Lapas attēli
PDF
ePub

Statement of the Case.

tent as they would have if the same case had been tried in the usual and ordinary way."

And there was also introduced in evidence on behalf of the defendant in error an ordinance of the city council of the city of Chicago, in the words and figures as follows:

"SEC. 1. The inhabitants of all that district of country in the county of Cook and State of Illinois, contained within the limits and boundaries hereinafter prescribed, shall be a body politic, under the name and style of the city of Chicago; and by that name sue and be sued, complain and defend, in any court; make and use a common seal, and alter at pleasure; and take and hold, purchase, lease and convey such real and personal or mixed estate as the purposes of the corporation may require, within or without the limits aforesaid.

"SEC. 2. The corporate limits and jurisdiction of the city of Chicago shall embrace and include within the same all of township thirty-nine north, range fourteen east of the third principal meridian, and all of sections thirty-one, thirty-two, thirty-three and fractional section thirty-four, in township forty north, range fourteen east of the third principal meridian, together with so much of the waters and bed of Lake Michigan as lies within one mile of the shore thereof, and east of the territory aforesaid.

"SEC. 3. All that portion of the aforesaid territory lying north of the centre of the main Chicago River and east of the centre of the north branch of said river shall constitute the north division of said city; all that portion of the aforesaid territory lying south of the centre of the main Chicago River, and south and east of the centre of the south branch of said river and of the Illinois and Michigan Canal, shall constitute the south division of said city; and all that portion of the aforesaid territory lying west of the centre of the north and south branches of said river and of the Illinois and Michigan Canal shall constitute the west division of said city."

On the trial of the case the issues were found for the defendant; thereupon an appeal was taken to the appellate court for the First District of the State of Illinois, and there without argument the judgment was affirmed, and then an appeal was

Argument for Defendant in Error.

taken by the plaintiff to the Supreme Court of the State. Upon a hearing before that court the judgment of the court below was reversed, and the ordinance of the city declared to be invalid; but upon petition a rehearing was granted, and the case was reargued. After such reargument the judgment previously rendered by the court was set aside and the judg ment of the appellate court was affirmed. The plaintiff thereupon brought the case to this court upon a writ of error.

Mr. C. E. Kremer and Mr. D. J. Schuyler for plaintiff in

error.

Mr. John S. Miller for defendant in error.

It is agreed that the Chicago River is from time to time deepened for navigation purposes, by dredging under the direction and at the expense of the city. The Supreme Court of the State, in its opinion in this case sustaining the ordinance as valid, based its decision upon the ground that as the Chicago River had been improved as a waterway by the city of Chicago at its expense, the license fee is to be sustained as a payment exacted by the city by way of an equivalent or compensation for the use of the improved waterway so provided by the city.

If this license fee can, by a reasonable construction of the ordinance, and by the facts in the case, be regarded as a mode of exacting compensation for benefits conferred by the city in providing an improved waterway, it should be sustained. There can be no question that the imposition of such a fee is a proper mode of exacting such compensation. Cincinnati v. Bryson, 15 Ohio, 625; St. Louis v. Green, 7 Mo. App. 468; Frommer v. Richmond, 31 Gratt. 646; Charleston v. Pepper, 1 Rich. (Law), 364.

The license fee exacted in this case can be sustained as an exaction or compensation for the benefits conferred by the improvement by the city of Chicago of the waters in question. over which the jurisdiction of the city extends. In such cases it has been settled by the repeated decisions of this court that

VOL. CXLVII-26

Argument for Defendant in Error.

the tolls or compensation exacted are to be sustained as a reasonable equivalent for such benefits conferred, and that they are in no sense an improper interference with commerce. Huse v. Glover, 119 U. S. 543; Packet Co. v. Keokuk, 95 U. S. 80; Sands v. Manistee River Improvement Co., 123 U. S. 288; Transportation Co. v. Parkersburg, 107 U. S. 691; Escanaba Co. v. Chicago, 107 U. S. 678; Morgan's Steamship Co. v. Louisiana, 118 U. S. 455; Cooley v. Board of Wardens of Philadelphia, 12 How. 299.

It can make no difference what form the compensation is made to take whether as toll, or wharfage or license fee. The gist of the question is, whether the charge made can be regarded and sustained as compensation for benefits conferred by the authority imposing the charge.

The constitutional power of the several States to improve navigable waters lying within their boundaries, and to charge all vessels navigating such improved waterways reasonable tolls or compensation for their use in their improved condition, is not only supported by the decisions of this court but by many decisions of the state courts. A large number of these cases are referred to in the opinion of the Supreme Court of Illinois in this case, not yet reported, but which will be found in the record.

The Chicago River and harbor of the city of Chicago lie within the territorial limits and jurisdiction of the city. A large portion of the harbor of Chicago is the Chicago River. And the record shows that the Chicago River is from time to time deepened for purposes of navigation, under the direction. and at the expense of the city of Chicago. This court will take judicial notice of the condition and navigability of waters. "We are supposed to know judicially the principal features of the geography of our country, and, as a part of it, what streams are public navigable waters of the United States." The Montello, 11 Wall. 411, 414. Equally so will the court take notice of the former navigability and non-navigability of public waters. Escanaba Co. v. Chicago, 107 U. S. 678.

It would seem very clearly to appear that the navigability

Argument for Defendant in Error.

of the Chicago River has been secured almost entirely by the expenditure of municipal funds; that not only have the proprietors of tug boats been furnished with added convenience for the transaction of their business, but that the facilities for the transaction of their business have been furnished by the city of Chicago; that these boats never could have so operated upon the waters of the Chicago River as they originally were, and that the amount of compensation required by the city is so small as to have occasioned no complaint, even on the part of plaintiff in error.

In the respects above suggested, this case is totally unlike any of the cases in which it was held that the exactions sought to be imposed were unauthorized; and is similar to those cases in which it was held that the exaction could be collected for conveniences furnished; not only so, but this case is more strongly in favor of the city than any of the authorities cited by either party. For not only have these tug owners enjoyed added conveniences, but they have constantly made use of that condition of navigability which was furnished largely by the expenditure of the city's money, and without which they could have had no such opportunity to carry on their business at all.

None of the cases cited by the counsel for plaintiff in error, (such as: Moran v. New Orleans, 112 U. S. 69; Robbins v. Shelby County, 120 U. S. 489; Leloup v. Mobile, 127 U. S. 640; Pullman's Palace Car Co. v. Pennsylvania, 141 U. S. 18; Pickard v. Pullman Southern Car Co., 117 U. S. 34; Maine v. Grand Trunk Railway, 142 U. S. 217,) in any way involved the question of the right of the States (or of the local municipalities, under a grant of power from the State,) to exact a compensation for the use of navigable rivers or harbors, within their limits, by them improved, from vessels or boats engaged in interstate commerce or enrolled and licensed under the acts of Congress. The line of decisions referred to do not touch upon or in any way involve the principles involved. in this case and laid down in the line of decisions in this court, of which use v. Glover and Sands v. Manistee Co. are examples.

Opinion of the Court.

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

The question presented for determination is the validity of the ordinance of the city of Chicago exacting a license from the plaintiff for the privilege of navigating the Chicago River and its branches by tug-boats owned and controlled by him. The Chicago River is a navigable stream, and its waters connect with the harbor of Chicago, and the vessels navigating the river and harbor have access by them to Lake Michigan, and the States bordering on the lake and connecting lakes and rivers. The tugs in question, from the owner of which the license fees were exacted, were enrolled and licensed in the coasting trade of the United States, under the provisions of the Revised Statutes prescribing the conditions of such license and enrolment. The license is in the form contained in section 4321 of the Revised Statutes, in Title L, under the head of "The Regulations of Vessels in Domestic Commerce." It declares that William Harmon, managing owner, of Chicago, having given bond that the steam tug (naming it and her tonnage,) shall not be employed in any trade while this license shall continue in force, whereby the revenue of the United States shall be defrauded, and having also sworn that this license shall not be used for any other vessel, nor for any other employment than herein specified, the license is hereby granted for such steam tug (naming it,) to be employed in carrying on the coasting and foreign trade, for one year from the date thereof. The license is given by the collector of customs of the district, under his hand and seal. The licenses for the several tugs were in this form, differing from each other only in the name of the tug licensed and its tonnage. The licenses confer a right upon the owner of the steam tugs to navigate with them the rivers and the waters of the United States for one year, which includes the river and harbor of Chicago, Lake Michigan, and connecting rivers and lakes. It appears from the record that at the time the license fees in controversy were exacted, these tugs were actually engaged in the coasting and foreign trade, and in towing vessels engaged in interstate com

« iepriekšējāTurpināt »