Conway v. Taylor's Executor - 66 U.S. 603 (1861)
U.S. Supreme Court
Conway v. Taylor's Executor, 66 U.S. 1 Black 603 603 (1861)
Conway v. Taylor's Executor
66 U.S. (1 Black) 603
1. A ferry franchise on the Ohio is grantable, under the laws of Kentucky, to a citizen of that state who is a riparian owner on the Kentucky side, and it is not necessary to the validity of the grant that the grantee should have a right of landing on the other side or beyond the jurisdiction of the state.
2. The concurrent action of two states is not necessary to the grant of a ferry franchise on a river that divides them. A ferry is in respect to the landing, not to the water; the water may be to one, and the ferry to another.
3. After a citizen of Kentucky has become the grantee of a ferry franchise, and his riparian rights have been repeatedly held sufficient to sustain the grant by the highest legal tribunal of the state, the same question is not open here; the adjudications of the state courts are a rule of property and a rule of decision which this Court is bound to recognize.
4. A license to establish a ferry which does not extend across the river may be less valuable for that reason, but not less valid as far as it goes.
5. The laws of Kentucky relating to ferries on the Ohio and Mississippi are like the laws of most, if not all, the other states bordering on those rivers: they do not leave the rights of the public unprotected, and are not unconstitutional. The franchises which the state grants are confined to the transit from her own shores, and she leaves other states to regulate the same rights on their side.
6. A ferry franchise is property, and as sacred as other property.
7. An injunction to protect the exclusive privilege to a ferry does not conflict or interfere with the right of a boat to carry passengers or
goods in the ordinary prosecution of commerce without the regularity or purpose of ferry trips; that remedy applies only to one which is run openly and avowedly as a ferry boat.
8. The authority to establish and regulate ferries is not included in the power of the federal government to "regulate commerce with foreign nations and among the several states and with the Indian tribes."
9. The authority to regulate ferries has never been claimed by the general government, has always been exercised by the states, never by Congress, and is undoubtedly a part of the immense mass of undelegated powers reserved to the states respectively.
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 defendants 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.