Walker v. Taylor — 46 U.S. 64

Majority — GRIER J.

p. 64

Elizabeth Walker, devisee of Robert Walker, deceased, Plaintiff in error, v. Francis T. Taylor, Willaim Robinson, William E. Sablett, Thomas Cook, and John M. Cresup, Trustees of the town of Columbus, Defendants.

Syllabus

Where the plaintiff below claimed a ferry right under an act of the legislature of Kentucky, and the ground of defence was that the art was unconstitutional and void as impairing vested rights, arid the decision of the highest State court was against the plaintiff, a writ of error, issued under the 25th section of the judiciary act, will not lie. _ .

_ This court can entertain jurisdiction under that section only whan the decision;of the State court is in favor,of the validity of such a statute. Here, the decision was against its validity.

. This case ;was brought up, by a writ of error issued under the

p. 65

25th section of the judiciary, act^ from the Court of Appeals for the State of Kentucky.

The case was this.

In 1820, the legislature of Kentucky passed an . act, '«.¿tied “.An act for establishing and laying off a town at the Banks.” 2 Móréhead & Brown’s Digest, ¿044. It recited that the general assembly of Virginia, in. 1783, had authorized the deputátion of officers of the Virginia line to lay off four thousand acres of land 'in such manner and form as they might judge most beneficial for a 'town, on the Mississippi or the waters théreof, and vest the same in trustees for the common benefit and interest.' of the whole ; that trustees were appointed, who located the four thousand acres of land upon the Mississippi, including die Iron Banks, and that said trustees, or a majority of them,, had diéd before executing the trust reposed in them.

The statute then appointed trustees, who were to cause a survey to be executed for the four thousand acres of land and have die same duly recorded in die office of the surveyor of the lands set apart for the military, bounty on State establishment, but declared that the trustees should not (unless thereafter authorised by law) sell or dispose of the same or any part thereof in any manner , whatever, but hold the same subject to the control and future disposition by thé legislature. It then proceeded to authorize them to lay off a town, divide it into lots, cause a survey" to be made, adopt rules for the government of the town, -and then authorized them- to sell at public sale any number of lots, not exceeding one hundred lots, of half an acre each. All the mbney arising from such sale was to be paid into the public treasury of the State.

In 1821, an act was passed to amend and repeal, in part, the above act (2 Morehead & Brown, 10'46). This authorized the trustees to appoint a treasurer, who should pay all the money received into the treasury of the State, to be then divided amongst the officers and soldiers of the Virginia lines ; to sell fifty more lots ; to sue trespassers, &e., &c.

Under these acts', the trustees laid off the town of Columbus into lots, streets, alleys, mid public grounds, and made and recorded a plan therefor, by which they left an open space of ten polesj’ as a common, along the margin of the river, between low water-mark and the lots next to the river, and dedicated this common to public use.

In 1825, an act was.passed (acts of 1825, chap. 72),.the first section of which authorized the trustees to sell the whole 'of the in and' out lots, provided they should all concur ; and the second section authorized the trustees, or a majority of them, to “fix the rates of ferriage across the Mississippi river, and lease out ferries for any term of years, not exceeding five, and apply the rents to the improvement of the town.”

p. 66

In 1829 (.atíís of that year,-page 31) , it was provided, by an act passed in that year,, — “ That, a public ferry be and the same is hereby established at the .warehouse, landing of Owen G. Cates and Robert Walker, fronting their lot, No. 3, in the town of Columbus, across die Mississippi river to the opposite shore, and that said ferry be in the name, and for the benefit, of said Cates and Walker, •their heirs and assigns, foreyer: provided, however,. that said Cates and Walker enter into .boftd, in the Coúnty Court of Hickman,'in the penalty of $.1,000, conditioned for the faithful perform-anee of the duties,required of. other ferry' keepers 'by law in tins commonwealth.”

At the session of 1830 (acts of 1830; chap. 533, page 148J, an act was passed restoring the ferry privileges to the town of Columbus. The first "section was as follows r&wkey;

“That so much ofs An act to establish a warehouse at the mouth, of. Jonathan’s creek, in Calloway county,, and for other purposes,’ .as establishes a public,ferry at the warehouse landing of Owen G.. ■ Cates' and Robert Walkpr, fronting their lot, Np. 3, in the town of Columbus, across ..the Mississippi river to the Opposite shore, in the name'of die said-Cates. and Walker, their heirs and assigns, forever, be .and the same is hereby repealed ; it being satisfactorily proved that lot No...3,'in the town of Cplumbus, does-not bind . on. the Mississippi river ; that the margin of said river, opposite the town of Columbus, in laying off .-the Same, was reserved as a public landing, .and belongs-to the trustees thereof, for the use pf the inhabitants.; that, under thé-laws of this State, the trustees of Columbus were vested with ferry privileges from.the, said public ground, on the margip of die. river, acróss. the Mississippi fiver, for the use of the inhabitants ; that said Cates was the lessee of a ferry from the trustees-of Columbus, and die said. Walker his surety, at the time of granting the ferry hereby repealed.; and .that no notice of the ápplicádón Jo the legislature was given to the' said trustees, nor a representation, that a ferfy was already established there, made in their' petition to the- legislature.”

The sécond section repealed the grant to Cates and’ Walker, and the third section regranted and confirmed to the trustees, and their successors, all the ferry rights and^ privileges from the public ground, and vested them, with power to lease one or more'ferries from, said pnblie ground, from time to time, not exceeding five years at any one time.

. Cates and Walkér had complied with the- requisition^ of - the act. of 1829, and put. their ferry into operation.. Cates sold his interest to Walker, and he, dying, devised it to his wife., who, continued in the exercise of it until interrupted by the trustees, who • claimed.the exclusive privilege of ferriage.-

In September,. 1842, Elizabeth’Walker, .the, plaintiff' in error, brought ah action of trespass oh the case against the -trustees, in • the

p. 67

Hickman Circuit Court. The defendants filed five pleas, but it is only necessary to notice the first. That plea' set forth all the aforesaid acts of assembly prior to the act of 1829 ; averred that the legal tide to the land on which the town was situated had been vested for that purpose in trustees, as is above stated ; that, upon the sale of the lots, there was' a reservation made,Of all ferry rights .to the trustees of the town, for its use..; that they had been - constantly in the' exercise of those rights;-that, between lot No. 3' and the river there intervened-a street, ten poles in width, and between that and the river a u common.” From these facts, it deduced and alleged the exclusive ferry right of the defendants, coextensive with the limits.of the town on the river, as incident" to their- allégecT legal title to the common, as secured to them by said reservation on the sale of lots, and as granted to them by .said prior acts 'of assembly.

And it therefore further alleged; that the act of 1829, granting á ferry to Cates and Walker, “ rvas unconstitutional and void, being an attempt to impair and divest prior vested rights,” &c.;. and sp justified the defendants for the disturbance and ■ trespass complained of.

To this plea the plaintiff demurred'; and, upon argument, the demurrer -was overruled. The plaintiff, not filing any "replication to this plea, judgment was entered for the defendants, for the want of a replication. •

Mrs. Walker appealed, to the Court of Appeals; where the judgment of the court below was affirmed, and a writ of. error- brought the. case up to-.this court.

The cause was argued at the present term by Mr. C.rittenden, for the plaintiff iñ error, and Mr. Cates, fpr the defendants.

delivered the opinion of the court.

■ This case comes before us by a writ , of error to the- Court of Appeals of the State of Kentucky.

It has been argued.by counsel, on the merits, without noticing the important , preliminary question of jurisdiction.

Thé power intrusted to this court, of reviewing tire decisions .of State tribunals, is within narrow and well defined limits, and has been, in sonje instances, looked upon with jealousy. Our decisions may fail to command' réspecf, unless we carefully confine- ourselves within the. hounds prescribed for us by - the constitution- and laws. If they havé'nof conferred jurisdictipn, the consent of parties will riot justify its assumption. ■ The record in this case shows; that- the plaintiff declared, m an action on the case, for a disturbance of her right of ferry ; asserting-an-exclusive right, in herself, by virtue of an act of the legislature of Kentucky,, of the 31st' of December, 1829. Tfie' defendants’ first plea (the only one sustained by the

p. 68

court), after averring a previous grant to themselves, by an act of the 27th of December,' 1820, and other fácts, unnecessary to notice, concludes, as follows : — “ And so the defendants say that tile said act, dated the 31st of December, 1829, purporting to establish a •public .ferry at- the warehouse landing of Owen G. Cates and Robert Walker, fronting their lot No. 3,' in the town of Columbus,, over the Mississippi river to the opposite shore,- is • unconstitutional and void, being an attempt to impair prior vested rights, without '.compensation therefor-; all of which defendants are ready-to verify,” &c.

’.Te. this plea the plaintiff demurred; the defendants joined in demurrer, and the Circuit Court of Kentucky gave judgment for defendants. The plaintiff then, ¿ppealed' to the Court of Appeals of-that State, who affirmed the judgment of the Circuit Court.

The record, therefore, presented this single' issue, — “Whether •the act of.the legislature of Kentucky, of the 21st of December, 1829, under which the plaintiff claimed title, was unconstitutional and void,”' as being repugnant to the constitution of the United States, ánd the decision of the Court of Appeals, is against its validity.

The twenfy-fifth' section of the act of the’ 24th-of September, 1789, which confers on-this court the power of supervision over the State tribunals, so far. as at present applicable, confines it to cases where -is drawn in question the .validity of a statute of, or ah authority exercised under, any State ón -the ground of their- being repugnant to the constitution or laws of the United States, and the decision is in favor of.such their-validity.”- That this case does .not-come within the category, is too plain to admit- of argument 'or require authority. The reason and. policy of granting to this court the power to. revise the decisions of the State .courts when in favor' •of the validity of .their own' statutes, 'and refusing it to us when die judgment is against -their-validity,.are obvious, and are fully stated by the court in die .ease of The Commonwealth Bank of Kentucky v. Thomas Griffith et al., 14 Peters, 56. That case, is precisely in point with the present, and decides that, — “ Under this clause-of the act of Congress, three things must concur to give this court jurisdiction. 1st. .The validity of a statute of a. State- must be drawn in question. 2d. It must be drawn in question upon the' ground that it is repugnant to the constitution, treaties, or laws- of the United States. 3d. The decision- of the State court must be in favor of-their validity.”'

As the judgment of the Court of Appeals of Kentucky was rendered against the validity of the statute in this case, it must be dismissed for want of jurisdiction.

Order.

This cause came on to be heard on the transcript of the record from -the Court-of Appeals for. the State of Kentucky, and was

p. 69

argued.by counsel. On consideration whereof, it is now here ordered and adjudged by-this' court that this writ- of error be and the same is hereby dismissed for the want of jurisdiction.