People ex rel. Board of State Harbor Commissioners v. Roberts

PATERSON, J. This action was brought on behalf of the people on relation of the harbor commissioners to recover a certain sum, claimed to be due to plaintiff for wharfage. The defendant’s barge and lighter part of the time were attached to the wharves by hawsers and lines fastened to mooring piles, which had been placed there for that purpose by the respondents, and part of the time they were not attached to [373]the wharves, but were fastened by lines to the sides of other vessels, which were moored up against and fastened to the wharves. Appellant contends, first, that his vessels did not use the wharves, and, therefore, the charge is one upon tonnage and in conflict with section 10, article 1, of the constitution of the United States; second, that appellant is exempt from the charge made, because his vessels are engaged in transferring merchandise between different points within the state.

There is no merit, we think, in the first contention. The court found that the appellant did use the wharves, and that finding is not challenged, but it also found that appellant’s vessels were not in all cases attached directly to the wharves. The barge and lighter were, however, within the slips which were constructed, kept in repair, and dredged by the respondents; and appellant could not have made use of them unless they had been so repaired and dredged. Under these circumstances, wharfage charges are valid, and the constitutional provision relied upon by appellant is not violated: People v. Gaslight Co., 54 Cal. 248; People v. Williams, 64 Cal. 502, 2 Pac. 393; State Tonnage Tax Cases, 12 Wall. (U. S.) 219, 20 L. Ed. 370; Cannon v. City of New Orleans, 20 Wall. 577, 22 L. Ed. 417; Benedict v. Vanderbilt, 1 Rob. (N. Y.) 194. Furthermore, the barge and lighter were, when within the slips, actually receiving the support of the wharves in discharging into and loading from vessels which were tied thereto. They were practically tied to the wharves, although there was a vessel between them and the wharf itself, and the fact that the owners of the vessels lying next to the wharf had paid regular wharfage rates does not affect the right of the harbor commissioners to collect from the defendant: Vicksburg v. Tobin, 100 U. S. 430, 25 L. Ed. 690.

We are of the opinion that appellant’s second contention is sustained by the act of the legislature, approved March 17, 1880, amending section 6 of an act entitled “An act concerning the waterfront of the city and county of San Francisco,” approved March 15, 1878. This amendatory act provides that “no wharfage shall be collected on any merchandise or other article loaded on any vessel or railroad car, in the city and county of San Francisco, for the purpose of being transported to any port or place in the state of California, nor on any