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444. 30 L. Ed. 976, 7 S. Ct. 907. A state can not by law authorize a

There is no valid objection to the re- municipal corporation to exact such

covery from any vessel landing at a wharfage as it may deem reasonable from

wharf or pier owned by an individual or vessels using certain designated wharves,

by a municipal or other corporation, a and laden with articles not the products

just compensation for the use of such of the state, while vessels laden with such

property. Cannon v. New Orleans (U. products of the state are exempted from

S.), 20 Wall. .'77, 22 L. Ed. 417. any charge whatever. Such a statute,

17. Effect of surplus and disposition of and an ordinance enacted by the corpo-

same. — Packet Co. v. St. Louis, 100 U. S. ration to carry it out, are void. They

423, 25 L. Ed. 088; Transportation Co. v. are a regulation of commerce. Guy v.

Parkersburg, 107 U. S. 691, 27 L. Ed. 584, Baltimore. 100 U. S. 434, 25 L. Ed. 743;

2 S. Ct. 732; Morgan's, etc.. Steamship Machine Co. v. Gage, 100 U. S. 676, 25

Co. V. Louisiana Board, 118 U. S. 455, 30 L. Ed. 754.



3911



CARRIERS.



3530



tonnage is a charge for the privilege of entering, or trading, or lying in, or depart-
ing from, a port or harbor; wharfage is a charge against a vessel for the use of
a wharf or landing. The one is imposed by the government, the other by the
owner of the wharf or landing. The one is a commercial regulation, dictated by
the general policy of the country upon considerations having reference to its com-
merce or revenue, the other is a rent charged by the owner of the property for its
temporary use.-" If the charge imposed by the state law or ordinance is exacted
merely by way of compensation for the use of wharves or other facilities atTorded
by the state or city, or as a return for services actually rendered, it is sustainable ;
but otherwise if it is imposed merely as a charge for the privilege of entering or
trading or lying in or departing from a port or harbor. -^

Power to Exact Wharfage Not to Be Used as a Subterfuge to Impose
Tonnage Duty. — The rule here stated implies that the power to exact wharfage
fees must be exercised in good faith ; that it can not be used for the purpose of
imposing, under the name of a wharfage charge, that which is in fact a mere ton-
nage duty. - Clearly, a city could not collect wharfage for the use of the unim-
proved share of the river, or for that which was not, in any fair business sense,
a wharf. -^

But Legislative or Municipal Intent Not Open to Inquiry. — But whether
a charge imposed is a charge of wharfage, or a duty of tonnage, must be deter-
mined by the terms of the ordinance or regulation which imposes. An allegation
that it is not real wharfage, but a duty of tonnage, in the name and under the
pretext of wharfage, can not 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, since nei-
ther 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, in violation of the well-known
rule that the legislative motives and intent are not open to judicial inquiry.-'*



20. Distinction between tonnage duties
and wharfage. — Transportation Co. v.
Parkersburg, 107 U. S. 691, 27 L. Ed. 584,
3 S. Ct. 732; Packet Co. v. Keokuk, 95
U. S. 80, 24 L. Ed. 377; Packet Co. v.
St. Louis, 100 U. S. 423, 25 L. Ed. 688.

21. Steamship Co. v. Portwardens (U.
S.), 6 Wall. 31, 18 L. Ed. 749; Peete v.
Morgan (U. S.), 19 Wall. 581. 23 L. Ed.
301; Cannon v. New Orleans (U. S.), 20
Wall. 577, 22 L. Ed. 417; Inman Steam-
ship Co. V. Tinker. 94 U. S. 238, 34 L.
Ed. 118; Packet Co. v. Keokuk, 95 U.
S. 80, 24 L. Ed. 377; Packet Co. v. St.
Louis, 100 U. S. 423, 25 L. Ed. 688; Vicks-
burg V. Tobin, 100 U. S. 430, 25 L. Ed.
690; Guy v. Baltimore, 100 U. S. 434, 25
L. Ed. 743; Packet Co. v. Catlettsburg,
105 U. S. 559, 26 L. Ed. 1169; Transpor-
tation Co. V. Parkersburg, 107 U. S. 691,
27 L. Ed. 584, 2 S. Ct. 732; Morgan's, etc.,
Steamship Co. v. Louisiana Board, 118
U. S. 455, 30 L. Ed. 237, 6 S. Ct. 1114;
Huse V. Glover, 119 U. S. 543, 30 L. Ed.
487, 7 S. Ct. 313; Ouachita Packet Co.
V. Aiken, 121 U. S. 444, 30 L. Ed. 976,
7 S. Ct. 907; Lindsay, etc., Co. v. Mullen,
176 U. S. 126, 44 L. Ed. 400. 20 S. Ct. 325.

22. Power not to be used as subter-
fuge to impose tonnage duties. — Cannon
V. New Orleans (U. S.), 20 Wall. 577,



22 L. Ed. 417; Packet Co. v. Keokuk, 95
U. S. 80, 24 L. Ed. 377; Vicksburg v.
Tobin, 100 U. S. 430, 25 L. Ed. 690;
Packet Co. v. St. Louis, 100 U. S. 423,
25 L. Ed. 688.

23. No wharf, no wharfage. — Cannon;
V. New Orleans (U. S.), 30 Wall. 577, 22
L. Ed. 417; Vicksburg v. Tobin, 100 U.
S. 430, 25 L. Ed. 690.

24. Intent or motive not open to in-
quiry. — Transportation Co. v. Parkers-
burg, 107 U. S. 691, 27 L. Ed. 584, 2 S.
Ct. 733.

The fact that exorbitant wharfage may
have a similar effect as a burden upon
commerce as a duty of tonnage has is
not sufficient. If it is exorbitant, it is
exorbitant wharfage, and not a duty upon
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 ac-
cording as the fact is shown to exist, it
is wharfage or a duty of tonnage. The
intent is not material, and is not travers-
able. Transportation Co. v. Parkersburg,
107 U. S. 691, 27 L. Ed. 584, 2 S. Ct. 732.



3531



REGULATION AND CONTROL.



§ 3911



Objectionable Charge Void, though Not Proportioned According to
Tonnage of Vessel. — When the constitution declares that "No state shall, with-
out the consent of congress, lay any duty of tonnage;" and when congress, in
§ 4220 of the Revised States, declares that "No vessel belonging to any citizen
of the United States, trading from one port within the United States to another
port within the United States, or employed in the banks, whale, or other fisheries,
shall be subject to tonnage tax or duty, if such vessel be licensed, registered, or
enrolled," they mean by the phrases, "duty of tonnage," and "tonnage tax or
duty," a charge tax or duty, on a vessel for the privilege of entering a port; and
although usually levied according to tonnage, and so acquiring its name, the pro-
hibition is not confined to that method of rating the charge. Therefore a charge
which is otherwise objectionable as a tonnage duty, is none the less so because
fixed in some other way than in proportion to the cubical capacity of the vessel.^^

Remedy for Unreasonable Regulations. — It is within the power of the
state to regulate the compensation for the use of wharves and piers ; so as to pre-
vent extortion, a power which is often very properly delegated to the local mu-
nicipal authority.-" So, also, while the statute authorizes the trustees to estab-



25. Objectionable charge void, though
not proportioned to tonnage. — Cannon v.
New^ Orleans (U. S.), 20 Wall. 577, 22
L. Ed. 417; Transportation Co. v. Par-
kersburg, 107 U. S. b91, 27 L. Ed. 584,
2 S. Ct. 732; Steamship Co. v. Portwar-
dens (U. S.), 6 Wall. 31, 18 L. Ed. 749;
State Tonnage Tax Cases (U. S.), 12
Wall. 204, 20 L. Ed. 370.

Wharfage charge not void because pro-
portioned to tonnage. — On the other
hand, the city having the right to com-
pensation for the use of the improved
wharf or landing which it has made, it
is no objection to the law or ordinance
fixing the amount of this compensation
that it is measured by the size of the
vessel, and that this size is ascertained by
the tonnage of each vessel. Cannon v.
New Orleans (U. S.), 20 Wall. 577, 22
L. Ed. 417; Packet Co. v. Keokuk, 95
U. S. SO, 24 L. Ed. 377; Packet Co. v. St.
Louis, 100 U. S. 423, 25 L. Ed. 688; Guy
V. Baltimore, 100 U. S. 434, 25 L. Ed.
743; Packet Co. v. Catlettsburg, 105 U.
S. 559, 26 L. Ed. 1169; Transportation Co.
V. Parkersburg, 107 U. S. 691, 27 L. ^d.
584, 2 S. Ct. 732; Huse v. Glover, 119 'U.
S. 543, 30 L. Ed. 487, 7 S. Ct. 313;
Ouachita Packet Co. v. Aiken, 121 U. S.
444, 30 L. Ed. 976, 7 S. Ct. 907; Head
Money Cases, 112 U. S. 580, 28 L. Ed.
798, 5 S. Ct. 247.

By the Keokuk ordinance wharfage
fees were charged whenever a steamboat
should make fast to any part of the
wharf of that city, or to any vessel, or
other thing at or upon said wharf, or
should receive or discharge any passen-
gers or fresight thereon, or should use
any part of the wharf for the purpose of
discharging, receiving, or landing any
freight or passenger — the fees, in sucli
cases, to be measured by the tonnage of
the boat using the wharf. The unani-
mous judgment of the court was tliat the
Keokuk ordinance was not repugnant to
the constitution of the United States—
that the wharfage fees collectible there-



under were by way of compensation to
the city for the use of its property and
were not duties, taxes, or burdens for
the mere privilege of entering the port
of Keokuk, or remaining in it, or depart-
ing from it. Packet Co. v. Keokuk, 95
U. S. 80, 24 L. Ed. 377. Accord: Packet
Co. V. St. Louis, 100 U. S. 423, 25 L. Ed.
688.

And in Transportation Co. v. Parkers-
burg, 107 U. S. 691, 27 L. Ed. 584, 2 S.
Ct. 732, speaking of a charge of wharf-
age according to the tonnage of a vessel,
and a duty of tonnage prohibited by the
constitution, the court said: "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." And again, "The fact that the
rates (of wharfage) charged are gradu-
ated by the size or tonnage of the ves-
sel is of no consequence in this connec-
tion. This does not make it a duty of
tonnage in the sense of the constitution
and the act's of congress." Citing Can-
non V. New Orleans (U. S.), 20 Wall.
577, 22 L. Ed. 417; Packet Co. v. Catletts-
burg, 105 U. S. 559, 26 L. Ed. 1169. See,
also, Huse v. Glover, 119 U. S. 543, 30
L. Ed. 487, 7 S. Ct. 313.

In Cannon v. New Orleans (U. S.), 20
Wall. 577, 22 L. Ed. 417, the ordinance
objected to was held invalid not on ac-
count of the provision graduating the
charge in proportion to the tonnage, but
because it undertook to impose levee du-
ties "on all steamboats which shall moor
or land in any part of the port of New
Orleans;" it being in evidence that not
more than one-tenth of the river front
in the city of New Orleans had any
wharf, and that vessels often landed at
various places within the city where no
wharfage facilities existed.

26. Remedies; powers of states and
state courts. — Cannon 7'. New Orleans
(U. S.), 20 Wall. 577, 22 L. Ed. 417.



§§ 3911-3912



carrie:rs.



3532



lish the rates of wliarfage, if the sum demanded for that service is so far beyond
a reasonable compensation for the use of the city's wharf as to be oppressive, and
an abuse of the power thus conferred, the courts could in some way appropriate
relief.-"

Powers of Federal Courts. — Wharfage, until congress shall pass some law
to regulate it, is governed by local state laws. By those laws it is generally re-
quired to be reasonable, and by those laws its reasonableness must be judged. If
it does not violate them, the courts of the United States can not interfere to pre-
vent its exaction. If the charges are unreasonable, remedy must be sought by
invoking the laws of the state, which can not be done in the federal courts when
the jurisdiction of the court is rested upon the supposed unconstitutionality of
the charges for wharfage and not on the citizenship of the parties. If the state
laws furnish no remedy, in other words, if the charges are sanctioned by them,
then it is for congress, and not for the federal courts, to regulate the matter and
provide a proper remedy. Until congress has acted, the courts of the United
States can not assume control over the subject as a matter of federal cognizance.
It is congress, and not the judicial department, to which the constitution has given
the power to regulate commerce with foreign nations and among the several
states. The courts can never take the initiative on this subject. ^^

§ 3912. Pipe Lines. — Interstate commerce in natural gas, including the
transportation of pipe lines, is national in character, and inaction of congress re-
garding it is conclusive that it intends that interstate commerce therein should be
free, and laws of states and acts of its officers prohibiting or burdening it are
unconstitutional and void.-^ Prohibiting the construction of pipe lines for nat-



27. Packet Co. v. Catlettsburg, 105 U.
S. 559, 26 L. Ed. 1169.

28. Powers of federal courts. — Trans-
portation Co. V. Parkersburg, 107 U. S.
691, 27 L. Ed. 584, 2 S. Ct. 732; Ouachita
Packet Co. v. Aiken, 121 U. S. 444, 30
L. Ed. 976, 7 S. Ct. 907; Olsen v. Smith,
195 U. S. 332, 49 L. Ed. 224, 25 S. Ct.
52; Thompson v. Darden, 198 U. S. 310,
49 L. Ed. 1064, 25 S. Ct, 660.

The city of Parkersburg, in West Vir-
ginia, built a wharf and established cer-
tain rates of wharfage which the P. & O.
Transportation Co. complained of as ex-
tortionate, and as being merely a pretext
for levying a duty of tonnage; the com-
pany thereupon filed a bill in the circuit
court of the United States to restrain
proceedings in a suit brought in the state
court to collect the wharfage, and prayed
that the wharfage ordinance might be de-
clared void, and for other relief. Held:
1. That, as the ordinance on its face im-
posed charges of wharfage only, though
these charges inight be unreasonable and
exorbitant, the court will not entertain an
averment that they were not intended as
wharfage, but as a duty of tonnage. An
inquiry into the secret intent of the body
imposing the charge is inadmissible;
whether it is one thing or the other must
be determined by the ordinance or regu-
lation itself. 2. The ordinance in this
case imposed certain rates of wharfage
on vessels "That may discharge or re-
ceive freight, or land on or anchor at or
in front of any public landing or wharf
belonging to the city, for the purpose of



discharging or receiving freight;" held,
that the ordinance only intended to
charge for the use of a wharf, and not
for entering the port, or lying at anchor
in the river. 3. Wharfage is a charge
for the use of a wharf, inade by the
owner therefor by way of rent, or com-
pensation; a duty of tonnage is a tax or
duty charged for the privilege of enter-
ing, or loading or lying in, a port or har-
bor, and can only be imposed by the
government. Whether a charge is wharf-
age or a duty of tonnage, is a question,
rot of intent, but of fact and law; of
fact, whether it is imposed for the use
of a wharf, or for the privilege of enter-
ing a port, of law, whether, according as
the fact is, it is wharfage or a duty of
tonnage. 5. That, although wharves are
related to commerce and navigation as
aids and conveniences, yet being local in
their nature, and requiring special regu-
lations, for particular places, in the ab-
sence of congressional legislation on the
subject, the regulation thereof properly
belongs to the states in which they are
situated. 6. That a suit will not lie in
the circuit court of the United States for
relief against exorbitant wharfage, as a
case arising under the constitution or
laws of the United States, even though
it be alleged that the wharfage was in-
tended as 'a duty of tonnage, the alleged
intent not being traversable. Transpor-
tation Co. V. Parkersburg, 107 U. S. 691,
27 L. Ed. 584, 2 S. Ct. 732.

29. Pipe lines. — Haskell v. Cowham,
109 C. C. A. 235, 187 Fed. 403.



353:



REGULATION AND CONTROL.



§§ 3912-3914



ural gas, or the transportation of the gas by such lines except by domestic cor-
porations, whose charters shall provide that the gas shall only be transported be-
tween points in the state, and shall not be transported to, nor delivered to, any
person or corporation engaged in transporting or furnishing gas to points
outside of the state, and giving to such domestic corporations the exclusive right
of eminent domain and the use of the highways, all of which is attempted by a
statute of Alabama, unconstitutionally interferes with interstate commerce, and
can not be justified as an exercise of the police power of the state to conserve its
natural resources.^" Neither a state nor its officers may prevent or unreasonably
burden interstate commerce in natural gas by preventing the use of pipe lines to
transport it across the highways of the state by exercise or refusal to exercise the
police powers or the proprietary powers of the state over them.^i

§ 3913. Levees. — The construction of a levee across a railroad's right of
way under statutory authority, which could be constructed without interfering
with the movements of complainant's trains, does not constitute an illegal inter-
ference with complainant as an interstate carrier of freight, passengers, and
mail."-

§ 3914. Terminals and Stockyards. — Power to Prescribe Rates. —

Conceding that the business of a stockyards company in handling live stock in
transit from other states is so intimately related to interstate commerce which is
transacted in its yards by other persons that congress might lawfully prescribe
maximum charges for yarding, feeding, and caring for stock coming from other
states, yet this power is not of such an exclusive character as to prevent the state
from prescribing such rates, in the absence of any legislation on the subject by
Congress.""



30. West V. Kansas Natural Gas Co.,
221 U. S. 229, 55 L. Ed. 716, 31 S. Ct.
564, 35 L. R. A., N. S., 1193, affirming de-
cree Kansas Natural Gas Co. v. Haskell,
172 Fed. 545.

31. Haskell v. Cowliam, 109 C. C. A.
235, 187 Fed. 403.

Laws Okl. 1907, c. 67, preventing all
interstate commerce in natural gas by-
preventing the use of pipe lines across
the highways of that state to transport
such gas out of the state, is in violation
of the interstate commerce clause of the
constitution, and void. Haskell v. Cow-
ham, 109 C. C. A. 235, 187 Fed. 403.

Acts of state officers to prevent an
owner of natural gas from operating
pipes to transport it out of the state
across highways of the state will be en-
joined. Haskell t. Cowham, 109 C. C.
A. 235, 187 Fed. 403.

32. Levees.— St. Louis, etc., R. Co. v.
Miller Levee Dist. No. 2, 197 Fed. 815.

A levee district having been expressly
authorized by Act Ark. March 3, 1911
fSp. & Priv. Laws 1911, p. 89), to con-
struct certain levees along the banks of
Red River, in M. County, the fact that,
on account of the construction of such
levees, the plaintiff railroad company,
which had previously, at great expense,
built a 1)ridge across the river, may 1)C
compelled to change the same, at its own
expen.sc, in .order to raise it above the
new high-water mark resulting from the
confinement of the waters !)y the levees,



does not constitute an unlawful interfer-
ence with interstate commerce. St.
Louis, etc., R. Co. v. Miller Levee Dist.
No. 2, 197 Fed. 815.

33. Terminals and stockyards. — Cotting
I'. Kansas City Stockyards Co., 82 Fed.
850, reversed in Cotting v. Godard, 22
S. Ct. 30, 183 U. S. 79, 46 L. Ed. 92.

Neither the act of congress concerning
the unloading of live stock for feeding,
watering, and resting (Rev. St. §§ 4386-
4388), nor the act of May 29, 1884, to
prevent the exportation of diseased cat-
tle (23 Stat. 31), nor the act of March 3.
1891, in reference to the inspection of
cattle, sheep, and hogs which are the sub-
jects of interstate commerce, etc. (26
Stat. 1089), are of such a nature as to
show that congress has assumed the ex-
clusive regulation of interstate commerce
in live stock, to such an extent as will
prevent a state legislation from prescrib-
ing reasonable maximum charges and
other regulations in respect to the yard-
ing, feeding, care, and sale of stock by
a stockyards company. Cotting v. Kan-
sas City Stockyards Co., 82 Fed. 839.

A stockyard business, located in a
large city, at the junction of many rail-
road lines, which furnishes the only
proper facilities for the unloading, rest-
ing, and feeding of live stock in transit,
and for the sale of cattle within said
city, is affected with a public use, so as
to be subject to legislative control, and
the pro])cr legislative body may prescribe



§§ 3914-3915 CARRIERS. 3534*

Yards Located in Different States. — The business of a stockyards com-
pany is not "interstate commerce," so as to be exem])t from state regulation,
merely because its yards are located in two states, and it does business in both,
though, as to stock billed from one state to another, its business may be interstate
commerce, and to that extent exempt from state regulation.^-' The fact that the
yards of a stockyards company are located on both sides of a line between two
states, so that the stock may pass to and fro over the state line, in the yards, in
feeding, handling, etc., does not of itself impress the traffic with the character of
interstate commerce.^"'

Rules and Regulations. — The business of stockyards is of such a puljlic na-
ture as to justify a state legislature in imposing rules and regulations for its gov-
ernment.^^

Feed and Water. — The Kansas statute of March 3, 1897, regulating stock
yards, fixing compensation for yarding, feeding, and watering live stock, and
fixing a limit for the prices of feed, etc., is not in violation of any provision of
the federal constitution, as applied to the Kansas City Stockyards Company.^"

Where shipments both intrastate and interstate. — The business of a
stockyards company in receiving, yarding, and feeding live stock, and making
sales thereof, for the owners, though performing these services for a mixed inter-
state and local traffic, is such an incident to commerce as may be subject to re-
striction in its charges by state legislation.^^

Shipment for Sale at Yards. — Live stock shipped from other states to the
stock yards at Kansas City, to be either sold there, or, if the market is unsatis-
factory, to be shipped to other markets, is a subject of interstate commerce, and
remains such until it reaches its destination, and is sold and mingled with the
general mass of property of the state. ^^

Under Interstate Commerce Act. — The interstate commerce law aj^plies
only to common carriers, and its provisions in respect to reasonable and just
charges are not applicable to the business of a stockyards company which neither
operates nor uses any railway, motive power, or rolling stock, nor otherwise en-
gages in any transportation.'*"

Compelling Company to Admit Railroad Privileges and Benefits. — A
regulation made Ijv state railroad commissioners, refjuiring a terminal company
organized under the laws of a state, and operating a common passenger terminal
station wholly within a state for the purpose of furnishing terminal facilities to
railroad common carriers entering therein, to admit a railroad company operat-
ing a railroad from a point in that state to a point in another state to the privi-
leges and benefits of its said passenger station or terminal, and fixing just and
reasonable rates for the uses and privileges of such terminal, to be paid by such
railroad company, is not an unconstitutional interference with interstate com-
merce.'*^

§ 3915. Naviga^ble Waters. — A state has plenary power, in the absence of
congressional action, to regulate navigable streams entirely within its borders,
subject to the right of congress, under the commerce clause of the federal con-

a maximum rate of compensation for the City Stock Yards Co., s2 Fed. 839.

care and handling of stock thereat. Cot- 38. Where shipments both intrastate

ting V. Kansas City Stock Yards Co., 82 and interstate. — Cotting v. Kansas City

Fed. 850, reversed in Cotting v. Godard, Stock Yards Co., 82 Fed. 839.

22 S. Ct. 30, 183 U. S. 79, 46 L. Ed. 92. 39. Shipment for sale at yards.— Cot-

34. Yards located in different states. ting v. Kansas City Stock Yards Co., 82
—Cotting V. Kansas City Stock Yards Fed. 839.

Co.. 79 Fed. 679. 40. Under Interstate Commerce Act.

35. Cotting V. Kansas City Stock —Cotting v. Kansas City Stock Yards



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