City of Muscatine v. Keokuk Northern Line Packet Co. , 45 Iowa 185 ( 1876 )

Seevers, Ch. J.

I. As the city has not appealed from the ruling of the court sustaining the demurrer, the question thereby presented is not before us. For the purposes of this case, the decision of the Circuit Court in that respect must be deemed correct.

The Circuit Court must have found that the city had established and constructed a wharf, at which defendant’s boats landed, and therefrom, as a conclusion of law, found there was an implied promise to pay a reasonable compensation for the use of the wharf.

There was evidence to justify such finding, and we cannot, under tlie well established practice of this court, set aside the finding of facts as being against the weight of evidence. But there was no evidence tending to show that defendant promised or agreed to pay any wharfage dues,- and the finding of the court must have been based solely on an implied promise resulting from the use of the wharf.

1 municipal whari-ige!ns: compensation. Previous to incurring the .liability as claimed by the city, for which this suit is brought, the defendant paid certain wharfage dues, under protest. Such payments, however, were made under section four of • the ordinance. At no time can it be said the defendant recognized the right of the city to collect a reasonable compensation for the use of the wharf.

The question for determination is, whether, under the charter, ordinance, and facts above stated, the city can recover such compensation.

The charter provides that the city “ shall have control of the landing of the Mississippi river, to build wharves and regulate the landing, wharfage and dockage of boats and water crafts, * * * to establish the grade of streets, alleys and wharves, and to change that of wharves at pleasure.”

There can be no doubt the city possessed the power to establish and construct a wharf and regulate the landing and wharfage of boats thereat.

II. The next question is, what has the city done under the granted power? The abstract states that the city introduced in evidence the charter and ordinance copied in the petition. Turning thereto, we find the ordinance provides that a certain portion of the landing on the shore of the 'Mississippi river should be a steamboat wharf, and kept clear of obstruction, except articles unloaded from or to be shipped upon steamboats and barges, keel-boats and lighters. Then follows section four, which has been declared void; and section five provides, “ such wharfage is to be paid to the wharf-master of said city,” that is to say, the wharfage dues, established by section four of the ordinance, are to be paid to the wharf-master.

Inasmuch as section four of the ordinance is void, the city has not in any manner or form exercised the power given by the charter to “regulate the landing, wharfage and dockage of boats,” except to declare a certain portion of its frontage to be a steamboat wharf.

2 —:-: by ordinance, In the absence of any ordinance fixing the wharfage dues, or providing for the payment of a compensation for the use of the wharf, under the power given in the charter, we are ox the opinion such dues cannot be claimed or collected by tbe city. Until tbe city claims tbe right and assumes the responsibilities under the power given in tbe charter to regulate, not only the landing, but the wharf-age and dockage of boats, no rights can be acquired thereunder.

These .public municipal corporations have the power to construct wharves on the Mississippi river, and it may be conceded, when they have done so, they may charge and collect a reasonable compensation for the use of such wharves; but, if such is their design and intent, they must in some manner indicate it, so that the owners of vessels landing there may so know and act accordingly.

The erection of a wharf by a city is and must be presumed to have been made for the use and benefit of the public, like the paving of a street or other improvement, unless the contrary is shown.' Such use to be free, unless an intent to charge therefor is provided by ordinance, or possibly in some other manner, so as to clearly indicate such intent.

These municipalities have different relations from those of individual riparian proprietors. In case the latter should erect a wharf, the presumption might be that he intended to charge for its use. He has no public duties to perform, and acts solely in an individual capacity. Not so as to these public corporations. As to them, the general rule is, they act in a public capacity and for a public purpose.

It is not shown that the cityr ever demanded any compensation for the use of the wharf,\ either by the wharf-m aster or other person, or that the defendant ever paid anything for such use. Whatever was demanded on one side and conceded by ■the other was done under section four of the ordinance, and because it provided for the payment of wharfage, and the most the ci.ty can claim is that the ordinance was regarded as legal and valid as a law. Such section of the ordinance having been declared void from the beginning, whatever was done thereunder amounts to nothing and in no way affects the rights of the parties in this action.

3. — —•: payment^ III. In the second action the defendant seeks to recover of the city wharfage dues paid the city, and which we have just determined to be illegal. Whether such a recovery can be had depends on the question whether the payments are to be regarded as voluntary or compulsory in a legal sense.

It is stated in the abstract that the city concedes the said payments were made under protest. The fair construction of this concession is, that the defendant at the time each pay.ment was made protested or objected to the right'of the city to collect wharfage dues.

We have looked in vain for any provision in the ordinances or general laws of the State authorizing a seizure of the boat, or proceeding in attachment, or in fact anything defining how or in what manner the payment of the wharfage dues could be enforced. In the absence of any such provision we think it is clear the collection of such dues could only be enforced in an ordinary action at'law. Nor-do counsel for the defendant claim otherwise, or that the payments were made under a mistake of fact. The rule on this subject is well stated as follows: - “If a party, with full knowledge of all the facts of the case, voluntarily pays money in satisfaction or discharge of a demand unjustly made on him he cannot after-wards allege such payment to have been made by compulsion and recove]’ back the money, even though he should protest at the time of such payment that he was not legally bound to pay the same. The reason of the rule, and its propriety, are quite obvious, when applied to a case of payment upon a mere demand'of money unaccompanied with any power or authority to enforce such demand except by a suit at law.” Boston and Sandwich Glass Co. v. City of Boston, 4 Met., 181. In that case the payment was regarded, as compulsory because of the power vested in the collector of taxes to levy directly on the property of the party making the payment. To the same effect is Wabaunsee Co. v. Walker, 8 Kansas, 431, and authorities there cited. In fact our attention has not been called to any case where it has been held such a payment is compulsory, unless the officer or person to whom it was made was vested with the power to seize property and thus enforce payment. Such was the case in Preston v. Boston, 12 Pick., 7; State Tonnage Tax Cases, 12 Wall., 204, and other cases cited by counsel. It is true that in the State Tonnage Case the judge delivering the opinion does not refer to such fact as having any bearing on the question. Nevertheless, it is shown that such power existed.

In the Packet Co. v. St. Paul, 3 Dillon, 454, it does not appear whether or not the power existed to distrain for the wharfage dues, and the opinion is based solely on what is said by Clifford, J., in The State Tonnage Tax Case. The R. R. Co. v. Pattison, 41 Ind., 312, and Harmony v. Bingham, 12 N. Y., 99 (116), are not in point. They involve a different principle and the facts are totally different.

We are of the opinion that the mere danger of a multiplicity of suits is not sufficient to make these payments compulsory. No adjudicated case has been cited in favor of such proposition. Under the facts appearing in the record before us, we are of opinion the payments were voluntary and not compulsory. The judgment of the Circuit Court in the first action must be reversed, and in the second

Affirmed.