text:
Pratt v. Grand Trunk Railway Company/Opinion of the Court

The Grand Trunk Railway Company is egaged as a common carrier in the transportation of persons and property. This action seeks to recover damages for a violation of its duty in respect to certain merchandise shipped from Liverpool to St. Louis, and carried over its road from Montreal to Detroit. The goods reached the city of Detroit on the 17th of October, 1865, and on the night of the 18th of the same month were destroyed by fire.

The defendant claims to have made a complete delivery of the goods to the Michigan Central Railroad Company, a succeeding carrier, and thus to have discharged itself from liability before the occurrence of the fire.

If the liability of the succeeding carrier had attached, the liability of the defendant was discharged. Ransom v. Holland, 59 N. Y. 611; O'Neil v. N. Y. Central Railroad Co., 60 id. 138.

The uestion, therefore, is, Had the duty of the succeeding carrier commenced when the goods were burned?

The liability of a carrier commences when the goods are delivered to him or his authorized agent for transportation, and are accepted. Rogers v. Wheeler, 52 N. Y. 262; Grosvenor v. N. Y. Central Railroad Co., 59 id. 34.

If a common carrier agrees that property intended for transportation by him may be deposited at a particular place without express notice to him, such deposit amounts to notice, and is a delivery. Merriam v. Hartford Railroad Co., 24 Conn. 354; Converse v. ''N. & N. Y. Tr. Co.'', 33 id. 166.

The liability of the carrier is fixed by accepting the property to be transported, and the acceptance is complete whenever the property thus comes into his possession with his assent. Illinois Railroad Co. v. Smyser, 38 Ill. 354.

If the deposit of the goods is a mere accessory to the carriage, that is, if they are deposited for the purpose of being carried without further orders, the responsibility of the carrier begins from the time they are received; but, when they are subject to the further order of the owner, the case is otherwise. Ladere v. Griffith, 25 N. Y. 364; Blossom v. Griffin, 13 id. 569; Wade v. Wheeler, 47 id. 658; Michigan Railroad v. Schurlz, 7 Mich. 515.

The same proposition is stated in a different from when it is said that the liability of a carrier is discharged by a delivery of the goods. If he is an intermediate carrier, this duty is performed by a delivery to the succeeding carrier for further transportation, and an acceptance by him. Auth. supra.

The precise facts upon which the question here arises are as follows:--

At the time the fire occurred, the defendant had no freight room or depot at Detroit, except a single apartment in the freight-depot of the Michigan Central Railroad Company. Said depot was a building several hundred feet in length, and some three or four hundred feet in width, and was all under one roof. It was divided into sections or apartments, without any partition-wall between them. There was a railway track in the centre of the building, upon which cars were run into the building to be loaded with freight. The only use which the defendant had of said section was for the deposit of all goods and property which came over its road, or was delivered for shipment over it. This section, in common with the rest of the building, was under the control and supervision of the Michigan Central Railroad Company, as hereinafter mentioned. The defendant employed in this section two men, who checked freight which came into it. All fright which came into the section was handled exclusively by the employees of the Michigan Central Railroad Company, for which, as well as for the use of said section, said defendant paid said company a fixed compensation per hundred-weight. Goods which came into the section from defendant's road, restined over the road of the Michigan Central Railroad Company, were, at the time of unloading from defendant's cars, deposited by said employees of the Michigan Central Railroad Company in a certain place in said section, from which they were loaded into the cars of said latter company by said employees when they were ready to receive them; and, after they were so placed, the defendant's employees did not further handle said goods. Whenever the agent of the Michigan Central Railroad Company would see any goods deposited in the section of said freight-building set apart for the use of the defendant, destined over the line of said Central Railroad, he would call upon the agent of the defendant in said freight-building, and, from a way-bill exhibited to him by said agent, he would take a list of said goods, and would then, also, for the first time, learn their ultimate place of destination, together with the amount of freight-charges due thereon; that, from the information thus obtained from said way-bill in the hands of the defendant's agent,  way-bill would be made out by the Michigan Central Railroad Company for the transportation of said goods over its line of railway, and not before.

These goods were, on the 17th of October, 1865, taken from the cars and deposited in the apartment of said building used as aforesaid by the defendant, in the place assigned as aforesaid for goods so destined.

At the time the goods in question were forwarded from Montreal, in accordance with the usage in such cases, a waybill was then made out in duplicate, on which was entered a list of said goods, the names of the consignees, the place to which the goods were consigned, and the amount of charges against them from Liverpool to Detroit. One of these way-bills was given to the conductor who had charge of the train containing the goods, and the other was forwarded to the agent of the defendant in Detroit. On arrival of the goods at Detroit. the conductor delivered his copy of said way-bill to the checking-clerk of defendant in said section, from which said clerk checked said goods from the cars into said section. It was the practice of the Michigan Central Railroad Company, before forwarding such goods, to take from said way-bill in the custody of said checking-clerk, in the manner aforesaid, the place of destination and a list of said goods and the amount of accumulated charges, and to collect the same, together with its own charges, of the connecting carrier.

We are all of the opinion that these acts constituted a complete delivery of the goods to the Michigan Central Company, by which the liability of the Grand Trunk Company was terminated.

1. They were placed within the control of the agents of the Michigan Company.

2. They were deposited by the one party and received by the other for transportation, the deposit being an accessory merely to such transportation.

3. No further orders or directions from the Grand Trunk Company were expected by the receiving party. Except for the occurrence of the fire, the goods would have been loaded into the cars of the Michigan Central Company, and forwarded, without further action of the Grand Trunk Company.

4. Under the arrangement between the parties, the presence of the goods in the precise locality agreed upon, and the marks upon them, 'P. & F., St. Louis,' were sufficient notice that they were there for transportation over the Michigan road towards the city of St. Louis; and such was the understanding of both parties.

The cases heretofore cited in 20 Conn. 354, and 33 id. 166, are strong authorities upon the point last stated.

In the latter case, a railroad company and a steamboat company had a covered wharf in common, at their common terminus, used as a depot and a wharf; and it was the established usage for the steamboat company to land goods for the railroad, on the arrival of its boats in the night, upon a particular place in the depot, whence they were taken by the railroad company, at its convenience, for further transportation, both companies having equal possession of the depot. There was no evidence of an actual agreement that the goods deposited were in the possession of the railroad company, and the goods in question had not been in the manual possession of the railroad company when they were destroyed by fire on the Sunday afternoon following their deposit on the previous night. It was held that there was a tacit understanding that the steamboat company should deposit their freight at that particular spot, and that the railroad should take it thence at their convenience. The delivery to the succeeding carrier was held to be complete, and a recovery against the first carrier for the loss of the goods was reversed.

In Merriam v. Hartford Railroad Co., supra, it was held that if a common carrier agree that property intended for transportation by him may be deposited at a particular place without express notice to him, such deposit alone is a sufficient delivery; and that such an agreement may be shown by a constant practice and usage so to receive property wi hout special notice.

The plaintiff contends that the goods were not in the custody and under the control of the Michigan road, for the reason that the case states that they 'are in a section of the freight-depot set apart for the use of the defendant.' This is not an accurate statement of the position. The expression quoted is used incidentally in stating that, when the agent of the Michigan road saw 'goods deposited in the section of the freight-building set apart for the use of the defendant, destined on the line of said Central railroad, he would call upon the agent of defendant, and, from a way-bill,' obtain a list of the goods, and their destination. Just how and in what manner it was thus set apart appears from the facts already recited. It was a portion of the freight-house of the Michigan Company, in which a precise spot was selected or set apart, where the defendant might deposit goods brought on its road and intended for transportation over the Michigan road, and which, by usage and practice and the expectation of the parties, were then under the control of the Michigan Company, and to be loaded on to its cars at its convenience, without further orders from the defendant.

We are of the opinion that the ruling and direction of the circuit judge, that upon the facts stated the defendant was entitled to a verdict and judgment in its favor, was correct, and the judgment should be affirmed.

Judgment affirmed.


text: Talk:Pratt v. Grand Trunk Railway Company/Opinion of the Court

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


text: Hatch v. Coddington

title: Hatch v. Coddington


text: Talk:Hatch v. Coddington

title: Talk:Hatch v. Coddington


text:
Hatch v. Coddington/Opinion of the Court

ERROR to the Circuit Court of the United States for the Southern District of New York.

This action was trover by Edwin A. C. Hatch against Thomas B. Coddington for the conversion of forty-five Minnesota State bonds. Each party claimed them under the Minnesota and Pacific Railroad Company, to whom they had, on the 3d of February, 1859, been issued by the State, under a provision of its Constitution authorizing the issue of such bonds for the purpose of expediting the construction of certain railroads.

The plaintiff claimed title by the following transfers, both dated May 13, 1859:--

'For value received, we, the Minnesota and Pacific Railroad Company, hereby sell, assign, transfer, and set over to Selah Chamberlain and his assigns forty-five bonds for $1,000 each, issued by the State of Minnesota to us, and now in the hands of Thomas B. Coddington & Co., of the city of New York, and authorize and empower him to have and receive the same.

'In witness whereof, we have caused these presents to be signed by our president, Edmund Rice, and attested by our secretary, James W. Taylor, and our corporate seal to be thereto affixed, this thirteenth day of May, in the year 1859.

[SEAL.] 'EDMUND RICE, President.

'Attest: JAMES W. TAYLOR, Secretary.'

'For value received, I hereby assign, transfer, and set over unto Edwin A. C. Hatch, the forty-five Minnesota State railroad bonds of the denomination of $1,000 each, now in the hands of T. B. Coddington & Co., of the city of New York, and all my right, title, and interest therein, being the bonds issued to the Minnesota and Pacific Railroad Company, and transferred by said company to me.

'S.C.HAMBERLAIN.'

The bonds had been deposited with Thomas B. Coddington & Co., the defendant's firm, as security for the obligations of a contract which they made with the company on the 21st of April, 1859.

The plaintiff alleged that this contract had been executed by Edmund Rice without authority, and only conditionally delivered, and that it consequently never took effect.

At the date of its execution, said Rice was president, Rensselaer R. Nelson was vice-president, and William H. Newton and said Hatch were directors of the company.

The contract was negotiated by Newton in concert with Rice, both being at the time in New York. As evidence of his authority to make the contract, Rice gave to Newton, to hand to T. B. Coddington & Co., the charter of the company, copies of legislative acts and of the provision of the constitu ion authorizing the bonds, and also of the following resolution of the board of directors of the company, passed July 13, 1858:--

'Whereas the interests of the Minnesota and Pacific Railroad Company require that no default in the performance of the conditions under which the credit of the State of Minnesota has been loaned to this company shall occur, and that means shall be promptly provided, with the aid of said loan of State credit, to construct one hundred miles of road at an early day, thereby vesting in the company the right to sell, unconditionally, three hundred and eightyfour thousand acres of land: Therefore,'Resolved, That Edmund Rice, president of the Minnesota and Pacific Railroad Company, or any agent or agents duly appointed by him in writing to execute the trusts and powers conferred by this resolution, be, and are hereby, authorized and empowered, in pursuance of sect. 21 of the charter, to sell, loan, pledge, hypothecate, or otherwise dispose of the first-mortgage bonds of the company in conformity to the provisions of the trust mortgage deed of said company at par, or any price less than par, and for such sum or sums as to the said Rice or agents appointed by him shall appear most for the interest for the company; and the said president, or such agent or agents as he may appoint, is and are hereby authorized to borrow such sum or sums of money for such length of time and for such rate of interest as to him or such agent or agents may seem proper, for or on behalf of the company, and also to purchase such quantity of iron rails, locomotives, cars, tenders, rolling-stock, and machinery for such road, and upon such terms as he or such agent or agents may deem advisable, and to make, execute, and deliver, in the name and on behalf of siad company, such obligations, bills of exchange, contracts, and agreements, in writing, as will enable him or such agent or agents to carry out the powers and authority above conferred upon him or them, making monthly reports to the board of his acts in the premises; all which acts thereunder done are hereby ratified and confirmed: Provided, that the whole amount of obligations to be incurred on behalf of the company under this resolution shall not exceed the sum of $1,750,000.

'A true copy from the minutes.

[L. S.] 'Attest: JAMES W. TAYLOR, Secretary.'

The plaintiff also contended that, if originally sufficient, the powers given by the resolution were withdrawn by the following resolutions of the executive committee of the directors, passed Jan. 23 and Feb. 3, 1859:--

'ST. PAUL, Jan. 23, 1859.

'At a meeting of the executive committee.

'On motion,

'Resolved, That R. R. Nelson, acting president of the Minnesota and Pacific Railroad Company, be authorized to amke application and receive from the governor $100,000 of the State bonds, which said company are now entitled to.

'Resolved, That the acting president be instructed to appropriate the $100,000 of the State bonds which the Minnesota and Pacific Railroad Company are now entitled to from the State to pay the actual current expenses which have accrued up to date, and which may hereafter accrue, including salaries of officers, interest of the first-mortgage bonds of the company already disposed of, and other incidental expenses.

'R. R. NELSON, Chairman.

'WM. H. NEWTON, Secretary.'

'ST. PAUL, Feb. 3, 1859.

'At a meeting of the executive committee.

'On motion,

'Resolved, That R. R. Nelson, as acting president of the Minnesota and Pacific Railroad Company, be, and is hereby, authorized to sell all or any portion of the State bonds in his hands at such rates as he may deem to the best interests of the company, and apply the proceeds as heretofore directed by resolution of the executive committee, and any or all of said proceeds be placed to the credit of R. R. Nelson, the vice-president of this company, for the benefit of said company, as he may direct.

'R. R. NELSON, Chairman.

'WM. H. NEWTON, Secretary.'

There was no evidence that these resolutions were ever brought home to the defendant. The evidence as to the absolute delivery of the contract was conflicting, and took a wide range. The contract provided for a purchase and sale of railroad iron, and an advance by T. B. Coddington & Co. of $16,000 to the company, on its notes. The company was to deposit as security eighty-five bonds; but it had in New York, at the time the contract was executed, only the forty-five in question.

The contract was made in duplicate, and signed at New York on the part of the company by Rice, the president. At the same time were signed three notes for the $16,000. Rice received one of the contracts, and a letter of credit authorizing drafts for the $16,000; the other contract and the notes were delivered to T. B. Coddington & Co. The bonds were delivered with the following letter:--

'NEW YORK, 21st April, 1859.

'Messrs. T. B. CODDINGTON & CO.:

'DEAR SIRS,-In conformity with an agreement made with you this day, I hand you, by Mr. William H. Newton, $45,000 of Minnesota State bonds, and will send you, without delay, a further amount of $40,000 of like description of State bonds, as collateral and for negotiations, as per same agreement.

'I also hand you our three notes, bearing this date, at six months, with interest at seven per cent,-one for $6,000 and two $5,000 each, in all $16,000, against which you will please grant a letter of credit for $16,000, in favor of William H. Newton, stipulating that, on your receiving the remaining $40,000 of bonds above referred to, you will accept drafts drawn by him at one day's sight on you.

'I am, yours respectfully,

'EDMUND RICE,

'''Pres. Minn. & Pac. R. R. Co.'''

Rice testified that he gave Newton the papers to be left with T. B. Coddington & Co., but not to take effect unless ratified by the board of directors, nor if Nelson had disposed of the forty bonds then supposed to be in his hands.

There was no evidence that any condition affecting the delivery was brought home to the defendant or his firm. He testified that the papers were exchanged absolutely, he being represented by his clerk; and Newton testified that there was no condition of any kind in reference to the delivery.

The contract, the three notes, the letter of credit, and the letter undertaking to send forty more bonds were all executed April 21, 1859. Rice and Newton at once telegraphed to Nelson, at St. Paul, 'Interest on State bonds provided for, and a thousand tons of iron purchased,' and started for that place the next day, where they arrived on or before the 29th of April. On that day and the next, and on the 6th, 9th, 10th, 11th, 12th, and 13th of May, they attended meetings of the board.

On the 30th of April Rice wrote to defendant the following letter, which was the first communication he sent after leaving New York for St. Paul:--

'OFFICE OF THE MINNESOTA & PACIFIC R. R. CO.,

'ST. PAUL, April 30, 1869.

'GENTLEMEN,-I found upon my arrival here that the acting president of this company had disposed of the forty Minnesota State bonds, which were to have been forwarded to you by the terms of the contract made between us in New York. You will perceive, therefore, that it is impossible for the company to comply with its undertaking. Some action of the board of directors will be had upon the subject, of which I shall take pleasure in advising you at the earliest moment.

'Very respectfully, your obedient servant,

'EDMUND RICE,

'''Pres. Minn. & Pac. R. R. Co.'''

'T. B. CODDINGTON & CO., New York.'

The proceedings of the board do not show any action adverse to the contract as having been unauthorized, or as not consummated.

On the 14th of May, 1859, the following communication was addressed to Coddington & Co.:--

'OFFICE OF THE MINNESOTA & PACIFIC R. R. Co.

'ST. PAUL, May 14, 1859.

'Messrs. T. B. CODDINGTON & CO.:

'GENTS,-You will please deliver to Messrs. Rice or William H. Newton forty-five Minnesota State seven per cent bonds, of the enomination of $1,000 each, now in your hands, issued by the State to the Minnesota and Pacific Railroad Company, said bonds belonging to the railroad company.

'Very respectfully, yours,

'R. R. NELSON,

'''Acting Pres. M. & Pac. R. R. Co.'''

On the 17th, Rice wrote them, enclosing a copy of the following resolution of the board:--

'SECRETARY'S OFFICE, MINNESOTA & PACIFIC R. R. CO.

'At a meeting of the board of directors of the Minnesota and Pacific Railroad Company, held in St. Paul, May 13, 1859, the following resolution was unanimously adopted:--

"Whereas circumstances have arisen in the affairs of this company whereby it has become impossible to comply with the terms of the contract made by the president thereof, on behalf of the company, with T. B. Coddington & Co., of the city of New York, under date of April 21, 1859: Therefore,

"Resolved, That William H. Newton, Esq., be, and he is hereby, authorized to proceed to New York and procure a surrender of said contract and a return of the forty-five Minnesota State bonds transferred to Messrs. T. B. Coddington & Co., upon such equitable terms as may be agreed upon.'

[CORPORATE SEAL.] 'T. M. METCALF, Secretary.'

These papers and some subsequent correspondence were, without objection, received in evidence as bearing on the disputed question whether the delivery was in fact conditional, and also as showing, if it was, a ratification of the president's acts, and a waiver of the condition.

The plaintiff requested the court to charge as matter of law that there had been no ratification. The court refused so to charge, but left the evidence of the conduct of the company and its officers to the jury, with the instruction, however, requested by the plaintiff, that 'to constitute ratification there must have been a direct sanction of the contract by the board of directors, or conduct, or acts, or a resolution or resolutions inconsistent with any other supposition than an assent to such contract by said board.'

The court also left the evidence of the conduct of the company and its officers, after the date of the contract, to the jury, as bearing 'upon the question whether either of the conditions. . . were impressed upon the contract, so as to make the delivery conditional and dependent upon the fulfilment of the conditions. . . as having a proper bearing as evidence upon the fact whether the condition was imposed.'

To this instruction the plaintiff excepted.

The court also charged the jury that, under the resolution of July 13, 1858, Rice had authority to make the contract of April 21, 1859, and that that authority was not withdrawn by the resolutions of Jan. 23 and Feb. 3, 1859; nor did those resolutions derogate, detract from, or in any manner impair the force and efficiency of said resolution of July 13, 1858. The plaintiff excepted to this charge, and assigns it for error here.

There was a verdict for the defendant; and, judgment having been rendered thereon, the plaintiff removed the case here. The assignments of error not passed upon by the court are omitted.

Mr. E. W. Stoughton for the plaintiff in error.

Mr. William M. Evarts and Mr. S. P. Nash, contra.

MR. JUSTICE STRONG delivered the opinion of the court.

We concur with the Circuit Court in the opinion that Mr. Rice was authorized by the resolution of the board of directors of July 13, 1858, to make the contract with the defendant, which it is claimed he made on the 21st of April, 1859. That resolution was very broad. As appears from its preamble, it aimed to provide, promptly, means for the construction of one hundred miles of the company's railroad, and to guard against default in the performance of the conditions upon which the credit of the State had been loaned; and these aims were intended to be secured, in part, with the aid of the State loan, that is, with the aid of the State bonds delivered to the company. The preamble, having avowed such purposes, was followed by a resoluti n which expressly conferred upon Mr. Rice, the president of the company, several distinct powers. The first was to sell or hypothecate the first-mortgage bonds of the company (thereafter to be issued) for such sum or sums as he might think for the interest of the company. A second power given was to borrow money on behalf of the company in such sums, for such length of time, and at such a rate of interest as he might think proper. And, thirdly, he was empowered to purchase iron rails, locomotives, machinery, &c., for the company, on such terms as he might deem advisable; and, to enable him to carry out these powers and authority, he was empowered to make, execute, and deliver obligations, bills of exchange, contracts, and agreements of the company. It is difficult to see what words would have been more comprehensive for the grant of power to do every thing which, in the judgment of Mr. Rice, was necessary or advisable, either for borrowing money or purchasing iron for the company. A general power to borrow money includes authority to give to the lender the ordinary securities for the sum borrowed. Among these are bonds, notes, or acceptances, and collaterals. But the resolution went further. It conferred power to make contracts and agreements, such as would enable Mr. Rice to borrow money or to make purchases of railroad iron; not merely contracts of purchase, but contracts and agreements that might enable him to effect a purchase. An engagement to give collaterals as a security for money borrowed, or for the payment of a debt incurred for iron, is surely within the limits of such a power. This disposes of the first question raised by the assignments of error. We hold that there is nothing in the agreement of April 21, 1859, transgressive of the power with which the president of the company was clothed by the resolution of the directors.

We are also of opinion that the power thus conferred was not revoked or withdrawn by the subsequent resolutions of Jan. 23 and Feb. 3, 1859. They made no reference to the action of the board in 1858, or to any powers conferred by that action upon the president of the company. Undoubtedly, they conferred authority upon Mr. Nelson, acting as president of the company in the absence of the president, to dispose of the bonds; but such authority was not inconsistent with the concurrent existence of the like power in Rice. Two persons may be employed separately to negotiate the sale or hypothecation of bonds, and either may thus dispose of them. If a disposition be made by one, of course the other will be unable to exercise the power with which he was clothed; but, until a sale or hypothecation is made, either may make it. Moreover, in this case there is no evidence that knowledge of the resolutions of Jan. 23 and Feb. 3, 1859, was ever communicated or intended to be communicated to the defendant. The authority given to Mr. Rice was exhibited to him. On its face it was a continuing authority, on which he had a right to rely until notified of its revocation. Persons who deal with an agent before notice of the recall of his powers are not affected by the recall. 2 Kent, Com. 644, note; Fellows v. Steamboat Company, 38 Conn. 197; Tier v. Sampson, 35 Vt. 179; Morgan v. Stell, 5 Binn. (Pa.) 305. It follows, therefore, very plainly there was no error in the refusal of the circuit judge to instruct the jury, that, if the resolution of July 13, 1858, conferred upon Mr. Rice authority to make the contract, the authority was withdrawn by the resolutions of Jan. 23 and Feb. 3, 1859.

At the trial in the court below there was some evidence that the contract set up as a defence by the defendant was not unconditionally delivered. The plaintiff alleged that when it left the hands of Mr. Rice, on its way to the defendant, after his signature, two conditions accompanied it. One was that it should not be binding, and that the delivery of the bonds should be inoperative, unless the board of directors of the company, after being advised thereof, should app ove, ratify, and confirm it. The other condition alleged was, that if forty of the bonds, making up, with the forty-five deposited with the defendant, the eighty-five called for by the contract, had been disposed of at St. Paul by the proper officer of the company who had them in charge, the contract should not be binding. Whether such conditions had been imposed was a question of fact properly submitted to the jury, with the instruction that, if they had been, the contract was not binding unless the company afterwards ratified and adopted it. It therefore became a material inquiry in one aspect of the case whether there had been such an adoption or ratification; and the defendant asked the court to instruct the jury that there had been no ratification by the railroad company, and especially that a certain resolution of the company, adopted May 13, 1859, and communicated to the defendant, was not a ratification. The court declined to give such instructions, and, we think, properly. We think the resolution referred to was a plain acknowledgment that the contract made by Mr. Rice with the defendant was binding upon the company, and, as it was communicated to the defendant, it was notice to him that the company acknowledged its obligation. In the resolution and its preamble there is nothing which denies that the contract to which it refers had been made, or asserts that no obligation had been assumed. On the contrary, al its language is appropriate to a contract perfected. It is an admission that the company had confirmed and accepted it. It speaks of the contract as made, not merely proposed, and asserts as impossibility to comply with its terms, not of an impossibility to enter into the engagement. It authorizes Newton to procure a surrender of the contract and a return of the bonds, which it states had been transferred to Coddington & Co. upon such terms as might be agreed upon. All this is plain recognition of the contract as a binding obligation, and an assertion of a wish to obtain a release from it. To say the least, it is inconsistent with any intent to treat the contract as imperfect and inoperative. In view of it, we think the court was justified in refusing to charge the jury as requested; and, if there was error in the mode in which the question of ratification was submitted, it was error of which the plaintiff cannot complain.

It is unnecessary to notice the other assignment of error, in view of what we have said.

Judgment affirmed.


text: Talk:Hatch v. Coddington/Opinion of the Court


text:
McHenry v. La Soci et E. Francaise D'Epargnes.

ERROR to the Supreme Court of the State of California.

On the 18th of June, 1870, John McHenry, being indebted to a society known as La Soci et e Francaise D' Epargnes in the sum of $14,000, made his promissory note for that amount, payable twelve months after date, and secured its payment by a mortgage on certain property in the city of San Francisco, in the execution of which his wife did not join. McHenry was, March 20, 1872, duly adjudicated a bankrupt in the District Court of the United States for the District of California, and on the 14th of June following the society proved its debt before the register. Aug. 15, 1872, proceedings in foreclosure were commenced by the society in the District Court of the nineteenth judicial district of the State of California against the assignee in bankruptcy, McHenry, his wife and other parties claiming interests in the property. The assignee made no defence. McHenry and wife demurred, and, among other grounds, set up the bankruptcy proceedings and the absence of leave of the bankrupt court to commence the suit. Oct. 4, 1872, application was made to the latter court for such leave; and, the assignee having so consented in open court, the order was granted, provided that in said action no judgment for any deficiency be taken against the bankrupt or his assignee. The cause was then, notwithstanding certain special defences of the wife, prosecuted to a decree, which made no provision for enfor ing the payment of any sum that might remain due after the sale of the mortgaged premises. McHenry and wife appealed to the Supreme Court of the State, where the decree below was affirmed. The case was then brought here.

Mr. Thomas J. Durant for the plaintiffs in error.

Mr. Edmond L. Goold, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.


text: Talk:McHenry v. La Soci et E. Francaise D'Epargnes.


text:
McHenry v. La Soci et E. Francaise D'Epargnes./Opinion of the Court

In Claflin v. Houseman, 93 U.S. 130, we decided that, under the law as it stood previous to the adoption of the Revised Statutes, the courts of the United States did not have exclusive jurisdiction of suits for the settlement of conflicting claims to property belonging to the estate of a bankrupt, and that an assignee in bankruptcy might sue in a State court to collect the assets. In Mays v. Fritton, 20 Wall. 414, we also held, that if an assignee in bankruptcy submitted himself to the jurisdiction of a State court in a suit affecting the estate which was pending when the proceedings in bankruptcy were commenced, he was bound by any judgment that might be rendered. And in Eyster v. Gaff, 91 U.S. 525, Mr. Justice Miller, speaking for the court, said:--

'The debtor of a bankrupt, or the man who contests the right to real or personal property with him, loses none of his rights by the bankruptcy of his adversary. The same courts remain open to him in such contests, and the statute has not divested those courts of jurisdiction in such actions. If it has for certain classes of actions conferred jurisdiction for the benefit of the assignee in the Circuit and District Courts of the United States, it is concurrent, and does not divest that of the State courts.'

The principles upon which those cases rest are decisive of this. The complainant, having a debt against the bankrupt secured by mortgage, proved the claim against the estate. This, under sect. 20 of the bankrupt law, 14 Stat. 526, Rev. Stat., sect. 5075, admitted the complainant as a creditor of the general estate only for the balance of the debt after deducting the value of the mortgaged property, to be ascertained by agreement, sale, or in such other manner as the bankrupt court might direct. The assignee is not required to take measures for the sale of mortgaged property, unless its value is greater than the incumbrance. His duties relate chiefly to unsecured creditors, and he need not trouble himself about incumbered property, unless something may be realized out of it on their account, or unless it becomes necessary to do so in order to ascertain the rights of the secured creditor in the general estate. If he does, and it becomes necessary to adjust the liens before his sale, he may, under the ruling in Claflin v. Houseman, institute the necessary proceedings for that purpose in the courts of the United States, or of the State, as he chooses. If he does not, the secured creditor who wishes to make his security available must act; and, having obtained leave of the bankrupt court to bring his action for that purpose, he may proceed in the State court, if the assignee does not object, or in the courts of the United States, at his election. Here the necessary leave to sue was obtained before the decree was rendered, and the assignee, instead of objecting to the jurisdiction of the State court, consented to that mode of proceeding. The bankrupt and his wife alone objected; but as to them, as we held in Eyster v. Gaff, the jurisdiction of the State court was not divested by the proceedings in bankruptcy.

Judgment affirmed.


text: Talk:McHenry v. La Soci et E. Francaise D'Epargnes./Opinion of the Court


text: Chouteau v. United States

title: Chouteau v. United States


text: Talk:Chouteau v. United States

title: Talk:Chouteau v. United States


text:
Chouteau v. United States/Opinion of the Court

APPEAL from the Court of Claims.

On the ninth day of July, 1863, Charles W. McCord entered into a written contract for building at St. Louis an iron-clad steam-battery, which was built and delivered, and was called the 'Etlah.' Complete specifications for its construction were part of the contract; and the United States agreed to pay for the battery the sum of $386,000. The contract also provided tha the Navy Department might make alterations and additions to the plans and specifications at any time during the progress of the work, as it might deem necessary and proper, and should pay any extra expense caused by such changes, at fair and reasonable rates, to be determined when the changes were directed to be made. It was also agreed that the battery should be completed and delivered within eight months from the 24th of June, 1863, and that for every month that the delivery might be made earlier than that time McCord should receive $4,500, and for every month later he should pay a like sum.

The vessel was not finished ready for delivery until November, 1865, more than twenty months after the date fixed by the contract; but the Court of Claims found that her completion within the stipulated time was prevented by the United States, and that the cost of the work required by the contract was, owing to the increased price of materials and skilled labor, enhanced $118,283.20 above the sum originally specified. Many and important changes were made in the plan and specifications for the battery by the bureau of construction and repair of the Navy Department; but no agreement as to the additional cost of the work was made, as the contract provided for, except in some matters not now in controversy.

This extra work the petition alleges was of the value of $172,273.55; and the Court of Claims so found. $116,111 was paid for it; and in this action the recovery of the difference of $56,162.55 is sought. Under the finding, the only defence to this branch of the case is that the sum paid was received and accepted as payment in full, as appears by the following voucher, certified by the auditor of the treasury for the Navy Department:--

'ETLAH.-PAYMENT ON ACCOUNT OF EXTRAS.

'NEW YORK, April 24, 1866.

'U.S. Navy Department to Charles W. McCord, Dr.

"(Appropriation: Construction and Repair.) For work done to    the light-draft monitor 'Etlah,'which is extra to the contract     dated June 24, 1863, being the full and final payment on all     extras, and in full for all claims and demands for that work .     . . . .$31,114.00 Less amount paid E.W. Barstow & Son, as per

order.................... $605.

contract, but not furnished. 3,852.

-

$4,457.

-

$26,653.

'I certify that the materials and labor which are extra to the contract dated June 24, 1863, put upon the vessel 'Etlah,' built by Charles W. McCord, amount in value to $116,111 (certificates having been previously given for $85,000), and they are according to directions which have been given from time to time.

'ROBERT DANBY,

'General Inspector Steam-Machinery for the Navy.'

'Approved:

'F. H. GREGORY,

Rear-Admiral Superintending

'NAVY DEPARTMENT,

'BUREAU 'CONSTRUCTION,' &C.,

'$26,653.17.]

'April 26, 1866.

'Approved in triplicate for twenty-six thousand six hundred and fifty-three dollars and seventeen cents, payable by the paymaster at New York.

'JOHN LENTHALL, Chief of Bureau.'

'PAYMASTER'S OFFICE, U.S. NAVY,

'29 BROADWAY, NEW YORK, May 11, 1866.

'Received of J. C. Eldredge, paymaster, twenty-six thousand six hundred and fifty-three 17/100 dollars, in full of the within bill, and have signed duplicate receipts.

'$26,653.17.]

CHARLES W. McCORD,

'Per GILMAN, SON & CO., Att'ys.

'1,887. 21,519 B2.'

'I certify that the above is a true copy of the voucher on file in this office.

'S. J. W. TABOR, Auditor.'

The powers of attorney under which the voucher was signed by Gilman, Son & Co. are as follows:--

'Know all men by these presents, that I, Charles W. McCord, of St. Louis, in the State of Missouri, have made, constituted, and appointed, and by these presents do make, constitute, and appoint, Gilman, Son & Co., or either member of said firm, in the city of New York, my true and lawful attorney, for me and in my name, place, and stead, to collect from the navy agent or authorized officer of the United States government all payments due or to become due to me for building an iron-clad vessel at St. Louis, Missouri, named the 'Etlah,' as per contract dated 24th June, 1863, giving and granting unto my said attorney full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises, as fully, to all intents and purposes, as I might or could do if personally present, with full power of substitution and revocation, hereby ratifying and confirming all that my said attorney or his substitute shall lawfully do or cause to be done by virtue hereof.

'In witness whereof, I have hereunto set my hand and seal the twenty-fourth day of November, in the year 1863.

'CHARLES W. McCORD. [SEAL.]

'Sealed and delivered in the presence of

'THOMAS L. THORNELL.'

'STATE OF NEW YORK, County of New York,

'Be it known, that, on the twenty-fourth day of November, 1863, before me, a notary public in and for the State of New York, duly commissioned and sworn, dwelling in the city of New York, personally came Charles W. McCord, and acknowledged the above letter of attorney to be his act and deed.

'In testimony whereof, I have hereunto subscribed my name and affixed and seal of office the day and year last above written.

'THOMAS L. THORNELL, Notary Public.'

[Internal-revenue stamp, one dollar.]

'Know all men by these presents, that Charles W. McCord, of the city of St. Louis and State of Missouri, have made, constituted, and appointed, and by these presents do make, constitute, and appoint, Messrs. Gilman, Son & Co., of the city of New York, my true and lawful attorney, for me and in my name, and for my use, to ask, demand, sue for, recover, and receive all such sum or sums of money, debts, goods, wares, and other demands whatsoever which are or shall be due, owing, payable, and belonging to me, by any manner or means whatsoever; especially to receive any payments that are and will be due me by virtue of a contract entered into with the Navy Department to build a light-draft monitor named 'Etlah,' said contract bearing date June 24, 1863, for which I am to receive, upon the full compliance of said contract, the sum of $386,000, in eight equal payments, the Navy Department reserving twenty-five per cent on such payments until completion and reception of said vessel: giving and granting unto my said attorneys by these presents full power and authority in and about the premises to have, use, and take all lawful ways and means, in my name, for the purposes aforesaid; and upon the receipt of any such debts, dues, or sums of money (as the case may be), acquittances, or other sufficient discharges, for me and in my name to make and give, and generally to do all other acts and things in the law whatsoever needful and necessary to be done in and about the premises; for me and in my name to do, execute, and perform, as fully and to all intents and purposes as I might or could do if personally present; attorneys one or more under him, for the purposes aforesaid, to make, constitute, and again at pleasure to revoke. Hereby ratifying and confirming all and whatsoever my said attorneys shall lawfully do in and about the premises by virtue hereof.

'In witness whereof, I have hereunto set my hand and seal, this second day of January, in the year of our Lord 1864.

'CHARLES W. McCORD.' [SEAL.]

'STATE OF MISSOURI, County of St. Louis,}ss.

'Be it remembered, that on the second day of January, 1864, before me, the undersigned, John Jecko, a notary public duly commissioned and qualified, within and for the county aforesaid, came Charles W. McCord, who is personally known to me to be the same person whose name is subscribed to the foregoing instrument of writing as party thereto, and acknowledged the same to be his act and deed for the purposes therein mentioned.

'In witness whereof, I have hereunto set my hand and affixed m official seal the day and year last above written.

'JOHN JECKO, Notary Public.'

The court decided that the claim for extras was barred by McCord's receipt, and that the United States was not liable to the contractor for the enhanced cost of labor and materials. Chouteau, assignee of McCord, brought the case here.

Mr. Edward Lander and Mr. A. L. Merriman for the appellant.

The receipt by Gilman, Son & Co. of a less amount than was actually due on McCord's claim, and which was outside the contract, cannot bind him and discharge the debt. When certain special objects are enumerated in a power of attorney, the general words and power will be restrained by the objects specified. Byles on Bills, 32; Rosseter v. Rosseter, 8 Wend. (N. Y.) 494; Wallace v. Branch Bank at Mobile, 1 Ala. 565; Kingsley v. Bank of State, 3 Yerg. (Tenn.) 107; Story on Agency, 98, 99.

The extension of time required by the contractor for completing the work was caused solely by the changes and alterations in the original plan and specifications that were ordered by the bureau of construction and repair. The United States is therefore liable to him for such an amount as will cover his increased outlay, occasioned by the rise in the price of work and materials that took place during that time. Dermott v. Jones, 2 Wall. 1; Dubois v. Delaware & Hudson Canal Co., 4 Wend. (N. Y.) 291; Robson v. Godfrey, 1 Hall (N. Y.), 236; Lee et al. v. Partridge, 2 Duer (N. Y.), 463; Merrill v. Ithaca & Owego Railroad Co., 16 Wend. (N. Y.) 556.

Mr. Assistant Attorney-General Smith, contra.

MR. JUSTICE MILLER, after stating the case, delivered the opinion of the court.

It appears from the findings of the Court of Claims that the proper officer of the Navy Department estimated the same extra work and material at $116,111, which that court now estimates at $172,273.55; and that McCord accepted this sum, if the voucher is binding on him, as the full value of his labor and materials, and acknowledged it to be payment in full.

His name is signed to this receipt by Gilman, Son & Co., his attorneys; and it is insisted by counsel that they could only bind him for the sum received, and not for its acceptance as full compensation. It is said in argument that they were bankers in New York, and had no other power than to receipt for such sums as might be paid them.

Two powers of attorney are produced from McCord to Gilman, Son & Co.,-one of the date of Nov. 24, 1863, and the other Jan. 2, 1864. These are very full, and especially the later. It makes them his true and lawful attorneys, 'to sue for, recover, and receive all sums of money, debts, goods, wares, and other demands whatsoever,' and especially payments that are or will be due on his contract for building the 'Etlah;' gives 'them full power in and about the premises to have, use, and take all lawful ways and means in his name for the purposes aforesaid, and to make such acquittances, or other sufficient discharges, for me and in my name, and generally to do all other acts necessary and lawful to be done in and about the premises.'

We are of opinion that this authorized Gilman, Son & Co. to accept payment of a voucher which declared on its face that it was the last, the full payment for the extra work done on the vessel, and thereby bind their principal to such acceptance.

But if we could be mistaken in this, the reasonable presumption is that Gilman, Son & Co. had nothing to do with obtaining this voucher from the Navy Department, but that it was so obtained by McCord himself, and forwarded by him to Gilman, Son & Co. for collection of the paymaster at New York. This is quite consistent with the fact that they were mere bankers. It is certainly fair to suppose that McCord presented his own statement of the account to the navy officers, and the final approval of the chief of the bureau of construction at Washington is dated April 26, 1866. The p yment as indorsed on that same voucher by the paymaster at New York to Gilman, Son & Co. is dated May 11, 1866, which is just about a reasonable time for the voucher to have been received from Washington by McCord at St. Louis, and by him forwarded to Gilman, Son & Co. at New York for collection. If this be the true history of the voucher, McCord is bound by his own actions, for the voucher, while in his hands, had on its face the clearest statement that the sum therein allowed was 'the full and final payment on all extras, and in full for all claims and demands for that work,' and if he forwarded it in this shape to his bankers to get the money on it, without protest, he must be bound by that statement in the voucher.

The Court of Claims finds that the delay in completing the vessel was caused by the changes ordered by the United States, and that, owing to the rise in the prices of the labor and materials on the work done under the original contract, and without reference to the changes, the cost of that work was increased to the builder $118,283.20.

The appellants asserted a claim for this amount also, which the court refused.

It is very clear that both parties contemplated the probability that the work would not be completed at the precise period of eight months from the date of the contract. They also contemplated that changes would be made in the construction of the battery. They made such provision for these matters as they deemed necessary for the protection of each party. For the reasonable cost and expenses of the changes made in the construction, payment was to be made; but for any increase in the cost of the work not changed, no provision was made. There was a provision for delay, by which the contractor was to submit to pay $4,500 for every month of that delay. This provision, the only one on that subject, if strictly enforced, might have made him a still greater loser; but it seems to have been waived. But we are very clear that without any such provision he must be held to have taken the risk of the prices of the labor and materials which he was bound to furnish, as every other contractor does who agrees to do a specified job at a fixed price. It is one of the elements which he takes into account when he makes his bargain, and he cannot expect the other party to guarantee him against unfavorable changes in those prices.

Judgment affirmed.


text: Talk:Chouteau v. United States/Opinion of the Court


text:
Ex parte Easton

PETITION for a writ of prohibition to restrain the District Court of the United States for the Eastern District of New York from exercising jurisdiction in a proceeding in rem to enforce an alleged lien for wharfage against the canal-boat or barge 'John M. Welch.'

As the facts in the case are fully stated in the opinion of the court, they are omitted here.

Mr. Edward D. McCarthy and Mr. J. E. Gowen for the petitioners.

The District Court has no jurisdiction over the barge 'John M. Welch,' because, 1, a contract of wharfage is not a maritime contract. The Genesee Chief, 12 How. 443; The Lottawanna, 21 Wall. 558; The Belfast, 7 id. 624; Insurance Company v. Dunham, 11 id. 1; Rex v. Humphrey, 1 McCle. & Yo. 194; Platt v. Hibbard, 7 Cow. (N. Y.) 497; Barry v. Langmore, 12 Ad. & E. 640; Speares v. Hartley, 3 Esp. 81; Richardson v. Goss, 3 Bos. & Pul. 119.

2. The maritime law gives no lien for wharfage. The Coal Barges, 3 Wall. Jr. 53; The General Smith, 4 Wheat. 438; The Lottawanna, 21 Wall. 558; Cunningham v. Hall, 1 Cliff. 51; The Thomas, 7 Am. Law Rev. 381; The Gem, Browne, Adm. 37; The Asa R. Swift, 1 Newb. Adm. 543; The Alexander McNeil, 20 Int. Rev. Rec. 175.

3. If the statutes of New York gave a lien against the vessel, which they do not, it could not be enforced in a court of admiralty by a proceeding ''in rem. Wick v. The Samuel Strong, 6 McLean, 587; The Laurel'', 1 Newb. Adm. 269; Maguire v. Card, 1 How. 248; The Lottawanna, 21 Wall. 558; Delovio v. Boit, 2 Gall. 398; People's Ferry Company v. Beers, 20 How. 393; The Circassian, 1 Ben. 209; Graham v. Haskins, Olc. Adm. 227; The Ship Harriet, id. 229; The Ottawa, 5 Am. Law T. 147; New Jersey Steam Navigation Co. v. Merchant's Bank, 6 How. 344; Allen v. Newberry, 21 id. 246; Ransom v. Mayo, 3 Blatchf. 71; Cunningham v. Hall, 1 Cliff. 51; The Two Friends, Bee, Adm. 440; Brig Hannah, id. 421; The Lady Horatio, id. 169; Cox v. Murray, Abb. Adm. 343; Garvey v. Crocket, id. 490; The Amstel, 1 Blatchf. & H. Adm. 215; McDermott v. The S. S. Owens, 1 Wall. Jr. 370; The Grand Turk, 2 Pittsb. (Pa.) 326; Philips v. Scattergood, Gilp. 3; Nicoll v. Gardner, 13 Wend. (N. Y.) 290; Sacramento v. New World, 4 Cal. 44; Story, Bailm., sects. 451, 453; 2 Kent, Com. 635, 642; Gaisede v. Trent & Mersey Navigation Co., 4 T. R. 581; Steinman v. Wilkins, 7 Serg. & R. 466.

Mr. F. A. Wilcox, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: Ex parte Easton


text: Talk:Ex parte Easton

title: Talk:Ex parte Easton


text:
Ex parte Easton/Opinion of the Court

Judicial power under the Federal Constitution extends to all cases of admiralty and maritime jurisdiction, and it was doubtless the intention of Congress, by the ninth section of the Judiciary Act, to confer upon the District Court the exclusive original cognizance of all admiralty and maritime causes, the words of the act being in terms exactly coextensive with the power conferred by the Constitution. In order, therefore, to determine the limits of the admiralty jurisdiction, it becomes necessary to ascertain the true interpretation of the constitutional grant. On that subject three propositions may be assumed as settled by authority, and to those it will be sufficient to refer on the present occasion, without much discussion of the principles on which the adjudications rest: 1. That the jurisdiction of the district courts is not limited to the particular subjects over which the admiralty courts of the parent country exercised jurisdiction when our Constitution was adopted. 2. That the jurisdiction of those courts does not extend to all cases which would fall within such jurisdiction, according to the civil law and the practice and usages of continental Europe. 3. That the nature and extent of the admiralty jurisdiction conferred by the Constitution must be determined by the laws of Congress and the decisions of this court, and by the usages prevailing in the courts of the States at the time the Federal Constitution was adopted. No other rules are known which it is reasonable to suppose could have been in the minds of the framers of the Constitution than those which were then in force in the respective States, and which they were accustomed to see in daily and familiar practice in the State courts.

Authority is conferred upon the libellants, as the proprietors of the wharf and slip in question, by the law of the State, to charge and collect wharfage and dockage of vessels lying at said wharf, and within the slip adjoining the wharf of the libellants.

Sufficient appears to show that the respondents are the owners of the barge named in the libel; that on the 10th of October, 1876, she completed a trip from the port of Baltimore for the port of New York, and that she took wharfage at the wharf or pier of the libellants, where she remained for eleven days. For the use of the berth occupied by the barge the libellants charged $34.20, as wharfage and dockage. Due demand was made; and, payment being refused, the libellants instituted the present suit, which is a libel in rem against the barge to recover the amount of that charge. Process was served; and the respondents appeared and excepted to the libel, and set up that process of condemnation should not issue against the barge, for the following reasons: 1. Because no maritime lien arises in the case for the matters set forth in the libel. 2. Because no lien i such a case is given for wharfage against boats or vessels by the laws of the State. 3. Because the law of the State referred to in the libel as giving a lien for wharfage is unconstitutional and void, for the following reasons: (1.) Because it imposes a restriction on commerce. (2.) Because it imposes a duty of tonnage on all vessels of the character and description of that of the respondents. (3.) Because it discriminates against the boats or barges of persons who are not citizens of the State where the proprietors of the wharf reside.

Pending the proceedings in the District Court, the respondents presented a petition here, asking leave to move this court for a prohibition to the court below forbidding the District Court to proceed further in the case.

Pursuant to said petition, this court entered an order permitting argument upon the merits of the petition, and directing that due notice be given to the libellants and the clerk of the District Court. Hearing was had in conformity to that order, and the case was held under advisement.

Power is certainly vested in the Supreme Court to issue the writ of prohibition to the District Court, when that court is proceeding in a case of admiralty and maritime cognizance of which the District Court has no jurisdiction. 1 Stat. 81; United States v. Peters, 3 Dall. 12.

Where the District Court is proceeding in a cause not of admiralty and maritime jurisdiction, the Supreme Court cannot issue the writ, nor can the writ be used except to prevent the doing of something about to be done, nor will it ever be issued for acts already completed. Ex parte Christy, 3 How. 292; United States v. Hoffman, 4 Wall. 158.

Admiralty and maritime jurisdiction is conferred by the Constitution, and Judge Story says it embraces two great classes of cases,-one dependent upon locality, and the other upon the nature of the contract.

Damage claims arising from acts and injuries done within the ebb and flow of the tide have always been considered as cognizable in the admiralty; and, since the decision in the case of The Genesee Chief, 12 How. 443, it is considered to be equally well settled that remedies for acts and injuries done on public navigable waters, not within the ebb and flow of the tide, may be enforced in the admiralty, as well as for those upon the high seas and upon the coast of the sea.

Speaking of the second great class of cases cognizable in the admiralty, Judge Story says, in effect, that it embraces all contracts, claims, and services which are purely maritime and which respect rights and duties appertaining to commerce and navigation. 2 Story, Const., sect. 1666.

Public navigable waters, where inter-state or foreign commerce may be carried on, of course include the high seas, which comprehend, in the commercial sense, all tide-waters to highwater mark.

Maritime jurisdiction of the admiralty courts in cases of contracts depends chiefly upon the nature of the service or engagement, and is limited to such subjects as are purely maritime, and have respect to commerce and navigation within the meaning of the Constitution.

Wide differences of opinion have existed as to the extent of the admirality jurisdiction; but it may now be said, without fear of contradiction, that it extends to all contracts, claims, and services essentially maritime, among which are bottomry bonds, contracts of affreightment and contracts for the conveyance of passengers, pilotage on the high seas, wharfage, agreements of consortship, surveys of vessels damaged by the perils of the seas, the claims of material-men and others for the repair and outfit of ships belonging to foreign nations or to other States, and the wages of mariners; and also to civil marine torts and injuries, among which are assaults or other personal injuries, collision, spoliation, and damage, illegal seizures or other depredations on property, illegal dispossession or withholding of possession from the owners of ships, controversies between the part owners as to the employment of ships, municipal seizures of ships, and cases of salvage and marine insurance. Conkl. Treatise (5th ed.), 254.

Wharf accommodation is a necessity of navigation, and such accommodations are indispensable for ships and vessels and water-craft of every name and description, whether employed in carrying freight or passengers, or engaged in the fisheries. Erections of the kind are constructed to enable ships, vessels, and all sorts of water-craft to lie in port in safety, and to facilitate their operation in loading and unloading cargo and in receiving and landing passengers.

Piers or wharves are a necessary incident to every well-regulated port, without which commerce and navigation would be subjected to great inconvenience, and be exposed to vexatious delay and constant peril.

Conveniences of the kind are wanted both at the port of departure and at the place of destination, and the expenses paid at both are everywhere regarded as properly chargeable as expenses of the voyage. Commercial privileges of the kind cannot be enjoyed where neither wharves nor piers exist; and it is not reasonable to suppose that such erections will be constructed for general convenience, unless the proprietors are allowed to make reasonable charges for their use.

Compensation for wharfage may be claimed upon an express or an implied contract, according to the circumstances. Where a price is agreed upon for the use of the wharf, the contract furnishes the measure of compensation; and when the wharf is used without any such agreement, the contract is implied, and the proprietor is entitled to recover what is just and reasonable for the use of his property and the benefit conferred.

Such erections are indispensably necessary for the safety and convenience of commerce and navigation, and those who take berth alongside them to secure those objects derive great benefit from their use. All experience supports that proposition, and shows to a demonstration that the contract of the wharfinger appertains to the pursuit of commerce and navigation.

Instances may, doubtless, be referred to where wharves are erected as sites for stores and storehouses; but the great and usual object of such erections is to advance commerce and navigation, by furnishing resting-places for ships, vessels, and all kinds of water-craft, and to facilitate their operation in loading and unloading cargo and in receiving and landing passengers.

Nor is the nature of the service or the character of the contract changed by the circumstance that the water-craft which derived the benefit in the case before the court was without masts or sails or other motive power of her own. Sail-ships, and even steamships and vessels, are frequently propelled by tugs; and yet, if they secure a berth at a wharf, or in a slip at the place of landing or at the port of destination, and actually occupy the berth as a resting-place or for the purpose of loading or unloading, no one, it is supposed, will deny that the ship or vessel is just as much liable to the wharfinger as if she had been propelled by her own motive power.

Neither canal-boats nor barges ordinarily have sails or steampower, but they usually have tow-lines; and it clearly cannot make any difference, as to their liability for wharfage, whether they are propelled by steam or sails of their own, or by tugs, or horse or mule power, if it appears that the boat or barge actually occupied a berth at the wharf or slip at the commencement or close of the trip as a resting-place, or for the purpose of loading or unloading cargo, or receiving or for landing passengers.

Goods to a vast amount are transported by such means of conveyance, and all experience shows that boats of the kind require wharf privileges as well as ships and vessels, or any other water-craft engaged in navigation. The Northern Belle, 9 Wall. 526.

Access to the ship or vessel rightfully occupying a berth at a wharf, for the purpose of lading and unlading, is the undoubted right of the owner or charterer of such ship r vessel for which such right has been secured. Wendell v. Baxter, 12 Gray (Mass.), 494.

Privileges of the kind are essential to the carrier by water, whether he is engaged in carrying goods or passengers.

Repairs to a limited extent are sometimes made at the wharf; but contracts of the kind usually have respect to the voyage, and are made to secure a resting-place for the vessel during the time she is being loaded or unloaded. Such contracts, beyond all doubt, are maritime, as they have respect to commerce and navigation, and are for the benefit of the ship or vessel when afloat.

Carrying-vessels would be of little or no value unless they could be loaded; and they are usually loaded from the wharf, except in a limited class of cases, where lighters are employed, the vessel being unable to come up to the wharf in consequence of shallow water.

Accommodations at the port of destination are equally indispensable for the voyage as those at the port of departure. Consignments of goods and passengers must be landed, else the carrier is not entitled to freight or fare. Where the contract is to carry from port to port, an actual delivery of the goods into the possession of the owner or consignee, or at his warehouse, is not required in order to discharge the carrier from his liability. He may deliver them on the wharf; but, to constitute a valid delivery there, the master should give due and reasonable notice to the consignee, so as to afford him a fair opportunity to remove the goods, or to put them under proper care and custody. Delivery on the wharf, under such circumstances, is valid, if the different consignments be properly separated, so as to be open to inspection, and conveniently accessible to their respective owners. The Eddy, 5 Wall. 481.

These remarks are sufficient to show that wharves, piers, or landing-places are wellnigh as essential to commerce as ships and vessels, and are abundantly sufficient to demonstrate that the contract for wharfage is a maritime contract, for which, if the vessel or water-craft is a foreign one, or belongs to a port of a State other than that where the wharf is situated, a maritime lien arises against the ship or vessel in favor of the proprietor of the wharf.

Standard authorities, as well as reason, principle, and the necessities of commerce, support the theory that the contract for wharfage is a maritime contract, which, in the case supposed, gives to the proprietor of the wharf a maritime lien on the ship or vessel for his security.

From an early period, wharf-owners have been allowed to exact from ships and vessels using a berth at their wharves a reasonable compensation for the use of the same; and the ship or vessel enjoying such a privilege has always been accustomed to pay to the proprietor of the wharf a reasonable compensation for the use of the berth. The Kate Tremaine, 5 Ben. 60.

Ancient codes and treatises, such as are frequently recognized as the source from which the rules of the maritime law are drawn, usually treat such contracts as maritime contracts, for which the ship or vessel is liable. The Maggie Hammond, 9 Wall. 435; Delovio v. Boit, 2 Gall. 398.

Charges for wharfage were adjudged to be lien claims in the District Court of the third circuit more than seventy years ago; and, in speaking of that case, Judge Story says, that it seems to him that the decision was fully supported in principle by the doctrines as well of the common law as of the civil law, and by the analogous cases of materials furnished and repairs made upon the ship. Gardner v. Ship New Jersey, 1 Pet. Adm. 223; Ex parte Lewis, 2 Gall. 483, where it was expressly adjudged that the contract was necessarily maritime, giving as the reason for the conclusion that the use of the wharf is indispensable for the preservation of the vessel. Johnson v. McDonough, Gilpin, 101.

Other eminent admiralty judges have decided in the same way, and among the number the late Judge Ware, whose opinion in cas § involving the question of admiralty jurisdiction is entitled to the highest respect. The Phoebe, Ware, 265; 2 Conkl. Adm. (2d ed.) 515; Bark Alaska, 3 Ben. 391; Hobart v. Drogan, 10 Pet. 108; The Mercer, 1 Sprague, 284; The Ann Ryan, 7 Ben. 20; Dunlap, Adm. 75; Abbott, Ship. (5th ed.) 423.

Water-craft of all kinds necessarily lie at a wharf when loading and unloading; and Mr. Benedict says, that the pecuniary charge for the use of the dock or wharf is called wharfage or dockage, and that it is the subject of admiralty jurisdiction; that the master and owner of the ship and the ship herself may be proceeded against in admiralty to enforce the payment of wharfage, when the vessel lies alongside the wharf, or at a distance, and only uses the wharf temporarily for boats or cargo. Benedict, Adm. (2d ed.) sect. 283.

Application for the writ of prohibition is properly made in such a case, upon the ground that the District Court has transcended its jurisdiction in entertaining the described proceeding; and whether it has or not must depend not upon facts stated dehors the record, but upon those stated in the record upon which the District Court is called to act, and by which alone it can regulate its judgment. Mere matters of defence, whether going to oust the jurisdiction of the court or to establish the want of merits in the libellants' case, cannot be admitted under such a petition here to displace the right of the District Court to entertain suits, the rule being that every such matter should be propounded by suitable pleadings as a defence for the consideration of the court, and to be supported by competent proofs, provided the case is one within the jurisdiction of the District Court. Ex parte Christy, 3 How. 292.

Congress has empowered the Supreme Court to issue writs of prohibition to the district courts 'when proceeding as courts of admiralty and maritime jurisdiction,' by which it is understood that the power is limited to a proceeding in admiralty. Conkl. Treatise (5th ed.), 56. Such a writ is issued to forbid a subordinate court to proceed in a cause there depending, on suggestion that the cognizance thereof belongeth not to the court. F. N. B. 39; 3 Bl. Com. 112; 2 Pars. Ship. 193; 8 Bac. Abr. 206.

Viewed in the light of these considerations, it is clear that a contract for the use of a wharf by the master or owner of a ship or vessel is a maritime contract, and, as such, that it is cognizable in the admiralty; that such a contract, being one made exclusively for the benefit of the ship or vessel, a maritime lien in the case supposed arises in favor of the proprietor of the wharf against the vessel for payment of reasonable and customary charges in that behalf for the use of the wharf, and that the same may be enforced by a proceeding in rem against the vessel, or by a suit in personam against the owner.

Many other questions were discussed at the bar which will not be decided at the present time, as they are not properly involved in the application before the court.

Petition denied.

title: Ex parte Easton/Opinion of the Court


text: Talk:Ex parte Easton/Opinion of the Court


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Lake Shore and Michigan Southern Railroad Company v. Rose

ERROR to the Circuit Court of the United States for the Northern District of Ohio.

The facts are stated in the opinion of the court.

Mr. James Mason, Mr. Samuel Shellabarger, and Mr. Jeremiah M. Wilson for the plaintiff in error.

The Solicitor-General, contra.

MR. JUSTICE SWAYNE delivered the opinion of the court.


text: Talk:Lake Shore and Michigan Southern Railroad Company v. Rose


text:
Lake Shore and Michigan Southern Railroad Company v. Rose/Opinion of the Court

This action was brought by the Lake Shore and Michigan Southern Railroad Company. A demurrer to its petition was sustained by the court below, and judgment was given for the defendant. We must, therefore, look to the petition for the point to be decided. The facts well pleaded are to be taken as true. The case made by the petition is as follows:--

The plaintiff was bound to pay the interest upon certain bonds. The interest accruing from the 1st of January to the 1st of July, 1870, amounting to $185,500, matured upon the latter day, and within ten days from that time were paid to the bondholders respectively. Neither five per cent nor any other sum was withheld on account of taxes. On the 14th of July, 1870, Rose, the proper internal revenue officer of the United States, assessed against the plaintiff the sum of $9,270.50 as a tax of five per cent upon the amount so paid over to the bondholders. Payment was compelled by the seizure of property. The amount of the tax paid to the collector is alleged to have been exacted without warrant of law, and this suit was instituted to recover it back.

The question presented for our determination is whether the imposition of this tax was warranted by law. We think it was.

The tax was levied under sect. 122 of the act of June 30, 1864, 13 Stat. 284, as amended by the act of July 13, 1866, 14 Stat. 138, and amended finally by the act of July 14, 1870, sect. 17, 16 Stat. 261. The purport of the amendment last mentioned was to give continuity to sect. 122, and other sections named, of the act of 1864, as amended, until the 1st of August, 1870, the taxes imposed by all those sections then to cease. The tax specified in sect. 122 was levied upon railroad, canal, turnpike, canal navigation, and slack-water companies. The section did not include the tax upon the income of individuals. That was provided for always in other separate and distinct sections. Sect. 122, as amended, was in force when the act of 1870 was passed, and, without further legislation, would have continued in force indefinitely, unless there was a previous limit to its duration imposed by the act of March 2, 1867, 14 Stat. 480. After a careful examination of the subject, we are of the opinion that this limitation in the act of 1867 had not, and was not intended to have, any effect upon sect. 122, as amended; and that it applies exclusively to the tax upon the income of individuals. Nothing else was within its scope. It was confined to that subject. This limitation was not in the original internal revenue act of Aug. 5, 1861, 12 Stat. 292, although that act imposed the income tax.

The limitation appeared first in the act of July 1, 1862, 12 Stat. 474, sect. 92. It appeared again successively in the act of June 30, 1864, 13 Stat. 283, sect. 119; in the act of June 13, 1866, 14 Stat. 138; and in the act of March 2, 1867, 14 Stat. 480. In all these instances, the collocation of the provision and the context which precedes it, and that which follows as well, show, with a clearness approaching to a demonstration, that the construction we have given to it is the proper one. The subject was exhaustively examined in the concurring opinion in Stockdale v. Insurance Companies, 20 Wall. 333, and, as a consequence, the conclusion was reached to which we have come. It would be a waste of time to reproduce any thing said in that opinion. It is sufficient for our purpose to refer to the argument there to be found. If this view be correct, it is conclusive of the case.

But conceding, for the purposes of this opinion, that we are in error upon the point we have considered, and that the limitation did terminate the tax prescribed in sect. 122, and in the other sections specified in the seventeenth section of the act of 1870, then it is clear that the section last named revived the sections therein named, including sect. 122, and gave them the same effect down to the 1st of August, 1870, in all respects as if those sections had not been intermediately suspended or abrogated.

This proposition is maintained, and every objection taken to it elaborately considered and answered, by the opinion of this court in Stockdale v. Insurance Companies, 20 Wall. 328, before referred to. We are entirely satisfied with respect to the soundness of that judgment, and feel no disposition to reexamine the grounds upon which it was placed.

This, also, is conclusive of the present controversy.

Judgment affirmed.


text: Talk:Lake Shore and Michigan Southern Railroad Company v. Rose/Opinion of the Court


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Packet Company v. Keokuk

ERROR to the Supreme Court of the State of Iowa.

The act of the legislature of Iowa creating the city of Keokuk a municipal corporation gave to the city council power to establish and regulate wharves, and to fix the rates of landing and wharfage of all boats, rafts, and water-craft moored at or landing at the wharves. By virtue of this power, the city council, on the 26th of February, 1872, passed an ordinance, the first section of which ordained that all the ground then lying, or which might thereafter be made, between Water Street, in the said city, and the middle channel of the Mississippi River, should be declared a wharf, and should be subject to be used for such purposes, under such conditions as might be prescribed by ordinance. The second section declared that the whole of Water Street, as well as the land described in the foregoing section, should be open for the uses and purposes of a wharf, subject to the rules and regulations prescribed by ordinance for its government, and that all boats, rafts, and water-craft that are moored to or landed at any part of Water Street, and the persons owning, claiming, and having charge of the same, should be subject to the same rules, regulations, wharfage, and penalties as were provided by the ordinance in relation to boats, rafts, and other water-craft landing or mooring at the wharf, as defined by the third section. The third section ordained that any steamboat that should make fast to any part of said wharf or Water Street, or to any vessel or other thing at or upon said wharf or street, or should receive or discharge any passengers or freight thereon, or should use any part of said wharf or street for the purpose of discharging, receiving, or landing any freight or passenger, should be liable to a wharfage fee. This fee, the ordinance declared, should be one dollar, if the tonnage of the boat was less than fifty tons; one dollar and fifty cents, if the tonnage of the boat was less than one hundred tons and more than fifty; two dollars, if the tonnage was one hundred tons and less than two hundred; three dollars for boats of two hundred tons and less than three hundred; four dollars for boats of three hundred tons and less than four hundred; and five dollars for all boats of four hundred tons and upwards. The section also ordained that each boat that should remain at the wharf or street over two and less than five days should pay a wharfage fee of one dollar and fifty cents for each day after the first two days, and one dollar per day for every day over five days it might remain at the wharf or street. The fourth section of the ordinance applied the provision of the third section to barges, canal-boats, or keel-boats used in the carrying trade, landing at the wharf, whether in tow or otherwise. This ordinance the plaintiffs in error claim to be in conflict with the Constitution. They are the owners of several steamboats which have landed at the wharves of the city from time to time, and occupied them for the purpose of receiving and discharging freight and passengers. Wharfage dues were regularly demanded, but refused. Their boats were engaged in navigating the Mississippi River between St. Louis, Mo., and St. Paul, Minn., and they landed at Keokuk, one of their regular ports. While so employed, they were duly licensed and enrolled for the coasting trade, under the acts of Congress for the regulation of commerce.

These are all the material facts of the case, except that the landing of the boats was at an improved wharf which the city had built within its limits, extending about one thousand feet along the line of the river; a wharf which the city had paved, and in building, extending, and repairing of which it had expended a large sum of money. The money had been borrowed; and, to pay the interest of the debt, it became necessary to charge and collect reasonable wharfage. That the rates charged, if any charge is lawful, were reasonable, is not denied. They were no more than sufficient to meet the interest of t e debt incurred for building and improving the wharf.

Suit having been brought to recover the wharfage prescribed by the ordinance, and a judgment for the amount having been recovered and affirmed by the Supreme Court of the State, the plaintiffs in error have brought the case here, and they now contend that the ordinance is invalid for several reasons. Of these, the principal alleged are, that it imposes a duty of tonnage, and that it is a regulation of commerce such as Congress only is authorized to make.

Mr. Robert H. Gilmore and Mr. James H. Anderson for the plaintiff in error.

1. The ordinance of the city of Keokuk imposes a wharfage tax measured by the carrying capacity of the vessel, and lays a duty of tonnage.

2. A tax on the vehicle of commerce is as much a duty as if it were levied on articles exported from the State.

3. The ordinance is therefore a regulation of commerce.

4. So far as it seeks to levy a tax upon citizens of another State who are engaged in the navigation of the Mississippi, a free public highway, it is contrary to the ordinance of 1787, and the act of Congress admitting the State of Iowa into the Union.

5. It is also contrary to the act of Congress whereby vessels enrolled and licensed for the coasting trade are exempted from any toll or tax for the privilege of entering or stopping in a port of the United States.

These propositions are sustained by the following authorities: Constitution of the United States, art. 1, sects. 8-10; Ordinance of 1787, art. 4, last clause; 5 Stat. 10; id. 742; Rev. Stat., sects. 4311, 4320; Story on the Constitution, sects. 1016, 1018; Gibbons v. Ogden, 9 Wheat. 1; Brown v. Maryland, 12 id. 419; Smith v. Turner, 7 How. 283; Sinnot et al. v. Davenport et al., 22 id. 227; Almy v. State of California, 24 id. 169; Steamship Company v. Port Wardens, 6 Wall. 31; State Tonnage Tax Cases, 12 id. 204; Peete v. Morgan, 19 id. 581; Cannon v. New Orleans, 20 id. 577; Hackley v. Geraghty, 34 N. J. L. 332; People v. Raymond, 34 Cal. 492; People v. Moring, 47 Barb. (N. Y.) 642; Alexander v. Railroad Company, 3 Strobh. (S.C..) 594; Sheffield v. Parsons, 3 Stew. & P. (Ala.) 302; Lott v. Morgan, 41 Ala. 250; North-western Union Packet Co. v. St. Paul, 3 Dill. 454; Inman Steamship Co. v. Tinker, 94 U.S. 238.

Mr. John H. Craig for the defendant in error.

The ordinance of the city of Keokuk does not lay a duty of tonnage, or an impost or duty on imports or exports, nor does it regulate commerce or navigation. This is merely a case of wharfage. Decided cases affirm the following propositions:--

1. Wharves erected by individual enterprise are private property.

2. For their use a reasonable compensation can be exacted.

3. The State has the power to regulate this compensation, and may delegate it to the local municipal authorities; and, when the power has been delegated to a city owning wharves to assist vessels landing within its limits, it can rightfully exact this compensation. Barney v. Keokuk, 94 U.S. 324; Dutton v. Strong, 1 Black, 1; Railroad Company v. Schurmeir, 7 Wall. 272; Yates v. Milwaukee, 10 id. 497; The Wharf Case, 3 Bland (Md.), 361; Ward v. Thompson, 6 Gill & J. (Md.) 349; City of Pittsburgh v. Grier, 22 Penn. St. 54; Bucker v. Brown, 21 Wend. (N. Y.) 710; Wiswall v. Hall, 3 Paige (N. Y.), Ch. 313; Schwartz v. Flatboats, 14 La. Ann. 243; Geiger v. Felor, 8 Fla. 325; Murphy v. Montgomery, 11 Ala. 586; Sacramento v. Confidence, 4 Cal. 45; People v. Broadway Wharf Co., 31 id. 34; Haight v. City of Keokuk, 4 Iowa, 199; Grant v. City of Davenport, 18 id. 181; County of St. Clair v. Lovingston, 23 Wall. 46; Ingraham, Kennedy, & Day v. Chicago, D. & M. Railroad Co., 34 Iowa, 249; Atlee v. The Packet Company, 21 Wall. 290.

Admitting that parts of the ordinance under consideration may be in conflict with the Constitution and laws of the United States, it does not follow that its unobjectionable provisions, when capable of being separately enforced, will be set aside, and its legitimate purposes defeated.

MR. JUSTICE STRONG delivered the opinion of the court.

title: Packet Company v. Keokuk


text: Talk:Packet Company v. Keokuk

title: Talk:Packet Company v. Keokuk


text:
Packet Company v. Keokuk/Opinion of the Court

The principal question presented by the record of this case is, whether a municipal corporation of a State, having by the law of its organization an exclusive right to make wharves, collect wharfage, and regulate wharfage rates, can, consistently with the Constitution of the United States, charge and collect wharfage proportioned to the tonnage of the vessels from the owners of enrolled and licensed steamboats mooring and landing at the wharves constructed on the banks of a navigable river.

The city of Keokuk is such a corporation, existing by virtue of a special charter granted by the legislature of Iowa. To determine whether the charge prescribed by the ordinance in question is a duty of tonnage, within the meaning of the Constitution, it is necessary to observe carefully its object and essence. If the charge is clearly a duty, a tax, or burden, which in its essence is a contribution claimed for the privilege of entering the port of Keokuk, or remaining in it, or departing from it, imposed, as it is, by authority of the State, and measured by the capacity of the vessel, it is doubtless embraced by the constitutional prohibition of such a duty. But a charge for services rendered or for conveniences provided is in no sense a tax or a duty. It is not a hindrance or impediment to free navigation. The prohibition to the State against the imposition of a duty of tonnage was designed to guard against local hindrances to trade and carriage by vessels, not to relieve them from liability to claims for assistance rendered and failities furnished for trade and commerce. It is a tax or a duty that is prohibited: something imposed by virtue of sovereignty, not claimed in right of proprietorship. Wharfage is of the latter character. Providing a wharf to which vessels may make fast, or at which they may conveniently load or unload, is rendering them a service. The character of the service is the same whether the wharf is built and offered for use by a State, a municipal corporation, or a private individual; and, when compensation is demanded for the use of the wharf, the demand is an assertion, not of sovereignty, but of a right of property. A passing vessel may use the wharf or not, at its election, and thus may incur liability for wharfage or not, at the choice of the master or owner. No one would claim that a demand of compensation for the use of a dry-dock for repairing a vessel, or a demand for towage in a harbor, would be a demand of a tonnage tax, no matter whether the dock was the property of a private individual or of a State, and no matter whether proportioned or not to the size or tonnage of the vessel. There is no essential difference between such a demand and one for the use of a wharf. It has always been held that wharfage dues may be exacted; and it is believed that they have been collected in ports where the wharves have belonged to the State or a municipal corporation ever since the adoption of the Constitution. In Cannon v. New Orleans, 20 Wall. 577, this court, while holding an ordinance void that fixed dues upon steamboats which should moor or land in any part of the port of New Orleans, measured by the number of tons of the boats, because substantially a tax for the privilege of stopping in the port, and, therefore, a duty or tonnage, carefully guarded the right to exact wharfage. The language of the court was: 'In saying this (namely, denying the validity of the ordinance then before it), we do not understand that this principle interposes any hindrance to the recovery from any vessel landing at a wharf or pier owned by an individual, or by a municipal or other corporation, a just compensation for the use of such property. It is a doctrine too well settled, and a practice too common and too essential to the interests of commerce and navigation, to admit of a doubt, that for the use of such structures, erected by individual enterprise and recognized everywhere as private property, a reasonable compensation can be exacted. And it may be safely admitted, also, that it is within the power of the State to regulate this compensation, so as to prevent extortion, a power which is often very properly delegated to the local municipal authority. Nor do we see any reason why, when a city or other municipality is the owner of such structures, built by its own money, to assist vessels landing within its limits in the pursuit of their business, the city should not be allowed to exact and receive this reasonable compensation as well as individuals.'

No doubt, neither a State nor a municipal corporation can be permitted to impose a tax upon tonnage under cover of laws or ordinances ostensibly passed to collect wharfage. This has sometimes been attempted, but the ordinances will always be carefully scrutinized. In Cannon v. New Orleans, the ordinance was held invalid, not because the charge was for wharfage, nor even because it was proportioned to the tonnage of the vessels, but because the charge was not for wharfage or any service rendered. It was for stopping in the harbor, though no wharf was used. Such, also, was North-western Packet Co. v. St. Paul, 3 Dill. 454. So, in Steamship Company v. Port Wardens, 6 Wall. 31, the statute held void imposed a tax upon every ship entering the port. This was held to be alike a regulation of commerce and a duty of tonnage. It was a sovereign exaction, not a charge for compensation. Of the same character was the tax held prohibited in Peete v. Morgan, 19 id. 581.

It is insisted, however, on behalf of the plaintiffs in error, that the charge prescribed by the ordinance must be considered as an imposition of a duty of tonnage, because it is regulated by and proportioned to the number of tons of the vessels using the wharf; and the argument is attempted to be supported by the ruling of this court in State Tonnage Tax Cases, 12 Wall. 204. But this is a misconception of those cases. The statute of Alabama declared invalid was not a provision to secure or regulate compensation for wharfage, or for any services rendered to the vessels taxed. It imposed a tax 'upon all steamboats, vessels, and other water-crafts plying in the navigable waters of the State,' to be levied 'at the rate of one dollar per ton of the registered tonnage thereof.' It did not tax the boats as property in proportion to their value, but according to their capacity, or, as was said, 'solely and exclusively on the basis of their cubical contents, as ascertained by the rules of admeasurement and computation prescribed by Congress.' It was the nature of the tax or duty, coupled with the mode of assessing it, which made the law a violation of the Constitution. As stated, the vessels taxed were such as were plying in the navigable waters of the State. If not plying in those waters, they were not taxed. The tax was, therefore, an impediment to navigation in those waters, which led the court to say that it was as instruments of commerce and not as property the vessels were required to contribute to the revenues of the State. The fact that the tax was proportioned to the tonnage of the vessels taxed was relied upon only as supporting the conclusion that they were not taxed as property, but as instruments of commerce; and the court, in view of all these considerations, remarked, 'Beyond all question, the act is an act to raise revenue without any corresponding or equivalent benefit or advantage to the vessels taxed or to the ship-owners, and consequently it is not to be upheld by virtue of the rules applied in the construction of laws regulating pilot dues and port charges.' Nothing in these cases justifies the assertion that either wharfage or port harges are duties of tonnage, merely because they are proportioned to the actual tannage or cubical capacity of vessels. It would be a strange misconception of the purpose of the framers of the Constitution were its provisions thus understood. What was intended by the provisions of the second clause of the tenth section of the first article was to protect the freedom of commerce, and nothing more. The prohibition of a duty of tonnage should, therefore, be construed so as to carry out that intent. A mere adherence to the letter, without reference to the spirit and purpose, may in this case mislead, as it has misled in other cases. It cannot be thought the framers of the Constitution, when they drafted the prohibition, had in mind charges for services rendered or for conveniences furnished to vessels in port, which are facilities to commerce rather than hindrances to its freedom; and, if such charges were not in mind, the mode of ascertaining their reasonable amount could not have been. In Cooley v. The Board of Port Wardens, 12 How. 299, this court recognized a clear distinction between wharfage and duties on imports or exports, or duties on tonnage. Referring to the second paragraph of sect. 10, art. 1, of the Constitution, Curtis, J., speaking for the court, said: 'This provision of the Constitution was intended to operate upon subjects actually existing and well understood when the Constitution was formed. Imposts, and duties on imports, exports, and tonnage, were then known to the commerce of the civilized world to be as distinct from fees and charges for pilotage, and from the penalties by which commercial States enforced their laws, as they were from charges for wharfage or towage, or any other local port charges for services rendered to vessels or cargoes, and to declare that such pilot fees or penalties are embraced within the words imposts, or duties on imports, exports, or tonnage, would be to confound things essentially different, and which must have been known to be actually different by those who used this language. . . . It is the thing and not the name that is to be considered.'

For these reasons, we hold that the ordinance cannot be considered as imposing a duty of tonnage, and what we have said is sufficient to show that most of the other objections of the plaintiffs in error to its validity have no substantial foundation. It is in no sense a regulation of commerce between the States, nor does it impose duties upon vessels bound to or from one State to another, nor compel entry or clearance in the port of Keokuk; nor is it contrary to the compact contained in the ordinance of 1787, since it levies no tax for the navigation of the river; nor is it in conflict with the act of Congress respecting the enrolment and license of vessels for the coasting trade. All these objections rest on the mistaken assumption that port charges, and especially wharfage, are taxes, duties, and restraints of commerce.

In nothing that we have said do we mean to be understood as affirming that a city can, by ordinance or otherwise, charge or collect wharfage for merely entering its port, or stopping therein, or for the use of that which is not a wharf, but merely the natural and unimproved shore of a navigable river. Such a question does not arise in this case. The record shows that the wharfage charged to these plaintiffs in error was for the use of a wharf, built, paved, and improved by the city at large expense. So far as the ordinance imposes and regulates such a charge, it is not obnoxious to the accusation that it is in conflict with the Constitution. A different question would be presented had the steamboats landed at the bank of the river where no wharf had been constructed or improvement made to afford facilities for receiving or discharging cargoes. We adhere to all that was decided in Cannon v. New Orleans. In that case, the city ordinance imposed what were called 'levee dues' on all steamboats that should moor or land in any part of the harbor of New Orleans. It was § bsequently amended by the substitution of the words 'levee and wharfage dues' for 'levee dues;' but, even as amended, it did not profess to demand wharfage. The plaintiff filed a petition for an injunction against the collection of the dues prescribed by it, and for the recovery of those he had been compelled to pay. It did not appear that he had ever made use of any wharf or improved levee; and what we decided was, that the city could not impose a charge for merely stopping in the harbor. The case in hand is different. The ordinance of Keokuk has imposed no charge upon these plaintiffs which it was beyond the power of the city to impose. To the extent to which they are affected by it there is no valid objection to it. Statutes that are constitutional in part only, will be upheld so far as they are not in conflict with the Constitution, provided the allowed and prohibited parts are severable. We think a severance is possible in this case. It may be conceded the ordinance is too broad, and that some of its provisions are unwarranted. When those provisions are attempted to be enforced, a different question may be presented.


text: Talk:Packet Company v. Keokuk/Opinion of the Court