Louisville & Jeffersonville Ferry Co. v. Commonwealth

• Decision Date: 13 June 1900
• Citation: 108 Ky. 717,57 S.W. 624
• Parties: LOUISVILLE & J. FERRY CO. v. COMMONWEALTH (five cases). [1]
• Court: Kentucky Court of Appeals

57 S.W. 624

108 Ky. 717

LOUISVILLE & J. FERRY CO. v. COMMONWEALTH (five cases). ^[1]

Court of Appeals of Kentucky.

June 13, 1900

Appeal from circuit court, Franklin county.

"To be officially reported."

Actions by the commonwealth against the Louisville & Jeffersonville Ferry Company to recover taxes. Judgment for plaintiff, and defendant appeals. Affirmed.

Humphrey & Davie, for appellant.

M. H Thatcher, for appellee.

PAYNTER J.

The judgments from which the appeals are prosecuted are for the franchise tax for the years 1894, 1895, 1896, 1897, and 1898. The appellant is a corporation organized under a special act of the legislature passed in 1869. It purchased a ferry franchise which had been originally granted by the territorial authorities of Indiana, which authorized the original grantee to conduct a ferry business across the Ohio river from Indiana to Kentucky. By regular devolution of title, through descents and conveyances, appellant owns the rights thus granted. The franchise thus acquired authorizes the appellant to transport persons and property from Jeffersonville, Ind., to Louisville, Ky. There was vested in the sinking-fund commissioners of the city of Louisville title to the ferry rights along the Ohio river within the boundaries of that city, and by an agreement with them the appellant became the owner of it. The appellant owned certain ferry boats which are enrolled at the port of Louisville. It owned certain real estate in the state of Indiana. It has paid its taxes upon its real property in Indiana, and upon its personal property in this state. It has paid its taxes only upon its tangible property. It appears to have no income except the revenue derived from carrying persons and property from one side of the river to the other. The board of valuation and assessment fixed the value of the franchise for the corporation as if it conducted all of its business in the territorial limits of the state of Kentucky, not deducting anything from that value on account of the fact that it exercised the privilege of conveying passengers from Jeffersonville to Louisville by reason of its acquisition of privileges which were originally granted under the laws of that state.

On behalf of appellant it is urged (1) that the franchise belonging to the corporation, derived by it from the state of Indiana, is an incorporeal hereditament, whose location is in the state of Indiana, and which cannot be taxed by the state of Kentucky, nor can its value be included in any tax which the state of Kentucky endeavors to exact from it; (2) that as the revenues of the corporation are derived from the exercise of two independent franchises, one having its source from the state of Kentucky, and the other having its source from the state of Indiana, only so much of the value assessed as comes from the exercise of the Kentucky franchise can be taxed; (3) that, as the franchise of the corporation is solely employed in the business of interstate commerce, the revenues from the exercise of that franchise are not subject to state taxation, nor can they be made the basis of an assessment for the purpose of state taxation; (4) that, the assessments not having been made within the years during which the taxes were due and payable the board of valuation and assessment could not make the assessment,--in other words, has no right to retrospectively assess.

We will consider the first and second objections together. We deem it unnecessary to enter into a consideration as to the meaning of the eleventh article of the compact with Virginia. It is sufficient to say that in Newport v. Taylor's Ex'rs, 16 B. Mon. 784, and Reeves v. Little, 7 Bush, 469, this court has held that the state of Kentucky has the right to grant a ferry franchise for the transportation of persons and property to the states on the northern side of the Ohio river, and that she has never attempted to exercise the right to grant a ferry franchise for the transportation of persons or property from the northern shore of the Ohio river to the Kentucky shore, but the statutes of Kentucky only attempted to regulate the transportation of persons and property from this state's northern boundary to the opposite shore of the Ohio river. From our view of the question here involved, it is unnecessary to enter into a consideration of the question as to the right which the state of Kentucky might exercise in the matter of regulating transportation of persons and property across the Ohio river from its northern to its southern shore. The appellant is a Kentucky corporation. The board of valuation and assessment did not attempt to assess or tax its revenues coming from the exercise of its franchise in the transportation of persons and property over the Ohio river. But, under certain sections of the Kentucky Statutes it assessed the value of appellant's franchise, which is its intangible property. The board did not assess or attempt to assess the property, either tangible or intangible, which it owned in the state of Indiana. By virtue of its corporate authority the appellant acquired ferry boats, the ferry rights within the city of Louisville, which included the right to transport persons and property from Kentucky to Indiana over the Ohio river, and the necessary use of its wharf to carry on that business. It also, by contract (which its charter seems to...