sons: First, that no taxes were levied upon the lands, or any of them, for the years for which they were pretended to be sold; second, that the taxes, if any there were, never became delinquent; third, that there was no person authorized to receive payment of the taxes; fourth, that there was no warrant or authority for the sale of the lands for the non-paymeut of delinquent taxes; and fifth, that no sale of the land for the non-payment of taxes, real or pretended, ever took place, but that certificates thereof were issued reciting, contrary to the truth, the sale of the lands conformably to the provisions of the statutes of the state, under which certificates the deeds and conveyances were respectively made. A subsequent amendment of the bill charges, sixthly, that at the time of the pretended assessments and levies the lands were not subject to taxation; and seventhly, that two persons, Reynolds and Mead, (through whom the defendant claims), at and before the issuing of the certificates of sale, unlawfully combined and confederated with the defendant for the purpose of preventing competition at the sale of lands for taxes then to be held in the county.

These are all the objections to the validity of the tax-deeds which the original bill and its amendment suggest. Before examining them it will be convenient to notice the provisions of the statutes of the state respecting tax-sales, and respecting the effect of treasurers' deeds for lands sold for delinquent taxes. They are contained in the revision for 1860, chapter fortyfive. After giving directions for sales of land by the county treasurer for delinquent taxes, prescribing notice by advertisement, and providing for the cost of advertising, the treasurer is directed to offer separately on the day of sale each tract or parcel of real property advertised, on which the taxes and costs shall not have been paid, and it is declared that the person who offers to pay the amount of taxes due on any parcel of land for the smallest portion thereof shall be considered the purchaser. The treasurer is directed to continue the sale from day to day as long as there are bidders, or until the taxes are all paid, and, after all has been offered, if any portion of the lands advertised remain unsold, the sale is to be adjourned. The purchaser is entitled to a certificate of purchase describing the property and the amount of the tax, but the laud may be redeemed at any time within three years from the day of the sale. At the expiration of three years, if the land remains unredeemed, the purchaser is entitled to a deed from the treasurer, the form and effect of which are defined by the statute. We quote a part of the 784th section of the act as having a controlling operation upon the facts of the present case. It is as follows:

"The deed shall be signed by the treasurer in his official capacity, and acknowledged by him before some officer authorized to take acknowledgments of deeds, and when substantially thus executed and recorded in the proper record of titles to real estate, shall vest in the purchaser all the right, title, interest, and estate of the former owner in and to the land conveyed,

* and shall be prima facie evidence in all courts of this state in all controversies and suits in relation to the rights of the purchaser, his heirs or assigns, to the land thereby conveyed, of the following facts: "1. That the property was subject to taxation. "2. That the taxes were not paid before sale. "3. That the property conveyed had not been redeemed at the date of the deed.

"And shall be conclusive evidence of the following facts:

"1. That the property had been listed and assessed. "2. That the taxes were levied according to law. "3. That the property was advertised for sale in the manner and for the length of time required by law.

"4. That the property was sold for taxes as stated in the deed.

"5. That the grantee named therein was the purchaser.

"6. That the sale was conducted in the manner required by law.

"7. That all the prerequisites of the law were complied with by all the officers, except in regard to the three points named in this section, where the deed shall be prima facie evidence only.

"And in all controversies involving the title held under such tax-deed executed substantially as required by law by the treasurer, the person claiming title adverse thereto, in order to defeat the same, must show, either that said property was not subject to taxation, or that the taxes had been paid before sale, or that the property had been redeemed from sale according to law. * * And no person shall be permitted to question the title under the deed without first showing that all taxes due upon the property have been paid." ss. 784.

*

The whole act exhibits an intention of the legislature to enforce the payment of taxes, by securing purchasers at tax-sales in their purchases, and thus making it dangerous for owners of property to neglect payment

of

taxes due the state. It removes difficulties which had before existed in the way of establishing a tax-title, and at the same time it works no injustice to owners of land subject to taxation. The law determines when the taxes should be levied, and when they shall be paid, and it gives ample time within which to make the payment. It was under this act and in conformity with its provisions that the treasurer's deeds were made, through which the defendant below made his claim. They are in the form prescribed by the statute. If the act is to have any effect at all, it is plain that the deeds cut off most of the averments upon which the plaintiff bases his attempt to obtain the cancellation he seeks. It is not open to him to aver and prove any allegation he puts forward to establish the invalidity of the deeds, except that the property was not subject to taxation, and that there was a fraudulent combination of the defendant with others to prevent bidding. The first of the averments is denied in the answer, and there has been no attempt to sustain it by evidence. Besides, the statute declares that the deeds shall be prima facie evidence that the property was subject to taxation. They are made affirmative evidence. The allegation of a fraudulent combination to suppress bidding at the sale is entirely unsustained by anything in the proofs, and so is every allegation upon which the bill founds the charge that the deeds are invalid, unless it be the averment that no sale for the non-payment of taxes, real or pretended, ever took place. The treasurer's deeds, however, contain a recital that he did, on the 4th day of January, A. D. 1864, by virtue of the authority vested in him by law, at the sale begun and publicly held on the first Monday of January, A. D. 1864, expose to public sale at the courthouse in the county aforesaid, (Cass), in substantial conformity with all the reqisitions of the statute in such cases made and provided, the several pieces of real property above described separately, for the payment of the taxes, interest, and costs then due and remaining unpaid on each of said pieces of real property respectively. The deeds further recite that at the time and place aforesaid the persons to whom the deeds were made offered the most favorable bids, and that the several pieces of property were stricken off to them at the prices bid.

Now, if it be conceded that under the statute the deeds containing these recitals are only presumptive evidence that the sales were actually made as recited, the burden is still on the plaintiff to rebut this pre

1

sumption. And we think that instead of having rebutted it, the evidence in support of the presumption greatly preponderates. We need not refer to it in detail. Suffice it to say that there is not a single witness who is able to deny that a sale was made, and only one is able to testify that ten years after 1864 he can not recollect it, while others testify affirmatively that it was made. At the treasurer's sale in January, 1864, there were large bodies of land offered, and the sale was continued from day to day. Whether the lands now in dispute were sold on the fourth day of the month or at a later day during the sale is, perhaps, not distinctly proved, and it is not necessary that it should be. If they were not sold until several days later, but yet while the sales were in progress, unadjourned, and the treasurer certified them as sold on the opening day, it was at most but an irregularity, which can not avail the plaintiff. It has not interfered with his right to redeem. He suffered eight years to pass after the sale without asserting any right. During all that period he paid no taxes, performed no duties which he owed to the public, suffered the defendant, and those under whom the defendant claims, to pay the taxes levied from year to year, and now, when it may be presumed the land has increased in value, he seeks the cancellation of the taxdeeds, without even offering to redeem or to refund the taxes which the purchasers at sale have paid. He seeks this in the face of a statute which in effect declares that irregularities shall not suffice to defeat a tax-sale, and when in view of the evidence it is exceedingly doubtful, whether in fact there was any irregularity. In this attempt he can not succeed.

All the questions presented in this case have been decided by the Supreme Court of Iowa, and decided adversely to the plaintiff. Phelps v. Meade et al., 41 Iowa, 470. That case was an attempt to set aside a taxdeed of land sold by the treasurer of Cass County at the sale in January, 1864. The averments of the bill were the same as those made in this case, and the case was heard upon the evidence taken upon the case now before us. The rulings of the court were that, if there was a bona fide sale in substance or in fact, the taxdeed is conclusive evidence that it was made at the proper time and conducted in the proper manner. And where a tax-deed, regular in form, recited that the land was sold January 4th, and the treasurer testified that the sales of land in the county for delinquent taxes began upon that day and were continued until the 18th, and that he entered all the sales as of the date of the commencement, it was held that a sale of land at any time during the continuance of the sale was valid, and that the recording of the sale as of the first day would not impair the title.

We do not find in the unreported case of Butler v. Delano, to which we have been referred, anything conflicting with what was decided in Phelps v. Meade. The facts of the two cases, so far as we can gather them from the opinion of the court in the latter, were widely different. The same may be said of the other unreported case of Thompson v. Ware et al.

The decree of the Circuit Court is reversed, and the cause is remitted with instructions to dismiss the plaintiff's bill.

THE Senate of Nevada has passed a bill to tax the profits of churches, secret societies and colleges, and exempt mortgages.

LORD CHIEF JUSTICE COCKBURN, while on circuit lately, expressed himself very strongly with regard to the Statute of Frauds, declaring that, though intended to prevent fraud, it caused more fraud than any mind could possibly conceive. If any member of the Legislature would take upon himself to move for the repeal of this statute, he would do great service to the country.

THE GRANGER CASES-REGULATION OF RAILROAD RATES.

CHICAGO, BURLINGTON & QUINCY R. R. v. CUTTS ET AL.

Supreme Court of the United States, October Term, 1876.

1. RAILROAD COMPANIES-PUBLIC INTEREST-CHARTERS. -Railroad companies are engaged in a public employment affecting the public interest, and are subject to legislative control as to their rates of fare and freight, unless protected by their charters.

2. TRANSFER OF PROPERTY BEFORE REGULATIONS MADE. That, before the power of regulation was exercised, the company had pledged its income as security for the payment of debts incurred, and had leased its road to a tenant that relied upon the earnings for the means of paying the agreed rent, does not alter the case.

3. A CHARTER A CONTRACT.-The charter of a corporation is a contract within the meaning of that clause of the Constitution which prohibits a state from passing any law impairing the obligation of a contract.

4. THE IOWA CONSTITUTION.-The statute in question, dividing the railroads of the state into classes and estab lishing a maximum of rates for each class, is not in conflict with sec. 4, art. 1 of the Constitution of Iowa, which provided that "all laws of a general nature shall have a uni. form operation, and that 'the General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens.'"

APPEAL from the Circuit Court of the United States for the District of Iowa.

Mr. Chief Justice WAITE delivered the opinion of the Court:

Railroad companies are carriers for hire. They are incorporated as such and given extraordinary powers, in order that they may the better serve the public in that capacity. They are, therefore, engaged in a public employment affecting the public interest, and, under the decision in Munn et al. v. The People, Cent. L. J. 250, just announced, subject to legislative control as to their rates of fare and freight, unless protected by their charters.

The Burlington and Missouri River Railroad Company, the benefit of whose charter the Chicago, Burlington and Quincy Railroad Company now claims, was organized under the general corporation law of Iowa, with power to contract in reference to its business, the same as private individuals, and to establish by-laws and make all rules and regulations deemed expedient in relation to its affairs, but being subject, nevertheless, at all times to such rules and regulations as the General Assembly of Iowa might from time to time enact and provide. This is in substance its charter, and to that extent it is protected as by a contract; for it is now too late to contend that the charter of a corporation is not a contract within the meaning of that clause in the Constitution of the United States, which prohibits a state from passing any law impairing the obligation of a contract. Whatever is granted is secured, subject only to the limitations and reservations in the charter or in the laws or constitution which govern it.

This company, in the transactions of its business, has the same rights, and is subject to the same control, as private individuals under the same circumstances. It must carry when called upon to do so, and can charge only a reasonable sum for the carriage. In the absence of any legislative regulation upon the subject, the courts must decide for it, as they do for private persons, when controversies arise, what is reasonable. But when the legislature steps in and prescribes

maximum of charge, it operates upon this corporation the same as it does upon individuals engaged in a similar business. It was within the power of the company to call upon the legislature to fix permanently this limit and make it a part of the charter, and if it was refused, to abstain from building the road and establishing the contemplated business. If that had been done, the charter might have presented a contract against future legislative interference. But it was not; and the company invested its capital, relying upon the good faith of the people and the wisdom and impartiality of legislators for protection against wrong under the form of legislative regulation.

It is a matter of no importance, that the power of regulation now under consideration was not exercised for more than twenty years after this company was organized. A power of government which actually exists is not lost by non-user. A good government never puts forth its extraordinary powers except under circumstances which require it. That government is the best which, while performing all its duties, interferes the least with the lawful pursuits of its people.

In 1691, during the third year of the reign of William and Mary, Parliament provided for the regulation of the rates of charges by common carriers. This statute remained in force, with some amendment, until 1827, when it was repealed, and it has never been re-enacted. No one supposes that the power to restore its provisions has been lost. A change of circumstances seemed to render such a regulation no longer necessary, and it was abandoned for the time. The power was not surrendered. That remains for future exercise when required. So here, the power of regulation existed from the beginning; but it was not exercised until, in the judgment of the body politic, the condition of things was such as to render it necessary for the common good.

Neither does it affect the case that, before the power was exercised, the company had pledged its income as security for the payment of debts incurred, and had leased its road to a tenant that relied upon the earnings for the means of paying the agreed rent. The company could not grant or pledge more than it had to give. After the pledge and after the lease, the property remained within the jurisdiction of the state, and continued subject to the same governmental powers that existed before.

It

The objection that the statute complained of is void, because it amounts to a regulation of commerce among the states, has been sufficiently considered in the case of Munn et al. v. The People, ante. This road, like the warehouse in that case, is situated within the limits of a single state. Its business is carried on there, and its regulation is a matter of domestic concern. is employed in state as well as interstate commerce, and until Congress acts, the state must be permitted to adopt such rules and regulations as may be necessary for the promotion of the general welfare of the people within its own jurisdiction, even though in so doing those without may be indirectly affected.

It remains only to consider whether the statute is in conflict with Sec. 4, Art. I, of the Constitution of Iowa, which provides that "all laws of a general nature shall have a uniform operation," and that "the General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens."

The statute divides the railroads of the state into classes, according to business, and establishes a maximum of rates for each of the classes. It operates uniformly on each class, and this is all the Constitution requires. The Supreme Court of the State, in the case of McAunich v. M. & M. R. R. Co., 20 Ia. 343, in speaking of legislation as to classes, said: "These laws are

general and uniform, not because they operate upon every person in the state, (for they do not), but because every person who is brought within the relation and circumstances provided for is affected by the law. They are general and uniform in their operation upon all persons in the like situation, and the fact of their being general and uniform is not affected by the number of persons within the scope of their operation." This act does not grant to any railroad company privileges or immunities which, upon the same terms, do not equally belong to every other railroad company. Whenever a company comes into any class, it has all the "privileges and immunities" that have been granted by the statute to any other company in that class.

It is very clear that a uniform rate of charges for all railroad companies in the state might operate unjustly upon some. It was proper, therefore, to provide in some way for an adaptation of the rates to the circumstances of the different roads, and the General Assembly, in the exercise of its legislative discretion, has seen fit to do this by a system of classification. Whether this was the best that could have been done, is not for us to decide. Our province is only to determine whether it could be done at all and under any circumstances. If it could, the legislature must decide for itself, subject to no control from us, whether the common good requires that it should be done.

We find no error in the decree below, and it is, therefore, affirmed.

CHICAGO, MILWAUKEE & ST. PAUL R. R. v. ACKLEY et al.

IN ERROR to the Circuit Court of the County of Milwaukee, State of Wisconsin.

Mr. Chief Justice WAITE delivered the opinion of the Court:

The only question presented by this record is, whether a railroad company in Wisconsin can recover for the transportation of property more than the maximum fixed by the act of March 11, 1874, by showing that the amount charged was no more than a reasonable compensation for the services rendered.

What we have already said in the cases of Peik & Lawrence v. The C. & N. W. R. R. Co. is applicable to this case. As between the company and a freighter, the maximum of the statute is the limit of the recovery for transportation actually performed. If the company should refuse to carry at the prices fixed, and an attempt should be made to forfeit its charter on that account, other questions might arise, which it will be time enough to consider when they are presented. But for goods actually carried the limit of the statute is the limit of recovery.

The judgment is affirmed.

WINONA & ST. PETER R. R. v. BLAKE et al. IN ERROR to the Supreme Court of the State of Minnesota.

Mr. Chief Justice WAITE delivered the opinion of the Court:

By its charter the Winona & St. Peter Railroad Company was incorporated as a common carrier, with all the rights, and subject to all the obligations that name implies. It was, therefore, bound to carry when called upon for that purpose, and charge only a reasonable compensation for the carriage. These are incidents of the occupation in which it was authorized to engage. There is nothing in the charter limiting the power of the state to regulate the rates of charge. The provision in the act of February 28, 1866, that the 66 company shall be bound to carry freight and passen

gers upon reasonable terms," and that in the Constitution of Minnesota (Art. X, Sec. 4), "all corporations being common carriers, shall be bound to carry the mineral, agricultural, and other productions or manufactures on equal and reasonable terms," add nothing to, and take nothing from the grant, as contained in the original charter. This case, therefore, falls directly within our rulings in Munn et al. v. The People, ante.; C. B. & Q. R. R. Co. v. Cutts, Peik v. C. & N. W. R. R. Co., and C. M. & St. P. R. R. Co. v. Ackley, just decided.

The judgment of the Supreme Gourt of Minnesota is consequently affirmed, for the reasons stated in the opinions read in those cases.

--

Judges.

1. TAX UPON COMMERCE WHARFAGE FEES-WHEN CONSTITUTIONAL.-The constitution and laws of the United States prohibit the levying of taxes upon the commerce of the country, in the way of duties upon exports and imports and imposts upon vessels engaged in commerce. Whatever may be regarded as taxes of this character or may abridge the free use of the Mississippi is unconstitutional. But a city is not prevented from charging a reasonable compensation for the use of wharves erected by it for the convenience of commerce. A municipal ordinance, which provides for wharfage-fees which are not excessive, can not be regarded as a regulation affecting prejudicially the interests of commerce or freedom of the river upon which the wharves are constructed. Such wharfage-fees are not to be regarded as a tax; they are levied as a compensation for the use of the wharves.

2. THAT THE WHARFAGE-FEES are graduated by the tonnage of the vessels does not affect the rule that a city may charge a reasonable compensation for the use of its wharves.

3. WHAT IS A WHARF - JUDICIAL NOTICE.-A street paved and extending into the river is none the less a wharf. The court will take judicial notice that the wharves of the Mississippi are constructed in this manner.

4. THE DEFENSE THAT the fees are excessive must be specially pleaded.

5. WHEN FEES VALID-JUST COMPENSATION.-If fees be authorized by a municipality on commerce etc., amounting to a tax upon commerce and beyond just compensation for the use of improved wharves, they can not be collected. To be valid, they must be within the limits of just compensation.

6. POLICE POWERS OF MUNICIPALITY-REGULATION OF BOATS.-A municipality in the exercise of its police powers may control the landing of boats by designating the place where they shall receive or discharge freight or passengers, and charge a reasonable compensation therefor.

7. CONSTRUCTION OF STATUTES.-Statutes partly in conflict with the constitution will be held void only as to those parts which are unconstitutional. This rule is extended to the case of a statute or ordinance authorizing two or more acts, one of which is within and the other without legislative authority.

APPEALS from Lee and Des Moines District Courts: These are actions by the respective plaintiffs to recover charges for wharfage, claimed to be due each under ordinances of the several cities providing therefor. The several petitions allege that defendant is indebted to the respective plaintiffs by reason of its boats landing at and using the wharves of each. The pleadings in each case being different, their substance and import must be separately set out. In the first case the petition alleges that the city of Keokuk is empowered by its charter to establish and regulate wharves, and to fix the rates of wharfage for all boats landing or moored at such wharves; that, at great expense, it erected wharves upon the river within its limits, and expended large sums in making additions thereto and keeping them in repair; that, in order to raise money for such outlays, the city issued bonds, which were negotiated, and, to meet the interest and principal thereof, the city by ordinance fixed a wharfage fee, to be paid by each boat or vessel using the wharves; that the boats of defendant landed at the wharves so constructed and improved by the city, and there received and discharged freight and passengers. The petition seeks to recover wharfage, under the city ordinance, to the amount of the fees prescribed therein. The other pleadings in the case are set out in the ab. stract, upon which the case is submitted, in the following language: (Printed matter omitted by order.) And, the defendant standing on its answer, judgment was rendered for plaintiff.

2. In the second case the petition, in proper form, claims to recover wharfage under an ordinance therein pleaded, containing the following provisions: (Printed matter omitted by order.) The other pleadings and proceedings in the case are set out in the abstract, upon which the case is presented in this court, as follows: (Printed matter omitted by order), and because in law said ordinances of plaintiff are legal and binding on defendant. The demurrer was sustained, and, defendant standing on its answer, judgment was rendered for plaintiff.

3. In the third case the petition, in addition to other allegations, avers that plaintiff is the owner of, and at great expense has paved and otherwise improved, a certain wharf within its limits, for the purpose of creating and securing to steamboats landing at said city a convenient and secure wharf or landing-place; "that * defendant landed at said wharf with its steamboats" (stating the names of the boats and the number of landings, and the charges therefor), and "that, under the law of Iowa, it is authorized to construct and regulate wharves, and to fix the fee or wharfage for landing thereat;" and, in consequence of said authority, the eity passed the following ordinances providing for wharfage and fixing the rate of the same: (Printed matter omitted by order.) The second count of defendant's answer to plaintiff's petition is in the following words: (Printed matter omitted by order.) To this count of the answer plaintiff demurred, on the ground that it presented no defense in law to plaintiff's claim. The demurrer was sustained, and, defendant standing on its answer, judgment was rendered against it.

Judgment having been entered against the defendant in the several cases, it appeals in each.

Gilmore & Anderson and James H. Davidson, for appellant; John Gibbon, for appellee, City of Keokuk. Casey & Hobbs and A. J. Alley, for appellee, City of

Fort Madison; Samuel K. Tracy, for appellee, City of Burlington.

BECK, J., delivered the opinion of the court:

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

If the ordinances of the three cities which are brought in question in these actions are in contravention of any of these constitutional or statutory provisions of the United States, they are invalid, and no act or authority done or exercised under them can be supported. It becomes necessary to inquire first as to the character and nature of the charges or fees called wharfage, which the respective plaintiffs seek in the several actions to

recover.

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

In the second case the defendant alleges in its answer "that the city of Fort Madison had not built any wharf for the accommodation of boats landing at the city; that they have in places paved the streets to the river, used by the citizens generally for all purposes of a street, for ferry-landing, for pulling lumber from rafts, and that the streets so paved by the city have been used by this defendant for a landing-place; they (defendant) have generally landed at the place designated by the wharfmaster of plaintiff, which was at the part of the street which had been paved by the city of Fort Madison." It is very plain that the paved street at which defendant's boats were landed comes within the designation of a wharf, which is constructed of stone and earth or timber, for the convenience of vessels in landing. Where there is a tide, or where it is demanded by the nature of the water upou which the wharf is built, it extends into the bay or stream. When there is little variation and sufficient depth of the water, and a smoother surface, the wharf is constructed of stone or timber upon the beach, so that the

vessel may lie broadside to the shore. As a matter of fact, of which we will take notice, all wharves upon the Mississippi River in this state are constructed in the manner last described. If it be constructed upon, or is an extension of, the street into the river, it is none the less a wharf. The answer of defendant clearly shows that it landed its vessels at such a wharf built by the city of Fort Madison. We are amply justified in holding that the pleadings in each case show that defendant used a wharf in each city, constructed and owned by the city for the use and accommodation of steamboats and other vessels.

No objections to the judgment can be well founded on the ground that the petitions in these cases do not claim to recover for the reasonable and just value of the use of the wharves, but for the wharfage-fees fixed by the ordinances. If these ordinances prescribed that each boat landing at an improved wharf should pay the fees fixed therein, and contained no provisions for collecting wharfage, except where boats landed at improved wharves, the actions could be maintained for the wharfage-fees for these reasons. The ordinances would be valid, if the wharfage-fees did not exceed just compensation for the use of the wharves. This can not be doubted. The fees should be fixed and certain, and so graduated as to be equal upon all boats. The amount in each case should not be left to the caprice or judgment of the officer of the city collecting the fees.

The power of the cities to fix by ordinance charges for wharfage, within the limits of just compensation, is recognized in Cannon v. New Orleans, 20 Wall. 577 (582). The only defense that could be made to the enforcement of valid ordinances of the character supposed, would be that the fees prescribed exceed just compensation, and therefore operate as a tax upon commerce. The right to recover under the ordinance the fees prescribed therein, if a reasonable charge for the use of the wharves, would be admitted. The defense, therefore, that the fees are excessive, should be pleaded. But in these cases the defendant has set up no such defense. Now, if the ordinances are valid as to the wharves actually improved, which we shall hereafter see must be held, they may be enforced, unless the defendant pleads and proves that the charges therein prescribed are beyond the limit of just compensation.

The question raised in the pleadings involves the validity of the ordinances. It is not denied that, if confined in their operation to wharves actually improved, they are valid. Defendant can not claim that they must be held invalid because plaintiffs have not averred in their petitions that the wharfage-fees are reasonable. The answers of defendants, to which the plaintiff's demur, set up that the ordinances are wholly void-void for every purpose. The questions before us arise upon plaintiffs' demurrer. Now, if it be found that the ordinances are not wholly void, but are valid to sustain wharfage-fees for the use of wharves actually improved, the demurrer is well taken.

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

The question presented for our decision, under the pleadings in these cases, is this: Are the ordinances of the plaintiffs, providing for the collection of wharfagefees for the use of wharves built and owned by the respective cities, in conflict with the provisions of the