Louisville & Jeffersonville Ferry Railway Company v. Kentucky

Ordered for reargument

Reargued December 8, 9, 1902.

Decided February 23, 1903.

This action was brought against the Louisville & Jeffersonville Ferry Company, a corporation of Kentucky, to recover certain taxes alleged to be due that commonwealth in virtue of the valuation and assessment by the state board of valuation and assessment of the corporate franchise of the defendant company for the year 1894.

Some of the provisions of the Revised Statutes of Kentucky under which that board proceeded are given in the margin.

The company filed an answer, which upon demurrer was adjudged to be insufficient. The defendant declining to answer further, judgment was rendered for the commonwealth. That judgment was affirmed by the court of appeals of Kentucky, and the case is here upon writ of error sued out by the ferry company. The ground of our jurisdiction is that the company claims that, by the judgment of the highest court of Kentucky, affirming the judgment of the court of original jurisdiction, it has been denied rights belonging to it under the Constitution of the United States.

The facts admitted by the demurrer to the answer and therefore, for the purposes of the present hearing, to be taken as true, are substantially as follows:

By an act of the general assembly of Kentucky, approved March the 16th, 1869, the Louisville & Jeffersonville Ferry Company was created a corporation, with power to carry on the business of ferrying freight, passengers, and vehicles over the Ohio river, and to purchase ferryboats, wharves, and ferry franchises for any ferry or ferries between Louisville, Kentucky, and Jeffersonville, Indiana; and upon the purchase of such franchises to have the right to carry on and conduct a ferry or ferries between those cities. It was also authorized to accept boats, franchises, wharves, and other property in payment of stock subscribed and at such prices as might be agreed on.

In the year of 1802, William Henry Harrison, then governor and commander-in-chief of the Indiana territory, granted to Marsden G. Clark a license for a ferry at Jeffersonville, Indiana, for the transportation of passengers, carriages, horses, and cattle across the Ohio river at that place.

In the same year Governor Harrison granted to one Joseph Bowman a license to keep a ferry from the landing near the spring in the town of Jeffersonville across the Ohio river to the public road at the mouth of Bear Grass creek in Kentucky.

In 1820 George White, by an act of the Indiana legislature, was authorized to keep a ferry in the town of Jeffersonville, and to ferry off and from any portion of the public ground or commons in that town lying upon or bordering upon the Ohio river across that river to the opposite shore or mouth of Bear Grass creek, that creek being then as well as now within the corporate limits of Louisville and near the point at which the defendant company now lands its ferryboats in Kentucky.

These three ferry franchises, about the year 1837, vested in A. Wathen, Charles Strader, John Shallcross, and James Thompson, and in 1865 came to be owned by John Shallcross, Moses Brown, Hiram Mayberry, James Wathen, A. Wathen, Charles Woolfolk & Co., J. B. Smith, W. C. Hite, E. S. Hoffman, P. Varble, and Daniel Park. During all the intervening years ferries had been maintained.