City of Keokuk v. Keokuk Northern Line Packet Co. , 45 Iowa 196 ( 1876 )

Beck, J.

I. The same question is presented in each of these cases, and involves the validity of the ordinances ,of the several cities, which are plaintiffs in the respective actions, under which wharfage dues are claimed of defendant. It is insisted that these ordinances are in conflict with several provisions of the Constitution of the United States, of the ordinance of 1787, and of the organic law of Wisconsin and Iowa, which forbid a State imposing imposts and duties on imports or exports and duties of tonnage; which forbid the states from regulating or levying taxes upon commerce, and which declare that the Mississsippi river shall be a common highway forever, free to all the citizens of the United States without any tax, duty, impost or toll therefor. Constitution U. S., Art. 1, § § 8, 9, 10, Ordinance 1787, Art. 4; Organic Law Wisconsin Territory, Act April 20, 1836, Sec. 12; Act admitting Iowa into the Union, March 3,1845, Sec. 3.

If the ordinances of the three cities which are brought in question in these actions are in contravention of any of these constitutional or statutory provisions of the United States, they are invalid, and no act or authority done or exercised under them can be supported.

It becomes necessary to inquire first as to the character and nature of the charges or fees called wharfage, which the respective plaintiffs seek in the several actions to recover.

II. It will be observed by an examination of the pleadings in the cases that each city has erected wharves or steamboat landings upon the margin of the- Mississipjji river, within its boundary, for the use of steamboats and other vessels receiving and discharging freight and passengers at such city. The pleadings show in each case that the charges, sought to be recovered under the name of. wharfage, are for the use of wharves or landings constructed and owned by the respective cities, at which defendant’s steamboats had made landings and received and discharged freights and passengers. In the first and third cases the petitions allege the construction of the wharves at which defendant’s boats landed, by the respective cities, the outlay of money by the cities for their construction and repair, and their ownership by the municipalities. These allegations are not denied, but the defense pleaded to the action is that the several ordinances are in conflict with the Constitution. The defendant claims that it is not liable under these ordinances to wharfage for the use of wharves erected by the cities, and kept in repair by them. This is the undoubted position assumed by the pleading.

1. municipal whaS^what constitutes. III. In the second case the defendant alleges in its answer “that the city of Fort Madison had not built any wharf for the accommodation of boats landing at the city, that they have in places paved the streets to the river, used by the citizens generally for all purposes of a street, for ferry landing, for ¡railing lumber from rafts, and that the streets so paved by the city have been used by this defendant for a landing place; they (defendant) have generally landed at the place designated by the wharfmaster of plaintiff, which was at the part of the street which had been paved by the city of Fort Madison.”

It is very plain that the paved street at which defendant’s boats were landed comes within the designation of a wharf, which is constructed of stone and earth or 'timber, for the convenience of vessels in landing.

Where there is a tide, or where it is demanded by the motion of the water upon which the wharf is built, it extends into the bay or stream. Where there is little variation and sufficient depth of the water, and a smooth surface, the wharf is constructed of stone or timber upon the beach so that the vessel may lie broadside to the shore. As a matter of fact, of which we will take notice, all wharves upon the Mississippi river in this state are constructed in the manner last described. If it be constructed upon, or is an extension of the street into the river, it is none the less a wharf. The answer of defendant' clearly shows that it landed its vessels at such a wharf built by the city of Fort Madison.

We are amply justified in holding that the pleadings in each case show that defendant used a wharf in each city constructed and owned by the city for the use and accommodation of steamboats and other vessels.

No objection to the judgments can be well founded on the ground that the petitions in these cases do not claim to recover for the reasonable and just value of the use of the wharves, but for the wharfage fees fixed by the ordinances.

2 _. _. wharfage fees. If these ordinances prescribed that each boat landing at an improved wharf should pay the fees fixed therein, and contained no provisions for collecting wharfage except where ijoats landed - at improved wharves, the actions could be maintained for the wharfage fees for these reasons: The ordinances would be valid if the wharfage fees did not exceed just compensation for the use of the wharves. This cannot be doubted. The fees should be fixed and certain, and so graduated as to be equal upon all boats. The amount in each case should not be left to the capiice or judgment of the officer of the city collecting the fees. The power of the cities to fix, by ordinance, charges for wharfage, within the limits of just' compensation, is recognized in Cannon v. New Orleans, 20 Wall., 557 (582). The only defense that could be made to the enforcement of valid ordinancés of the character supposed, would be that the fees prescribed exceed just compensation and, therefore, operate as a tax upon commerce. The right to recover under the ordinance the fees prescribed therein, if a reasonable charge for the use of the wharves, would be admitted. The defense, therefore, that the fees are excessive should be pleaded. But in these cases the defendant has set up no such defense. Now if the ordinances are valid as to the wharves actually improved, which we shall hereafter see must be held, they may be enforced unless the defendant pleads and proves that the charges therein prescribed are beyond the limit of just compensation.

The questions raised in the pleadings involve the validity of the ordinances. It is not claimed that, if confined in their operation to wharves actually improved, they are valid. Defendant cannot claim that they must be held invalid because plaintiffs have not averred in their petitions that the wharfage fees are reasonable. The answers of defendant, to which plaintiffs demur, set up that the ordinances are wholly void— void for every purpose. The questions before us arise upon plaintiffs’ demurrer. Now, if it be proved that the ordinances are not wholly void, but are valid to sustain wharfage fees for the use of wharves actually improved, the demurrer is well taken.

• It may be remarked in this connection that the danger of fees and charges being levied under ordinances of the character of those involved' in this action, whereby commerce may be affected, is purely imaginary, and does not in fact exist. If. fees be authorized amounting to a tax upon commerce, being beyond just compensation for the use of improved wharves, they cannot be collected. To be valid, they must be within the limits of just compensation.

IY. The question presented for our decision, under the pleadings in these cases, is this: Are the ordinances of the plaintiffs, providing for the collection of wharfage fees for the use of wharves built and owned by the respective cities, in conflict with the provisions of the Constitution and laws of the United States?

■ These provisions are all intended to prohibit the levying of taxes upon the commerce of the country in the way of duties upon exports and imports, and imposts upon "vessels engaged in commerce. The doctrines of the numerous cases,, cited by defendant’s counsel, interpreting these provisions are familiar. Whatever may be regarded as taxes of this character, or may abridge the free use of the Mississippi river by all the citizens of the United States is in conflict with the laws, constitutional and statutory, of the Union. Gibbons v. Ogden, 9 Wheaton, 1; Brown v. Maryland, 12 Wheat., 419; Smith v. Turner, 7 How., 283; Simnot v. Dmenport, 22 How., 227; Almy v. California, 24 How., 169; Steamship Co. v. Port Warden, 12 Wal., 204; Peete v. Morgan, 19 Wal., 581; Cannon v. New Orleans, 20 Wal., 577; Hockley v. Geiagity, 34 N. Y., 332; People v. Raymond, 34 Cal., 492.

But the rule of these cases does uot prevent a city from charging a reasonable compensation for the use of wharves erected by it for the convenience of commerce. And this is held in express words in Cannon v. New Orleans, 20 Wal., 577 (582).

"Wharves are necessary or. convenient for vessels engaged in commerce, and when provided, though proper and reasonable charges are required for their use, they aid the prosecution of commerce. A municipal ordinance, therefore, which provides for wharfage fees which are not excessive cannot be regarded as a regulation affecting prejudicially the interests of commerce or the freedom of the river upon which it is constructed.

4___. • Such wharfage fees are not to be regarded as a tax. They are levied as a compensation for the use of the wharves. In the exercise of their police powers the cities of the State may control the landings of boats, designating the place 'they shall receive or discharge freight and passengers. It is within their power to require this to be done at these wharves and to charge reasonable compensation therefor. The City of Dubuque v. Stotd, 32 Iowa, 80. This doctrine is founded upon the clearest reason, well understood by all persons familiar with the transaction of business upon the Mississippi river.

It cannot be doubted that wharves are not only convenient but necessary for the transaction of business with vessels navigating the river. They are necessary to enable consignees to receive and remove their goods and protect them from loss. The banks and margins of the river are in most cases of clay and alluvion. Goods delivered from vessels upon them in their natural state could not be handled and would be subject to injury on account of their muddy and swampy character. ' We have seen that cities may build wharves and charge for .their use a sum that would be a just compensation. Now unless they have power to compel vessels to land at the wharves, the masters of vessels, in order to escape payment of wharfage fees, may discharge and receive cargoes on the natural banks of the river, to the inconvenience and loss of shippers and consignees. This power is necessary to enable the cities to exercise their police authority in providing places for the landing of vessels. It has never been doubted that the police power of the State, exercised through the municipal corporations, may regulate in this way transactions connected with commerce. We will not be expected to cite authorities in support of a doctrine so familiar. It is fully recognized in the case which we now proceed to consider.

V. Cannon v. New Orleans, 20 Wal., 577, is confidently relied upon by defendant to support its claim of exemption from wharfag'e fees provided for by the ordinances of the cities brought in question in these actions. It was decided upon the following facts: The city of New Orleans made an ordinance providing that, “from and after the first day of January, 1853, the levee and wharf dues on all steamboats which moor or land in any part of the city of New Orleans shall be fixed as follows: ten'cents per ton if in port not exceeding five days, and five dollars per day after said five days shall have expired.”

Under this ordinance the action was brought to recover, back money paid by the owner of a steamboat and to enjoin further collection under the ordinance. The United States Supreme Court held the ordinance invalid, regarding the dues collectible under it as a tax, not as compensation for the use of the wharf. This language is used: “ A tax which, by its terms, is due from all vessels arriving and stopping in a port without regard to the place where they may stop, whether it be in the channel of the stream, or out in a bay, or landed at a natural river bank, cannot be treated as a compensation for the use of a wharf.”

In the cases before us- the wharfage fee is charged only against vessels landing or mooring to the wharves or to any vessels at the wharves, or, as in the last case, mooring within one hundred feet of the wharves.

But the controlling point of difference between that case and these now before us, is this: In these it appears that defendant did use the wharves erected by the cities, and there is no claim thatthe wharfage fees sought to be recovered are unreasonable. It does not appear that, in Cannon v. New Orleans, the boat owner used any wharf in the city; at all events, the fact that lie did moor his vessel to the city wharf was not relied upon to support the right of'recovery, and no question based thereon was presented to the court.

B _. wliarj st$utionaion" law-VI. But it is claimed the ordinances in the case before us are void because they provide for wharfage fees where boats are not moored to a wharf; that all the river bank within the city is declared to be wharves, and the city cannot exact compensation' from vessels that land at the bank where no wharves have been constructed.

There are two answers to this objection. The first is that under The City of Diobuque v. Stout, 32 Iowa, 80, the city may control the landing of vessels, fixing places by ordinance or otherwise where they shall receive and discharge freight and passengers. The ordinances in these cases are intended to have the effect of preventing boats, in order to escape charges lawfully made for the use of a wharf, from discharging and' receiving freight at places where no wharves have been constructed,, which would be to the inconvenience and loss of shippers and consignees. ¡

VII. The other answer is this. Statutes which are partly in conflict with the constitution will be held void no farther than as to those parts which are unconstitutional; provisions which are within the limits of legislative authority will be enforced. Santo v. The State, 2 Iowa; 165; Walters v. Steamboat Mollie Dozier, 24 Iowa, 192; The City of Des Moines v. Layman, 21 Iowa, 153; Childs v. Shower, 18 Iowa, 261; High School v. County of Clayton, 9 Iowa, 175; The County of Louisa v. Davison 8 Iowa, 517; The Dist. Tp. of Dubuque v. Dubuque, 7 Iowa, 262; Duncan v. Sigler, Morris, 39.

Oity ordinances, like statutes, will be upheld to the extent of provisions authorizing the exercise of power clearly within the scope of the municipal authority, while other provisions in excess of such authority will be held void. Dillon’s Municipal Corporations, § 354, and notes. But if the parts of the statute or ordinance be necessarily connected and dependent, the whole must fall with the void part.

-The rule must be extended to the case of a statute or ordinanee authorizing two or more acts, one of which is within, and the other without, legislative authority. The first act when done under such statute or ordinance will be valid, the second void.

The several ordinances of the respective cities, it is insisted by defendant, authorize the collection of wharfage fees from boats that do not land at the wharves of the cities. This, for the purpose of the argument, may be admitted. They authorize the collection of the fees in cases where boats' use the wharves owned by the cities. The collection of the fees in the first case, it may be here conceded, is not within municipal authority; in'the second case it is not forbidden by the constitution and laws of the United States; it maybe done in the last, but is forbidden in the first.

The doctrines presented in. these views are not infrequently applied to taxation. Where taxes are levied by the same ordinance or act of a corporation, some of.which are not authorized by its charter, these would be void; those within the corporate powers would be valid.

VIII. The point upon which we base our decision in these cases, namely, that the cities under the ordinances may recover for the actual use of improved wharves, was not made nor decided in Cannon v. New Orleans. The question discussed and decided in that case was whether the ordinance of New Orleans, in its full breadth, was valid. The Supreme Court of Louisiana held it valid in its every provision and to its full extent. It was not claimed in the United States Supreme Court that it would be valid against vessels using improved wharves, and void as to vessels landing at the natural bank of the river. We may not inquire why the point raised in these cases was not presented and discussed in that. It is sufficient to know that it was not, and of course no discussion was made thereon. The case is, therefore, not authority against the conclusion we reach, but as we have pointed out is in harmony therewith.

6_._. tonnage duty. IX. The wharfage fees provided by the ordinances of the cities of Keokuk and Burlington are based upon an(j fxe(j by the tonnage of the vessels landing at the wharves. It is insisted that this is a tonnage duty and is obnoxious to Art. 1, § 10, par. 10, of the Constitution of the United States, which forbids the imposition by the states-of such imposts.

It must be admitted that this constitutional inhibition is directed against taxation and is intended to protect therefrom the cargoes of vessels engaged in commerce. Imports and exports may be subjected to duties by charges levied upon vessels engaged in commerce. This js simply a form of taxation. The constitution, in the clause inhibiting duties upon tonnage, in terms forbids taxes levied in that manner; the word duty means a tax, toll, impost, or custom.

The wharfage fee charged under the city ordinances in question is in no sense a tax. It is a charge made as compensation for the use of the wharves built and maintained for the benefit of vessels engaged in commerce. The distinctions between such a charge and a tax, toll, impost, or custom is too obvious to admit of discussion.

The fact that the wharfage fee is graduated by the tonnage of the vessel does not require' us to regard it as a “duty on tonnage.” The tonnage of the vessels using the wharves of the cities affords a convenient and just measure of the fees charged, which should be varied according to the size of the boats, the larger occupying -more space at the wharves than those of less capacity.

The foregoing discussion disposes of all points presented in the several cases. The judgment in each is

Affirmed.