City of St. Louis v. Eagle Packet Co.

• Decision Date: 25 November 1908
• Parties: CITY OF ST. LOUIS v. EAGLE PACKET CO.
• Court: Missouri Supreme Court

114 S.W. 21

214 Mo. 638

CITY OF ST. LOUIS v. EAGLE PACKET CO.

Supreme Court of Missouri, Division No. 1.

November 25, 1908.

1. COMMERCE (§ 78)—"DUTY ON TONNAGE."

A city ordinance exacting from boats wharfage for each time of coming within the city harbor and landing at any public wharf, to be estimated upon the tonnage of the boats, and exempting boats from such wharfage when

they land on portions of the wharf where no money has been expended by the city to facilitate the landing of vessels, does not exact a duty on tonnage within U. S. Const. art. 1, § 10, cl. 3, prohibiting a state from laying any duty on tonnage without the consent of Congress, but provides merely for wharfage.

2. MUNICIPAL CORPORATIONS (§ 120)—ORDINANCES —CONSTITUTIONALITY —CONSTRUCTION IN FAVOR OF VALIDITY.

Where an ordinance is susceptible of a construction making it valid and constitutional, the court must give it that construction.

3. APPEAL AND ERROR (§ 927)—REVIEW— SCOPE—APPEAL FROM DECISION ON DEMURRER TO EVIDENCE.

In a law case the Supreme Court on appeal, on demurrer to the evidence, will only examine the record to see if the evidence supports the verdict, and every reasonable inference to be deduced from the evidence may be invoked against the demurrant, all the contradicted testimony of the opposite party being taken as true.

4. WHARVES (§ 16)— WHARFAGE—NATURE OF CHARGE.

The idea of use of the private property of the wharfinger lies at the root and is of the essence of a legal charge of wharfage.

5. WHARVES (§ 16)— WHARFAGE— LIABILITY —USE OF WHARF.

What constitutes a use of a wharf such as will involve liability for wharfage depends upon the circumstances of the case.

6. WHARVES (§ 19)—ACTIONS FOR WHARFAGE —QUESTIONS FOR JURY—USE OF WHARF.

In an action for wharfage, whether there was such a use of the wharfage, which was entirely under water, as would involve liability for wharfage held to be for the jury.

Appeal from St. Louis Circuit Court; Jesse McDonald, Judge.

Action by the City of St. Louis against the Eagle Packet Company for wharfage charges. Judgment for plaintiff, and defendant appeals. Affirmed.

Campbell & Thompson, for appellant. Charles W. Bates and A. H. Roudebush, for respondent.

LAMM, J.

St. Louis, as a wharfinger, charges wharfage to river craft using its improved wharf—the rate regulated by ordinance according to tons burden, got at by customhouse, hull measurement. The Eagle Packet Company, at the times in hand, owned and ran a fleet of steamboats, plying in the carrying trade between the port of St. Louis and other ports on the navigable waters of the Mississippi and its tributaries. One of these ships was the Spread Eagle; another, the Bald Eagle. On certain dates in June, 1903, these crafts came into the harbor at St. Louis, discharged and took on freight, United States mail and passengers, and, being charged wharfage ($194.79 in the aggregate), the packet company refused payment. In a suit in the circuit court of St. Louis to recover said wharfage, plaintiff had judgment, and defendant appeals.

The petition, counting on the ordinances regulating wharfs and wharfage dues, avers that on dates specified said steamboats came into the harbor of St. Louis upon the waters of the Mississippi river and made fast to a certain wharfboat, fastened to the improved public wharf of the city at or near the foot of Vine street, and thereby wharfage dues were incurred. The answer denies the averments of the petition, except in certain particulars not important on review. It next pleads that the Bald Eagle and the Spread Eagle were duly enrolled and licensed in the coasting trade of the United States, and carried freight and passengers and United States mails in plying between St. Louis and other river towns. It then pleads certain provisions of the ordinances of St. Louis relating to wharfs and wharfage, and avers that under these provisions it had the option of paying wharfage in advance and did so pay for six months, covering June, 1903, and by such payment obtained a license to land the Bald Eagle a certain number of times per week and to land the Spread Eagle a certain number of times per week; that all the landings made were within the license privilege. By other averments, it alleges that the improved public wharf of defendant city was submerged by the flood waters of the Mississippi river so that it was impossible to land at said wharf or to use it in any way at said dates. It next alleged that, in order to land during said flood, defendant constructed a bridge, moored its wharfboat to the steel supporting columns of the elevated railroad at the foot of Vine street and by means of said bridge and wharfboat, making no use whatever of the wharf, said steamboats took on and discharged freight, passengers, and mail. As a further defense, it alleges that the demands in suit were not based upon the use of plaintiff's wharf, but are (in effect) an attempt to lay an unconstitutional duty on tonnage; that a duty on tonnage violates article 1, § 10, cl. 3, of the Constitution of the United States. Following that is an averment that the ordinances pleaded in the petition are null and void because violative of said clause 3, § 10, art. 1, of the federal Constitution, in that the right of plaintiff to exact wharfage dues is not limited to the use of plaintiff's improved public wharf, but is in truth and fact a duty on tonnage.

In reply, plaintiff admits defendant held a license paid for in advance for the landing of the Bald Eagle and the Spread Eagle at its wharf in its harbor during June, 1903, but avers that by express license terms the landings were restricted to a certain specified number per week, and that the wharfage dues for the landings in suit were in excess of the license number. Plaintiff denies it was impossible for defendant to land its steamboats at the improved public wharf of the city or use said wharf; denies that defendant moored its wharfboat to the columns supporting the elevated railroad. Avers to the contrary that the wharfboat was fastened to the wharf, and that freight, passengers, and mail were landed from said steamboats on and across said wharfboat so attached to the public wharf. Plaintiff pleads further provisions of the ordinances of the city relating to wharfs and wharfage dues, and, denying that its ordinances violate the Constitution of the United States, renews its prayer for judgment.

It will be seen that the paper issues were: (1) Are plaintiff's wharf and wharfage ordinances violative of the Constitution of the United States? (2) Did defendant's license cover the landings for which wharfage is charged? (3) Did defendant use plaintiff's property, to wit, its improved public wharf, for landing its steamboats Bald Eagle and Spread Eagle so as to become liable for wharfage as compensation for such use?

Attending to the evidence: The charter of St. Louis provides (article 3, § 26 [Ann. St. 1906, p. 4807]) that: "The mayor and assembly shall have power within the city by ordinances not inconsistent with the Constitution or any law of this state or of the charter, to construct all needful improvements in the harbor; to erect, repair and regulate public wharfs and docks, etc.," and "to regulate the stationing, anchoring and mooring of vessels and wharfboats within the city; to charge and collect wharfage and tonnage dues, levee rates," etc.

Ordinances were introduced to the effect following:

(1) "Sec. 382—Wharfage Dues.—The following wharfage dues shall be collected from each and every boat of whatever kind or description, except such as are hereinafter exempt from paying wharfage, or which a rate of wharfage is hereinafter provided for, each and every time the same shall come within the harbor of the city and land at any public wharf or landing, or be made fast thereto or to anything thereto fastened, or shall bring a tow into or take a tow out of the harbor or shall receive or discharge any freight or passengers in this city, to-wit: [Here follows a schedule of wharfage rates.] Provided, that during the low stages of water either in the Mississippi river or in the rivers tributary thereto making it necessary to use barges as lighters to enable boats to carry freight equal to their tonnage capacity, wharfage shall be charged on the tonnage capacity of the boat, and not on the lighters."

(2) Section 384. By that, provision was made for paying in advance at certain reductions from regular rates; also that: "If more trips are made during any week than authorized by the license * * * wharfage at the full rate specified in section 382 shall be collected for such extra trips * * * but no deduction must be allowed for less trips during any one week than those authorized by the license." It further ordains that the license period on application to the harbor and wharfage commissioners might be placed out to cover a period during which the named vessels were prevented from running on account of low water or ice.

(3) Section 394, which ordains that wharfage is due and collectible as soon as the liability to pay accrues; that it is due and collectible on each boat at once on its arrival at any public landing in the harbor, except in cases covered by license.

(4) Section 404, which exempts steamboats and other water craft from wharfage when they land on portions of the wharf where no money has been expended by the city to facilitate the landing of vessels or the loading or unloading of freight or passengers.

(5) Section 411, which provides for wharfboat privileges, and ordains that a specified annual rental be paid for each front foot of wharf or landing occupied by a wharfboat. That section contains this provision: "The mooring of any wharfboat shall not affect in any manner the wharfage or state or city taxes, dues or levee rates assessed or levied or any steamboat or other water craft landing thereat, but such wharfage tax, dues or rates shall be collected from each boat...