Covington Ferry Co. v. Moore , 8 Dana 158 ( 1839 )

Chief Justice Robertson

delivered the Opinion of the Court.

A slave, named Preston, who had been in the habit of passing from Covington to Cincinnati, on the business of his master, (a tavern keeper of Covington,) having, on one Sabbath evening, passed on the ferry boat of the “ Covington Ferry Company,” and escaped to Canada— Zedekiah Moore, the master, sued the company, in two actions, and recovered a judgment for eight hundred and ninety one dollars — the assessed value of the slave, and also a judgment for two hundred dollars, as a penalty under a statute of 1831.

The city of Covington was the grantee of the ferry franchise; “the Covington Ferry Company” was the lessee only, and the boat was under the control and management of agents employed by the company. It does not appear that any member of the company was either present when the slave passed to Cincinnati, or had any personal knowledge of his so passing. And it does appear that, the.company had instructed its managers never to permit any slave to pass on the boat to the Ohio shore, without the owner’s consent.

The only question we shall now consider is whether, upon these facts, the company is liable to Moore, under the statute of 1831. And we think it is not so liable.

An act of 1820 denounces a penalty of two hundred dollars against “any ferry man or other person who shall carry or put over the Ohio river into another “ State,” any slave of a citizen of Kentucky, without the owner’s authority; and also provides that, “where “ any slave shall be so taken over said river, by a ferry- “ man who shall be a slave, the owner or keeper of such “ ferry shall be liable for the penalty.

The city of Covington being the grantee, and the Covington Ferry Co. the lessees, of a ferry across theOhio — a slave passed over in a boat managed by a ferryman for the Co. andmade his escape: as no member of the Co. was present at the time, and the permitting of the slave to pass was contrary to their general orders, the Company is not liable for the value of the slave, nor for the penalty.

The first section of the act of 1831 enacts that, “ no “ owner or keeper of a ferry across the Ohio river, within “ this Commonwealth, shall set over or convey any slave “or slaves from this Commonwealth, or any of the “ islands in said river, to the opposite shore thereof,” without the consent of the owner of the slave or slaves.

The second section contains the same prohibition against any other person not the “ owner or keeper” of a ferry.

The third section provides that, “if any owner or “ owners of any ferry, as aforesaid, shall offend against “and violate the provisions of this act, he, she or they “ shall forfeit his, her, or their said ferry, and his, her, or “ their right of ferry shall cease and be void &c.” — and also denounces, as a further penalty, liability for the value of the slave or slaves, and two hundred dollars, in addition thereto.

And the fifth section denounces the same penalty, except the forfeiture, against any other “ person or persons not being the owner or owners, keeper or keepers” of a ferry.

The act of 1820 clearly implies a definition of the “keeper” of a ferry, and shows that the Legislature meant, by that term, not the “ferryman,” but a grantee, lessee, or other, person having a beneficial interest in and control over the ferry.

The act of 1820 shows, also, that the penalty was denounced for the personal act of the party subjected to it, unless a slave employed by the owner or keeper of a ferry, should be the actual wrongdoer; and then the employer is liable for the penalty; but the owner or keeper is not, in any other case, subjected to the penalty for the act of his ferryman, or other agent, done without his sanction. The person actually guilty is, with these exceptions, alone liable for the penalty denounced for doing the prohibited act.

And this obvious interpretation of the act of 1820, harmonizes with all analogy; for it is the policy of penal enactments to punish the guilty only.

Now the only object of the act of 1831 was to increase the penalty denounced by the act of 1820, and thereby afford to the owners of slaves in this Commonwealth greater security. And it is evident that “ the keeper of a ferry” means, in the act of 1831, precisely what it meant in the act of 1820; and that, under each of the acts, precisely alike in this respect, the owner or keeper of a ferry is not subject to the penalty for the unsanctioned act of his responsible “ ferryman.” If “the owner or keeper” shall violate the act of 1831, he is liable for the value of the slave or slaves, and a penalty of two hundred dollars, and may forfeit also his ferry privileges. " If any other person shall violate the act, he is liable for the value of the slave or slaves, and the same penalty of two hundred dollars. For the act of a ferryman or other person not the “keeper,” the penalty is denounced only against the person doing the act; and the more severe penalty against the owner or keeper, is incurred only by his own voluntary act.

This seems very plain to us. It would certainly be unusually and unnecessarily harsh, l¡o subject to forfeiture a valuable ferry franchise, only because a ferryman, responsible for his own acts, had violated the statute without the owner’s consent, and even against his command.

We are, therefore, clearly of the opinion that, without any proof tending to implicate “ the Covington Ferry Company,” as keeper of the ferry, in the act of its “ ferryman,” Moore had no legal right to recover either of the judgments we are now revising.

And therefore, as the instructions given by the Circuit Judge to the jury, on the trial, assumed that the company, as owner or keeper, is liable, under-the act of 1831, for the acts of its ferrymen, the judgments must both be reversed, and the causes remanded for new trials.