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then having a seat on this bench, refused the injunction, observing that "This provision does not prevent a State from improving the navigableness of these waters, by removing obstructions, or by dams and locks, so increasing the depth of the water as to extend the line of navigation. Nor does the ordinance prohibit the construction of any work on the river which the State may consider important to commercial intercourse. A dam may be thrown over the river, provided a lock is so constructed as to permit boats to pass with little or no delay, and without charge. A temporary delay, such as passing a lock, could not be considered as an obstruction prohibited by the ordinance." And again: "A drawbridge across a navigable water is not an obstruction. As this would not be a work connected with the navigation of the river, no toll, it is supposed, could be charged for the passage of boats. But the obstruction would be only momentary, to raise the draw; and as such a work may be very important in a general intercourse of a community, no doubt is entertained as to the power of the State to make the bridge." 3 McLean, 226. The same observations may be made of the subsequent legislation of Congress declaring that navigable rivers within the Territories of the United States shall be deemed public highways. Sect. 9 of the act of May 18, 1796, c. 29; sect. 6 of the act of March 26, 1804, c. 35.

As to the appropriations by Congress, no money has been expended on the improvement of the Chicago River above the first bridge from the lake, known as Rush Street Bridge. No bridge, therefore, interferes with the navigation of any portion. of the river which has been thus improved. But, if it were otherwise, it is not perceived how the improvement of the navigability of the stream can affect the ordinary means of crossing it by ferries and bridges. The free navigation of a stream does not require an abandonment of those means. To render the action of the State invalid in constructing or authorizing the construction of bridges over one of its navigable streams, the general government must directly interfere so as to supersede its authority and annul what it has done in the matter.

It appears from the testimony in the record that the money appropriated by Congress has been expended almost exclu

sively upon what is known as the outer harbor of Chicago, a part of the lake surrounded by breakwaters. The fact that formerly a light-house was erected where now Rush Street bridge stands in no respect affects the question. A ferry was then used there; and before the construction of the bridge the site as a light-house was abandoned. The existing light-house is below all the bridges. The improvements on the river above the first bridge do not represent any expenditure of the govern

ment.

From any view of this case, we see no error in the action of the court below, and its decree must accordingly be

Affirmed.

TRANSPORTATION COMPANY v. PARKERSBURG.

1. The city of Parkersburg built within its limits a wharf on the bank of the Ohio River, and prescribed by ordinance certain rates of wharfage on vessels "that may discharge or receive freight, or land on or anchor at or in front of any public landing or wharf belonging to the city, for the purpose of discharging or receiving freight." A transportation company, owning duly enrolled and licensed steamers, which ply between Pittsburgh and Cincinnati and touch at the intermediate points, complained that the wharfage was extortionate, and was merely a pretext for levying a duty of tonnage. The company thereupon filed a bill in the Circuit Court, praying that the prosecution of a suit brought by the city in the State court to collect the wharfage be enjoined, and that the ordinance be declared void, and that other relief be granted. Held, that the character of the charges must be determined by the ordinance itself; and as it on its face imposed them for the use of the wharf only, and not for entering the port or lying at anchor in the river, the court, though it might deem them unreasonable and exorbitant, will not entertain an averment that they were intended as a duty of tonnage, nor inquire into the secret purpose of the body imposing them.

2. Wharfage is the compensation which the owner of a wharf demands for the use thereof; a duty of tonnage is a charge for the privilege of entering, or loading at or lying in, a port or harbor, and can be laid only by the United States.

3. The question as to which of these classes, if either, a charge against a vessel or its owner belongs, is one, not of intent, but of fact and law: of fact, whether the charge is imposed for the use of a wharf, or for the privilege of entering à port; of law, whether, upon the facts which are shown to exist, it is wharfage or a duty of tonnage.

4. Although wharves are related to commerce and navigation as aids and conveniences, yet being local in their nature, and requiring special regulations at particular places, the jurisdiction and control thereof, in the absence of congressional legislation on the subject, properly belong to the States in which they are situated.

5. A suit for relief against exorbitant wharfage cannot, as one arising under the Constitution or the laws of the United States, be maintained in the Circuit Court, even though it be alleged that the wharfage was intended as a duty of tonnage; the alleged intent not being traversable.

APPEAL from the Circuit Court of the United States for the District of West Virginia.

The case is stated in the opinion of the court.

Mr. Milton I. Southard and Mr. C. W. Moulton for the appellant.

Mr. W. A. Cook and Mr. C. C. Cole for the appellees.

MR. JUSTICE BRADLEY delivered the opinion of the court. This is an appeal from a decree dismissing a bill in chancery on demurrer. The complainant below, who is appellant here, according to the statements of the bill, is a corporation of West Virginia, organized for the purpose of carrying on a transportation business on the Ohio River, together with a general wharf and commission business; its principal office being located at the city of Parkersburg. It is the owner of several steamboats duly enrolled and licensed under the acts of Congress, and plying between Pittsburgh, Wheeling, Parkersburg, Cincinnati, and Covington. The bill was filed against the city of Parkersburg and its recorder and wharfmaster, to restrain the collection of certain demands for wharfage, and to recover back money previously paid on that account. It is contended that the city ordinance, under which the wharfage was demanded, is in conflict with the Constitution of the United States; and this is the ground on which the jurisdiction of the Circuit Court of the United States was invoked. The bill alleges that many years ago the city of Parkersburg caused to be constructed on the banks of the Ohio River at that place a wharf or public landing, to be used by the various steamboats trading on the river and landing at said city; and that said wharf is still controlled by the city under a certain ordinance passed by the mayor and common council in March, 1865, a copy of

which was filed with the bill. By this ordinance it is ordained that every steamboat, keel-boat, barge, flat-boat, and flat (except ferry-boats) that may discharge or receive freight, or land on or anchor at or in front of any public landing or wharf belonging to the city, or at which the city may lawfully charge and receive wharfage, for the purpose of discharging or receiving freight, shall pay the city for wharfage the following sums or rates for each respectively, to wit: On steamboats of less than 100 tons burden, three dollars for the first twenty-four hours or any part thereof, and one dollar and fifty cents for every subsequent twenty-four hours or any part thereof. On steamboats of 100 and less than 150 tons, three dollars and seventy-five cents for the first, and two dollars for every subsequent twenty-four hours or any part thereof; and so on, regulating the charges according to the tonnage, and reducing them where only a small quantity of freight is discharged or received. Provision is then made for recovering the wharfage by bringing the parties before the recorder or a justice of the

peace.

The bill alleges that under and by virtue of this ordinance the city of Parkersburg has, ever since the organization of the complainant, required it and its agents to pay the charges provided in the ordinance for all the steamboats owned or controlled by it, which have discharged or received freight or passengers, or landed at the said wharf, and that the payments have been made under protest.

The bill then makes the following charge:

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"Your orator further alleges that, as it is advised and believes, the said ordinance is wholly null and void, and is in conflict with those provisions of the Constitution of the United States relating to the regulations of inter-state commerce and prohibiting any State, without the consent of Congress, from laying any duty of tonnage; and that the operation of the same tends to and does abridge the free use of the Ohio River by your orator, to which it is legally entitled by virtue of the enrolment and license of its steamboats under the laws of the United States as aforesaid. As by reference to said ordinance will appear, the rates of charges made by said city of Parkersburg upon steamboats landing at or in front of the wharf of said city

are based upon and regulated solely by the 'tons burden' of said boats, and said charges are made indiscriminately, whether the boat lands or anchors at or in front of any public landing or wharf of said city. And your orator further avers that the Congress of the United States has never given its consent to the passage or enforcement of said ordinance, but, on the contrary, tonnage duties are expressly prohibited by sect. 4220 of the Revised Statutes of the United States to be levied upon enrolled or licensed vessels trading from one port in the United States to another port within the same."

The bill further alleges that the rates charged by the ordinance are unreasonable, extortionate, and oppressive, and are made and levied as a tax upon commerce for the express purpose (under the assumed pretence of wharfage dues) of replenishing its treasury and increasing its revenue; that the cost of the wharf has been collected over and over again; that it is allowed to remain in bad repair; and that the wharfage dues collected have been used for other city purposes, paying its debts, &c.; that in the year 1876 over $2,700 was collected from various boats and vessels, less than $50 of which was spent on the wharf; and the same thing in other years. These facts are stated for the purpose of showing the extortionate character of the ordinance, and that it is used for the purpose of laying duties and imposts on imports and exports.

The bill further shows that for the recent refusal of the complainant to pay these wharfage charges the city of Parkersburg has instituted suits against it before the recorder under said ordinance; wherefore it prays a decree to restrain all further proceedings against the complainant by said suits or otherwise, from enforcing any judgment recovered by the city for the violation of said ordinance, or otherwise interfering with the rights of the complainant to the free use of the Ohio River by means of its steamboats; and for the recovery of moneys already exacted from it under said ordinance, amounting to over $2,000; and that the ordinance may be declared null and void.

To this bill the defendants demurred, and upon argument of the demurrer the bill was dismissed. From that decree the present appeal is taken.

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