Parkersburg Ohio River Transp Co v. City of Parkersburg

• Decision Date: 30 April 1883
• Parties: PARKERSBURG & OHIO RIVER TRANSP. CO. v. CITY OF PARKERSBURG and others
• Court: U.S. Supreme Court

107 U.S. 691

2 S.Ct. 732

27 L.Ed. 584

PARKERSBURG & OHIO RIVER TRANSP. CO. v. CITY OF PARKERSBURG and others.

April 30, 1883.

C. W. Moulton, for appellant.

C. C. Cole and Wm. A. Cook, for appellee.

BRADLEY, J.

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 stean-boats, 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 steam-boats 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 steam-boat, 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 steam-boats of less than 100 tons burden, three dollars for the first 24 hours or any part thereof, and one dollar and fifty cents for every subsequent 24 hours, or any part thereof; on steam-boats of 100 and less than 150 tons, three dollars and seventy-five cents for the first, and two dollars for every subsequent 24 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 steam-boats owned or controlled by it, that have discharged or received freight or passengers, or landed at the said wharf, which payments have been made under protest. The bill then makes the following charge:

'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 interstate 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 enrollment and license of its steam-boats, 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 steam-boats 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 section 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 pretense 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, etc.; that in the year of 1876 over $2,700 was collected from the 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 steam-boats; 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.

If the 720th section of the Revised Statutes, which declares that 'the writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a state,' applies to suits originally brought in the circuit courts by virtue of the act of March 3, 1875, in cases arising 'under the constitution or laws of the United States,' it is clear that so much of the bill in this case as prays for an injunction to restrain legal proceedings already instituted before the recorder of Parkersburg before it was filed, cannot be maintained. But that portion of the bill which seeks to have the wharfage ordinance declared void, and to restrain any further collections under it, and any further interference with the right of the complainant to the free navigation of the Ohio river, is not open to this objection; and perhaps the demand for a return of the wharfage already paid, (although itself of a legal nature,) may come in as incidental to the other relief. The main question to be solved is, whether, as contended by the complainant, the ordinance is void as being in violation of the constitution or any law of the United States.

It is conceded by the bill that the wharf for the use of which the charges are made, though public in the sense of being open to the use of the public, belongs to the city of Parkersburg; that it was built and is maintained by the city as its property; and the ordinance on its face shows that the charges imposed for landing at or using it are imposed as and for wharfage, and nothing else. It may be extortionate in amount; but it is wharfage. The allegations of the bill that it is not real wharfage, but a duty of tonnage in the name and under the pretext of wharfage, cannot be received against the terms of the ordinance itself. This would open the door to an inquiry, in every case of wharfage alleged to be unreasonable, which would lead to great inconvenience and confusion. Neither courts nor juries would have any practicable criterion by which to judge of the secret intent with which the charge was made, whether as wharfage or as a duty of tonnage. Such an inquiry, if allowed, would bring into question not only the intent of municipal but of legislative bodies. When the question is one of reasonable or unreasonable wharfage, we know what to do with it. It is a question known to the laws; and the modes of redress for unreasonable wharfage are fixed and settled. But whether a charge imposed is a charge of wharfage or a duty of tonnage, must be determined by the terms of the ordinance or regulation which imposes it. They are not the same thing; a duty of tonnage is a charge for the privilege of entering, or trading, or lying in, a port or harbor; wharfage is a charge for the use of a wharf. Exorbitant wharfage may have a similar effect as a burden on commerce as a duty of tonnage has; but it is exorbitant wharfage, and not a duty of tonnage; and the remedy for the one is different from the remedy for the other. The question whether it is the one or the other is not one of intent, but one of fact and law; of fact, as whether the charge is made for the use of a wharf or for entering the port; of law, as whether, according as the fact is shown to exist, it is wharfage or a duty of tonnage. The intent is not material, and is not traversable. It is not like the case of a deed absolute on its face, but intended as a mortgage; there, the intent is the result of an agreement between the parties, which may be proved, and which it would operate as a fraud on one of the parties not to allow to be proved. Nor is it like the case of a mistake in an instrument, by which the intent of the parties contravened; in that case, also, the actual agreement between them may be shown for the purpose of...