1. A municipal corporation having, by its charter, an exclusive
right to make wharves on the banks of a navigable river upon which
it is situated, collect wharfage, and regulate wharfage rates can,
consistently with the Constitution of the United States, charge and
collect from the owner of enrolled and licensed steamboats, which
moor and land at a wharf constructed by it, wharfage proportioned
to their tonnage.
2. Statutes which are constitutional in part only will be upheld
and enforced so far as they are not in conflict with the
Constitution, provided the allowed and prohibited parts are
severable.
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 watercraft 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,
Page 95 U. S. 81
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 watercraft 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 watercraft
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
Page 95 U. S. 82
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 the 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.
Page 95 U. S. 84
MR. JUSTICE STRONG delivered the 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
Page 95 U. S. 85
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 facilities
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 drydock 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
Page 95 U. S. 86
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
Northwestern 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 Wall. 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
Page 95 U. S. 87
to the vessels taxed. It imposed a tax "upon all steamboats,
vessels, and other watercrafts 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 shipowners, 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 charges are duties of tonnage, merely because they
are proportioned to the actual tonnage 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
Page 95 U. S. 88
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 sec. 10,
Art. I, 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
Page 95 U. S. 89
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
subsequently 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.
Judgment affirmed.
