Page:Federal Reporter, 1st Series, Volume 2.djvu/392

 BEOECK V. BARGE JOHN M. WELCH. 885 �with "canal -boats navigating the canals of this state" these other Yessels, "sloops employed upon the rivers of this state, and schooners exclusive y employed upon the rivers of this state." The additional fees which the state authorizes to be exacted from other canal-boats, sloops and schooners, of equal tonnage, although called wharfage dues, cannot be regarded, in view of the decisions of the supreme court, as compensa- tion merely for the use of the wharf, but as an expedient to accomplish, by indirection, the building up of the domes- tic commerce of the state of New York by means of unequal burdens on vessels not navigating the waters of this state. The present case is no different from what it would have been if there had been no wharfage chargea against canal- boats navigating the canals of this state, and wharfage dues had been exacted from other canal-boats. �The suggestion that it does not appear that what is charged the John M. Welch is more than a reasonable compensation, is met by what is said by the supreme court in the case of Guy. The power to discriminate as to the rate of wharfage, between vessels engagea in different occupations, must be exercised without conflicting with the power of congress over the subjeôt of inter-state commerce. �The question under consideration was not passed upon in the case of The Virginia Rulon, 13 Blatchf. G. C. E. 519. The point there ruled^was only that, by the terms of the act of 1875, the double rate was wharfage, and that that act created a lien for such double rate, under the circumstancea there presented, which could be enforced by a suit in rem in admiralty. �Under the foregoing views, the act of 1875, and the act of 1860, as amended by the act of 1875, cannot be upheld as a valid law, in so far as it prescribes a charge for wharfage against the John M. Welch. �Inasmuch as the libel claims to charge wharfage solely under the provisions of the statute of New York, and claim8 a lien only in respect to the amount of wharfage claimed aa authorized to be charged by that statute, and does not olaim �v.2,no.3— 25 ����