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Parkersburg Ohio River Transp Company v. City of Parkersburg/Opinion of the Court

This is an appeal from a decree dismissing a bill in chancery on demurrer. The complainant below, who is appellant here, according to the statements of the bill, is a corporation of West Virginia, organized for the purpose of carrying on a transportation business on the Ohio river, together with a general wharf and commission business; its principal office being located at the city of Parkersburg. It is the owner of several stean-boats, duly enrolled and licensed under the acts of congress, and plying between Pittsburgh, Wheeling, Parkersburg, Cincinnati, and Covington. The bill was filed against the city of Parkersburg, and its recorder and wharfmaster, to restrain the collection of certain demands for wharfage, and to recover back money previously paid on that account. It is contended that the city ordinance, under which the wharfage was demanded, is in conflict with the constitution of the United States; and this is the ground on which the jurisdiction of the circuit court of the United States was invoked. The bill alleges that many years ago the city of Parkersburg caused to be constructed on the banks of the Ohio river, at that place, a wharf or public landing, to be used by the various steam-boats trading on the river and landing at said city, and that said wharf is still controlled by the city under a certain ordinance passed by the mayor and common council in March, 1865, a copy of which was filed with the bill. By this ordinance it is ordained that every steam-boat, keel-boat, barge, flat-boat, and flat (except ferry-boats) that may discharge or receive freight, or land on or anchor at or in front of any public landing or wharf belonging to the city, or at which the city may lawfully charge and receive wharfage, for the purpose of discharging or receiving freight, shall pay the city for wharfage the following sums or rates for each respectively, to-wit: On steam-boats of less than 100 tons burden, three dollars for the first 24 hours or any part thereof, and one dollar and fifty cents for every subsequent 24 hours, or any part thereof; on steam-boats of 100 and less than 150 tons, three dollars and seventy-five cents for the first, and two dollars for every subsequent 24 hours, or any part thereof; and so on, regulating the charges according to the tonnage, and reducing them where only a small quantity of freight is discharged or received. Provision is then made for recovering the wharfage by bringing the parties before the recorder or a justice of the peace. The bill alleges that under and by virtue of this ordinance the city of Parkersburg has, ever since the organization of the complainant, required it and its agents to pay the charges provided in the ordinance for all the steam-boats owned or controlled by it, that have discharged or received freight or passengers, or landed at the said wharf, which payments have been made under protest. The bill then makes the following charge:

'Your orator further alleges that, as it is advised and     believes, the said ordinance is wholly null and void, and is      in conflict with those provisions of the constitution of the      United States relating to the regulations of interstate      commerce and prohibiting any state, without the consent of      congress, from laying any duty of tonnage; and that the      operation of the same tends to and does abridge the free use      of the Ohio river by your orator, to which it is legally      entitled, by virtue of the enrollment and license of its      steam-boats, under the laws of the United States, as      aforesaid. As by reference to said ordinance will appear, the     rates of charges made by said city of Parkersburg upon      steam-boats landing at or in front of the wharf of said city, are based upon, and regulated solely by, the 'tons burden' of      said boats, and said charges are made indiscriminately,      whether the boat lands or anchors at or in front of any      public landing or wharf of said city. And your orator further     avers that the congress of the United States has never given      its consent to the passage or enforcement of said ordinance,      but, on the contrary, tonnage duties are expressly prohibited      by section 4220 of the Revised Statutes of the United States      to be levied upon enrolled or licensed vessels trading from      one port in the United States to another port within the      same.'

The bill further alleges that the rates charged by the ordinance are unreasonable, extortionate, and oppressive, and are made and levied as a tax upon commerce for the express purpose (under the assumed pretense of wharfage dues) of replenishing its treasury and increasing its revenue; that the cost of the wharf has been collected over and over again; that it is allowed to remain in bad repair; and that the wharfage dues collected have been used for other city purposes, paying its debts, etc.; that in the year of 1876 over $2,700 was collected from the various boats and vessels, less than $50 of which was spent on the wharf; and the same thing in other years. These facts are stated for the purpose of showing the extortionate character of the ordinance, and that it is used for the purpose of laying duties and imposts on imports and exports. The bill further shows that for the recent refusal of the complainant to pay these wharfage charges, the city of Parkersburg has instituted suits against it before the recorder under said ordinance; wherefore it prays a decree to restrain all further proceedings against the complainant by said suits or otherwise, from enforcing any judgment recovered by the city for the violation of said ordinance, or otherwise interfering with the rights of the complainant to the free use of the Ohio river by means of its steam-boats; and for the recovery of moneys already exacted from it under said ordinance, amounting to over $2,000; and that the ordinance may be declared null and void. To this bill the defendants demurred, and upon argument of the demurrer the bill was dismissed. From that decree the present appeal is taken.

If the 720th section of the Revised Statutes, which declares that 'the writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a state,' applies to suits originally brought in the circuit courts by virtue of the act of March 3, 1875, in cases arising 'under the constitution or laws of the United States,' it is clear that so much of the bill in this case as prays for an injunction to restrain legal proceedings already instituted before the recorder of Parkersburg before it was filed, cannot be maintained. But that portion of the bill which seeks to have the wharfage ordinance declared void, and to restrain any further collections under it, and any further interference with the right of the complainant to the free navigation of the Ohio river, is not open to this objection; and perhaps the demand for a return of the wharfage already paid, (although itself of a legal nature,) may come in as incidental to the other relief. The main question to be solved is, whether, as contended by the complainant, the ordinance is void as being in violation of the constitution or any law of the United States.

It is conceded by the bill that the wharf for the use of which the charges are made, though public in the sense of being open to the use of the public, belongs to the city of Parkersburg; that it was built and is maintained by the city as its property; and the ordinance on its face shows that the charges imposed for landing at or using it are imposed as and for wharfage, and nothing else. It may be extortionate in amount; but it is wharfage. The allegations of the bill that it is not real wharfage, but a duty of tonnage in the name and under the pretext of wharfage, cannot 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. Neither 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. When the question is one of reasonable or unreasonable wharfage, we know what to do with it. It is a question known to the laws; and the modes of redress for unreasonable wharfage are fixed and settled. But whether a charge imposed is a charge of wharfage or a duty of tonnage, must be determined by the terms of the ordinance or regulation which imposes it. 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. Exorbitant wharfage may have a similar effect as a burden on commerce as a duty of tonnage has; but it is exorbitant wharfage, and not a duty of 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, according as the fact is shown to exist, it is wharfage or a duty of tonnage. The intent is not material, and is not traversable. It is not like the case of a deed absolute on its face, but intended as a mortgage; there, the intent is the result of an agreement between the parties, which may be proved, and which it would operate as a fraud on one of the parties not to allow to be proved. Nor is it like the case of a mistake in an instrument, by which the intent of the parties contravened; in that case, also, the actual agreement between them may be shown for the purpose of correcting the instrument. Nor is it like the case of an intent to deceive or defraud or to commit a crime; there, the intent is a material part of the offense charged; while in the present case a supposed intent is suggested for the purpose of making of one act another and a different act. It is, in truth, more like the case of an averment to contradict the express terms of a written instrument by parol.

It is contended, indeed, that the terms of the ordinance in question show that it was intended to exact a duty of tonnage, and is not confined to the prescription of charges for wharfage; and the words 'anchor at or in front of any public landing or wharf,' as describing vessels to be charged, are relied on as sustaining this view, since, (as contended,) they embrace vessels not using the wharf. But we do not understand this to be the meaning and effect of the words. The whole phrase should be taken together, and, thus read, it is evidently confined to vessels using or intending to use the wharf. The passage consists of two distinct clauses: (1) 'Every steam-boat that may discharge or receive freight at any public landing or wharf;' (2) 'or that may land on or anchor at or in front of any public landing or wharf for the purpose of discharging or receiving freight.' The last clause as well as the first evidently points to those vessels only which land or anchor at or before a wharf for the purpose of using it. Sometimes it may happen that the depth of water in the river, or intervening vessels lying at the wharf, will not allow a vessel to get close along-side of the wharf, and yet she may desire to connect with it in some manner, by planks or by the deck of an intervening boat, barge, or float, so as to discharge or receive freight and passengers upon or from the wharf. Such cases are properly described by the language used; and we have no evidence that any other construction has been given to it. The complaint does not allege that the supposed obnoxious application of the ordinance has ever been made against any of its vessels, or against any vessels. The charge of the bill is only 'that under and by virtue of said ordinance the city of Parkersburg has, ever since the time of organization of your orator, required your orator, its agents, and servants, to pay to it the charges provided in said ordinance for all steam-boats owned or controlled by your orator that have discharged or received freight or passengers, or landed at its said wharf.'

There is no complaint that wharfage has been exacted when the complainant's vessels have merely anchored in the stream, or have moored at any other place than the city's wharf; or when they have stopped at or in front of the wharf itself for any other purpose than that of discharging or receiving freight and passengers. This makes the case a very different one from that which was presented in Cannon v. City of New Orleans, 20 Wall. 577. There the ordinance objected to imposed levee duties 'on all steam-boats which shall moor or land in any part of the port of New Orelans;' and this court could do no otherwise than hold that such an ordinance had the effect of laying a duty of tonnage, against the express prohibition of the constitution. The same view had previously been taken of an act of the legislature of Lonisiana authorizing the port-wardens of New Orleans to demand and receive five dollars from every vessel arriving in that port, whether called on to perform any service or not, (Steam-ship Co. v. Port-wardens, 6 Wall. 31;) and of a law of Texas which required every vessel arriving at the quarantine station of any town on the coast of Texas to pay five dollars for the first hundred tons, and one and a half cents for each additional ton, (Peete v. Morgan, 19 Wall. 581.) So, when a law of New York required all vessels of a certain class, which should enter the port of New York, or load or unload, or make fast to any wharf therein, to pay a certain rate per ton, this was held to be an unconstitutional imposition, because it applied to all vessels, whether they used a wharf or not. Inman Steam-ship Co. v. Tinker, 94 U.S. 238. All these were clear cases of duty on tonnage as distinguished from wharfage; and the terms of the ordinances and laws in question were very different from those of the ordinance now under consideration. We think it very clear that the ordinance in question cannot be regarded as imposing any other charge than that of wharfage. The fact that the rates charged are graduated by the size or tonnage of the vessel is of no consequence in this connection. This does not make it a duty of tonnage in the sense of the constitution and the acts of congress. So we have expressly decided in several recent cases. Cannon v. New Orleans, 20 Wall. 577; Packet Co. v. Keokuk, 95 U.S. 80; Packet Co. v. St. Louis, 100 U.S. 423; Guy v. Baltimore, Id. 434; Packet Co. v. Catlettsburg, 105 U.S. 559.

When the constitution declares that 'no state shall, without the consent of congress, lay any duty of tonnage;' and when congress, in section 4220 of the Revised Statutes, 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 bank, 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, it is not confined to that method of rating the charge. It has nothing to do with wharfage, which is a charge against a vessel for using or lying at 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 commerce or revenue; the other is a rent charged by the owner of the property for its temporary use. It is obvious that the mode of rating the charge in either case, whether according to the size or capacity of the vessel, or otherwise, has nothing to do with its essential nature. It is also obvious that since a wharf is property, and wharfage is a charge or rent for its temporary use, the question whether the owner derives more or less revenue from it, or whether more or less than the cost of building and maintaining it, or what disposition he makes of such revenue, can in no way concern those who make use of the wharf and are required to pay the regular charges therefor; provided, always, that the charges are reasonable and not exorbitant.

It is undoubtedly a general rule of law, in reference to all public wharves, that wharfage must be reasonable. A private wharf that is, a wharf which the owner has constructed and reserves for his private use-is not subject to this rule; for, if any other person wishes to make use of it for a temporary purpose, the parties are at liberty to make their own bargain. That such wharves may be had and owned, even on a navigable river, is not open to controversy. It was so decided by this court in the case of Dutton v. Strong, 1 Black, 23, and in Yates v. Milwaukee, 10 Wall. 497. Whether a private wharf may be maintained as such, where it is the only facility of the kind in a particular port or harbor, may be questioned. Sir MATTHEW HALE says:

'If the king or subject have a public wharf unto which all     persons that come to that port must come and unlade or lade      their goods as for the purpose because they are the wharves      only licensed by the king, according to the statutes of 1      Eliz. c. 11, or because there is no other wharf in that port,     as it may fall out where a port is newly erected; in that      case there cannot be taken arbitrary and excessive duties for      cranage, wharfage, pesage, etc.; neither can they be enhanced      to an immoderate rate, but the duties must be reasonable and      moderate, though settled by the king's license or charter.'      Harg. Law Tr. 77.

Be this, however, as it may, it is an undoubted rule of universal application that wharfage for the use of all public wharves must be reasonable. But then the question arises, by what law is this rule established, and by what law can it be enforced? By what law is it to be decided whether the charges imposed are or are not extortionate? There can be but one answer to these questions. Clearly it must be by the local municipal law; at least, until some superior or paramount law has been prescribed. At Parkersburg, it is the law of West Virginia. The rule referred to is a rule of the common law, undoubtedly, but it has force in West Virginia because the common law is the law of that state, and not because it is the law of the United States. The courts of the United States do not enforce the common law in municipal matters in the states because it is federal law, but because it is the law of the state.

We have said that the reasonableness of wharfage must be determined by the local law until some paramount law has been prescribed. By this we mean that until the local law is displaced or overruled by paramount legislation adopted by congress, the courts have no other guide, no other law to administer on the subject, than the local or state law. Our system of government is of a dual character-state and federal. The states retain general sovereignty and jurisdiction over all local matters within their limits; but the United States, through congress, is invested with supreme and paramount authority in the regulation of commerce with foreign nations and among the several states. This has been held to embrace the regulation of the navigable waters of the United States, of which the Ohio river is one. In the exercise of this authority over navigable waters, congress has, from the commencement of the government, erected light-houses, breakwaters, and piers, not only on the sea coast, but in the navigable rivers of the country; and has improved the navigation of rivers by dredging and cleaning them, and making new channels and jetties, and adopting every other means of making them more capable of meeting the growing and extending demands of commerce. It has extended its supervision in an especial manner to the Ohio river. Among other things, it has overcome the obstacle presented by the falls at Louisville by the construction of an expensive canal. It has created ports of delivery along the river, of which the city of Parkersburg itself is one, and others are at Pittsburgh, Wheeling, Cincinnati, Louisville, Madison, Jeffersonville, New Albany, Evansville, Paducah, and Cairo. It has regulated the bridges which have been thrown across the river by authority of the states. It authorized the Wheeling bridge to stand after this court had declared it to be a nuisance, requiring the officers of all vessels to regulate their pipes and chimneys so as not to interfere with the bridge, (10 St. 112;) thus extending its common protection to commerce by land and commerce by water. It required the Newport and Cincinnati bridge to be removed or placed at a greater height above the water, after having been constructed in accordance with the laws of the states and of the United States. 16 St. 572.

Now, wharves, levees, and landing places are essential to commerce by water, no less than a navigable channel and a clear river. But they are attached to the land; they are private property, real estate; and they are primarily, at least, subject to the local state laws. Congress has never yet interposed to supervise their administration; it has hitherto left this exclusively to the states. There is little doubt, however, that congress, if it saw fit, in case of prevailing abuses in the management of wharf property,-abuses materially interfering with the prosecution of commerce,-might interpose and make regulations to prevent such abuses. When it shall have done so, it will be time enough for the courts to carry its regulations into effect by judicial proceedings properly instituted. But until congress has acted, the courts of the United States cannot assume control over the subject as a matter of federal cognizance. It is the 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.

There are cases, it is true, which are so national in their character, and in which it is so essential that a general or national rule should exist, that any interference by the state legislatures therewith is justly deemed to be an invasion of the power and authority of the general government; and in such cases the courts will interpose to prevent or redress the commission of acts done or attempted to be done under the authority of such unconstitutional laws. In such cases the non-action or silence of congress will be deemed to be an indication of its will that no exaction or restraint shall be imposed. Such is the import of the various passenger cases in which this court has pronounced unconstitutional any tax, duty, or other exaction imposed by the states upon emigrants landing in the country. Such is also the import of those cases in which it has been held that state laws imposing discriminating burdens upon the persons or products of other states are unconstitutional; it being deemed the intent of congress that interstate commerce shall be free, where it has not itself imposed any restrictions thereon. See The Passenger Cases, 7 How. 283, 462; Cooley v. The Port-wardens, 12 How. 319; Gilman v. Philadelphia, 3 Wall. 713; Crandall v. Nevada, 6 Wall. 42; Ward v. Maryland, 12 Wall. 418, 432; State Freight Tax Case, 15 Wall. 232, 279; Welton v. State, 91 U.S. 275; Henderson v. Mayor of N. Y. 92 U.S. 259, 272; People of N. Y. v. Compagnie Generale Transatlantique, 107 U.S. -; [S.C.. ante, 87.]

But the case before us is not one of the kind referred to. Though the use of public wharves may be regulated by congress as a part of the commercial power, it certainly does not belong to that class of subjects which are in their nature national, requiring a single uniform rule; but to that class which are in their nature local, requiring a diversity of rules and regulations. To quote the words of Mr. Justice CURTIS in Cooley v. The Port-wardens, 12 How. 319:

'The power to regulate commerce embraces a vast field,     containing not only many, but exceedingly various subjects,      quite unlike in their nature; some imperatively demanding a      single uniform rule, operating equally on the commerce of the      United States in every port; and some, like the subject now      in question, [which was pilotage], as imperatively demanding      that diversity which alone can meet the local necessities of      navigation. * *  * Whatever subjects of this power are in      their nature national, or admit only of one uniform system or      plan of regulation, may justly be said to be of such a nature      as to require exclusive legislation by congress. That this     cannot be affirmed of laws for the regulation of pilots and pilotage is plain. The act     of 1789 contains a clear and authoritative declaration by the      first congress that the nature of this subject is such that      until congress should find it necessary to exert its power,      it should be left to the legislation of the states; that it      is local and not national; that it is likely to be best      provided for, not by one system or plan of regulations, but      by as many as the legislative discretion of the several      states should deem applicable to the local peculiarities of      the ports within their limits.'

No words could be more fitly applied to the subject of the regulation of wharves than are here used by the court in reference to pilotage. It is true, no act of congress has relegated the subject of wharfage to the states, as was done in the case of pilotage; but this was not necessary; the regulation of wharves belongs prima facie, and in the first instance, to the states, and would only be assumed by congress when its exercise by the states is incompatible with the interests of commerce; and congress has never yet assumed to take that regulation into its own hands, or to interfere with the regulation of the states.

The power of the states to legislate in matters of a local character, where congress has not by its own action covered the subject, is quite fully discussed by Mr. Justice FIELD in delivering the opinion of this court in Co. of Mobile v. Kimball, 102 U.S. 691, where the distinction taken in Cooley v. The Port-wardens, between those subjects which are national in their character and require uniformity of regulation, and those which are local and peculiar to particular places, is commented upon and enforced. Among other things it is there said: 'Where from the nature of the subject or the sphere of its operation the case is local and limited, special regulations adapted to the immediate locality could only have been contemptated. State action upon such subjects can constitute no interference with the commercial power of congress, for when that acts the state authority is superseded. Inaction of congress upon these subjects of a local nature or operation, unlike its inaction upon matters affecting all the states and requiring uniformity of regulation, is not to be taken as a declaration that nothing shall be done with respect to them, but is rather to be deemed a declaration that for the time being, and until it sees fit to act, they may be regulated by state authority.' See, also, the remarks of the chief justice in Hall v. De Cuir, 95 U.S. 488.

It is not necessary to cite other cases. The principle laid down in Cooley v. The Port-wardens has become fully recognized and established in our jurisprudence; and it is manifest that no subject can be more properly classified as local in its nature, and as requiring the application of local regulations, than that of wharves and wharfage.

From this view it is plain that the courts of the United States have no authority to ignore the state laws and regulations on the subject of wharves and wharfage, and to declare them invalid by reason of any supposed repugnancy to the constitution or laws of the United States. As already remarked, the courts cannot take the initiative in this matter. Congress must first legislate before the courts can proceed upon any such ground of paramount jurisdiction. If the rates of wharfage exacted are deemed extortionate or unreasonable, the courts of the United States, (in cases within their ordinary jurisdiction,) as well as the courts of the states, must apply and administer the state laws relating to the subject; and these laws will probably, in most cases, be found to be sufficient for the suppression of any glaring evils. At all events, there is not at present any federal law on the subject by which relief can be obtained.

In the various bridge cases that have come before the courts of the United States, where bridges (or dams) have been erected by state authority across navigable streams, the refusal to interfere with their erection has always been based upon the absence of prohibitory legislation by congress, and the power of the states over the subject in the absence of such legislation. Where the regulation of such streams by congress has been only of a general character, such as the establishment of ports and collection districts thereon, it has been held that the erection of bridges, furnished with convenient draws, so as not materially to interfere with navigation, is within the power of the states, and not repugnant to such general regulation. The former cases on this subject were reviewed in ''Escanaba & L. M. Transp. Co. v. City of Chicago'', decided at the present term of this court, and reported in 2 SUP. CT. REP. 185.

It is believed that no case can be found in which state laws, or regulations under state authority, on subjects of a local nature, have been set aside on the ground of repugnance to the power of regulating commerce given to congress, unless it has appeared that they were contrary to some express provision of the constitution, or to some act of congress, or that they amounted to an assumption of power exclusively conferred upon congress.

In the case of Gibbons v. Ogden, 9 Wheat. 1, it was held that as the navigation of all public waters of the United States is subject to the regulation of congress, a license granted under the laws and by the authority of the United States to a steam-boat to carry on the coasting trade, entitled such boat to navigate all such waters, notwithstanding the existence of a state law granting to certain individuals the exclusive right to navigate a portion of said waters lying within the state; and that such exclusive grant was void as being repugnant to the regulation made by congress. Chief Justice MARSHALL, delivering the opinion of the court in that case, said: 'The court will enter upon the inquiry, whether the laws of New York, as expounded by the highest tribunal of that state, have, in their application to this case, come into a collision with an act of congress, and deprived a citizen of a right to which the act entitles him.'

Subsequent cases are to the same effect, among which, in addition to those already cited in this opinion, we may refer to Crandall v. Nevada, 6 Wall. 35; Ward v. Maryland, 12 Wall. 418; Welton v. Missouri, 91 U.S. 275; Henderson v. Mayor of N. Y. 92 U.S. 259; and People of N. Y. v. Compagnie Generale Transatlantique, supra.

The case of State v. Wheeling Bridge Co. 13 How. 518, was a peculiar one. The Wheeling bridge, as originally constructed, presented a complete obstacle to the passage of steam-boats with high chimneys, such as navigated the Ohio river to and from Pittsburgh; and hence presented a case of interference with navigation analogous to that of the exclusive monopoly granted to Fulton and Livingston by the state of New York, which was the ground of complaint in the case of Gibbons v. Ogden. But, besides this, it was a case in which this court exercised its original jurisdiction by reason of the character of the parties, a state being the complainant in the suit; and, having jurisdiction on this ground, it was competent for the court to decide upon the lawfulness or unlawfulness of the structure in reference, not only to the laws of the United States, but also to the local municipal law, and to the general law relating to the mutual rights of the states. The charter granted to the Wheeling Bridge Company by the state of Virginia had expressly provided 'that if the said bridge shall be so constructed as to injure the navigation of said river, the said bridge shall be treated as a public nuisance, and shall be liable to abatement upon the same principles and in the same manner that other public nuisances are.' In addition to this in 1789 an act was passed by the state of Virginia consenting to the erection of the state of Kentucky out of its territory on certain condition, among which was one 'that the use and navigation of the river Ohio, so far as the territory of the proposed state or the territory that shall remain within the limits of this commonwealth lies thereon, shall be free and common to the citizens of the United States,' and to this act the assent of congress was given. 1 St. 180. 'This compact,' the court said, 'by the sanction of congress, has become a law of the Union.' Upon all these grounds, it was held that the state of Pennsylvania, having large interests which were affected by the erection of the bridge, was entitled to a decree for its prostration as a nuisance, unless such alterations should be made in its construction as to leave the navigation of the river unimpaired.

This case, therefore, cannot be relied on any more than the other cases referred to, to show that the courts of the United States have any peculiar jurisdiction as such to vindicate the supposed rights of commerce and navigation against the laws of the states, in matters of a local nature such as the regulation of wharfage is, where no express provision of the constitution is violated and no act of congress has been passed to regulate the subject. As no act of congress has been passed for the regulation of wharfage, and as there is nothin the constitution to prevent the states from regulating it, so long as congress sees fit to abstain from action on the subject, our conclusion is that it is entirely within the domain and subject to the operation of the state laws.

The effect of this conclusion upon the present case is obvious. The gravamen of the bill is really nothing but a complaint against exorbitant rates of wharfage. These rates are established by a municipal body, itself the proprietor of the wharves, and professing to act under the authority of state law. It cannot be supposed that the law authorizes exorbitant charges to be made; but whether the charges exacted are exorbitant or not can only be determined by that law. It is clear, therefore, that the complainant, in filing its bill in the United States court on the ground that the wharfage complained of is in violation of the constitution or laws of the United States, has totally misconceived its rights and the proper means of obtaining redress. Unless it has some other ground for coming into the federal court it must seek redress in the state courts; and whether the question of reasonableness of wharfage is submitted to the determination of the one forum or the other, it is only determinable by the laws of the state within whose jurisdiction the wharf is situated. Since the parties are all citizens of West Virginia, and since the case cannot be sustained as one 'arising under the constitution or laws of the United States,' there was no error in the decree dismissing the bill of complaint. The decree of the circuit court is, therefore, affirmed.

Mr. JUSTICE HARLAN dissenting.


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Parkersburg Ohio River Transp Company v. City of Parkersburg/Dissent Harlan

Mr. JUSTICE HARLAN dissenting.

The city of Parkersburg — which has been created a port of delivery in conformity with the laws of the United States — exacts and collects for the use of its wharf by boats engaged in commerce on the Ohio River certain fees or dues, called wharfage charges, which, pursuant to the ordinance of May 17, 1865, are, in every case, measured by the tonnage or capacity of the boat so using the wharf.

It is conceded by the demurrer to the bill that from these fees the city has long since been reimbursed for the actual cost of constructing the wharf; that the amount annually collected from boats for its use is largely in excess of any expense incurred in its maintenance and repair; that it has been permitted to become and remain in bad repair, at times almost unfit for use; that nearly all the money so raised is applied by the city to increase its general revenue and pay it indebtedness; and, lastly, that the wharfage charges are unreasonable in amount and oppressive.

The opinion of the court, if I do not wholly misapprehend it, proceeds upon the broad ground that municipal wharfage charges, even when measured by the tonnage of the boat, and however much in excess of fair and reasonable compensation, are not duties of tonnage within the meaning of the Constitution, and that their exaction infringes no right given or secured by the Constitution or the existing statues of the United States. If, however, such charges are duties of tonnage, or if their collection violates any right, so given or secured, then a case unquestionably arises under the Constitution or laws of the United States, of which the Circuit Court, under the act of March 3, 1875, c. 137, can take original jurisdiction, without reference to the citizenship of the parties.

I had supposed, and am still of opinion, that a vessel or boat, duly enrolled and licensed under the laws of the United States (as those of the appellant are conceded to be), and engaged in commerce upon the Ohio, a public navigable water, is entitled, in virtue of the Constitution and laws of the United States, to enter any port on that river, and also to land at any wharf established for public use, without being subjected (apart from mere police regulation) to any burden tax, or duty therfor, beyond reasonable compensation to the owner of the wharf for its use.

Such I have understood to be the doctrine announced in Cannon v. New Orleans, 20 Wall. 577; Packet Company v. Keokuk, 95 U.S. 80; Packet Company v. St. Louis, 100 id. 423; Vicksburg v. Tobin, id. 430.

The court holds that Congress, under the power to regulate commerce with foreign nations and among the several States, may, by statute, provide for the protection, through the courts, of those engaged in commerce upon the public navigable waters of the United States against unreasonable charges for the use of wharves by boats. But without further legislation, specifically directed to that end, the courts, I submit, should adjudge that local regulations, such as those adopted by the city of Parkersburg, are within the prohibition upon the States to lay any duty of tonnage, and are also inconsistent with the compact between Virginia and Kentucky which this court, in State of Pennsylvania v. Wheeling, &c., Bridge Co., 13 How. 518, 564, declared had become, by the sanction of Congress, a law of the Union. In that compact it is declared that "the use and navigation of the river Ohio, so far as the territory of the proposed State, or the territory that shall remain within the limits of this Commonwealth [Virginia], lies thereon, shall be free and common to the citizens of the United States."

In the opinion of the court a duty of tonnage is defined to be a charge, tax, or duty on a vessel for the mere privilege of entering or lying in a port. The city of Parkersburg cannot, therefor, constitutionally impose a charge, tax, or duty upon, or for the exercise of, that privilege. Now, do the Constitution and the existing laws of the United States extend their protection no further than to secure the bare, naked right of entering a port free from local burdens or duties upon its exercise? May not the boat, in virtue of the Constitution and existing laws, also land at any wharf, at least at any public wharf, on the Ohio River for the purpose of discharging and receiving freight and passengers? Of what value would be the right to enter the port without the privilege of landing its passengers and freight? Is not the substantial privilege of landing passengers and freight necessarily involved in the right of entering the port? If so, it would seem that the right to land a boat at a public wharf on a navigable water of the United States is as fully protected by the Constitution and the existing laws of the United States as that of entering the port. A charge, tax, or duty imposed upon the exercise of the right to land is consequently, for every practical purpose, as much a duty of tonnage as a charge, tax, or duty upon the privilege of entering the port. The constitutional provision that "no State shall, without the consent of Congress, lay any duty of tonnage;" the power given Congress to regulate commerce among the States; the statutes of the United States, in the exercise of that power, providing for licensing vessels, establishing ports of entry, and imposing duties and inflicting penalties upon officers of boats engaged in navigation; and the sanction by Congress of the compact between Virginia and Kentucky, declaring that the use and navigation of the Ohio River shall be free to all citizens of the United States, — give to the boats of the appellant the right to enter the port of Parkersburg and land at the wharf provided for the use of boats engaged in navigation. It is a right given and secured by the Constitution and the existing laws of the United States, and, therefore, one which the courts of the Union may protect against invasion or violation.

For its protection additional legislation does not seem to be necessary, since the Circuit Court has original jurisdiction of all suits arising under the Constitution and laws of the United States when the matter in dispute exceeds a prescribed amount.

These principles are entirely consistent with the city's ownership of the wharf and with the right to demand fair compensation for its use. As decided in the before-mentioned cases, the city may require all who use its wharf by landing thereat, or in any other way, to pay what such use is reasonably worth. It cannot, as the court states, rightfully demand more. Reasonable compensation for the use by boats of the additional facilities furnished to commerce by means of wharves, even when such compensation is measured by the capacity of the boats, is not, within the meaning of the Constitution and the laws of the United States, an infringement of the right of free commerce upon the public navigable waters of the United States. Upon this ground the wharfage charges imposed by the cities of St. Louis, Vicksburg, and Keokuk were sustained. But it is an entirely different matter when a municipal corporation assumes in effect, if not in terms, to burden the constitutional privilege of entering the port of any city, situated on a public navigable stream, with the condition that if the boats land at the public wharf of that city, it must submit to the payment of larger compensation for the use of that wharf than the corporation has the legal authority to demand. It requires no further legislation by Congress to enable the courts of the Union to protect the rights of free commerce against exactions of that kind. It is, I think, their duty to adjudge all such local regulations to be in conflict with the supreme law of the land. To burden the exercise of a constitutional right with conditions which materially impair its value, or which, practically, compel the abandonment of the right rather than to submit to the conditions, is, in law, an infringement of that right. The opinion of the court, I repeat, rests necessarily upon the ground that the enforced exaction and collection by a municipal corporation of unreasonable compensation for the use of its wharf by a boat, duly enrolled and licensed under the laws of the United States, and engaged in commerce upon the Ohio River, do not infringe or impair any right given or secured either by the Constitution or the existing laws of the United States. To that proposition I am unable to give my assent.

For the reason stated, I dissent from the opinion and judgment.


text: Talk:Parkersburg Ohio River Transp Company v. City of Parkersburg/Dissent Harlan


text:
State of Louisiana Elliott v. Jumel

District of Louisiana.

ELLIOTT and others

v.

WILTZ, Governor, and others. Appeal from the Circuit

Court of the United States for the Eastern

District of Louisiana.

March 5, 1883.

[Syllabus from pages 711-712 intentionally omitted]

W. H. Peckham, for plaintiffs in error and appellants.

John A. Campbell, for defendants in error and appellees.

WAITE, C. J.

title: State of Louisiana Elliott v. Jumel


text: Talk:State of Louisiana Elliott v. Jumel


text:
State of Louisiana Elliott v. Jumel/Opinion of the Court

The legislature of Louisiana, at its session of 1874, by an act known as act No. 3 of 1874, provided for an issue of bonds, to be designated as consolidated bonds of the state, for the purpose of consolidating and reducing the floating and bonded debt. The bonds were to be payable to the bearer 40 years from January 1, 1874, and bear interest at the rate of 7 per cent. per annum, payable on the first day of July and the first day of January in each year. The amount was not to exceed in the aggregate $15,000,000. The governor, lieutenant governor, auditor, treasurer, secretary of state, speaker of the house of representatives, and a person to be elected by these officers as a fiscal agent of the state, were created a board of liquidation, with power to issue the bonds and exchange them for all valid outstanding bonds, and certain valid warrants on the treasury, at the rate of sixty cents in the new bonds for one dollar of old bonds and warrants. The bonds were to be signed by the governor, auditor, and secretary of state, and the coupons by the auditor and treasurer. Section 7 of the act was as follows:

'That a tax of five and a half mills on the dollar of the     assessed value of all real and personal property in the state      is hereby annually levied, and shall be collected, for the      purpose of paying the interest and principal of the      consolidated bonds herein authorized, and the revenue derived      therefrom is hereby set apart and appropriated to that      purpose, and no other; and that it shall be deemed a felony      for the fiscal agent or any officer of the state or board of      liquidators to divert the said fund from its legitimate      channel as provided, and upon conviction the said party shall      be liable to imprisonment for not more than ten years nor      less than two, at the discretion of the court. If there shall     during any year be a surplus arising from said tax after      paying all interest falling due in that year, such surplus      shall be used for the purchase and retirement of bonds      authorized by this act; said purchases to be made by the said      board of liquidation from the lowest offers, after due      notice: provided, that the total tax for interest and all      other state purposes, except the support of public schools,      shall never hereafter exceed twelve and a half mills on the      dollar. The interest tax aforesaid shall be a continuing     annual tax until the said consolidated bonds shall be paid or      redeemed, principal and interest; and the said appropriation      shall be a continuing annual appropriation during the same      period, and this levy and appropriation shall authorize and      make it the duty of the auditor and treasurer, and the said      board, respectively, to collect said tax annually, and pay      said interest and redeem said bonds until the same shall be      fully discharged.' By other sections it was provided that any judge, tax-collector, or any other officer of the state obstructing the execution of the act, or any part of it, or failing to perform his official duty, should be deemed guilty of a misdemeanor, and on conviction thereof punished; that each provision of the act should be, and was declared to be, a contract between the state of Louisiana and each and every holder of such consolidated bonds; that the tax-collectors should not pay over any moneys collected by them to any other person than the state treasurer; and that no court, or judge thereof, should have power to enjoin the payment of principal or interest of any of the bonds, or the collection of the special tax therefor. Immediately after the passage of this act the state adopted an amendment to its constitution, as follows:

'The issue of consolidated bonds authorized by the general     assembly of the state, at its regular session in the year      1874, is hereby declared to create a valid contract between      the state and each and every holder of said bonds, which the      state shall by no means and in no wise impair. The said bonds     shall be a valid obligation of the state in favor of any      holder thereof, and no court shall enjoin the payment of the      principal or interest thereof or the levy and collection of      tax therefor; to secure such levy, collection, and payment,      the judicial power shall be exercised when necessary. The tax     required for the payment of the principal and interest of      said bonds shall be assessed and collected each and every      year until the bonds shall be paid, principal and interest,      and the proceeds shall be paid by the treasurer of the state      to the holders of said bonds, as the principal and interest      of the same shall fall due, and no further legislation or      appropriation shall be requisite for the said assessment and      collection, and for such payment from the treasury.'

Under this authority, consolidated bonds to the amount of about $12,000,000 were issued. John Elliott, Nicholas Gwynn, and Henry S. Walker are the holders and bearers of these bonds to the amount of $20,000, and of unpaid coupons due January 1, 1880, to the amount of $78,900. The bonds, in accordance with the requirements of the act under which they were issued, are signed by the governor, auditor, and secretary of state, and the coupons by the auditor and treasurer.

On the first day of January, 1880, a new constitution of Louisiana went into effect. A portion of that constitution, called the 'Debt Ordinance,' is in these words:

'STATE DEBT.

'Article 1. Be it ordained by the people of the state of     Louisiana, in convention assembled, that the interest to be      paid on the consolidated bonds of the state of Louisiana be      and is hereby fixed at 2 per cent. per annum for 5 years from     the first day of January, 1880, 3 per cent. per annum for 15     years, and and 4 per cent. per annum thereafter, payable     semi-annually; and there shall be levied an annual tax      sufficient for the full payment of said interest, not      exceeding three mills, the limit of all state tax being      hereby fixed at six mills: provided, the holders of      consolidated bonds may, at their option, demand, in exchange      for the bonds held by them, bonds of the denomination of five      dollars, one hundred dollars, five hundred dollars, one      thousand dollars, to be issued at the rate of 75 cents on the      dollar of bonds held, and to be surrendered by such holders;      the said new issue to bear interest at the rate of 4 per      cent. per annum, payable semi-annually.

'Art. 2. The holders of consolidated bonds may at any time     present their bonds to the treasurer of the state, or to an      agent to be appointed by the governor,-one in the city of New      York and the other in the city of London,-and the said      treasurer or agent, as the case may be, shall indorse or      stamp thereon the words, 'interest reduced to 2 per cent. per     annum for five years from January 1, 1880, 3 per cent. per     annum for 15 years, and 4 per cent. per annum thereafter:     provided, the holder or holders of said bonds may apply to      the treasurer for an exchange of bonds,' as provided in the      preceding article.

'Art. 3. Be it further ordained, that the coupon of said     consolidated bonds falling due the first day of January,      1880, be and the same is hereby remitted, and any interest      taxes collected to meet said coupon are hereby transferred to      defray the expenses of the state government.'

Article 209 of the same constitution provides that 'the state tax on all property for all purposes whatever, including expenses of government, schools, levees, and interest, shall not exceed in any one year six mills on the dollar of its assessed valuation.' Elliott, Gwynn, and Walker demanded of the proper state officers payment of their coupons which fell due January 1, 1880, but such payment was refused, the auditor and treasurer stating 'that they could not comply with the request made of them, owing to the prohibition contained in article 3, state-debt ordinance of the constitution of the state of Louisiana, adopted twenty-third July, 1879, and recently promulgated.'

All the taxes allowed by the new constitution have been levied for the year 1880, but no proceedings have been taken to levy and collect the five-and-a-half mill tax under the act of 1874. About $300,000 is in the treasury of the state, collected under the levy imposed by the act of 1874 to meet the coupons falling due January, 1880, but the treasurer refuses to apply it to the payment of the coupons, and claims to hold it only for the purposes to which it was to be appropriated by the terms of the new constitution. There are also taxes levied for former years under the act of 1874 which remain uncollected, and which are subject to future collection and payment into the treasury under the operation of the collection laws.

In this condition of things, the appellants Elliott, Gwynn, and Walker, on the sixteenth of January, 1880, commenced a suit in equity in the circuit court of the United States for the eastern district of Louisiana, against the several officers of the state composing the board of liquidation, and the prayer of the bill is that it may be—

'Ordered, adjudged, and decreed' that the act No. 3, of 1874,     'so far as your orator's interests hereinabove declared are      concerned, was all the time from its passage, has been, and,      at the time of the rendition of the decree herein prayed for,      is a valid and subsisting law of the state of Louisiana; that      the act aforesaid, the constitutional amendment of 1874, and      the several bonds and coupons of interest held and owned by      your orators as aforesaid, separately and together,      constituted, were, and are good, valid, subsisting, and      binding contracts between the state aforesaid and the bearers      and holders of the consolidated bonds and coupons, the      obligation of which contract cannot be lawfully or      constitutionally impaired; and that, under and by virtue of      such contract, your orators were and are entitled to take and      enjoy all the rights, privileges, taxes, and moneys      particularly set forth and mentioned in act No. 3, and the constitutional amendment of 1874, aforesaid; that so much      of the aforesaid constitution of 1879 as alters, varies,      modified, or changes, or assumes, purports, or attempts to      alter, vary, modify, or change, the provisions of the said      act of 1874, and the constitutional amendment of that year,      especially article 208 of the constitution of the year 1879,      and that portion of such constitution known and distinguished      as the ordinance on 'state debt,' do impair the obligation of      the contract hereinabove referred to; that the said parts and      portions of such constitution are, therefore, violative of      the constitution of the United States, and are absolutely      null and void, and without the slightest force or effect      whatever against complainants; and afford and offer no      authority or warrant for the defendants, or any one or more      of them, to make such disposition or application of any part      or portion of the aforesaid taxes, and the proceeds thereof,      collected and to be collected, as to enable the state,      therewith, to defray the expenses of the state government, or      to accomplish any purpose or purposes other than those      prescribed in the aforesaid funding act, and constitutional      amendment of 1874; that the defendants, and each of them, may      be adjudged and decreed to replace and reinstate to the      credit of said interest fund any moneys or funds that may      have been diverted therefrom; *  *  * and that said defendants,      and each and every one of them, may be peremptorily enjoined      and restrained from recognizing as valid, against your      orators, article 208 of the constitution of Louisiana,' and      the 'debt ordinance,' and 'from ignoring the funding act and      constitutional amendment of 1874, and from doing, and causing      to be done, any act or thing whatsoever obstructing,      preventing, or impeding, or tending, directly or indirectly,      to obstruct, prevent, or impede, in the slightest degree, the      prompt, full, and complete execution and enforcement of the      act and constitutional amendment aforesaid; and, finally,      that the said defendants, and each and every one of them, may      be enjoined and restrained to such other and further extent,      and in such additional way and manner, as the court may deem      right and proper.'

On the twenty-sixth of January, 1880, the same parties as relators filed a petition in a state court of Louisiana against the auditor and treasurer of state and the several members of the board of liquidation, being Louis A. Wiltz, the governor, Samuel McEnery, lieutenant governor, Allen Jumel, auditor, Edward A. Burke, treasurer, William A. Strong, secretary of state, Robert N. Ogden, speaker of the house of representatives, and the State National Bank of New Orleans, fiscal agent, for a mandamus requiring them—

'To apply and pay to the extinguishment of the interest now     due and payable upon the consolidated bonds of the state of      Louisiana, or becoming due and payable upon said bonds, and      to the redemption and retirement of such consolidated bonds,      as are provided for and required by the aforesaid act No. 3      of the year 1874, any and all moneys and proceeds of the tax      levied or fixed by said act now in the hands or subject to      the control of the said defendants, or either one of them, or      which have been in the hands or subject to the control of the      said defendants, or either one of them, or which may come      into their hands or become subject to the control of either      of them, not already applied to the payment of interest upon      the aforesaid bonds, or to the redemption and retirement of      the bonds themselves, as provided for and required in and by      said act No. 3;' and that they 'may furthermore be commanded      and required to proceed, without delay, to collect the tax      fixed or levied in and by the aforesaid act No. 3 of the year      1874, in the manner and to the extent contemplated by that      statute, and to apply and pay all moneys realized from such      tax to the discharge of the interest and redemption of the      bonds issued under and by virtue of the aforesaid funding act      No. 3, *  *  * until the principal and interest of such bonds      be fully extinguished and discharged; and, finally, that the      said defendants may severally be commanded and required to      enforce the act herein above last referred to, and      particularly to carry out, perform, and discharge each and      every one and all the ministerial acts, things, and duties      respectively required of them by the aforesaid act No. 3,      according to the full and true intent and purport of that      act.'

This suit was afterwards removed into the circuit court of the United States for the eastern district of Louisiana.

Upon final hearing the circuit court denied the relief prayed for in each of the suits, because, as stated in the conclusions of law which were filed in connection with the findings of fact, it appeared that the respondents were constitutional officers of the state, and had no relation to the funds collected, or to be collected, except as such officers; that they were clothed with no authority and charged with no duty to pay over or collect said funds to or in behalf of the relators and complainants, but, on the contrary, by the organic law of the state, under which their offices were created and exist, the provisions of which constitute their sole mandate, are prohibited from so doing. For these reasons it was concluded that the state was the party which, by its action in its original capacity through the people, had rendered the execution of its contract with the relator impossible through the instrumentality of its officers or functionaries, and that the question presented was political rather than judicial, and could not be adjudicated without calling the state to the bar of the court and subverting its entire financial basis, no matter how unjustly adopted and ordained. From a judgment and decree to that effect a writ of error and appeal were taken to this court.

The two suits may properly be considered together here, as they were below, because they present substantially the same questions.

We have no doubt it was the intention of the state of Louisiana to enter into a formal contract with each and every holder of bonds issued under the act of 1874, to levy and collect an annual tax of five and one-half mills on the dollar of the assessed value of all the real and personal property in the state, and to apply the revenue derived therefrom to the payment of the principal and interest of the bonds, and to no other purpose. By the obligation so entered into it was also agreed that the tax levied by the act and confirmed by the constitution should be a continuing annual tax until the bonds, principal and interest, were paid in full; that the appropriation of the revenue derived therefrom should be a continuing annual appropriation; and that no further authority than that contained in the act should be required to enable the taxing officers to levy and collect the tax, or the disbursing officers to pay out the money as collected in discharge of the obligation of the bonds. Whatever may be ordinarily the effect of a promise or a pledge of faith by a state, the language employed in this instance shows unmistakably a design to make these promises and these pledges so far contracts, that their obligations would be protected by the constitution of the United States against impairment.

It is equally manifest that the object of the state in adopting the 'Debt Ordinance' in 1879 was to stop the further levy of the promised tax, and to prevent the disbursing officers from using the revenue from previous levies to pay the interest falling due in January, 1880, as well as the principal and interest maturing thereafter.

The bonds and coupons which the parties to these suits hold, have not been reduced to judgment, and there is no way in which the state, in its capacity as an organized political community, can be brought before any court of the state, or of the United States, to answer a suit in the name of these holders to obtain such a judgment. It was expressly decided by the supreme court of the state in State v. Burke, 33 La. Ann. 498, that such a suit could not be brought in the state courts, and under the eleventh amendment of the constitution no state can be sued in the courts of the United States by a citizen of another state. Neither was there when the bonds were issued, nor is there now, any statute or judicial decision giving the bondholders a remedy in the state courts or elsewhere, either by mandamus or injunction, against the state in its political capacity, to compel it to do what it has agreed should be done, but which it refuses to do.

These, then, are suits by creditors at large, of the class provided for in the act of 1874, to compel the officers of the state by judicial process to enforce the provisions of the act, when the state, by an amendment to its constitution, has undertaken to prohibit them from doing so, and when the court, if it requires an officer to proceed, cannot protect him with a judgment to which the state is a party. The persons sued are the executive officers of the state, and they are proceeded against in their official capacity. The money in the treasury is the property of the state, and not in any legal sense the property of the bond or coupon holders. If lost or destroyed, the loss will fall alone on the state or its agents, and the bondholders will be entitled to payment in full from other sources. True, the money was raised to pay this particular class of debts, and the agreement was it should not be used for any other purpose; but, notwithstanding this, the state has undertaken to appropriate it to defray the expenses of the government. In this way the state has violated its contract, and, if it could be sued, might perhaps be made to set aside its wrongful appropriation of the money already in hand, and raise more by taxation, if necessary.

That the constitution of 1879 on its face takes away the power of the executive officers to comply with the terms of the act of 1874 cannot be denied. As against everything but the outstanding bonds and coupons, this constitution is the fundamental law of the state, and it is only invalid so far as it impairs the obligation of the contract on the faith of which the bonds and coupons were taken by their respective holders. The question, then, is whether the contract can be enforced, notwithstanding the constitution, by coercing the agents and instrumentalities of the state, whose authority has been withdrawn in violation of the contract, without having the state itself in its political capacity a party to the proceedings.

The relief asked will require to officers against whom the process goes to act contrary to the positive orders of the supreme political power of the state, whose creatures they are, and to which they are ultimately responsible in law for what they do. They must use the public money in the treasury and under their official control in one way, when the supreme power has directed them to use it in another, and they must raise more money by taxation when the same power has declared it shall not be done.

The parties prosecuting the suits do not, in direct terms, ask for the payment of the bonds and coupons they hold. In fact, this seems to have been purposely avoided, for in the suit for mandamus the petition was amended before the hearing by striking out all that would have the effect of confining the command of the writ to such a payment, and left the prayer for an order requiring the use of the money raised under the act of 1874 for the redemption and retirement generally of all the bonds and coupons of the issue. In the suit in equity, while it was asked that the debt ordinance of 1879 might be declared invalid as against the complainants, payment of the amount due was only sought through the general administration of the finances in accordance with the provisions of the act of 1874. In neither of the suits was any inquiry to be instituted in respect to the particular bonds and coupons held by the plaintiffs, or any special relief afforded as to them. All that is asked will inure as much to the benefit of the other holders of similar obligations as to the particular parties to these suits. So that the remedy sought implies power in the judiciary to compel the state to abide by and perform its contracts for the payment of money, not by rendering and enforcing a judgment in the ordinary form of judicial procedure, but by assuming the control of the administration of the fiscal affairs of the state to the extent that may be necessary to accomplish the end in view.

It is insisted, however, that the money in the treasury collected from the tax levied for the year 1879 constitutes a trust fund of which the individual defendants are ex officio trustees, and that they may be enjoined as such trustees from diverting it from the purposes to which it was pledged under the contract. The individual defendants are the several officers of the state, who, under the law, compose the board of liquidation. That board is, in no sense, a custodian of this fund. Its duty was to negotiate the exchange of the new bonds for the old on the terms proposed. It has nothing to do with levying the tax, collecting the money, or paying it out, further than by purchasing the bonds with any surplus there might be from time to time in the treasury over what was required to meet the interest. The provision in the law that it shall be the duty of the auditor, treasurer, and the board, respectively, to collect the tax, pay the interest, and redeem the bonds, evidently means no more than that the auditor and treasurer shall perform their respective duties under the general laws in the assessment and collection of the tax, and shall pay in the usual manner the interest and principal of the bonds as they respectively fall due, and that the board shall purchase and retire the bonds whenever there is a surplus that, under the law, is to be used for that purpose.

The treasurer of the state is the keeper of the treasury, and in that way is the keeper of the money collected from this tax just as he is the keeper of other public moneys. The taxes were collected by the tax-collectors and paid over to the state treasurer,-that is to say, into the state treasury,-just as other taxes were when collected. The treasurer is no more a trustee of these moneys than he is of all other public moneys. He holds them, but only as the agent of the state. If there is any trust, the state is the trustee, and unless the state can be sued the trustee cannot be enjoined. The officers owe duty to the state alone, and have no contract relations with the bondholders. They can only act as the state directs them to act, and hold as the state allows them to hold. It was never agreed that their relations with the bondholders should be any other than as officers of the state, or that they should have any control over this fund except to keep it like other funds in the treasury and pay it out according to law. They can be moved through the state, but not the state through them.

In this connection there is much that is instructive in the case of The Queen v. Lords Commissioners of the Treasury, L. R. 7 Q. B. 387. There money had been appropriated by parliament for the payment of costs of a particular character, and an application was made for a mandamus to compel the lords commissioners of the treasury to pay certain bills which had been properly taxed, but although the court was emphatic in its declaration that payment ought to be made, the writ was refused because the lords commissioners held 'the money as the servants of the crown, and no duty was imposed upon them as between them and the persons to whom the money was payable.' Lord Chief Justice COCKBURN, in his opinion, said, (page 394:) 'Though I quite agree that according to the appropriation act they (the lords commissioners) were bound to apply the money upon the vouchers being produced, and had no authority to retax these bills, still I cannot say that there is any duty which makes it incumbent upon them to do what I cannot hesitate to say they ought to have done, except as servants of the crown; because in that character they have received the money, and in no other.' And BLACKBURN, J., (page 399:) 'It seems to me that the obligation, such as it is, is upon her majesty, to be discharged through her servants, and you cannot proceed therefor against the servants.' So, here, the obligation is all on the state, to be discharged through its servants, and the money is held by the officers proceeded against in their character as servants of the state, and no other.

There is nothing in any of the cases in this court that are relied on, which, to our minds, authorizes any such relief as is asked.

In Osborn v. Bank of U.S. 9 Wheat. 738, which is the leading case and cited as authority in all the others, the object was to prevent money which had been unlawfully taken out of the bank by the officers of the state from getting into the treasury. The money was, in legal effect, stopped while passing from the bank to the treasury. The controlling facts are thus stated by Chief Justice MARSHALL in the opinion, (page 868:)

'But when we reflect that the defendants Osborn and Harper     are incontestably liable for the full amount of the money      taken out of the bank; that the defendant Currie is also      responsible for the sum received by him, it having come to      his hands with the full knowledge of the unlawful means by      which it was acquired; that the defendant Sullivan is also      responsible for the sum specifically delivered to him, with      notice that it was the property of the bank, unless the form      of having made an entry on the books of the treasury can      countervail the fact that it was, in truth, kept untouched,      in a trunk, by itself, as a deposit, to await the event of      the pending suit respecting it,-we may lay it down as a      proposition, safely to be affirmed, that all the defendants      in the case were liable in an action at law for the amount of      this decree. If the original injunction was properly awarded,     for the reasons stated in the preceding part of this opinion,      the money, having reached the hands of all those to whom it      afterwards came with notice of that injunction, might be      pursued, so long as it remained a distinct deposit, neither      mixed with the money of the treasury, nor put into      circulation. * *  * The money of the bank had been taken,      without authority, by some of the defendants, and was      detained by the only person who was not an original      wrong-doer, in a specific form; so that detinue might have      been maintained for it, had it been in the power of the bank      to prove the facts which are necessary to establish the      identity of the property sued for.'

Under this state of facts the order for its return involved no question of power to interfere with what was actually in the treasury. The officers stood in the place of a sheriff who had levied an execution on goods and was sued to test his right to keep them, and the principle applied in the decision is thus stated in the head-note of the report: 'A court of equity will interpose by injunction to prevent the transfer of a specific thing, which, if transferred, will be irretrievably lost to the owner, such as negotiable stocks and securities.' Thus the money seized was kept out of the treasury, because if it got in, it would be irretrievably lost to the bank, since the state could not be sued to recover it back. No one pretended that if the money had been actually paid into the treasury, and had become mixed with the other money there, it could have been got back from the state by a suit against the officers. They would have been individually liable for the unlawful seizure and conversion, but the recovery would be against them individually for the wrongs they had personally done, and could have no effect on the money which was held by the state. Certainly no one would ever suppose that by a proceeding against the officers alone, they could be held as trustees for the bank, and required to set apart from the moneys in the treasury an amount equal to that which had been improperly put there, and hold it for the discharge of the liability which the state incurred by reason of the unlawful exaction.

In Davis v. Gray, 16 Wall. 203, the receiver of a land-grant railroad obtained an injunction against the governor and commissioner of the land-office of Texas to restrain them from incumbering, by patents to others, lands which had been contracted to the railroad company. The legal title was in the state, but the equitable title in the company. The specific tracts of land in dispute were, by the contract which had been made, segregated from the public domain and set apart for the company. The case rests on the same principle it would if patents had been actually issued to the company, and the state, through its officers, was attempting to place a cloud on the title by granting subsequent patents to others.

In Board of Liquidation v. McComb, 92 U.S. 531, which arose under the same act of 1874 that we are now considering, the board of liquidation was enjoined, at the instance of bondholders, from admitting to the privileges of the compromise proposed by the state certain persons other than those originally provided for and on different terms. And this clearly because the board of liquidation was, by the very terms of the law, charged with the duty of exchanging the bonds specifically set apart by the contract for a particular purpose, and every bona fide bondholder, by accepting the compromise offered, became personally interested in securing the due administration of the trust which had thus been committed to the board. In fact, the board held the new issue of bonds in trust, and every one who gave up his old obligations and accepted the new in settlement became a beneficiary under the trust, and might act accordingly.

In this case, however, there is no such trust. As has already been said, the board is charged with no duty in respect to the taxes, except in connection with the purchase of bonds whenever there are funds which can be used in that way. The auditor and treasurer are required to audit and pay the coupons as they are presented, but that does not make them trustees for the bondholders of the money in the treasury out of which the payment is to be made. They may draw on the fund raised to make the payment, but that is the extent of their official control over it. The law has never made it a part of their official duty to separate from the other moneys in the treasury that which was realized from the taxes in question, and hold it in trust for the bondholders. The state has contracted not to use this money in any other way than to pay the debt, but, as against the state, the officers have no right to say they will keep it for that purpose only. It may be, without doubt, easily ascertained from the accounts how much of the money on hand is applicable to the payment of this class of debts, but the law nowhere requires the setting apart of this fund any more than others from the common stock. In the treasury all funds are mingled together, and kept so until called for to meet specific demands.

In the Arlington Case, decided at this term, it was held that the officers of the United States, holding in their official capacity the possession of lands to which the United States had no title, could be required to surrender their possession to the rightful owner, even though the United States were not a party to the judgment under which the eviction was to be had. Here, however, the money in question is lawfully the property of the state. It is in the manual possession of an officer of the state. The bondholders never owned it. The most they can claim is that the state ought to use it to pay their coupons, but until so used it is in no sense theirs.

Little need be said with special reference to the suit for mandamus. In this no trust is involved, but the simple question presented is whether a single bondholder, or a committee of bondholders, can, by the judicial writ of mandamus, compel the executive officers of the state to perform generally their several duties under the law. The relators do not occupy the position of creditors of the state demanding payment from an executive officer charged with the ministerial duty of taking the money from the public treasury and handing it over to them, and, on his refusal, seeking to compel him to perform that specific duty. What they ask is that the auditor of state, the treasurer of state, and the board of liquidation may be required to enforce the act of 1874, and 'carry out, perform, and discharge each and every one of the ministerial acts, things, and duties respectively required of them, * *  * according to the full and true intent and purport of that act.' Certainly no suit begun in the circuit court for such relief would be entertained, for that court can ordinarily grant a writ of mandamus only in aid of some existing jurisdiction. Bath Co. v. Ames, 13 Wall. 247; Davenport v. Dodge Co. 105 U.S. 242. Our attention has been called to no case in the state courts of Louisiana in which such general relief has been afforded, and the jurisdiction of the circuit court was, therefore, in no way enlarged through the operation of the removal acts, even if this is a case which was properly removed,-a question we do not deem it necessary now to decide. The remedy sought, in order to be complete, would require the court to assume all the executive authority of the state, so far as it related to the enforcement of this law, and to supervise the conduct of all persons charged with any official duty in respect to the levy, collection, and disbursement of the tax in question until the bonds, principal and interest, were paid in full, and that, too, in a proceeding to which the state, as a state, was not and could not be made a party. It needs no argument to show that the political power cannot be thus ousted of its jurisdictian, and the judiciary set in its place. When a state submits itself, without reservation, to the jurisdiction of a court in a particular case, that jurisdiction may be used to give full effect to what the state has by its act of submission allowed to be done; and if the law permits coercion of the public officers to enforce any judgment that may be rendered, then such coercion may be employed for that purpose. But this is very far from authorizing the courts, when a state cannot be sued, to set up its jurisdiction over the officers in charge of the public moneys, so as to control them as against the political power in their administration of the finances of the state. In our opinion to grant the relief asked for in either of these cases would be to exercise such a power.

The decree in the suit in equity and the judgment in that for mandamus are affirmed.


text: Talk:State of Louisiana Elliott v. Jumel/Opinion of the Court


text:
Page:A Thousand-Mile Walk To The Gulf.djvu/21

OHN MUIR, Earth-planet, Universe.”—These words are written on the inside cover of the notebook from which the contents of this volume have been taken. They reflect the mood in which the late author and explorer undertook his thousand-mile walk to the Gulf of Mexico a half-century ago. No less does this refreshingly cosmopolitan address, which might have startled any finder of the book, reveal the temper and the comprehensiveness of Mr. Muir’s mind. He never was and never could be a parochial student of nature. Even at the early age of twenty-nine his eager interest in every aspect of the natural world had made him a citizen of the universe. While this was by far the longest botanical excursion which Mr. Muir made in his earlier years, it was by no means the only one. He had botanized around the Great Lakes, in Ontario, and through parts of Wisconsin,


text:
Antoni v. Greenhow

''Wm. L. Royall, John F. Dillon, and Wager Swayne'', for plaintiff in error.

F. S. Blair, Atty. Gen. of Va., for defendant in error.

WAITE, C. J.

title: Antoni v. Greenhow


text: Talk:Antoni v. Greenhow

title: Talk:Antoni v. Greenhow