Conway Et Al v. Taylor Executor

• Decision Date: 01 December 1861
• Citation: 66 U.S. 603,17 L.Ed. 191,1 Black 603
• Parties: CONWAY ET AL. v. TAYLOR'S EXECUTOR
• Court: U.S. Supreme Court

66 U.S. 603

1 Black 603

17 L.Ed. 191

CONWAY ET AL. v. TAYLOR'S EXECUTOR.

December Term, 1861

Appeal from the Court of Appeals for the State of Kentucky.

James Taylor, executor of James Taylor, deceased, and Robert Air, filed their bill in equity in the Circuit Court of Campbell county, Kentucky, against Peter Conway, John J. Simmons, John Sebree, Ernest Klinschmidt, Bernard Delmar, John Schenburg, Thomas Dodsworth, Daniel Wolff, and the Common Council of the city of Newport. The prayer of the bill was, that defendants might be enjoined from invading certain ferry rights claimed by plaintiffs as set forth in their bill. An account was also prayed for, and a decree against the fefendants, in respect of the moneys received by them in violation of the rights of complainants. The defendants filed answers to the bill, and after the taking of much testimony and hearing of the cause, a decree was passed for plaintiffs in accordance with the prayer of their bill. From this decree defendants appealed to the Court of Appeals of the State of Kentucky, where an order was entered modifying the decree of the court below, but still adverse to defendants. The cause was then removed to the Supreme Court of the United States upon a writ of error under the 25th section of the judiciary act.

All the leading facts of the case are stated in the opinion of Mr. Justice Swayne.

Mr. Stanbery, of Ohio, for appellants. In considering the nature and extent of the title set up by the plaintiffs below we have only to look to their ferry license from Kentucky, and their coasting license from the United States. And as their case is founded on an exclusive privilege to which the United States license does not extend, they must be confined wholly to their ferry license. This, by their own showing, is a ferry license from the Kentucky side to the Ohio side, not from the Ohio side also to the Kentucky side; and although they ask an injunction against running our boat 'between Cincinnati and Newport,' yet the decree below only finds the ferry right to extend from Kentucky to Ohio, and not from and to both sides of the river; and the injunction is accordingly limited against transportation by our boat from the Kentucky shore. The decree of the Court of Appeals finds that the place of landing of the Commodore, our boat, on the Kentucky side, is at a public landing; that the right of wharfage at that place belongs to the city of Newport; and that the owners of the Commodore had a right, under the city of Newport, to land their boat at that place.

Here, then, we have as established facts, a navigable river dividing two States, a public wharf, and a vessel navigating the river under a license from the United States, and a decree, notwithstanding the license, which forbids that vessel to transport persons or property from that landing across the river to the opposite shore.

Whilst this injunction remains, a single voyage or trip by our boat, carrying persons or property, from our wharf in Kentucky to the Ohio side, is forbidden; our license affords no protection to us for any sort of transportation from that landing across the river. If, after this decree, the Commodore should be engaged in commerce between Pittsburg and Cincinnati and intermediate ports, and should touch at Newport, she might land passengers and freight, but could not receive passengers or freight to be transported to Cincinnati; so that, by this decree, her right under the license of the United States is to that extent annulled. The decree, therefore, is erroneous in the extent to which it goes, and on that ground it should be reversed.

But the license of the Commodore should have protected her in making regular trips as a ferry boat between Cincinnati and Newport. The only ground u on which she is prohibited from doing so is that such transportation is in violation of a ferry franchise granted to appellees by the State of Kentucky. No such ferry franchise exists. It cannot be denied that the license of the Commodore gives her the right to the free navigation of the river to and from all the ports upon it, at least until some paramount and exclusive right is shown on the other side. The appellees accordingly set up an exclusive and paramount right in virtue of a ferry franchise. They deduce this franchise from the State of Kentucky alone, and under that grant they claim in their bill an exclusive right to carry on all the transportation across the river from and to both sides. The Circuit Court of Campbell county sustained their franchise to the full extent; but in the Court of Appeals the franchise was limited to a ferry franchise from Kentucky to Ohio, and denied as to a ferry franchise from Ohio to Kentucky.

Kentucky possesses no exclusive jurisdiction even to the middle of the river, and has no power to grant an exclusive right over any part of it; the compact makes all jurisdiction over the river concurrent, and this compact, by adoption, has become a part of the law of the United States. Wheeling Bridge case, (13 How., 518.)

It is said that 'a corporation can have no legal existence out of the sovereignty by which it is created.' Ang. and Ames on Corps., Sec. 161. And this is equally true of all other franchises.

Take the case of a franchise for a toll-bridge across the Ohio, only authorized by a grant from Kentucky, and to make the supposed case parallel with the case at bar, let the Kentucky franchise only authorize the bridge and transportation over it from Kentucky to Ohio; could such a franchise be sustained or pleaded in restriction of any common right, lawfully exercisable, if no valid franchise existed?

The boat was engaged, under the authority of the United States, in carrying on lawful commerce, over a navigable river, between Ohio and Kentucky. In opposition to this prima facie right, the appellees set up an exclusive and paramount right to carry on all the commerce across the river from Kentucky to Ohio, at the same place, and so far to forbid and restrict our right. Admitting, for the purpose of the argument on this point, that a ferry franchise would have such effect, we say no such franchise can exist by authority from Kentucky alone, and none other is set up by the appellees. Nor can it be said, that aside from a ferry franchise, Kentucky can, under her sovereign power, lay an embargo upon this commerce along the shore of the river within her jurisdiction. That power was surrendered to the United States.

But if the appellees had shown a valid ferry franchise over the Ohio river, the running of defendants' boat, even if engaged in the business of ferriage, could not be enjoined by the appellees. She was engaged in commerce between the two States, over a navigable river, for transportation of persons and things across such a river is commerce, under whatever name it may be carried on.

Now if we admit that the business of ferriage, when applied to such commerce, is subject to police regulations by one or both the States, there was no valid ground upon the footing of their franchise upon which the appellees were entitled to enjoin this boat.

The statutes of Kentucky recognise what is called a ferry right on the Ohio river as a riparian right of the owner of the coast bordering on the river, and the franchise to exercise this right is grantable to such riparian proprietor exclusively. None but a resident of Kentucky can have a ferry grant; the riparian proprietor has an exclusive right to the grant; no new ferry can be established within one mile and a half of an established ferry, except where an impassable stream intervenes, or in front of a town, and then not within four hundred yards of the established ferry.

Under the influence of this exclusive grant the commerce across this great river has be n embarrassed for more than a quarter of a century; nor merely in so far as the citizens of Ohio are concerned, but also to the detriment of the citizens of Kentucky. As early as the year 1830 attempts were made, on the Kentucky side of the river, towards relief; in that year the trustees of Newport applied for the grant of another ferry. The case is reported in 6 J. J. Marshall, 134. The application was refused on the ground that Taylor owned the entire river front at Newport, and, as such riparian proprietor, was exclusively entitled to all ferry rights belonging to it. The court say: 'It does not certainly appear, whether or not the public interest requires the establishment of another ferry; but as the parties have waived that question, we will consider it on the ground on which they have placed it. That ground was, the ownership of the river bank in front of Newport, and it was held to be in Taylor; so that application failed.

In the year 1850 the Common Council of Newport made another application for a ferry. This application, after being granted by the County Court, was resisted by Taylor, and taken to the Court of Appeals. It is reported in 11 B. Monroe, 361.

The application failed. This case settled the question as to any second ferry from Newport; and it is a conclusive construction of the Kentucky statutes as to ferries across the Ohio, that, no matter what may be the demands of public convenience, no new ferry can ever be established there without the consent of Taylor or his heirs. It surely does not require argument to show that such an interdict upon commercial intercourse over the Ohio river, under whatever name it may be established, is an unlawful regulation.

This interdict, as we have seen, was established upon the footing of an exclusive ferry license, and an exclusive riparian ferry right. But what foundation supports these ferry privileges; what gives them birth and calls them into exercise? Simply the public convenience—nothing else. The proprietary ferry right which Kentucky undertakes to confer upon her citizens who own land on the Ohio river, cannot be exercised without a license from the State. It is a right in which the...