delivered the opinion op the court.
The city assessor of Louisville, in August, 1876, without notice to the Louisville Bridge Company, assessed for taxation so much of its right of way and bridge improvements thereon as lies between the north line of the Louisville and Portland Canal and low-water mark on the northwestern shore of the Ohio river.-
The assessment was for back taxes, alleged to be due for the years 1874, 1875, and 1876. The assessor fixed the valuation each year at $750,000, but no opportunity of a .review of the assessment was alleged to have been given the company by keeping the assessment rolls open the ■requisite length of time, and giving notice thereof, as required by law.
Upon this assessment, the city of Louisville brought this action in equity against the Bridge Company to subject its right of way and bridge over the water in the Ohio river to the payment of the taxes for those years, and the penalties for the non-payment thereof within the statutory periods. The city recovered the sum of $51,975, the amount of the taxes, and the Bridge Company has appealed from the judgment.
*192Its counsel insist that this judgment is erroneous, because the bridge and right of way are not subject to state or municipal taxation. Many other questions upon the pleadings, ordinances, manner of assessment, citation, &c., are discussed and urged with force and plausibility, and we might say, as. to some of them, unanswerably; but it is unnecessary to decide them, in view.of the radical effect of one of the two., main questions relied upon by the appellant. We will proceed to discuss those questions.
It is contended that appellant’s bridge and right of way described in the petition are not subject to the taxing power of the State of Kentucky, because—
First. Of the third clause of section 8, article i, of the Constitution of the United States, which provides that Congress shall have power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”
Second. Of the nth section of the compact with Virginia, which declares “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 limitl 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.”
The jurisdiction of the state of Kentucky over that part of the Ohio river which marks her northwestern border to low-water mark on its northwestern shore has been so often considered that we had thought the question one of authority; but able and learned counsel, whose views are entitled *193to consideration, contend that the question presented by this record is, new, and has never been settled adversely to-their position, and we therefore feel that it is our duty to dispose of the question by a review of the history, legislation, and authorities which support the principles applicable to it.
In 1779 Virginia opened a land office, but prohibited the location or entry of any land within her then charter limits, lying to “the northwest side of the river Ohio.”
This prohibition must have been made in contemplation of the cession of that part of her territory to the United States.
Preliminary to the cession, congress, on the 6th day of September, 1780, passed a resolution recommending “to the several states having claims to waste and unappropriated lands in the western country a liberal cession to the United States of a portion of their respective claims for the common benefit of the union.”
On the 2d day of January, 1781, Virginia yielded to the congress of the United States, for the benefit of the said states, “all right, title, and claim,” which she had “to the territory northwest of the Ohio river,” subject to certain conditions. Congress, by an act of September 13th, 1783, stipulated the terms on which the United States agreed to accept the cession of the territory named. On the 20th day of December of that year, although the terms on which congress agreed to accept the cession did not “come fully up to the propositions of Virginia,” that state accepted the terms of congress, and by an act of her general assembly authorized her delegates in congress, by proper deeds or instruments in writing, to convey unto the United States *194all her right, title, and claim, “as well of soil as jurisdiction,” to the territory lying “to the northwest of the Ohio river.” And in pursuance of that authority, Thomas Jefferson, Samuel Hardy, Arthur Lee, and James Monroe, on the ist day of March, 1784, executed a deed of cession from Virginia to'the United States, conveying! the soil and jurisdiction of that territory.
Thus Virginia parted with that magnificent “tract of country ” embraced by her charters of 1606, 1609, and 16U-T2, granted by James the First of England; and thus the United States became invested with title-to its soil and jurisdiction for the benefit of all the states, including Virginia.
On the 13th day of July, 1787, congress passed “an ordinance for the government of the territory of the United States northzvest of the river Ohio,” in which it was declared “for the prevention of crimes and injuries, the laws to be adopted or made shall have force in all parís of the district,” the territory then being one district; that ‘ ‘ no tax shall be imposed on'lands the, property of the United States;” that “the navigable waters leading into the Mississippi and Saint 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.”
The compact between Virginia and Kentucky was made on the 18th day of December, 1789, more than two years after the passage of the ordinance of congress establishing the northwest territorial government, and subsequent to the adoption of the constitution of the United States.
*195There is nothing in any of the acts, either of Virginia or the revolutionary congress, relating to the cession of the northwest territory to the United States, which conveys, surrenders, or affects the jurisdiction of the state of Virginia over the bank, bed, and waters of the Ohio river to low-water mark on its northwestern shore. The first mention that is made of the navigable waters leading into the Mississippi and Saint Lawrence, and of their character and use, is to be found in the fourth article of the ordinance of 1787, which referred only to such navigable waters flowing into either of those great rivers as laid within or flowed through the territory tying to the northwest of the river Ohio, as that territory so bounded, with the rivers embraced in it, was the subject of the ordinance, and alone conveyed by Virginia’s deed of cessipn.
It is true that the ordinance of 1787 was in furtherance of the then prevalent sentiment of the country in favor of the free and common right of navigation of the Mississippi and.the navigable waters flowing into it. But congress had no power then, under the articles of confederation or from the states, to regulate the navigation of inter-state streams outside of the ceded northwestern territory, over whose soil and rivers congress had jurisdiction by the terms of the deed of cession. And until the constitution of the United States was established, delegating to congress the power to regulate commerce among the states, it had no such power over the rivers within the jurisdictional limits of the states; therefore, the commercial clause of the constitution, and the ninth section of its first article, which declares that “no preference shall be given, by any regulation of commerce or revenue, to the ports of one state over another,” and the second clause of section 10 of said article, *196which says, “no state shall, without the consent of congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws," with their construction by the courts, declare and explain the nature and extent of the jurisdiction of the United States over the Ohio and other navigable waters.
By the decision of the supreme court in Handley’s lessee v. Anthony, 5 Wheaton, 374, the territorial limits of Kentucky were authoritatively held to extend to low-water mark on the northwest side of the Ohio river, and her jurisdiction over the soil to lower water-mark affirmatively settled. •
That jurisdiction extends to all kinds of property situated in the Ohio river, such as islands, or the right to the soil under the water, and there is no limit to its lawful exercise, except where jurisdiction and power has been delegated to the general government for specified purposes, and that of the state expressly or necessarily excluded.-
It is said, in the case of McCulloch v. Maryland, 4 Wheaton, 316, that all subjects over which the sovereign power of a state extends are subject to taxation, and the sovereignty of a state extends to everything which exists, by its own authority, or is introduced by its permission; and these principles are recognized in Gibbons v. Ogden, 9th Wheaton, 1, in which it was said the power of taxation is indispensable to the existence of the states, and may be exercised concurrently with the general government, but that there is no analogy between the power of taxation and the power of regulating commerce; and there can be no necessary displacement or assumption of the power to regulate commerce by the states merely exercising the ordinary and essential power of taxation; for unless the *197taxes which may be levied by a state for its own lawful purposes amount to a regulation of commerce in some way, either by obstructing or otherwise diminishing the free navigation of the water-ways over which the commerce of the country is carried, or discriminating in favor of local and against foreign or ultra state subjects of commerce, the taxing power of the state may be exercised upon all property within its limits which receives the protection of its laws; and the fact that property may be employed in a commercial venture, or for commercial purposes, does not sanction its exemption from the common burdens of taxation borne by other property, used in other pursuits of life, for the purpose of ordaining, maintaining, and enforcing the laws.
Burroughs on Taxation, page 93, says the taxing power of the states may be exercised upon all property within their limits, upon the goods carried, or the instruments of com-' merce as property, and thus indirectly affect commerce. The text is in accord with numerous decisions. As the territorial jurisdiction' of Kentucky embraces the right of way and the bridge over it, and her power of taxation is so essential and general, where is the limitation to it which will embrace and exempt from state taxation this property? Its owner, the appellant company, was incorporated and created by authority of the sovereignty of Kentucky, and it was by her permission erected within her boundary, and is entitled, and receives, the equal protection of her laws, and therefore, as we think, subject to taxation as like property situated in any other part of the commonwealth.
The bridge is not an agency or means employed by the federal government to carry any of its powers into effect, but a public way over which commerce is carried, and which belongs to a private corporation having the right to charge *198for its use. The bridge is a public convenience, but it constitutes no branch or part of the general government, and is not used by it to regulate commerce. For the purpose of protecting the free navigation of the Ohio and other interstate streams, congress adopted certain rules by which bridges may be so erected over them as not to obstruct their use, but it does not follow that because congress, under its power to regulate commerce, prevents such bridges from obstructing navigation, that it is employing them as a means of regulating commerce, or that they are necessary or proper to that end, any more than their use by those engaged in commercial pursuits renders it an agency in the regulation of commerce among the states in the constitutional sense. The appellant's counsel construct their argument upon a misconception of the purposes for which the bridge was built and is used.
The cases of Thompson v. Pacific Railroad Co., 9th Wallace, 590; Railroad Company v. Penniston, 18th Wallace, 29, settle the doctrine that, although railroads, telegraph lines, manufacturing establishments, and property of corporations are employed by the government to transport its mails, troops, munitions of war, &c., and used in carrying on the commerce of the country, they are liable to contribute to the revenue of the state. Whatever may be the jurisdiction of the states which possess the opposite shore of the Ohio river, derived from the compact with Virginia, to which they were not parties, it does not extend to the soil covered by the water of that river at its lowest stage, or to its islands or southern shore; nor does the compact impose any duty upon or impart any power to those states to protect property located in or across the river, and within the territorial limits of Kentucky, as declared by .the supreme *199court. The subject-matter of the nth section of the compact is the use and navigation of the river Ohio, and the concurrent jurisdiction of all the states along its shores was provided with reference to that subject, and to insure to them the equai enjoyment of the free use and navigation of the river, which was a recognition and confirmatory of the rights which they enjoyed under the constitution that went into operation before the compact was made.
Not a decision can be found where the jurisdiction of the states, lying to the northwest of the Ohio, and opposite Kentucky, has been held to extend to any island, bridge, or right of way south of low-water mark on the northwestern shore; nor has any of those states, by legislation, claimed such jurisdiction, or adopted appellant’s construction of the 11 th section of the compact.
As a matter of history, it is known that those states have exercised merely police powers over persons and property along their shores when crafts were attached to them above low-water mark. . ■
This construction by themselves of their jurisdiction over the waters of the Ohio, the long and undisturbed acquiescence Jn its correctness, and the actual territorial limits of Kentucky to the full extent of which she has, since her admission into the Union, exercised original exclusive jurisdiction over persons and property for all governmental purposes, leave no room to doubt the constitutional and sovereign power of the state of Kentucky to control and tax the appellant’s right of way and bridge.
But, although Kentucky has the power to tax this property for revenue purposes, the claim of the city of Louisville to tax it for municipal purposes rests upon a question of constitutional and legislative authority which, before it can *200exist in any case, must be preceded by the right of the state to exercise governmental jurisdiction over the subject’ sought to be taxed, and which cannot be exercised in taking, private property for public use without just compensation. The right to tax presupposes governmental benefits, and in case of the exercise of a power of taxation by a municipality, there must appear, as said by this court in the case of Courtney v. Louisville, 12 Bush, 421, “both benefits, actual or presumed, and a town or city population on or near the land areating a necessity, or at least rendering it not unreasonable, that the municipal government should be extended over it.”
In this connection the court said, if the land “ is not near enough to such population to require municipal government, and the property has not been laid out into lots, and could not be profitably so used, it ought not to be taxed for city or town purposes.” The cases of Cheaney v. Hooser, 9 B. Mon., and Covington v. Southgate, 15 B. Mon., support the opinion, and lay down and discuss the general principles applicable to the subject.
The agreed facts show that the bed of the river, over which the part of the bridge sought to be subjected.to municipal taxation is erected, cannot possibly be laid off into town lots or streets, and that the city of Louisville, whose corporate limits include the Ohio river to low-water mark on the northwestern shore, has no right, if it were physically possible, to lay out the bed of the river into lots or extend its streets into it, because it would obstruct its free navigation and appropriate the river to purposes which nature never intended, and the corporate limits of the city were not extended to effect.
*201The appellants can never use their right of way as city property, and cannot receive any profit from it merely as such. It also appears that the municipal government of Louisville does not light the bridge with gas or lamps at night; it furnishes no police force for its protection from the city population; and, in fact, performs none of those acts necessary and usual in protection of property which requires municipal government. It is true, on'one occasion the city’s police, in conjunction with the militia, were called out to protect the bridge from a mob, but this was not because the bridge was taxable city property, but because it was within the State of Kentucky apd entitled to the protection of her laws, and furnishes clear proof, by its exceptional occurrence, of the construction which the city authorities placed upon the character of this property.
It is not sufficient, to authorize municipal taxation, to show that the bridge was built within the corporate limits of the city, for the corporate limits may be, and in this instance are, larger than the taxable boundary of the city. At the time the bridge was built the real estate, the bed of the river, could not be subjected to city taxation, and it remains exempt, from that power. If, therefore, the appellee’s claim to tax the bridge be adopted by the court, the anomaly in law and to common sense will appear that immovable and permanent buildings erected upon the soil, and considered in law as a part of it and as real estate, may be taxed, although the soil and all beneath it, and the use of the waters which flow over it, are constitutionally exempt from municipal taxation. This rule cannot be logically applied to permanent buildings on dry land, and it will not be adopted as to buildings erected on lands covered by water.
*202If, because the bridge would never have been built but for the proximity of the city, it may be taxed, then every line of railroad passing through the city, which was an inducement to its location, may be subjected as far beyond the population and necessity of municipal government as the legislature can be induced to extend the corporate boundaries of the city. So, on the same principle, SO' much of all the wharves and structures that may be built out into the river beyond low-water mark from the Indiana shore would be subject to city taxation. The ferry-boat owned by a citizen of Indiana, tied to her shore at the lowest water, would be subject to assessment, because he might never have built it but for the city of Louisville, which furnishes him the life of his business. If all property is to' be taxed because it is profitable to own by reason of the patronage of the city, then we can see no escape for suburban property, which, it is well known, gradually declines in value as its distance from the city’s population increases. Where, then, would the supposed corresponding benefits of the city’s patronage cease? To answer this question would be the ceaseless work of litigation, fomented by unnecessary extension of municipal boundaries for the embracement of taxable subjects.
Tlie necessity for extending the municipal government over the river was not to protect the property on the river, as contended by appellee’s counsel, but to catch fugitives who commit offenses in the city of Louisville, and flee across the river to get beyond her jurisdiction. The extension of the boundary was proper on account of this police necessity; but the object of the legislature in making the extension of the city’s boundary for the protection of her citizens and property from criminals ought not to be misin*203terpreted, and made the pretext of unjustly taxing property situated beyond the population of the city, with neither actual nor presumed benefits from its municipal government, and not susceptible of ever becoming a part of the city so as to be near to, occupied, or surrounded by its population residing on lots adjoining it. It is not enough either that the bridge is ft “very valuable property” to subject it to this long delayed assertion of the municipal taxing power over it, which, had the city authorities believed to exist, would have been insisted upon long since. While this delay would not of itself bar a recovery, it throws considerable light upon the nature of this right of way and bridge, and the relationship which they bear to the. population, government, and duties of the city.
If the 6th section of the act of March 3, 1871,' was intended to embrace the way and bridge described in the petition as subject to municipal taxation, it is to that extent unconstitutional and void.
Wherefore, the judgment is reversed, and cause remanded, with directions to dismiss the petition.
Judge Pryordelivered the following separate opinion:
The principal opinion in this case proceeds on the idea that, upon the agreed state of facts, the corresponding benefits, actual or presumed, to the property are not such as authorized the imposition of the tax sought to be recovered. It appears that the bridge company, for several years, listed all of its property for" taxation that if supposed was liable, or rather, it was assessed by the city, and the taxes paid. The bridge structure and right of way seems to have been omitted, and the city authorities regarding that part of-the property as subject to taxation by the municipal govern-*204meat, valued it at $750,000, and are seeking in this action to enforce its lien for back taxes for three years, amounting in the aggregate to $51,975.
That this structure may be taxed by the state for revenue purposes there is no doubt, but when proceeding to tax it for municipal purposes on account of benefits received, it presents a different question. The structure rests on the Kentucky and Indiana shore, and so much of the ground owned by the company and its property as lies between low-water mark on the Kentucky side, or the northern boundary of the canal, and the city of Louisville proper, is already taxed, or if not, is conceded to be subject to taxation. It is argued that the bridge is an entirety, and no imaginary severance can be made of it in determining this question, and that, if a part is liable, the whole structure should be taxed. The bridge extends over the soil of Indiana, and beyond the jurisdiction of this State, and the severance must be made at low-water mark on the Indiana side, or the state of. Kentucky permitted to tax property outside of the state limits. In making, therefore, a part of the bridge liable, if the legislative intent was to omit the structure, I see no reason why the taxation should not be confined to the land and improvements on the Kentucky side of the river, or only so much of it as is found within the taxable boundary of the city.
When you leave the shore at low-water mark, and attempt to tax the structure .from that point to the Indiana shore upon the facts conceded in this case, you might, for the same reason, tax an island in the middle of the river for no other reason than its proximity to the city, and because the city boundary extends to low-water mark on the opposite side. This extension of boundary was only intended to *205enlarge the police jurisdiction of the city, and not to make that taxable on the river that otherwise would not be. the subject of taxation. A bridge connecting two cities may be so located and used as to subject the entire structure, so far as the jurisdiction óf the state extends, to local taxation, but located as this bridge is, and considering the benefits received, it is manifest that it was not the intention of the law-making power that the structure should be taxed, or the company made bankrupt by imposing upon it such heavy burdens. It is but a continuation of the line of railroads running to and through the city of Louisville, upon which much of its greatness and prosperity depends, and the framers of the act of 1871 did not contemplate the taxation of this bridge, as it is now attempted to be taxed by the city.
The sixth section provides “that all railroad depots, depot grounds, machine shops, and improvements, as well as all the property of bridge companies, express and transfer companies, within the corporate limits of said city, shall be assessed and subject to taxation at their fair value, as of the tenth of January of each year, for all city and school purposes.”
The'city authorities construed this section in failing to impose the burden for five or six years upon more of the bridge property than is conceded is liable for taxation. Their failure to tax such a structure, if liable, could not have escaped the attention of the able and vigilant officials supervising the financial affairs of the city government. The structure and railway track of a railroad company is certainly not embraced by the act, and if not, I cannot see how the extension of the track upon the wooden bridge is to be made liable upon any fair and just construction of the *206provisions of the section under which the power to tax is asserted.
If an island in the river could not be taxed, although the owner had free access to the streets, and was incidentally-benefited, as in the case of Courtney, reported in 12 Bush, why should the wooden structure, deriving no other benefit, be required to assume the burden? You discriminate between the corporation and the citizen, taxing the one and exempting the other, and this view, no doubt, controlled the construction given this section for so many years prior to the institution of this action.
I do not mean to say, nor do I understand the principal opinion to decide otherwise, that such a structure might not, by reason of the character of its use, its location, and the benefits resulting to it from the local government, be made the subject of municipal taxation. It might become as indispensable as the streets of the city, and its protection and preservation by the city government rendered absolutely essential, but when considering the legislative enactment under which this power is claimed, the location of the structure, its use, and the benefits said to be derived by it from the city government, such taxation, in my opinion, cannot be rightfully asserted.
I therefore concur in reversing the judgment below.