City of St. Louis v. Eagle Packet Company
| Decision Date | 25 November 1908 |
| Citation | 114 S.W. 21,214 Mo. 638 |
| Parties | CITY OF ST. LOUIS v. EAGLE PACKET COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Jesse A. McDonald Judge.
Affirmed.
Guy A Thompson for appellant.
(1) The court erred in overruling defendant's demurrer to plaintiff's evidence. That evidence failed to establish that defendant in making the landings complained of, used the public wharf of the city of St. Louis. Indeed, that evidence affirmatively established that the city had no wharf when said landings were made, but that said wharf was entirely covered by the flood waters of the Mississippi river. Re Lucy E., 30 F. 867; Cannon v. New Orleans, 21 Wall. 577; Packet Co. v. Keokuk, 95 U.S. 80; Packet Co. v St. Louis, 100 U.S. 423; Vicksburg v. Tobin, 100 U.S. 430; Transportation Co. v. Parkersburg, 107 U.S. 691; St. Louis v. Boeckler Lbr. Co., 13 Mo.App. 56; Cape Girardeau v. Campbell, 26 Mo.App. 12; Inman Steamship Co. v. Tinker, 94 U.S. 238. (2) The court erred in giving plaintiff's instruction 2. Authorities under point I. (3) The court erred in giving plaintiff's instruction 3. Authorities under point I. (4) The court erred in refusing to give defendant's peremptory instruction at the close of the entire case. Authorities cited under point I.
Charles W. Bates and A. H. Roudebush for respondent.
(1) The ordinance on which this action is based is valid, and has been so adjudged. Packet Co. v. St. Louis, 100 U.S. 423; St. Louis v. Transportation Co., 84 Mo. 159. (2) On the assignment that a demurrer to the evidence should have been sustained, the appellate court, in a law case, will not weigh the evidence, but will only examine the record to see if it contains evidence tending to support the verdict. Long v. Moon, 107 Mo. 334; Kennefick-Hammond Co. v. Ins. Co., 119 Mo.App. 308; Dowling v. Wheeler, 117 Mo.App. 308. (3) On the assignment that a demurrer to the evidence should have been sustained, the respondent may call to the support of the verdict every reasonable inference which may be drawn from the evidence. Wilson v. Board of Education, 63 Mo. 140; Buesching v. Gas Light Co., 73 Mo. 231; Heether v. Huntsville, 121 Mo.App. 521. (4) If a wharfinger, at its own expense, provides any reasonable facilities for mooring, landing or transferring passengers or freight, and a vessel elects to use such facilities, the liability for wharfage is at once incurred. Vicksburg v. Tobin, 100 U.S. 430; The Whitburn, 7 F. 925; Farnam on Waters, sec. 122; 29 Am. and Eng. Ency. Law (1 Ed.), 89; Ex parte Easton, 95 U.S. 73. (5) Instruction 2 for plaintiff was proper, under the pleadings and the evidence. Fearey v. O'Neil, 149 Mo. 475; Alberger v. White, 117 Mo. 363; Century Dictionary, "Connect;" "Attach."
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 craft came into the harbor at St. Louis, discharged and took on freight, U.S. 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, 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, section 10, clause 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 of section 10, article 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 licenses 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 (Art. 3, sec. 26,) 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)
(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 pieced 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...
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