Packet Company v. Keokuk

ERROR to the Supreme Court of the State of Iowa.

The act of the legislature of Iowa creating the city of Keokuk a municipal corporation gave to the city council power to establish and regulate wharves, and to fix the rates of landing and wharfage of all boats, rafts, and water-craft moored at or landing at the wharves. By virtue of this power, the city council, on the 26th of February, 1872, passed an ordinance, the first section of which ordained that all the ground then lying, or which might thereafter be made, between Water Street, in the said city, and the middle channel of the Mississippi River, should be declared a wharf, and should be subject to be used for such purposes, under such conditions as might be prescribed by ordinance. The second section declared that the whole of Water Street, as well as the land described in the foregoing section, should be open for the uses and purposes of a wharf, subject to the rules and regulations prescribed by ordinance for its government, and that all boats, rafts, and water-craft that are moored to or landed at any part of Water Street, and the persons owning, claiming, and having charge of the same, should be subject to the same rules, regulations, wharfage, and penalties as were provided by the ordinance in relation to boats, rafts, and other water-craft landing or mooring at the wharf, as defined by the third section. The third section ordained that any steamboat that should make fast to any part of said wharf or Water Street, or to any vessel or other thing at or upon said wharf or street, or should receive or discharge any passengers or freight thereon, or should use any part of said wharf or street for the purpose of discharging, receiving, or landing any freight or passenger, should be liable to a wharfage fee. This fee, the ordinance declared, should be one dollar, if the tonnage of the boat was less than fifty tons; one dollar and fifty cents, if the tonnage of the boat was less than one hundred tons and more than fifty; two dollars, if the tonnage was one hundred tons and less than two hundred; three dollars for boats of two hundred tons and less than three hundred; four dollars for boats of three hundred tons and less than four hundred; and five dollars for all boats of four hundred tons and upwards. The section also ordained that each boat that should remain at the wharf or street over two and less than five days should pay a wharfage fee of one dollar and fifty cents for each day after the first two days, and one dollar per day for every day over five days it might remain at the wharf or street. The fourth section of the ordinance applied the provision of the third section to barges, canal-boats, or keel-boats used in the carrying trade, landing at the wharf, whether in tow or otherwise. This ordinance the plaintiffs in error claim to be in conflict with the Constitution. They are the owners of several steamboats which have landed at the wharves of the city from time to time, and occupied them for the purpose of receiving and discharging freight and passengers. Wharfage dues were regularly demanded, but refused. Their boats were engaged in navigating the Mississippi River between St. Louis, Mo., and St. Paul, Minn., and they landed at Keokuk, one of their regular ports. While so employed, they were duly licensed and enrolled for the coasting trade, under the acts of Congress for the regulation of commerce.

These are all the material facts of the case, except that the landing of the boats was at an improved wharf which the city had built within its limits, extending about one thousand feet along the line of the river; a wharf which the city had paved, and in building, extending, and repairing of which it had expended a large sum of money. The money had been borrowed; and, to pay the interest of the debt, it became necessary to charge and collect reasonable wharfage. That the rates charged, if any charge is lawful, were reasonable, is not denied. They were no more than sufficient to meet the interest of t e debt incurred for building and improving the wharf.

Suit having been brought to recover the wharfage prescribed by the ordinance, and a judgment for the amount having been recovered and affirmed by the Supreme Court of the State, the plaintiffs in error have brought the case here, and they now contend that the ordinance is invalid for several reasons. Of these, the principal alleged are, that it imposes a duty of tonnage, and that it is a regulation of commerce such as Congress only is authorized to make.

Mr. Robert H. Gilmore and Mr. James H. Anderson for the plaintiff in error.

1. The ordinance of the city of Keokuk imposes a wharfage tax measured by the carrying capacity of the vessel, and lays a duty of tonnage.

2. A tax on the vehicle of commerce is as much a duty as if it were levied on articles exported from the State.

3. The ordinance is therefore a regulation of commerce.

4. So far as it seeks to levy a tax upon citizens of another State who are engaged in the navigation of the Mississippi, a free public highway, it is contrary to the ordinance of 1787, and the act of Congress admitting the State of Iowa into the Union.

5. It is also contrary to the act of Congress whereby vessels enrolled and licensed for the coasting trade are exempted from any toll or tax for the privilege of entering or stopping in a port of the United States.

These propositions are sustained by the following authorities: Constitution of the United States, art. 1, sects. 8-10; Ordinance of 1787, art. 4, last clause; 5 Stat. 10; id. 742; Rev. Stat., sects. 4311, 4320; Story on the Constitution, sects. 1016, 1018; Gibbons v. Ogden, 9 Wheat. 1; Brown v. Maryland, 12 id. 419; Smith v. Turner, 7 How. 283; Sinnot et al. v. Davenport et al., 22 id. 227; Almy v. State of California, 24 id. 169; Steamship Company v. Port Wardens, 6 Wall. 31; State Tonnage Tax Cases, 12 id. 204; Peete v. Morgan, 19 id. 581; Cannon v. New Orleans, 20 id. 577; Hackley v. Geraghty, 34 N. J. L. 332; People v. Raymond, 34 Cal. 492; People v. Moring, 47 Barb. (N. Y.) 642; Alexander v. Railroad Company, 3 Strobh. (S.C..) 594; Sheffield v. Parsons, 3 Stew. & P. (Ala.) 302; Lott v. Morgan, 41 Ala. 250; North-western Union Packet Co. v. St. Paul, 3 Dill. 454; Inman Steamship Co. v. Tinker, 94 U.S. 238.

Mr. John H. Craig for the defendant in error.

The ordinance of the city of Keokuk does not lay a duty of tonnage, or an impost or duty on imports or exports, nor does it regulate commerce or navigation. This is merely a case of wharfage. Decided cases affirm the following propositions:--

1. Wharves erected by individual enterprise are private property.

2. For their use a reasonable compensation can be exacted.

3. The State has the power to regulate this compensation, and may delegate it to the local municipal authorities; and, when the power has been delegated to a city owning wharves to assist vessels landing within its limits, it can rightfully exact this compensation. Barney v. Keokuk, 94 U.S. 324; Dutton v. Strong, 1 Black, 1; Railroad Company v. Schurmeir, 7 Wall. 272; Yates v. Milwaukee, 10 id. 497; The Wharf Case, 3 Bland (Md.), 361; Ward v. Thompson, 6 Gill & J. (Md.) 349; City of Pittsburgh v. Grier, 22 Penn. St. 54; Bucker v. Brown, 21 Wend. (N. Y.) 710; Wiswall v. Hall, 3 Paige (N. Y.), Ch. 313; Schwartz v. Flatboats, 14 La. Ann. 243; Geiger v. Felor, 8 Fla. 325; Murphy v. Montgomery, 11 Ala. 586; Sacramento v. Confidence, 4 Cal. 45; People v. Broadway Wharf Co., 31 id. 34; Haight v. City of Keokuk, 4 Iowa, 199; Grant v. City of Davenport, 18 id. 181; County of St. Clair v. Lovingston, 23 Wall. 46; Ingraham, Kennedy, & Day v. Chicago, D. & M. Railroad Co., 34 Iowa, 249; Atlee v. The Packet Company, 21 Wall. 290.

Admitting that parts of the ordinance under consideration may be in conflict with the Constitution and laws of the United States, it does not follow that its unobjectionable provisions, when capable of being separately enforced, will be set aside, and its legitimate purposes defeated.

MR. JUSTICE STRONG delivered the opinion of the court.