Woods, Justice.
This was a bill in equity, filed by the Ouachita & Mississippi River Packet Company, a corporation of and citizen of the state of Kentucky, and certain persons, citizens of the states of Ohio, West Virginia, and Louisiana, respectively, against the defendants, as partners under the firm name of Joseph A. Aiken & Co., and against the city of New Orleans, all the defendants being citizens of the state of Louisiana, to restrain the collection of wharfage dues. It appears from the pleadings and evidence that under an act of the legislature of Louisiana the city of New Orleans, being empowered to collect wharfage for the use of its wharves on the Mississippi river within its limits, on May 17, 1881, adopted an ordinance providing for the building and repairing of the wharves and levees of the city of New Orleans, and for farming the revenues thereof. In pursuance of said ordinance the city made a contract with Joseph A. Aiken, by which he was authorized, for the term of five years, to collect wharf-age for all steam-boats and other water-craft landing at the wharves of said city, the rates of wharfage being fixed by an ordinance of the city. On his part, Aiken agreed to accept the wharves in the condition in which they were on May 21, 1881, and to repair and keep them in good order and condition for said term of five years; to build certain additional new wharves, at an expense not exceeding $25,000; to build new revetments; to build a piled bulk-head in the Third district ; to light a specified portion of the levees and wharves with electric lights; to pay $20,000 annually to maintain a harbor police for tbo protection of commerce along the river front of tbe city; and $10,000 to be applied to the salaries of wharfingers, etc. The ordinance and contract fixed the following, among other rates of wharf - age, which Aiken and his associates were permitted to charge: For steam-boats—
[892] “Not over five days, 10 cents per ton, and eacli day thereafter $5 per day; for boats arriving and departing more than once a week, 5 cents per ton each trip; boats lying up for repairs during the summer months to occupy such wharves as may not be required for shipping, for twenty days or under, $1 per day.”
The contract and ordinance further provided that for the third year of said lease Aiken should reduce the wharfage on steam-boats and other licensed vessels employed in transporting merchandise on the Mississippi river 10 per cent., and for the fourth and fifth years 20 per cent., etc. The bill charged that the ordinance and contract were null and void, because rates of wharfage were unreasonable, excessive, and unjust; and that the revenues derived from wharfage were used in part to pay the salaries of the public police of the city of New Orleans, and the salaries of officers belonging to the office of the department of commerce of said city, and for the building of new wharves and other new structures; that said exactions of wharfage were in violation of the constitution of the United States, because they were the laying of a duty of tonnage without the consent of congress, and were a regulation of commerce with foreign nations and among the several states. The prayer of the bill was for an injunction to restrain the defendants ’from demanding or collecting said wharfage dues, and that said ordinances of the city of New Orleans and said contract with the defendants might be declared illegal, unconstitutional, and void. All the defendants are citizens of the state of Louisiana. Of the complainants, some are citizens of the state of-Louisiana, and some are citizens of other states. It is, therefore, obvious that the jurisdiction of this court over the ease cannot rest upon the citizenship of the parties. Act of March 3, 1875, to determine the jurisdiction of circuit courts of the United States, etc.; Removal Gases, 100 U. S. 457.
The case is, therefore, in respect to citizenship, precisely in the same plight as if all the parties were citizens of the state of Louisiana, and in this respect it is similar to the case of Parkersburg, etc., Transp. Co. v. City of Parkersburg, decided by the supreme court at the last term, [2 Sup. Ct. Rep. 732,] where both the complainant and the defendants were citizens of the state of West Virginia. An examination of that case will show that none of the grounds upon which the collection of wharfage in this case is complained of can be maintained.
The exaction of wharfage is not the laying of a duty of tonnage. The ordinance and contract complained of in this case impose charges [893] for wharfage only; that is to say, the steam-boats and other watercraft from which wharfage is collected are required to pay only for the use of the wharves. No demand is made of them for entering, loading, or lying in tho port or harbor. This court cannot, therefore, entertain an averment that the charges were not intended as wharf-age, but as a duty of tonnage. Whether they are one or the other must be determined by the ordinance and the contract. T3ie fact that the wharfage exacted may be unreasonable and' exorbitant does not change its character. It is still wharfage, and nothing else. This court cannot, therefore, grant relief on the assumption that the exaction of wharfage is the laying of a duty on tonnage without the consent of congress. Neither can we base relief on the theory that the ordinance and contract complained of constitute a regulation of commerce in derogation of the exclusive power of congress over that subject. In the case of County of Mobile v. Kimball, 102 U. S. 691, it was held by the supreme court that state action upon such subjects- — those which are not national, but local and limited in their nature, such as harbor pilotage, beacons, buoys, etc. — can constitute no interference with the commercial power of congress, for when congress acts the state authority is suspended. Inaction of, congress upon these subjects of a local nature or operation, unlike its inaction upon matters affecting all the states and requiring uniformity of regulation, is not to be taken as a declaration that nothing should be done with respect to them, but is rather to he deemed a declaration that for the time being, and until it sees fit to act, they may be regulated by state authority. So, in the case of Parkersburg, etc., Transp. Co. v. City of Parkersburg, supra, the same court declared:
“ It is manifest that no subject can be more properly classified as local in its nature, and as requiring the application of town regulations, than that of wharves and wharfage.”
And in tho same case it -was further said:
“As no act of congress has been passed for the regulation of wharfage, and as tliero is nothing in the constitution to prevent the states from regulating it, so long as congress sees fit to abstain from action on this subject, our conclusion is that it Is entirely within the domain and subject to the operation of state laws.”
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Woods, Justice.
This was a bill in equity, filed by the Ouachita & Mississippi River Packet Company, a corporation of and citizen of the state of Kentucky, and certain persons, citizens of the states of Ohio, West Virginia, and Louisiana, respectively, against the defendants, as partners under the firm name of Joseph A. Aiken & Co., and against the city of New Orleans, all the defendants being citizens of the state of Louisiana, to restrain the collection of wharfage dues. It appears from the pleadings and evidence that under an act of the legislature of Louisiana the city of New Orleans, being empowered to collect wharfage for the use of its wharves on the Mississippi river within its limits, on May 17, 1881, adopted an ordinance providing for the building and repairing of the wharves and levees of the city of New Orleans, and for farming the revenues thereof. In pursuance of said ordinance the city made a contract with Joseph A. Aiken, by which he was authorized, for the term of five years, to collect wharf-age for all steam-boats and other water-craft landing at the wharves of said city, the rates of wharfage being fixed by an ordinance of the city. On his part, Aiken agreed to accept the wharves in the condition in which they were on May 21, 1881, and to repair and keep them in good order and condition for said term of five years; to build certain additional new wharves, at an expense not exceeding $25,000; to build new revetments; to build a piled bulk-head in the Third district ; to light a specified portion of the levees and wharves with electric lights; to pay $20,000 annually to maintain a harbor police for tbo protection of commerce along the river front of tbe city; and $10,000 to be applied to the salaries of wharfingers, etc. The ordinance and contract fixed the following, among other rates of wharf - age, which Aiken and his associates were permitted to charge: For steam-boats—
[892] “Not over five days, 10 cents per ton, and eacli day thereafter $5 per day; for boats arriving and departing more than once a week, 5 cents per ton each trip; boats lying up for repairs during the summer months to occupy such wharves as may not be required for shipping, for twenty days or under, $1 per day.”
The contract and ordinance further provided that for the third year of said lease Aiken should reduce the wharfage on steam-boats and other licensed vessels employed in transporting merchandise on the Mississippi river 10 per cent., and for the fourth and fifth years 20 per cent., etc. The bill charged that the ordinance and contract were null and void, because rates of wharfage were unreasonable, excessive, and unjust; and that the revenues derived from wharfage were used in part to pay the salaries of the public police of the city of New Orleans, and the salaries of officers belonging to the office of the department of commerce of said city, and for the building of new wharves and other new structures; that said exactions of wharfage were in violation of the constitution of the United States, because they were the laying of a duty of tonnage without the consent of congress, and were a regulation of commerce with foreign nations and among the several states. The prayer of the bill was for an injunction to restrain the defendants ’from demanding or collecting said wharfage dues, and that said ordinances of the city of New Orleans and said contract with the defendants might be declared illegal, unconstitutional, and void. All the defendants are citizens of the state of Louisiana. Of the complainants, some are citizens of the state of-Louisiana, and some are citizens of other states. It is, therefore, obvious that the jurisdiction of this court over the ease cannot rest upon the citizenship of the parties. Act of March 3, 1875, to determine the jurisdiction of circuit courts of the United States, etc.; Removal Gases, 100 U. S. 457.
The case is, therefore, in respect to citizenship, precisely in the same plight as if all the parties were citizens of the state of Louisiana, and in this respect it is similar to the case of Parkersburg, etc., Transp. Co. v. City of Parkersburg, decided by the supreme court at the last term, [2 Sup. Ct. Rep. 732,] where both the complainant and the defendants were citizens of the state of West Virginia. An examination of that case will show that none of the grounds upon which the collection of wharfage in this case is complained of can be maintained.
The exaction of wharfage is not the laying of a duty of tonnage. The ordinance and contract complained of in this case impose charges [893] for wharfage only; that is to say, the steam-boats and other watercraft from which wharfage is collected are required to pay only for the use of the wharves. No demand is made of them for entering, loading, or lying in tho port or harbor. This court cannot, therefore, entertain an averment that the charges were not intended as wharf-age, but as a duty of tonnage. Whether they are one or the other must be determined by the ordinance and the contract. T3ie fact that the wharfage exacted may be unreasonable and' exorbitant does not change its character. It is still wharfage, and nothing else. This court cannot, therefore, grant relief on the assumption that the exaction of wharfage is the laying of a duty on tonnage without the consent of congress. Neither can we base relief on the theory that the ordinance and contract complained of constitute a regulation of commerce in derogation of the exclusive power of congress over that subject. In the case of County of Mobile v. Kimball, 102 U. S. 691, it was held by the supreme court that state action upon such subjects- — those which are not national, but local and limited in their nature, such as harbor pilotage, beacons, buoys, etc. — can constitute no interference with the commercial power of congress, for when congress acts the state authority is suspended. Inaction of, congress upon these subjects of a local nature or operation, unlike its inaction upon matters affecting all the states and requiring uniformity of regulation, is not to be taken as a declaration that nothing should be done with respect to them, but is rather to he deemed a declaration that for the time being, and until it sees fit to act, they may be regulated by state authority. So, in the case of Parkersburg, etc., Transp. Co. v. City of Parkersburg, supra, the same court declared:
“ It is manifest that no subject can be more properly classified as local in its nature, and as requiring the application of town regulations, than that of wharves and wharfage.”
And in tho same case it -was further said:
“As no act of congress has been passed for the regulation of wharfage, and as tliero is nothing in the constitution to prevent the states from regulating it, so long as congress sees fit to abstain from action on this subject, our conclusion is that it Is entirely within the domain and subject to the operation of state laws.”
But complainants contend that the wharfage exacted by defendants is exorbitant and unreasonable, and therefore this court has jurisdiction to interfere. But it is manifest that if the matter of wharfage can without any infringement of tho constitution be regulated by local law, the question whether the wharfage duos demanded are or are not [894] reasonable must be determined by that law. It would be absurd to say that as long as congress did not act the matter of wharfage might be properly regulated by the states, and then, without any action by congress, to hold that the courts might abrogate the state laws on the subject. It was, therefore, declared, in the case of Parkersburg, etc., Transp. Co. v. City of Parkersburg, that “the reasonableness of wharf-age must be determined by the local law until some paramount law has been prescribed.”
We have, therefore, no ground upon which to interfere with the local regulation of wharfage, which is attacked in this case. The defendants are authorized by the local law to charge certain rates of wharfage, and there is'no averment or proof that these rates have been exceeded. The defendants are, therefore, protected by the local law in the matters of which complaint is made against them in the bill; and that local law is not in violation of any provision of the constitution of the United States, or in contravention of any act of congress,.
All the other grounds of relief set out in the bill resolve themselves into complaints of the excessive and exorbitant rates of wharf-age.
There is, therefore, no averment in the bill which can be the basis of the relief prayed for. We may remark, however, that the exac-tions of wharfage are substantially expended for the benefit of those using the wharves, and that the proof does not satisfy us that the rates are exorbitant or excessive. The result is that the bill must be dismissed at the cost of complainants, and it is so ordered.
Pardee, J., concurred.
1. Wharfage Not Duty* of TONNAGE. When the constitution of the United States declares that “ no state shall, without the consent of congress, lay any duty of tonnage,” and when congress, in section 4220 of the Revised Statutes, declares that “no vessel belonging to any citizen of the United States, trading from one port within the United States to another port within the United States, or employed in the bank, whale, or other fisheries shall be subject to tonnage tax or duty, if such vessel be licensed, registered, or enrolled,” they mean by the phrases “ duty of tonnage,” and “ tonnage tax or duty,” a charge, tax, or duty on a vessel for the privilege of entering aport.