true with respect to the commerce itself, it is not true with respect to the instruments of such commerce.

It was said in Sherlock v. Alling, 93 U. S. 99, 103, 104, and quoted with approbation in Plumley v. Massachusetts, 155 U. S. 462, 15 Sup. Ct. 154, that, "in conferring upon congress the regulation of commerce, it was never intended to cut the states off from legislating on all subjects relating to the health, life, and safety of their citizens, though the legislation might indirectly affect the commerce of the country. Legislation, in a great variety of ways, may affect commerce and persons engaged in it *without constituting a regulation of it, within the meaning of the constitution; • • * and it may be said, generally, that the legislation of a state, not directed against commerce or any of its regulations, but relating to the rights, duties, and liabilities of citizens, and only indirectly and remotely affecting the operations of commerce, is of obligatory force upon citizens within its territorial jurisdiction, whether on land or water, or engaged in commerce foreign or interstate, or in any other pursuit."

It has never been supposed that the dominant power of congress over interstate commerce took from the states the power of legislation with respect to the instruments of such commerce, so far as the legislation was within its ordinary police powers. Nearly all the railways in the country have been constructed under state authority, and it cannot be supposed that they intended to abandon their power over them as soon as they were finished. The power to construct them involves necessarily the power to impose such regulations upon their operation as a sound regard for the interests of the public may seem to render desirable. In the division of authority with respect to interstate railways, congress reserves to itself the superior right to control their commerce, and forbid interference therewith; while to the states remains the power to create and to regulate the instruments of such commerce, so far as necessary to the conservation of the public interests.

If it be assumed that the states have no right to forbid the consolidation of competing lines, because the whole subject is within the control of congress, it would necessarily follow that congress would have the power to authorize such consolidation in defiance of state legislation, a proposition which only needs to be stated to demonstrate its unsoundness. As we have already said, the power of one railway corporation to purchase the stock and franchises of another must be conferred by express language to that effect in the charter; and hence, if the charter of the L. & N. Co. had been silent upon that point, it will be conceded that it would have no power to make the proposed purchase in this case. As the power to purchase, then, is derivable from the state, the state may accompany it with such limitations as it may choose to im

pose. It results, then, from the argument of the appellant, that, if there be any interference with interstate commerce, it is in imposing limitations upon the exercise of a right which did not previously exist; and hence, if the state permits such purchase or consolidation, it is bound to extend the authority to every possible case, or expose itself to the charge of interfering with commerce. This proposition is obviously untenable.

While the constitutional power of the state in this particular has Lever been formally passed upon by this court, the power of state legislatures to impose this restriction upon the general authority to consolidate has been recognized in a number of cases. Railroad Co. v. Maryland, 21 Wall. 456, 470; Shields v. Ohio, 95 U. S. 319; Wallace v. Loomis, 97 U. S. 146, 154; New Buffalo v. Iron Co., 105 U. S. 73; Leavenworth Co. Com'rs v. Chicago, R. I. & P. Ry. Co., 134 U. S. 688, 699, 10 Sup. Ct. 708; Livingston Co. v. First Nat. Bank of Portsmouth, 128 U. S. 102, 9 Sup. Ct. 18; Keokuk & W. R. Co. v. Missouri, 152 U. & 301, 14 Sup. Ct. 592; Ashley v. Ryan, 153 U. S. 436, 14 Sup. Ct. 865. In the last case it was broadly held that a state, in permitting railway companies to consolidate, might impose such conditions as it deemed proper, and that the acceptance of the franchise implied a submission to the conditions, without which it could not have been obtained.

The power to forbid such purchase or consolidation with competing lines has been directly upheld in a large number of cases in the state courts, in some of which cases a violation of the commerce clause was suggested, and in others it was not. Hafer v. Railroad Co., 29 Wkly. Law Bull. 68; State v. Atchison & N. R. Co., 24 Neb. 143, 38 N. W. 43; Gulf, C. & S. F. Ry. Co. v. State, 72 Tex. 404, 10 S. W. 81; Railway Co. v. Rushing, 69 Tex. 306, 6 S. W. 834; Pennsylvania R. Co. v. Com. (Pa. Sup.) 7 Atl. 368; Montgomery's Appeal, 136 Pa. St. 96, 20 Atl. 399; Currier v. Railroad Co., 48 N. H. 325; Texas & P. Ry. Co. v. Southern Pac. Ry. Co., 41 La. Ann. 970, 6 South. 888. See, also, Lang-. don v. Branch, 37 Fed. 449; Hamilton v. *Railway Co., 49 Fed. 412; Clarke v. Railroad Co., 50 Fed. 338; Kimball v. Railroad Co., 46 Fed. 888.

In conclusion we are of opinion:

(1) That a general right to purchase or consolidate with other roads was never conferred upon the L. & N. Co.

(2) That the Chesapeake Co. was never vested with the power to consolidate its capital stock, franchises, or property with that of any other road owning a parallel or competing line.

(3) That, conceding that the requisite power existed in both the above companies, section 201 of the constitution of 1891 was a legitimate exercise of the police power of the state, and forbade such consolidation, at least so far as such power remained unexecuted.

The decree of the court of appeals of Kentucky is therefore affirmed.

Mr. Justice BREWER and Mr. Justice WHITE concurred in the result.

(162 U. S. 1)

UNITED STATES v. STATE OF TEXAS. (March 16, 1896.)

No. 3, Original.

BOUNDARIES-CONSTRUCTION OF TREATY-ANCIENT MAPS ACKNOWLEDGMENT AND ACQUIESCENCEEFFECT OF ROUTES OF TRAVEL – DISTURBANCE OF TITLES.

1. Where, in a treaty settling a boundary dispute, immediately after the description of the boundary agreed on, there are added the words, "the whole as laid down in" a map named, this gives such map the same effect as if it had been expressly made a part of the treaty.

2. In the treaty ratified February 19, 1821, settling the boundaries between the possessions of the United States and Spain west of the Mississippi, the description, after fixing a line running north from the Sabine river to a point on the Rio Roxo, or Red river, continues as follows: "Then following the course of the Rio Roxo, westward, to the degree of longitude 100° west from London and 23° from Washington"; then running due north, etc. At the end of the description are the words, "The whole being as laid down in Melish's map of the United States, published at Philadelphia, improved to the 1st of January, 1818." A subsequent article provides for the appointment of commissioners and surveyors to run and mark the boundary, whose proceedings are to be considered a part of the treaty itself. The 100th meridian as laid down on Melish's map, was in fact more than 100 miles east of the true astronomical meridian, but this fact was unknown when the treaty was made. Held, that the negotiators assumed, for the purposes of settling the controversy, that Melish's map was in the main correct, but that the provision for a more accurate delimitation by a commission indicated an intention to adopt the true meridian; further, that in any event, as between the United States and Texas, each claiming under the treaty, the matter was settled in favor of the true 100th meridian by the act of congress of September 9, 1850, c. 49 (constituting part of the compromises of 1850), which was accepted by Texas, and constituted a convention between the state and the United States, wherein it was declared that the boundary of Texas "on the north" was to commence at the point where the 100th meridian intersects the parallel of 36° 30' north latitude, and run due west therefrom.

its

3. On Melish's map of 1818 the course of the Red river from about the 97th meridian, as there laid down, going westward, is northwestwardly nearly to the 100th meridian, as there Laid down, then southwestwardly to the 101st meridian, and then northwestwardly to source, which is placed a little to the northeast of Santa Fé. Neither by that map nor by any other maps made prior to that time does there appear any large confluent coming into the river on the north side. And from all the maps it appears that in 1818 it was believed that there was a Red river having its source near Santa Fé, and continuing in an approximately eastward direction until it was joined by other waters near the Mississippi. But in fact the Red river has two branches, which join a little to the west of the 99th meridian. The South Fork, commonly known as "Prairie Dog Town Fork of Red River," has its source in the western part of Texas; and from its point of junction with the North Fork, going westward, its course is a little north of west to the 100th meridian. The North Fork, tracing up stream, has a course approximately north for a considerable distance,

and then northwestward to the 100th meridian. Held, that the call in the treaty for a line running "westward" on the Red river to the 100th meridian makes the South Fork the true bound. ary; further, that on the weight of the evidence the South Fork is in fact wider and longer, and drains a much greater extent of territory, than the North Fork, and for this reason, also, is to be considered as the Red river of the treaty; and that this view is strongly fortified by the fact that all maps made between the date of the treaty and the year 1860 (when the Texas legislature passed an act erecting the territory between the two forks into the county of Greer) show that the line going from east to west fok lowed the course of Red river westward until it crossed the true 100th meridian at or near the southwest corner of the present territory of Oklahoma

4. Acquiescence of the United States in the claim of Texas to the disputed territory is not to be inferred from the fact that by a negotiation between the republic of Texas and the United States, and an act of congress appropriating money in accordance with the settlement reached, the United States made compensation in money for arms and property taken in 1843, when a detachment of Texan troops were arrested and disarmed in the disputed territory by an officer commanding United States troops, it appearing from the course of negotiations that the determination of the question of the territorial boundary was waived by both parties.

5. Nor is acquiescence on the part of the United States to be inferred from the fact that congress, by the act of February 24, 1879, creating the Northern judicial district of the state of Texas, named among the counties to be included in such district the county of Greer; for it was competent for congress, for judicial purposes, to include any part of the Indian Territory within a judicial district established in an adjoining state, and there were no circumstances connected with the passage of the act showing any intention to settle thereby a long-pending controversy in respect to an important part of the territory of the United States, and it appears that since that time the United States has continuously asserted its right to the disputed territory.

6. Nor is acquiescence to be inferred from the fact that in 1886 the postal authorities of the United States, acting upon the petitions of persons describing themselves as "residents of Greer county, Texas," established post offices at Mangum and Frazier, in the disputed territory, and designated them as in Greer county, Tex.; for it appears that during the same year it was discovered by the authorities of the post-office department that these post offices were in the disputed territory, and that thereupon their designation was changed so as to locate them within the Indian Territory, since which time they have been officially known and recognized as so located.

7. The location of the line established by the treaty is to be determined by the courses of rivers, and by degrees of latitude and longitude, uncontrolled by the alleged facts that the Spaniards, on first taking possession of the country on the Red river, established a road or trail between Natchitoches and Santa Fé, which followed the North Fork, instead of the South Fork; that the South Fork may have been untraveled and little known at the date of the treaty, because it passed through a difficult country, and its waters were bad for drinking purposes; that there may be settlers in the disputed territory who claim title under the state of Texas; or by the fact that the state has expended large amounts of money in providing a public-school system for the inhabitants.

Attorney General Harmon, Sol. Gen. Conrad, and Edgar Allan, for complainant. George Clark, M. M. Crane, and A. H. Gar land, for defendant.

By the act of congress of May 2, 1830, c. 182, establishing a temporary government for the territory of Oklahoma, and enlarging the jurisdiction of the United States court in the Indian Territory, it was declared that that act should not apply to Greer county until the title to the same had been adjudicated and determined to be in the United States. And, that there might be a speedy judicial determination of that question, the attorney general of the United States was directed to institute in this court a suit in equity against the state of Texas, setting forth the title and claim of the United States "to the tract of land lying between the North and South Forks of the Red river where the Indian Territory and the state of Texas adjoin, east of the one hundredth degree of longitude, and claimed by the state of Texas as within its boundary and a part of its land, and designated on its map as Greer county"; the court, on the trial of the case, in its discretion, and so far as the ends of justice would warrant, to consider any evidence taken and received by the joint boundary commission under the act of congress approved January 31, 1885 (26 Stat. 81, 92, § 25).

In order that the precise locality of this land may be indicated, and for convenience, we insert immediately after this page an extract from a map of Texas and of the Indian Territory, published in 1892. The territory in dispute is marked on that map with the words "Unassigned Land." It contains about 1,511,576.17 acres, lies east of the 100th meridian of longitude, and west and south of the river marked on that map as the "North Fork of Red River," and with the words "Boundary Claimed by the State of Texas." It is north of the line marked on that map with the words "Boundary Claimed by U. S." The river on the south side is now commonly known as "Prairie Dog Town Fork of Red River" (the Indian name of which is "Ke-che-ah-que-ho-no"), which has its source in the western part of Texas, and is the same river as the South Fork of Red river, mentioned in the act of 1890.

The present suit was instituted pursuant to that act. The state appeared, and demurred to the bill upon the following grounds: (1) The question of boundary raised by the suit was political in its character, and not susceptible of judicial determination by this court in the exercise of any jurisdiction conferred by the constitution and laws of the United States. (2) Under the constitution it was not competent for the United States to sue, in its own courts, one of the states composing the Union. (3) This court, sitting as a court of equity, could not hear and determine the present controversy; the right asserted by the United States being in its nature legal, and not equitable.

Upon full consideration these several

v. Texas, 143 U. S. 621, 12 Sup. Ct. 488. The reasons given for that conclusion need not be here repeated.

The state answered the bill, controverting the claim of the United States, and asserting that the lands within the boundary mentioned in the above act constitute a part of its *territory. The United States filed a replica. tion, and, proofs having been taken, the case is now before the court upon its merits.

Both parties assert title under certain articles of the treaty between the United States and Spain made February 22, 1819, and rati fied February 19, 1821. 8 Stat. 252, 254, 256. Before examining those articles, it will be useful to refer to the diplomatic correspondence that preceded the making of the treaty. That correspondence commenced during the administration of President Madison, and was concluded under that of President Monroe. It appears that the negotiations upon the subject of the boundaries between the respective possessions of the two countries was more than once suspended because certain demands on the part of Spain were regarded by the United States as wholly inadmissible. 4 Am. St. P. "Foreign Relations," pp. 425, 430, 438, 439, 452, 464–466, 478. Finally, on the 24th day of October, 1818, the Spanish minister, "to avoid all cause of dispute in future," proposed to Mr. Adams, secretary of state, that the limits of the possessions of the two governments west of the Mississippi should be designated by a line beginning "on the Gulf of Mexico, between the rivers Mermento and Calcasia, following the Arroyo Hondo, between the Adaes and Natchitoches, crossing the Rio or Red river at the thirtysecond degree of latitude, and ninety-third of longitude from London, according to Melish's map, and thence running directly north, crossing the Arkansas, the White, and the Osage rivers, till it strikes the Missouri, and then following the middle of that river to its source, so that the territory on the right bank of the said river will belong to Spain, and that on the left bank to the United States. The navigation, as well of the Missouri as of the Mississippi and Mermento, shall remain free to the subjects of both parties." He also proposed that in order “to fix this line with more precision, and to place the landmarks which shall designate exactly the limits of both nations," each of the contracting parties should appoint a commissioner and surveyor, who should run and mark the line, and make out plans, and keep journals of their proceedings; the result agreed upon by them to be considered part of the treaty, and have the same effect as if inserted in it. Ann. Cong. (15th Cong., 2d. Sess., 1819) p. 1900.

To this proposition Mr. Adams, under date of October 31, 1818, replied: "Instead of it, I am authorized to propose to you the following, and to assure you that it is to be considered as the final offer on the part of the Unit

ed States: Beginning at the mouth of the river Sabine, on the Gulf of Mexico, following the course of said river to the thirtysecond degree of latitude; the eastern bank and all the islands in the said river to belong to the United States, and the western bank to Spain; thence, due north, to the northernmost part of the thirty-third degree of north latitude, and until it strikes the Rio Roxo, or Red river; thence, following the course of the said river, to its source, touching the chain of the Snow Mountains in latitude 37° 25′ north, longitude 106° 15' west, or thereabouts, as marked on Melish's map; thence to the summit of the said mountains, and following the chain of the same to the fortyfirst parallel of latitude; thence, following the said parallel of latitude, 41°, to the South Sea. The northern bank of the said Red river, and all the islands therein, to belong to the United States, and the southern bank of the same to Spain." "It is believed," Mr. Adams said, "that this line will render the appointment of commissioners for fixing it more precisely unnecessary, unless it be for the purpose of ascertaining the spot where the river Sabine falls upon latitude 32° north, and the line thence due north to the Red river, and the point of latitude 41° north on the ridge of the Snow Mountains." Ann. Cong. (15th Cong., 2d Sess.) 1903, 1904.

This proposition was rejected by the Spanish minister, and in his letter of November 16, 1818, he said: "I will undertake to admit the river Sabine, instead of the Mermento, as the boundary between the two powers, from the Gulf of Mexico, on condition that the same line proposed by you shall run due north from the point where it crosses the river Roxo (Red river) until it strikes the Mississippi, and extend thence along the middle of the latter to its source; leaving to Spain the territory lying to the right, and to the United States the territory lying to the left of the same." To this Mr. Adams replied under date of November 30, 1818: "As you have row declared that you are not authorized to agree, either to the course of the Red river (Rio Roxo) for the boundary, or to the fortyfirst parallel of latitude, from the Snow Mountains to the Pacific Ocean, the president deems it useless to pursue any further the attempt at an adjustment of this object by the present negotiation. I am therefore directed to state to you that the offer of a line for the western boundary made to you in my last letter is no longer obligatory upon this government. Reserving, then, all the rights of the United States to the ancient western boundary of the colony of Louisiana by the course of the Rio Bravo del Norte, I am," etc. Ann. Cong. (15th Cong., 2d Sess.) 1908, 1942.

The negotiations were resumed in the succeeding year, and the Spanish minister wrote to Mr. Adams under date of February 1, 1819: "Having thus declared to you my readiness to meet the views of the United

States in the essential point of their demand, I have to state to you that his majesty is unable to agree to the admission of the Red river to its source, as proposed by you. This river rises within a few leagues of Santa Fé, the capital of New Mexico; and, as I flatter myself the United States have no hostile Intentions towards Spain at the moment we are using all our efforts to strengthen the existing friendship between the two nations, it must be indifferent to them to accept the Arkansas instead of the Red river as the boundary. This opinion is strengthened by the well-known fact that the intermediate space between these two rivers is so much impregnated wtih nitre as scarcely to be susceptible of improvement. In consideration of these obvious reasons, I propose to you that, drawing the boundary line from the Gulf of Mexico, by the river Sabine, as laid down by you, it shall follow the course of that river to its source; thence, by the ninety-fourth degree of longitude, to the Red River of Natchitoches, and along the same to the ninety-fifth degree, and, crossing it at that point, to run by a line due north to the Arkansas, and along it to its source; thence, by a line due west, till it strikes the source of the river San Clemente, or Multnomah, in latitude 41°, and along that river to the Pacific Ocean; the whole agreeably to Melish's | map.” Ann. Cong. (15th Cong., 2d Sess.) 2111, 2112.

The last proposition made by Mr. Adams to the Spanish minister contained the following: "Art. 3. The boundary line between the two countries, west of the Mississippi, shall begin on the Gulf of Mexico, at the mouth of the river Sabine in the sea; continuing north, along the western bank of that river, to the thirty-second degree of latitude; thence by a line due north to the degree of latitude where it strikes the Rio Roxo of Natchitoches, or Red river; thence following the course of the Rio Roxo westward, to the degree of longitude one hundred and two degrees west from London and twenty-five degrees from Washington; then, crossing the said Red river, and running thence, by a line due north, to the river Arkansas; thence following the course of the southern bank of the Arkansas, to its source in latitude fortyone degrees north; and thence, by the parallel of latitude, to the South Sea; the whole being as laid down in Melish's map of the United States, published in Philadelphia, improved to the 1st of January, 1818. But, if the source of the Arkansas river should be found to fall north or south of latitude fortyone degrees, then the line shall run from the said source due south or north, as the case may be, till it meets the said parallel of latitude forty-one degrees, and thence along the said parallel to the South Sea; the Sabine and the said Red and Arkansas rivers, and all the islands in the same, throughout the course thus described, to belong to the United States, and the western bank of the