If sect. 720 of the Revised Statutes, which declares that "the writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a State," applies to suits originally brought in the Circuit Courts by virtue of the act of March 3, 1875, c. 137, in cases arising "under. the Constitution or laws of the United States," it is clear that so much of the bill in this case as prays for an injunction to restrain legal proceedings already instituted before the recorder of Parkersburg before it was filed, cannot be maintained. But that portion of the bill which seeks to have the wharfage ordinance declared void, and to restrain any further collections under it, and any further interference with the right of the complainant to the free navigation of the Ohio River, is not open to this objection; and perhaps the demand for- a return of the wharfage already paid (although itself of a legal nature), may come in as incidental to the other relief. The main question to be solved is, whether, as contended by the complainant, the ordinance is void as being in violation of the Constitution or any law of the United States.

It is conceded by the bill that the wharf for the use of which the charges are made, though public in the sense of being open to the use of the public, belongs to the city of Parkersburg; that it was built and is maintained by the city as its property; and the ordinance on its face shows that the charges imposed for landing at or using it are imposed as and for wharfage, and nothing else. It may be extortionate in amount; but it is wharfage. The allegations of the bill that it is not real wharfage, but a duty of tonnage, in the name and under the pretext of wharfage, cannot be received against the terms of the ordinance itself. This would open the door to an inquiry, in every case of wharfage alleged to be unreasonable, which would lead to great inconvenience and confusion. Neither courts nor juries would have any practicable criterion by which to judge of the secret intent with which the charge was made, whether as wharfage or as a duty of tonnage. Such an inquiry, if allowed, would bring into question not only the intent of municipal, but of legislative bodies. When the question is one of reasonable or unreasonable wharfage, we know what to do with it. It is a question known to the laws; and the modes of

redress for unreasonable wharfage are fixed and settled. But whether a charge imposed is a charge of wharfage, or a duty of tonnage, must be determined by the terms of the ordinance or regulation which imposes it. They are not the same thing: a duty of tonnage is a charge for the privilege of entering, or trading or lying in, a port or harbor; wharfage is a charge for the use of a wharf. Exorbitant wharfage may have a similar effect as a burden on commerce as a duty of tonnage has; but it is exorbitant wharfage, and not a duty of tonnage; and the remedy for the one is different from the remedy for the other. The question whether it is the one or the other is not one of intent, but one of fact and law: of fact, as whether the charge is made for the use of a wharf, or for entering the port; of law, as whether, according as the fact is shown to exist, it is wharfage or a duty of tonnage. The intent is not material, and is not traversable. It is not like the case of a deed absolute on its face, but intended as a mortgage; there, the intent is the result of an agreement between the parties, which may be proved, and which it would operate as a fraud on one of the parties not to allow to be proved. Nor is it like the case of a mistake in an instrument, by which the intent of the parties is contravened in that case, also, the actual agreement between them may be shown for the purpose of correcting the instru ment. Nor is it like the case of an intent to deceive or defraud or to commit a crime: there, the intent is a material part of the offence charged; whilst in the present case a supposed intent is suggested for the purpose of making of one act, another and a different act. It is, in truth, more like the case of an averment to contradict the express terms of a written instrument by parol.

It is contended, indeed, that the terms of the ordinance in question show that it was intended to exact a duty of tonnage, and is not confined to the prescription of charges for wharfage; and the words "anchor at or in front of any public landing or wharf," as describing vessels to be charged, are relied on as sustaining this view, since, as contended, they embrace vessels not using the wharf. But we do not understand this to be the meaning and effect of the words. The whole phrase should be taken together, and thus read, it is evidently confined to vessels

using or intending to use the wharf. The passage consists of two distinct clauses: 1. "Every steamboat that may discharge or receive freight at any public landing or wharf;" 2." or that may land on or anchor at or in front of any public landing or wharf for the purpose of discharging or receiving freight." The last clause as well as the first evidently points to those vessels only which land or anchor at or before a wharf for the purpose of using it. Sometimes it may happen that the depth of water in the river, or intervening vessels lying at the wharf, will not allow a vessel to get close alongside of the wharf, and yet she may desire to connect with it in some manner, by planks or by the deck of an intervening boat, barge, or float, so as to discharge or receive freight and passengers upon or from the wharf. Such cases are properly described by the language used; and we have no evidence that any other. construction has been given to it. The complainant does not allege that the supposed obnoxious application of the ordinance has ever been made against any of its vessels, or against any vessels. The charge of the bill is only "that under and by virtue of said ordinance, the city of Parkersburg has, ever since the time of organization of your orator, required your orator, its agents and servants, to pay to it the charges provided in said ordinance for all steamboats owned or controlled by your orator that have discharged or received freight or passengers, or landed at its said wharf." There is no complaint that wharfage has been exacted when the complainant's vessels have merely anchored in the stream, or have moored at any other place than the city's wharf; or when they have stopped at or in front of the wharf itself for any other purpose than that of discharging or receiving freight and passengers. This makes the case a very different one from that which was presented in Cannon v. New Orleans, 20 Wall. 577. There the ordinance objected to imposed levee duties "on all steamboats which shall moor or land in any part of the port of New Orleans;" and this court could do no otherwise than hold that such an ordinance had the effect of laying a duty of tonnage, against the express prohibition of the Constitution. The same view had previously been taken of an act of the legislature of Louisiana, authorizing the port wardens of New Orleans to demand and receive five dollars from

every vessel arriving in that port, whether called on to perform any service or not, Steamship Company v. Port Wardens, 6 Wall. 31; and of a law of Texas, which required every vessel arriving at the quarantine station of any town on the coast of Texas to pay five dollars for the first hundred tons, and one and a half cents for each additional ton. Peete v. Morgan, 19 id. 581. So, when a law of New York required all vessels of a certain class which should enter the port of New York, or load or unload, or make fast to any wharf therein, to pay a certain rate per ton, this was held to be an unconstitutional imposition, because it applied to all vessels, whether they used a wharf or not. Inman Steamship Co. v. Tinker, 94 U. S. 238. All these were clear cases of duty on tonnage as distinguished from wharfage; and the terms of the ordinances and laws in question were very different from those of the ordinance now under consideration. We think it very clear that the ordinance in question cannot be regarded as imposing any other charge than that of wharfage. The fact that the rates charged are graduated by the size or tonnage of the vessel is of no consequence in this connection. This does not make it a duty of tonnage in the sense of the Constitution and the acts of Congress. So we have expressly decided in several recent cases. Cannon v. New Orleans, 20 Wall. 577; Packet Company v. Keokuk, 95 U. S. 80; Packet Company v. St. Louis, 100 id. 423'; Guy v. Baltimore, id. 434; Packet Company v. Catlettsburg, 105 id. 559. When the Constitution declares that "No State shall, without the consent of Congress, lay any duty of tonnage ;" and when Congress, in sect. 4220 of the Revised Statutes, declares that "No vessel belonging to any citizen of the United States, trading from one port within the United States to another port within the United States, or employed in the bank, whale, or other fisheries, shall be subject to tonnage tax or duty, if such vessel be licensed, registered, or enrolled," they mean by the phrases, " duty of tonnage," and "tonnage tax or duty," a charge, tax, or duty on a vessel for the privilege of entering a port; and although usually levied according to tonnage, and so acquiring its name, it is not confined to that method of rating the charge. It has nothing to do with wharfage, which is a charge against a vessel for using or lying

at a wharf or landing. The one is imposed by the government, the other by the owner of the wharf or landing. The one is a commercial regulation, dictated by the general policy of the country upon considerations having reference to its commerce or revenue; the other is a rent charged by the owner of the property for its temporary use. It is obvious that the mode of rating the charge in either case, whether according to the size or capacity of the vessel, or otherwise, has nothing to do with its essential nature. It is also obvious that since a wharf is property, and wharfage is a charge or rent for its temporary use, the question whether the owner derives more or less revenue from it, or whether more or less than the cost of building and maintaining it, or what disposition he makes of such revenue, can in no way concern those who make use of the wharf and are required to pay the regular charges therefor; provided, always, that the charges are reasonable and not exorbitant.

It is undoubtedly a general rule of law, in reference to all public wharves, that wharfage must be reasonable. A private wharf, that is, a wharf which the owner has constructed and reserves for his private use, is not subject to this rule; for, if wishes to make use of it for a temporary purany other person pose, the parties are at liberty to make their own bargain. That such wharves may be had and owned, even on a navigable river, is not open to controversy. It was so decided by this court in Dutton v. Strong, 1 Black, 23, and in Yates v. Milwaukee, 10 Wall. 497. Whether a private wharf may be maintained as such, where it is the only facility of the kind in a particular port or harbor, may be questioned. Sir Matthew Hale says: "If the King or subject have a public wharf unto which all persons that come to that port must come and unlade or lade their goods as for the purpose because they are the wharves only licensed by the King, according to the statutes of 1 Eliz., cap. 11, or because there is no other wharf in that port, as it may fall out where a port is newly erected; in that case there cannot be taken arbitrary and excessive duties for cranage, wharfage, pesage, &c.; neither can they be inhanced to an immoderate rate, but the duties must be reasonable and moderate, though settled by the King's license or charter." Hargrave's L. T. 77.