US SUPREME COURT DECISIONS

A franchise granted by the proper authorities of Indiana for maintaining a ferry across the Ohio River from the Indiana shore to the Kentucky shore, is an Indiana franchise, an incorporeal hereditament derived from, and having its legal situs for purposes of taxation in, Indiana.

The fact that such franchise was granted to a Kentucky corporation, which held a Kentucky franchise to carry on the ferry business from the Kentucky shore to the Indiana shore (the jurisdiction of Kentucky extending only to low water mark on the northern and western side of the Ohio River) does not bring the Indiana franchise within the jurisdiction of Kentucky for purposes of taxation. The taxation of the Indiana franchise by Kentucky would amount to a deprivation of property without chanrobles.com-red

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due process of law in violation of the provisions of the Fourteenth Amendment.

Quaere, whether such taxation would be a burden on interstate commerce and make it inconsistent with the power of Congress to regulate commerce among the several states, not decided.

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. * chanrobles.com-red

Page 188 U. S. 387

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 chanrobles.com-red

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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 chanrobles.com-red

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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.

In 1865, the persons then owning the ferry organized as a partnership for the purpose of operating it, and in that capacity continued to operate it until the Louisville & Jeffersonville Ferry Company was incorporated, as above stated. Under its act of incorporation, the company procured to be conveyed to itself the above-mentioned ferry franchises with the boats then owned by the partnership, and issued therefor its fully paid capital stock for $200,000. The boats and personal property so acquired were not of great value -- the principal value being in the franchises acquired as above set forth.

In 1887, the defendant company made a contract with the Sinking Fund Commissioners of the City of Louisville, a corporation having charge of certain fiscal affairs of that city, under which the defendant leased the ferry privileges in Louisville, agreeing to pay therefor $800 a year and a wharfage fee annually of $400. That contract, by its terms, expired January the 1st, 1902.

The defendant company states in its answer "that the only ferry franchises owned by it are those above mentioned, which were granted by the authorities of the State of Indiana."

All tangible property of the defendant company in Kentucky was assessed in the fall of 1893 for the state tax for the year 1894, and that tax was paid. The property so assessed consisted of all the company's boats and other personal property, it having no real estate in Kentucky. For the same year, all real estate owned by the defendant in Indiana was assessed by the authorities of that state, and the tax thereon paid.

The company had no intangible property except the franchise heretofore described.

"The Board of Valuation and Assessment ascertained what had been the net earnings of the defendant up to September 15th, 1893, for the year preceding that date. It then capitalized said net earnings at 6 percent -- that is, to have been such an amount

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as at 6 percent would produce the sum of $121,050. From this the board deducted $54,164, being the assessed value of the defendant's property in Kentucky and Indiana, leaving the sum of $66,886 as the value of defendant's franchise."

The boats owned by the defendant company when this action was brought, and also those owned by it in 1893,

"were regularly enrolled, under the laws of the United States at the port of Louisville, and were assessed, as above stated, by the Sheriff of Jefferson County, in the fall of that year, and the tax paid upon them in the year 1894."

The defendant brought

"before the Board of Valuation and Assessment, before that board had made its assessment final, the fact that its whole capital stock had been issued in consideration of the transfer of the said ferry franchises granted by the State of Indiana and attendant property, and showed that all its property had been assessed as above explained, and protested against any assessment being made upon its franchises as being beyond the jurisdiction of the said board and outside of the territorial jurisdiction of the State of Kentucky, and not taxable in Kentucky, and it protested against the said board's making any valuation whatever of its capital stock because all of its property had been once assessed, and any valuation made upon its capital stock would include alone these franchises and profits resulting to the defendant from engaging in interstate commerce, and the defendant further requested the said board, if it should insist upon making a valuation upon its capital stock, to deduct therefrom the value of these franchises. The said board refused to enter into the question of the valuation of the said franchise granted by the State of Indiana, as aforesaid, and owned and operated by this defendant, and refused to regard the fact that the profits which were earned by this defendant came from interstate commerce."

Substantially the whole revenue of the defendant company is derived from interstate commerce, and its net returns, upon which the above capitalization was made, represent its gains from interstate commerce -- that is, from the carriage of persons and property between the States of Indiana and Kentucky. Such was the case presented by the answer. chanrobles.com-red

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