
    Case 47 — APPEAL MiOiVI COUNTY OOUBT
    June 19.
    Dufour v. Stacey.
    APPEAL PROM CARROLL CIRCUIT COURT.
    X A perry franchise ts a property right of which the Legislature has no power to divest .the owner. Therefore, the statute giving the county court the .power to revoke the franchise of any non-resident owner is unconstitutional as to the vendee of one who acquired his .franchise prior to:the'enacit'm.ent.of the statute.
    
      2. The grant of a ferry franchise to a non-resident in 1843 was valid, as the statute did not then make it a condition that the owner of such franchise should be a resident citizen of this Commonwealth.
    ■3. The only causes for which a ferry franchise could be revoked or discontinued, prior to the adoption of the Revised Statutes, were: (1) a failure for six months after establishment of a ferry to provide “ the necessary boats and ferrymen; ” ■ (2) the fact that the ferry shall have been for two years “wholly disused and unfrequented.”
    "W. P. D. BUSH FOR APPELLANT.
    1. That part of subsection 3 of section 9 of chapter 42 of General Statutes, requiring the non-resident owner of a ferry to sell the same, is unconstitutional.
    There has never been any statute or law in force in this State prohibiting the granting of a ferry right to a non-resident owner; but, on the contrary, such ierry rights have always been granted. (Conway v. Taylor, 1 Black, 603; Lytle v. Breckinridge, 3 J. J. M., 663, 664; Trustees of Maysville v. Boon, 2 J. J. M., 226; Trustees of Jefferson Seminar}’ v. "Wagnon, 2 A. K. Mar., 379; Kennedy v. Trustees of Covington, 8 Dana, 50.)
    A ferry right on the Ohio river is appurtenant or incident to a freehold in the land, and incapable of being so'd except by a sale of the land to which it is appurtenant. (Conway v. Taylor, 1 Black, 632; 3 Kent, 459; Trustees of Maysville v. Boon, 2 J. J. Mar., 227; Lytle v. Breckinridge, 3 J. J. M., 668.) Therefore, the requirement of the non-resident owner that he shall sell his ferry right amounts to a requirement that he shall sell his land.
    The statute discriminate^ against non-residents, and is for that reason in violation of subsection 1 of section 2, article 4 of the Constitution of the United States. ("Ward v. Maryland, 12 "Wall., 418; Cooley’s Con. Lim., 5th ed., * p. 487, top p., 602; Mem, * pp. 15-16, top pp. 21-22, and note 4, p. 21; Corfield v. Coryell, 4 "Wash., U. S. O. O., 380.)
    The statute amounts to a confiscation of the non-resident owner’s property, and is, therefore, in violation of the provision of the Constitution of Kentucky that no man’s property shall be taken without just compensation. (Const, of Ky., art. 13, sec. 14.)
    Police power never compels the lawful owner of land or other property to sell it to another. (Cooley’s Con. Lim., 5th ed., * pp. 572-597, top pp., 706-746.)
    2. The ferry right involved in this litigation was granted to John P. Dufour, a non-resident, June 5, 1843, long before the enactment of the statute, and the statute is unconstitutional as to said ferry right, if not as to such rights granted since the enactment of the statute. (Const, of Ky., article 13, sec. 20; Const, of U. S., art. 1, section 10; Fletcher v. Peck, 6 Cranch, 138.)
    A grant of a ferry right is a contract. (3 Kent, * pp. 458-459, top pp. 590-591, 11th ed.; Cooley’s Con. Dim., ” pp. 274-279, top pp. 381— 337; Dartmouth College Case, 4 "Wheaton, 625; Charles Eiver Bridge Case, 11 Pet., 544; Mills, &c., v. St. Clair Co., &c., 8 How., 569; Fletcher v. Peck, 6 Cranch, 87.)
    3. The appellees were concluded and estopped by the judgment of March 27, 1869, against Polly Dufour, the life-tenant of the ferry right and the land to which it was appurtenant. (Freeman on Judgments, secs. 246-259.)
    H. M. "WINSLOW on same side.
    I. Subsection 3 of section 9, chapter 42, General Statutes, discriminates against non-residents, and is, therefore, in conflict with subsection 1 of section 2 of article 4 of the Constitution of the United States.
    2. Said statute is also in conflict with the provisions of both the United States and State Constitutions forbidding the enactment of laws impairing the obligation of contracts, and with section 14 of Bill of Eights forbidding the enactment of laws taking private property for public use without just compensation.
    Ferry rights across the Ohio river are appurtenant to the land, and are property just as the land itself is property. (Trustees of Jefferson Seminary v. Wagnon, 2 Mar., 379; Trustees of Maysville, v. Boon, 2 J. J. M., 227-8; Bverston, &c., v. Sanders, 6 J. J. M., 143.)
    Such rights are vested rights in regard to which the State has contracted with the owner; and especially when that contract, as in this case, was made previous to the adoption of the present Constitution, it can not be impaired, nor the rights acquired under it rendered less valuable by subsequent legislative enactments, much less bo entirely destroyed. (Blaekstone, Book 3, p. 219; Dartmouth College Case, 4 Wheaton, 518; Blair v. Williams, 4 Litt., 35; Lapsley v. Brashears, &c., 4 Litt., 53; Head v. Ward, 1 J. J. Mar., 284; Pearce’s Heirs v. Patton, 7 B. M., 168; Griswold v. Hepburn, 2 Duv., 44; City of Covington v. Cov. & Cin. Bridge Co., 10 Bush, 76; Broadus v. Broadus, 10 Bush, 306; Baldwin v. Commonwealth, 11 Bush, 419; Cooley’s Principles of Const. Law, Student’s series, 1880, pp. 306, 320, 336-7.)
    3. The judgment rendered .in 1869 in an action in which the same questions were in issue is a bar to these proceedings. (Newport v. Taylor, &c., 11 B. M., 362; Ilarvie v. Cammack, 6 Dana, 243.)
    GEO. C. DEANE fok appellee.
    1. The State .may, by its statute laws, confine the right to hold a ferry franchise to its resident citizens.
    
    
      The “privileges and immunities” secured to the citizens of the several States by section 2 of article 4 of the Rederal Constitution, are only such““privileges and immunities” as are in their nature fundamental. (Corfleld v. Coryell, 4 Wash., 880; Cooley’s Const. Lim., note to marginal page 16, and marginal page 397; Conway v. Taylor, 1 Black, 603, 630-631.)
    2. Subsection 3 of section 9, chapter 42, General Statutes, does not impair the obligation of any contract.
    Our statute law has never contemplated that a non-resident of the State should be admitted to the privilege of holding a ferry franchise granted under the laws of this State. It must be presumed that the laws of the State prescribe the rights and duties of persons within and subject to its jurisdiction. (Cooley’s Con. Lim., 1; Preamble to Constitution of Kentucky.)
    A public ferry is a franchise; and the holder of a franchise must be a subject of the State granting it. (2 Black. Com., 37; 13 Serg. & Rawle, 130; McCready v. Virginia, 94 U. S.; 13 Bush, 212; 4 J. J. M., 30; State v. Mil. L. S. & W. R. Co., 45 Wis., 590.)
    The substitution of the word “individuals” for the word “ subjects,” in the definition of a franchise in the case of Bank of Augusta v. Earle, 13 Pet., 519, was not intended to change the meaning of the common law definition. (2 Minor’s Inst., 28; Idem, 226.)
    Therefore, the grant of the franchise to John P. Dufour, a nonresident, in 18J3 was void, as were the renewals of it in the names of other non-residents, and consequently appellant had no enforceable contract with the State.
    3. The State has the power, by legislation, subsequent to the grant, to control and regulate franchises which impose upon the grantee a public service or trust, and particularly when it may be necessary to insure a_ performance (of that trust, provided no right or privilege granted, or which xs essential to the enjoyment of the franchise, is impaired or taken away. (The State v. Southern Pacific R. Co., 24 Texas, 122.)
    Same counsel in petition eok kehearing insists that the common law made it a condition that the owner of a ferry franchise should be a subject of the sovereign granting the right, and that as to this condition no change has been wrought in the definition of the term franchise by its translation to this country, or by statute, our statute upon the subject of ferries being simply declaratory of the common law, except in such particulars as are specified. (Citing same authorities cited in-original brief.)
    H. COX ON SAME SIDE.
    I. Bach State has full power under the Pederal Constitution to regulate and control its internal affairs. (Reeves v. Little, 7 Bush, 170; Newport, &c., v. Taylor’s Ex’rs, 16 B. M., 755.)
    
      2. The Federal Constitution was not intended to give to a citizen of any State the right to hold a franchise granted by another State, in which he could not be made amenable to the laws regulating that franchise.
   CHIEF JUSTICE LEWIS

delivered the opinion oe the court.

In 1843, by an order of tlie Carroll County Court, a ferry was established across Ohio river from the town of Ghent to the Indiana shore, and the ferry right was granted to J. P. Dufour, at the time owner of land where site of the ferry was. In 1850 he conveyed to his wife, Polly Dufour, the land and ferry right duiing her life, remainder to his sons, including appellant, Julius Dufour. In 1853 Polly Dufour filed the bond required by statute in such cases, wliich was approved by the court, and she continued to use and enjoy the ferry right, but executed no other bond until 1863, when she tendered one to the county court, which was not, however, accepted, nor any action taken by the county court in regard to it previous to 1868. At the last-named date the county court overruled her motion then made to file a bond, made an order revoking the grant of the ferry right to her, -and another order granting the same ferry right to the trustees of the town of Ghent.

An appeal from each of the orders was taken to the Carroll Circuit Court, where judgment was rendered reversing the order establishing the ferry upon motion of, and granting the ferry right to, trustees of Ghent, and directing the county court to take the bond tendered by appellant, and continue the ferry in her name. In 1877 Julius Dufour purchased and became owner of the land and ferry right, executed the required bond, and continued to operate tlie ferry -until April, 1888, when a rule was awarded against him by the county court to show cause why he should not sell the ferry right to a citizen resident of this Commonwealth, or forfeit the same; and the trustees of Ghent being subsequently made parties-plaintiif in the proceeding, a judgment of court was rendered overruling the response made by the defendant, and revoking the “ferry franchise granted in 1843 to John F. Dufour, and renewed and continued in 1877, to and in the name of Julius Dufour.” Prom that judgment an appeal was taken to the Carroll Circuit Court, where judgment was rendered affirming “the judgment and order of the Carroll County Court forfeiting the ferry franchise claimed to be owned by the defendant Dufour.”

The authority upon which the order of the county court was made is found in subsection 3, section 9, chapter 42, General Statutes, as follows: “A nonresident owner of a ferry right shall sell the same to a resident citizen of this State, within a year after his removal or accrual of his right, with leave of the court, and the purchaser give such new covenant. Upon failure to comply with any requisition of this subsection, the court shall revoke the grant,” &c.

It appears appellant was not, when this proceeding was begun, nor had he ever been, a resident citizen of Kentucky; nor was either J. P. Dufour, original grantee, or Polly Dufour ever such resident citizens. As, then, appellant had failed to sell his ferry right within a year from accrual of it, the order of the county court revoking the grant can not be regarded either premature or erroneous, if legis,lative power to divest him of the franchise, for the sole cause stated in the order, existed when that part of the statute quoted was enacted.

When the ferry was established in 1843 the statute did not make it a condition the owner of such franchise should be a resident citizen of this Commonwealth, and consequently the grant to J. F. Dufour, though at the time a non-resident, was valid and effectual. The only causes for which a ferry could, before the adoption of the Revised Statutes, be discontinued, which is equivalent to a revocation of the franchise, as held by this court in McCauly v. Givens, 1 Dana, 259, were: (1) A failure for six months after establishment of a ferry to provide “the necessary boats and ferrymen;” (2) the fact that the ferry shall have been for two years “wholly disused and unfrequented.”

By subsection 5, section 8, Revised Statutes, the same provision was made as the one in the General Statutes under consideration, except that it applied to non-resident owners of ferry rights thereafter granted. But there was not, by the terms of the order granting the ferry right to J. F. Dufour in 1843, nor did the statute then-provide there should be, any limit as to duration of the franchise, as is now the case, and has been since adoption of the Revised Statutes. It therefore follows, if he acquired such an estate or interest in it as is alienable, the statute of 1873 can not be regarded any more effectual to divest the appellant than such one passed before 1850 would have been to divest the original grantee.

In regard to ferry franchises, Kent, on page 459, volume 3, of his Commentaries, says: “The obligation between the government and owner of snob, franchise is mutual. He is obliged to provide and maintain facilities for accommodating the public at all times with prompt and convenient passage. The law, on the other hand, in consideration of this duty, provides him a recompense by means of an exclusive toll. An estate in such ferry and an estate in land rest upon the same principle, being equally grants of a right or privilege for an adequate consideration. If the creation of the franchise be not declared to be exclusive, yet it is necessarily implied in the grant of a ferry * * * * that the government will not, directly or. indirectly, interfere with it, so as to destroy or materially impair its value.”

In Trustees of Maysville v. Boon, 2 J. J. M., 225, this court thus defines a ferry franchise: “Nor can we admit conclusiveness of the argument that the grant of a ferry is always a personal privilege, which ceases with death or alienation of the grantee. .As no one can be a recipient of such grant on the Ohio except owner of land on the river, the grant to him is a franchise incident to and growing out of'his title to the land. It is a hereditament which descends with the land to his heirs, and passes to his vendee by alienation of the right to the land. It is, therefore, not like a tavern license, which is personal, but is like a right of way, or a right to a toll-bridge.” And again, it was said in Lytle, &c., v. Breckinridge, 3 J. J. M., 663: “The right to a ferry on the Ohio is a franchise incident to a freehold in the land. It passes with title to the land.”

In Carter v. Kalfus & Watts, 6 Dana, 43, it was said a right to ferriage, like that to portage, is valuable property, and requires on the Ohio river large expenditures of money by the grantee of the franchise, and is founded on a valuable consideration. It is true this court, in Brown v. Given, 4 J. J. M., 28, said: “A ferry is a public highway, and is established more for the public good than for the individual advantage of the grantee.” Nevertheless, that fact at the same time serves to show a ferry franchise is the subject of contract between the Commonwealth and grantee, and that a valuable consideration passes from the latter to the former, whereby a property right becomes vested.

It seems to us as J. P. Dufour legally and regularly acquired, for a valuable consideration, title to the ferry franchise, which this court has held to be property alienable and descendible, that the Legislature has no power by statute retroactive in its operation to divest his vendee, or prevent the full enjoyment of it by him for the sole cause he is a non-resident of the State.

It is needless to refer to the particular clause of the Constitution the statute contravenes, because, it being conceded, as is the case, that appellant has a vested interest in the land and in the franchise as an incident of his title thereto, he can no more be deprived of it by a retroactive statute, because he is a nonresident of this State, than he could, in the same manner and for the same reason, be deprived of a right of way, or any other hereditament of a real nature. Whether the power exists to pass such statute applicable to ferries to be thereafter established is a question not now before ns.

The judgment is reversed, .and cause remanded, with directions to the circuit court to reverse the order of the Carroll County Court, and remand the case for that order to be also set aside.

Judge Pryor not sitting.  