the appellees. The information sought to restrain the appellees from diverting the public ground marked on the plat of the Fort Dearborn addition to the city of Chicago from the easements to which it was dedicated. On this branch of the case the information proceeded upon the theory that the United States being the owners of the land in question, and having dedicated it to certain public purposes, were entitled to enjoin its diversion from those public purposes to private uses. The bill alleged:

That before and on the 7th day of June, A.D. 1839, the United States possessed and owned in fee simple the southwest fractional quarter of section 10, the same being a reservation out of the public domain, called the Fort Dearborn reservation; and the then Secretary of War having directed that reservation to be sold, the same was thereupon by his authority laid off into blocks, lots, streets, alleys, and public ground, as an addition to the municipality aforesaid, called the Fort Dear


Statement of the Case.

born addition to Chicago; and on the day last above mentioned a plat thereof was made and acknowledged by one Matthew Birchard as agent and attorney of the said Secretary of War, and was thereupon duly recorded in the recorder's office of the said county of Cook; on which plat a part of the ground therein comprised, being all that part between Lake Michigan, on the east, and blocks 12 and 15 (as shown by the plat) on the west, was designated as “public ground, forever to remain vacant of buildings,” and there was a further declaration that “the public ground between Randolph and Madison streets, and fronting upon Lake Michigan, was not to be occupied with buildings of any description;" as by a plat therewith filed more fully and distinctly appeared. And afterward the several lots designated and shown on that plat were sold and conveyed by the United States to divers persons, by and according to the plat and with reference to the same; but the United States never parted with the title to the streets, alleys, and public ground in the said plat designated and marked, and still own the same in fce simple, with the rights and privileges, riparian and otherwise, pertaining to such ownership, súbject to the use and enjoyment of the same by the public.

The bill further alleged a grant of right of way to the Illinois Central Railroad, under an act of the State of Illinois, approved February 10, 1851, which provided, however, that nothing in that act contained should authorize the said corporation to make location of its tracks within any city without the consent of the common council of such city.

The bill further alleged that the common council of the city of Chicago, by an ordinance dated June 14, 1852, gave the Illinois Central Railroad Company the right to enter upon and use for the purpose of its said railroad and works a space 300 feet wide, for the whole length of the public ground shown in the plat of the Fort Dearborn addition, and that the railroad company, having accepted said act of the legislature and said ordinance, by virtue and under color of the same proceeded to and did build its said railroad and extend and complete the same from the south ward into the said city, on the course indicated in the said ordinance, to

Argument for Appellants.


a terminus near the Chicago River aforesaid; and the said company has ever since maintained and operated its said railroad, and continues so to do. And the said District Attorney for the United States says that no authority or license was ever given by the United States for building or maintaining or operating its said railroad upon or along

said public ground shown on said plat of Fort Dearborn addition, or any part of those tracts of ground; that the General Assembly of the State of Illinois passed an act on April 16, 1869, whereby it assumed and attempted, among other things, to grant in fee to the said Illinois Central Railroad Company, etc.,

all the right and title of the State of Illinois in and to the lands submerged, or otherwise, lying north of the south line of Monroe Street, and south of the south line of Randolph Street, and between the east line of Michigan Avenue and the track and way of the said Illinois Central Railroad, the said pretended act purporting to grant the said grounds for a passenger station and other railroad purposes, and providing that the said railroad companies named as grantees should pay to the city of Chicago the sum of $800,000

; that the said Illinois Central Railroad Company, etc.,

now give out and claim that the said pretended act was and is a legal and binding act, and passed to them respectively a valid title to the property in and by the same attempted to be granted; and the same companies now claim the right and threaten to take possession and exclusive control of the property so in and by the said pretended act attempted to be granted to them respectively.

Thus the information showed that the railroad companies named claimed title to that portion of the public ground shown on the plat of the dedication of the Fort Dearborn addition lying east of Michigan Avenue, and threatened to take possession and exclusive control thereof, for the purpose of appropriating it to a passenger station and other railroad purposes.

Mr. Solicitor General for appellants.
I. The Birchard plat of the Fort Dearborn addition to the


« PreviousContinue »