[235 U.S. 537, 538] Messrs. Alfred C. Cassatt, Frank W. Cottle, and Richard P. Ernst for plaintiff in error.
[235 U.S. 537, 539] Mr. Frederick W. Schmitz for defendants in error.
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:
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 [235 U.S. 537, 545] 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 of motormen or conductors, and under the direction of the same officers.
This court has repeatedly held that whether given commerce is of an interstate character or not is to be determined by what is actually done, and if the transportation is really and in fact between states, the mere arrangements of billing or plurality of carriers do not enter into the conclusion. Here is an uninterrupted transportation of passengers between states, on the same cars, and under practically the same management, and for a single fare. We have no doubt that this course of business constitutes interstate commerce. Texas & N. O. R. Co. v. Sabine Tram Co. 227 U.S. 111 , 57 L. ed. 442, 33 Sup. Ct. Rep. 229; St. Louis, S. F. & T. R. Co. v. Seale, 229 U.S. 156 , 57 L. ed. 1129, 33 Sup. Ct. Rep. 651, Ann. Cas. 1914C, 156; Railroad Commission v. Worthington, 225 U.S. 101 , 56 L. ed. 1004, 32 Sup. Ct. Rep. 653; Omaha & C. B. Street R. Co. v. Interstate Commerce Commission, 230 U.S. 324, 336 , 57 S. L. ed. 1501, 1506, 46 L.R.A.(N. S.) 385, 33 Sup. Ct. Rep. 890. A contrary conclusion was reached in this case by the Kentucky court of appeals upon the authority of Missouri P. R. Co. v. Kansas, 216 U.S. 262 , 54 L. ed. 472, 30 Sup. Ct. Rep. 330, but that case concerns an order under authority of the state of Kansas, requiring the running of a passenger train wholly within the state. It was pointed out in the course of the opinion that the order did not deal with an interstate train, or put a burden upon such train, but simply required the operation within the state of a local train, the duty of operating such train arising from the charter obligation of the company.
Reaching the conclusion that the traffic here regulated is of an interstate character, and therefore within the control of the Federal Congress, the further question is presented: Does the case come within that class wherein the state may regulate the matter legislated upon until Congress has acted by virtue of the supreme authority given it by virtue of the commerce clause of the Constitu- [235 U.S. 537, 546] tion? In numerous instances this court has sustained local enactments, passed in the exercise of the police power of the state, in the interest of the public health and safety, notwithstanding the regulation may incidentally or indirectly affect interstate commerce. The subject was given much consideration in the Minnesota Rate Cases (Simpson v. Shepard) 230 U.S. 352 , 57 L. ed. 1511, 48 L.R.A.(N.S.) 1151, 33 Sup. Ct. Rep. 729, and the previous cases dealing with this subject are therein collected and reviewed. In the light of these cases, and upon principle, the conclusion is reached that it is competent for the state to provide for local improvements of facilities, or to adopt reasonable measures in the interest of the health, safety, and welfare of the people, notwithstanding such regulations might incidentally and indirectly involve interstate commerce. Summing up the matter, it is there stated.
In the light of the principles settled and declared, the various provisions of this ordinance must be examined. [235 U.S. 537, 547] That embodied in 1 and 6 makes it unlawful for the company to permit more than one third greater in number of the passengers to ride or be transported within its cars over and above a number for which seats are provided therein, except this provision shall not apply or be enforced on the Fourth of July, Decoration Day, or Labor Day, and by 6 it is made the duty of the company operating the cars within the city of Covington to run and operate the same in sufficient numbers at all times to reasonably accommodate the public, within the limits of the ordinance as to the number of passengers permitted to be carried, and the council is authorized to direct the number of cars to be increased sufficiently to accommodate the public if there is a failure in this respect. To comply with these regulations, the testimony shows, would require about one half more than the present number of cars operated by the company, and more cars than can be operated in Cincinnati within the present franchise rights and privileges held by the company, or controlled by it, in that city. Whether, in view of this situation, this regulation would be so unreasonable as to be void, we need not now inquire. These facts, together with the other details of operation of the cars of this company, are to be taken into view in determining the nature of the regulation here attempted, and whether it so directly burdens interstate commerce as to be beyond the power of the state. We think the necessary effect of these regulations is not only to determine the manner of carrying passengers in Covington and the number of cars that are to be run in connection with the business there, but necessarily directs the number of cars to be run in Cincinnati, and the manner of loading them when there, where the traffic is much impeded and other lines of street railway and many hindrances have to be taken into consideration in regulating the traffic. If Covington can regulate these matters, certainly Cincinnati can, and interstate business [235 U.S. 537, 548] might be impeded by conflicting and varying regulations in this respect, with which it might be impossible to comply. On one side of the river one set of regulations ight be enforced, and on the other side quite a different set, and both seeking to control a practically continuous movement of cars. As was said in Hall v. DeCuir, 95 U.S. 485, 489 , 24 S. L. ed. 547, 548, 'commerce cannot flourish in the midst of such embarrassments.'
We need not stop to consider whether Congress has undertaken to regulate such interstate transportation as this, for it is clearly within its power to do so, and absence of Federal regulation does not give the power to the state to make rules which so necessarily control the conduct of interstate commerce as do those just considered.
There are other parts of the ordinance which we are of opinion are within the authority of the state, and proper subject-matter for its regulation; at least, until the Federal authority is exerted. These are the provisions with reference to passengers riding on the rear platform unless the same be provided with a suitable rail or barrier, etc., and as to persons riding upon the front platform unless a rail or barrier be provided, separating the motorman from the balance of the front platform, as well as those provisions with reference to the requirement to keep the cars clean and ventilated and fumigated. We think these regulations come within that class in which this court has sustained the right of the local authorities to safeguard the traveling public, and to promote their comfort and convenience, only incidentally affecting the interstate business, and not subjecting the same to unreasonable demands. New York, N. H. & H. R. Co. v. New York, 165 U.S. 628 , 41 L. ed. 853, 17 Sup. Ct. Rep. 418; Lake Shore & M. S. R. Co. v. Ohio, 173 U.S. 285 , 43 L. ed. 702, 19 Sup. Ct. Rep. 465; Atlantic Coast Line R. Co. v. Georgia, 234 U.S. 280, 291 , 292 S., 58 L. ed. 1312, 1317, 1318, 34 Sup. Ct. Rep. 829. As to the regulation affecting the temperature of the cars, and providing that they shall never be permitted to be below 50 Fahrenheit, the undisputed testimony [235 U.S. 537, 549] shows that it is impossible in the operation of the cars to keep them uniformly up to this temperature, owing to the opening and closing of doors, and other interferences that make it impracticable. We therefore think, upon this showing, this feature of the ordinance is unreasonable and cannot be sustained.
Our conclusion is that the court of appeals of Kentucky erred in refusing the injunction as against the provisions of the ordinance regulating the unmber of passengers to be carried in a car and the number of cars to be provided, and the requirement as to heating, in view of the testimony as heretofore stated. In these respects its decision should be reversed. We think the other provisions of the ordinance separable, and concerning them the plaintiff in error was not entitled to an injunction in the state court.
Judgment is reversed in part, and the case remanded to the state court for further proceedings not inconsistent with this opinion.