Northwestern Union Packet Co. v. St. Louis

18 F. Cas. 409, 4 Dill. 10

• Court: U.S. Circuit Court for the District of Eastern Missouri
• Decided: January 15, 1877
• Status: Published

Opinions

TREAT, District Judge.

This case involves tbe right of tbe plaintiff to recover back money paid under protest. Within adjudicated cases, the right of action exists if the taxes or assessments were illegal, and the payment thereof was involuntary. The main proposition, therefore, requires a determination of the question as to wharfage tax proper — what it is, and where it ends. Under the decisions of the United States supreme ■ court as to tonnage duties, regard being had to dicta concerning wharfage tax, the rules of law' may be thus stated: 1st. Tbe general power of a state to tax property must, in its exercise, impose the tax, not on the • tonnage of the vessel, but on the money value of the vessel. 2d. It is beyond the power of a state or municipality to tax a vessel, foreign or domestic, for the privilege of landing . or anchoring in any port, whether the tax is upon the tonnage of the vessel or otherwise. 3d. It is in the power of a municipality, under legislative authority, to exact reasonable wharfage for the privilege of landing at an improved wharf, care being bad to prevent the municipality from imposing tonnage or other prohibited rates or taxes, under the pretence of collecting wharfage dues. It is very • difficult, in tiie light of adjudicated cases, to draw the precise line, in genera! terms, between tiie various classes. Tiie foregoing rules must suffice for a guide.

It appfears from tfie facts agreed that the city claims to be proprietor of most of the river front, a part of which has been impro-v-ed, graded, and paved by the city, at large cost. Under, the supposed authority vested in it by charter, and under ordinances pursuant thereto, it has made many regulations of a police nature, not only as to the parts of the harbor where vessels, rafts, etc., may land, but also as to tbe safety of the inbabit-ants dependent upon tbe character of the cargo — whether explosive, dangerous, etc. It is admitted that, under said regulations, the plaintiff used the improved part of said iand-ing. or the so-called wharf, thus artificially made and designed for specific purposes. The rates of wharfage charged were not in all eases a specific sum for a specified time, but a rate dependent on tfie tonnage of the vessel.

If the city fiad a right to charge wharfage, then the sole question is, whether it is prohibited from making its rates dependent on the tonnage of the vessel, eo nomine, instead of its length, denoting the space it would oo-cupy, or whether the city should fix its rate of wharfage, arbitrarily, upon every craft landing, irrespective of tonnage, size. etc. It would be a narrow view of the question to admit that wharfage is collectible, and to hold at tiie same time that the amount of wharfage dues is not collectible because that amount, though reasonable, is, instead of a sum certain upon every craft, adjusted to the size of the craft, to be ascertained by its tonnage. It may be conceded that no municipality can forbid tbe entry, anchoring, or landing of a vessel engaged in foreign or inter-state commerce, unless it pays a tonnage duty for said privilege. It must also be held that, when there is ample space for landing within a harbor outside of the improved part thereof, or wharves, if a vessel is desirous of receiving the benefit of said improvements for tiie purpose of the extra facilities thereby furnished for mooring safely and conveniently, and loading and unloading cargoes, and also for the accommodation of passengers, said vessel thus availing itself of the extra facilities to secure which the municipality has made large expenditures, should pay therefor a reasonable compensation. Tbe case might be very different if a city, claiming tbe entire river front, forbade anchoring or landing within its limits without payment of tonnage duty. It could not stop the right to navigate and trade from port to port, but it could lawfully designate, within its police powers, at what part of the port the landing should be made. This might be as important for sanitary as other useful purposes. To hold otherwise would be to decide that the population of every town and city is deprived of the right of self-protection, and is absolutely at the mercy of every vessel which Arbitrarily chooses to bring infectious diseases and consequent death with it.

There is a rational limit in all questions of this kind. No city, under pretence of wharf-age dues, is permitted, in order to replenish its treasury, to levy a tax in the nature of a Tonnage duty upon vessels of commerce; nor can it do so by way of discrimination. Each city under legislative authority, or riparian ■owner, can lawfully charge a reasonable compensation for the use of expensive and artificial conveniences, which a vessel may use ■or not at its option, there being ample space elsewhere for it to land within the harbor, where no artificial or expensive improvements have been made. In such instances there is no impediment to commerce — no tonnage or other exactions restrictive upon navigation. but merely facilities furnished, which, if used, ought to be paid for. The vessel is not bound to use such facilities; but if it ■does, why should it not contribute to the costs and maintenance thereof?

Although the St. Louis ordinance prescribes wharfage dues at the improved wharves by it constructed — graduated according to the size of the vessel, to be ascertained by its tonnage — such wharfage dues are not tonnage duties within the inhibitions of the constitution.