App. 260, it was held that "neither Illinois | Ohio shore from a ferry established on that nor Missouri can exercise exclusive jurisdiction over any part of the Mississippi, nor is either confined in the exercise of its own jurisdiction to the middle thereof. The two states exercise concurrent jurisdiction on the river for all judicial purposes." In matters to which this concurrence applies, the state which first assumes, retains jurisdiction of a matter to the exclusion of the other. In State v. Mullen, 35 Iowa, 199, the court interpreted this concurrence to give Iowa power to try a crime done on a boat near the Illinois shore. But the same court, in Buck v. Ellenbolt, 84 Iowa, 394, 15 L. R. A. 187, 51 N. W. 22, denied power in the state to abate a nuisance on an island east of the middle line, saying it was not on the river. But it is said in all matters touching commerce on the river the state had concurrent jurisdiction over the whole river. As shown above, a ferryboat is an instrument of commerce and interstate commerce. Where two states bound on a river there is concurrence over the whole stream without compact. Aitcheson v. Endless Chain Dredge, 40 Fed. 253; 16 Am. & Eng. Enc. Law, p. 258. By reason of this concurrent jurisdiction, regardless of the line, the decision that Plants was guilty in State v. Plants, 25 W. Va. 119, 52 Am. Rep. 211, was right, as he sold liquor on a boat lying in the water of the Ohio.

It is immaterial that the charge was collected from Winger after leaving the Ohio side.

The fact that the Virginia franchise authorized ferriage both ways would not derogate from the right of Ohio to establish a ferry.

If it would change the result that the defendant was acting under the Virginia franchise before he got the Ohio license, it does not appear which he accepted first.

After further examination of the question involved in this case, I find it settled by the decision of the Supreme Court of the United States, as also by the Kentucky supreme court, in Conway v. Taylor, 1 Black, 603, 17 L. ed. 191. A Kentucky ferry sought an injunction against an Ohio ferry to prevent its ferriage both ways over the Ohio river, claiming exclusive right to do so under the Kentucky ferry grant. The lower state court awarded a total injunction, thus forbidding the Ohio ferry from ferrying either from Kentucky to Ohio or from Ohio to Kentucky. The Kentucky supreme court reversed this decree, and modified the decree of the lower court by limiting the injunction so as to prevent the Ohio ferry only from ferrying from Kentucky to Ohio. It thus recognized the full right of the Ohio ferry to ferry from Ohio to Kentucky. It conceded the right to ferry if "authorized to transport from the

side under the laws of that state," but held that the Kentucky grant gave exclusive right to ferry from the Kentucky shore. See p. 628, 1 Black, p. 201, 17 L. ed. The Supreme Court of the United States affirmed this decision, conceding as beyond dispute the right of Ohio to establish a ferry upon its soil, saying that "the concurrent action of the 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." Here the water is a public navigable way, and who disputes Ohio's right to the bank of the river? Owning the bank, she may attach a ferry to it. The Federal Supreme Court further said, in speaking of the Kentucky law and decision: "The franchise is confined to the transit from the shore of the state. The same rights which she claims for herself she concedes to others. She has thrown no obstacles in the way of the transit from the states lying upon the other side of the Ohio and Mississippi. She has left that to be wholly regulated by their ferry laws. We have heard of no hostile legislation and of no complaints by any of those states. It was shown in argument at bar that similar laws exist in most, if not all, the states bordering upon those streams. They exist in other states of the Union bounded by navigable waters." In this extract, and in the whole opinion, the Supreme Court concedes and recognizes the right of Ohio to establish and regulate ferries on its bank of the Ohio. The Kentucky court, though it had statutes prohibiting, apparently, any ferriage from the Ohio shore except under a Kentucky franchise, refused to apply those acts to an Ohio ferry, and so did the national Supreme Court. How could it be otherwise considered alone under the compact made by Virginia upon the admission of Kentucky into the Union? 1 Rev. Code 1819, p. 59. That compact makes the Ohio a public highway, and gives concurrent jurisdiction over it to all states bordering on it, and deprived Virginia of exclusive jurisdiction over it. Wheeling Bridge Case, 13 How. 518, 14 L. ed. 249. Yet in this case Faudre was fined for charging a passenger going from Ohio to West Virginia, not from West Virginia to Ohio.

The decisions cited above were based on the compact between Virginia and Kentucky, but when we consider the later Virginia act (Code 1849, chap. 1, § 2) it is still plainer. Virginia thereby again ratified that compact by asserting jurisdiction for herself, "subject, however, to the provisions contained in the articles of compact between Virginia and Kentucky hereinafter mentioned." See § 6. Our Code claims for this state jurisdiction

over the Ohio "where there is no statute or
compact to the contrary." Chap. 1, § 2,
Code 1899. This recognizes the concurrent
jurisdiction conceded by that compact. Un-
der such concurrent jurisdiction granted by
Virginia, it would seem to me that Ohio
could grant a ferry valid to carry from both
sides of the Ohio; but that is only a sugges-
tion of my own, and not involved in the case.
It has been remarked that this doctrine
would enable Ohio to ruin every West Vir-
ginia ferry. What of it? We cannot help
it. It is the result of lawful competition in
business under authority of law. It would |
redound to the public interest in cheapness
of ferriage. West Virginia Transp. Co. v.
Standard Oil Co. 50 W. Va. 611, 56 L. R. A.
804, 88 Am. St. Rep. 895, 40 S. E. 591. In
Cross v. Hopkins, 6 W. Va. 323, the validity
of a ferry grant by Ohio is recognized,
though the subject is not discussed. "And
in the case of boundary rivers like the Mis-
sissippi a ferry franchise conferred by a sin-
gle state is valid without the concurrent
anction either of Congress or of the state
[which bounds] upon the opposite side of
the river, or the right of landing beyond the
limits of the state by which the grant is
made." Gould, Waters, § 35. I think the
case of Memphis v. Overton, 3 Yerg. 387,
sustains the foregoing view. See Newport v.
Taylor, 16 B. Mon. 784, 787. In McFall v.
Com. 2 Met. (Ky.) 394, a man was fined for
celebrating marriage on a boat on the Ohio;
but the court conceded that if Ohio had
passed a law to authorize the minister to
marry, and had thus exercised concurrent
jurisdiction with Kentucky, there could be
no conviction. Under these principles West
Virginia ferry rates apply only to West Vir-
ginia ferry franchises, and Faudre was not
subject to them.

that is, each has the same jurisdiction." Bouvier, Law Dict. "By conferring 'concurrent jurisdiction' Congress intended to declare . . . that transactions occurring anywhere on that river between the two states might lawfully be dealt with by the courts of either according to its laws. Where a court of one state assumed jurisdiction in a particular case it would be exclusive until relinquished." Sanders v. St. Louis & N. O. Anchor Line, 97 Mo. 26, 3 L. R. A. 390, 10 S. W. 595. See State v. George, 60 Minn. 505, 63 N. W. 100; Opsahl v. Judd, 30 Minn. 129, 14 N. W. 575; Memphis & C. Packet Co. v. Pikey, 142 Ind. 304, 40 N. E. 527; Welsh v. State, 126 Ind. 71, 9 L. R. A. 664, 25 N. E. 883; Meyler v. Wedding, 107 Ky. 685, 60 S. W. 20. Rorer on Interstate Law, 337, lays down correct law: "The existence of concurrent jurisdiction in two states over a river that is a common boundary between them . . vests in each of such states, and in the courts thereof, except as to things permanent, and except as to maritime and commercial matters cognizable by the national government and courts, jurisdiction, both civil and criminal, from shore to shore, of all matters of rightful state cognizance occurring upon such river in all parts thereof where it forms such common boundary." Observe that it says that this concurrent jurisdiction applies to "all matters of rightful state cognizance occurring upon such river in all parts thereof."

Now, is not the establishment and regula tion of a ferry a matter of rightful state cognizance? Indeed, is it not a right of navi gation? Can you deny that to a state on the Ohio river? Is it not a means of commerce on the water of the river? Can you deny the right of commerce? Observe that there is a difference between the soil or ground over which the Ohio runs, and its flowing water. The soil and things permanent in or attached to it—as a bridge, for instance-are not subject to Ohio jurisdiction; but a boat used in ferriage is not such, a thing floating on the water. Many cases draw this distinction, holding that, where there is concurrent jurisdiction in two states upon a river, a state has no power over soil or things fixed in it beyond its line, but as to things not such, but transitory, floating upon it, both have common concurrent pow

Having taken up this case again, I have just noticed that in Garner's Case, 3 Gratt. 655, Judge Johnston said: "I conclude, therefore, that Virginia has exclusive jurisdiction to low water on this side of the river, and Ohio has exclusive jurisdiction on the other, while over the main permanent river they both possess concurrent jurisdiction; the ultimate property in the whole river to low-water mark on the Ohio side remaining in Virginia." Here is properly conceded concurrent jurisdiction. The soil on which the river runs is West Virginia soil to low-ers. The late well-considered case of Robwater mark on the Ohio side, but the water flowing over it is subject to concurrent jurisdiction of both states for certain purposes. It is this concurrent jurisdiction that rules this case. Above 1 have stated what it means. I add other authorities. Concur rent is "running together; having the same authority. Thus, we say such and such courts have concurrent jurisdictions,

erts v. Fullerton, 117 Wis. 222, 93 N. W. 1111, in the supreme court of Wisconsin, shows this distinction. There it is held that, as to soil and things attached, the concurrent jurisdiction does not extend, but, as to things having relation to the water, things transitory or floating upon it, does fully extend. Mississippi & M. R. Co. v. Ward, 2 Biack, 485, 17 L. ed. 311. Judge Taliaferro,

in Garner's Case, 3 Gratt. 655, said it refers | sition that a state bordering upon a navi"only to things afloat." Surely, both states may establish and regulate ferries over the Ohio.

For these reasons we set aside and reverse the finding and judgment of the Circuit Court, and find the defendant not guilty, and that he be discharged from the indictment and go thereof without day.

Note by Brannon, J.:

I have not said that Ohio could establish a ferry on the West Virginia shore, but I think an Ohio ferry could carry back persons to Ohio.

Poffenbarger, J., concurring:

All

I do not wish to be understood as agreeing to all that is said in the opinion on the subject of concurrent jurisdiction and the character of the ferry franchise. The exercise of a ferry franchise is clearly not a mere incident to the right of navigation. citizens may use the navigable waters of this country without a license or permit of any kind from any of the states, and are only subject, in that respect, to such regulations as are imposed by the acts of Congress. The right to operate a ferry is an entirely different matter. The right of navigation is exercised in the operation of a ferry, but it confers no right to operate it. That right must be acquired by legislative grant. Conway v. Taylor, 1 Black, 603, 17 L. ed. 191; 2 Washb. Real Prop. 6th ed. § 1215; Huzzey v. Field, 2 Cromp. M. & R. 431; New York v. Starin, 106 N. Y. 1, 12 N. E. 631; Newton v. Cubitt, 12 C. B. N. S. 31. A ferry right is separate and distinct from, and subordinate to, the right of navigation. Tiedeman, Pol. Power, 621; Huzzey v. Field, 2 Cromp. M. & R. 432; 21 Am. & Eng. Enc. Law, 2d ed. p. 441; 12 Am. & Eng. Enc. Law, 2d ed. p. 1089.

gable river, and having concurrent jurisdiction with another state bordering upon the opposite side of such river, may establish a ferry from its own shore across the river, and also from the shore of such other state across the river. None of the cases referred to in the opinion stand upon such a state of facts. No such claim was made or upheld in any of them. The nature of a ferry franchise, and the obligations imposed upon the state in the granting of it and upon the licensee in accepting it, stand opposed to such an idea. A ferry franchise is a valuable right. It is property created by law, by the sovereign power of the state. Patrick v. Ruffner, 2 Rob. (Va.) 222, 40 Am. Dec. 740; Huzzey v. Field, 2 Cromp. M. & R. 432, 440; Queen v. Cambrian R. Co. L. R. 6 Q. B. 422; New York v. Starin, 106 N. Y. 1, 12 N. E. 631; Conway v. Taylor, 1 Black, 603, 17 L. ed. 191.

a

As said in the opinion of Judge Brannon, ferry "is in respect to the landing place, and not of the water." Ohio certainly has no right to the West Virginia.shores. All that can possibly be conceded to her is jurisdiction of the shore on her own side of the Ohio river.

As against all except the sovereign granting a ferry franchise, it is exclusive, and shuts out all other persons from the exercise of the right conferred. Concurrent jurisdiction for the establishment of ferries from both sides of the river by each state at the same place is contradictory. Neither state could protect and uphold the right granted by it by controlling the rates, and the result might be a service wholly inadequate to, and unsuitable for, the accommodation of the public. Such a construction would give conflict of jurisdiction rather than concurrence. A safe rule for arriving

at a conclusion is the conduct of the states Washburn on Real Property says: "Fer- and the construction adopted by them. So ries that is, rights of carrying passengers far as I am able to find, no state has ever across streams, or bodies of water, or arms attempted to do such a thing. West Virof the sea, from one point to another, for a ginia and Kentucky content themselves with compensation paid by the way of a toll-are, granting franchises from their own shores by common law, deemed to be franchises, and to the opposite shore and Ohio, Indiana, could not, in England, be set up without and Illinois with granting franchises from the King's license, and in this country with their shores to the opposite shores only. out a grant of the legislature as representing The only real and substantial concurrence the sovereign power, and do not belong to in respect to the granting of ferry

the riparian proprietors of the soil." Conway v. Taylor, 1 Black, 603, 17 L. ed. 191, expressly holds that "the authority to estab lish 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."

I find no authority which, in my opinion, gives a shadow of countenance to the propo

franchises is to be attained by limiting the power of each state to the granting of such franchises from its own shore to the opposite shore. That gives each state power over the river in that respect. Concurrence is thereby effectuated. The nature of this exercise of the sovereign power is such that, if it be carried further, there is direct and useless conflict between the

two states, which it cannot be supposed was already determined the boundary between ever intended.

NEW YORK COURT OF APPEALS.

PEOPLE of the State of New York ex rel. | supreme court such evidence upon the sev METROPOLITAN STREET RAILWAY eral issues raised by the petition, writ, and COMPANY, Respt.,

v.

STATE BOARD OF TAX COMMISSION

ERS, Appts.,
and

Six Other Cases.

(174 N. Y. 417.) '

return as might be adduced before him by the parties, with his findings of fact and After taking conclusions of law thereon.

many pages of evidence, the referee made separate and complete findings of fact appropriate to each proceeding, and, as conclusions of law in each, found "that chapter 712, p. 1589, of the Laws of 1899, is a valid and constitutional enactment, practicable

1. The recognition, for the purpose of and operative, and that it gave authority to taxation, of distinct property in special franchises conferred upon corporations and imposing the duty of assessing the tax upon state officers does not violate the right of local self government, although some of the franchises are granted by municipal corporations and the local assessors are forbidden longer to assess the tangible property located in the public highways which is used in the exercise of the franchise; but

such property is in the future to be assessed by the state officials in connection with the franchise.

2. The obligation of a contract is not impaired by the taxation of a special fran

chise of a corporation.

(April 28, 1903.) '

the defendants to assess the relator's special
franchises for the purpose of assessment and
taxation; that the relator had a hearing
and due process of law before the defendants
upon the review of its assessment,
and was not deprived of any of its legal or
constitutional rights; that it was lawful to
assess as one franchise the franchise, right,
authority, or permission which the relator
had in the streets of New York, and which
it operated as one system; that, to equalize
its assessment with the assessment of other
real property in the city of New York, the
relator is entitled to a deduction," the
amount being named in each proceeding;
"and that the assessment, as thus reduced,

APPEALS by defendants from orders of must be taken as the value of the relator's

the Appellate Division of the Supreme Court for the Third Department reversing orders of a Special Term for Albany County modifying, and confirming as`modified, assessments on the special franchises of certain corporations. Reversed.

The corporations which contested the validity of the assessments, in addition to the one appearing in the title, were the Twenty-Third Street Railway Company, the Central Cross-Town Railroad Company, the Consolidated Gas Company of New York, the Brooklyn City Railroad Company, the Coney Island & Brooklyn Railroad Company, and the New Amsterdam Gas Company.

Statement by Vann, J.:

The assessments in question were made in the year 1900, pursuant to the provisions of the tax law (Laws 1896, p. 795, chap. 908), as amended by chap. 712, p. 1589, of the Laws of 1899. Separate writs of certiorari, granted to review the respective assessments, resulted in an order in each proceeding appointing a referee to take and report to the

NOTE. As to taxation of corporate franchises in the United States, see also note to Louisville Tobacco Warehouse Co. v. Com. 57 L. R. A. 33. For earlier cases in this series as to interference by legislature with right of local selfgovernment, see State ex rel. Bulkeley v. Williams, 48 L. R. A. 465, and note; Newport v.

special franchise for the purposes of assessment and taxation under the act:"

The supreme court adopted the findings both of tact and law made by the referee, and directed that final orders be entered in accordance therewith. From the order so entered in each proceeding the relator therein appealed to the appellate division, which af firmed as to the facts but reversed as to the law, upon the ground that the statute in question was in violation of the "home rule” provision of the Constitution. Two of the justices dissented. The State Board of Tax Commissioners appealed to this court from the several orders entered accordingly.

Mr. William H. Wood, with Mr. John Cunneen, Attorney General, for appellant:

The assessments are valid irrespective of the validity of the features of the statute which the appellate division condemned.

Chenango Bridge Co. v. Paige, 83 N. Y. 178, 38 Am. Rep. 407; People ex rel. Westchester F. Ins. Co. v. Davenport, 91 N. Y. 574; New York & L. I. Bridge Co. v. Smith, 148 N. Y. 540, 42 N. E. 1088; Sheppard v.

Horton, 50 L. R. A. 330, and note; O'Connor v. Fond du Lac, 53 L. R. A. 831; Com. ex rel. Elkin v. Moir, 53 L. R. A. 837; Redell v. Moores, 55 L. R. A. 740; State ex rel. Geake v. Fox, 56 L. R. A. 893; Americus v. Perry, 57 L. R. A. 230; and State ex rel. White v. Barker, 57 L. R. A. 244.