34 Cal. 676 | Cal. | 1868
The complaint states that the defendant is indebted to the plaintiffs for the wharfage of the defendant, at the wharf of the plaintiffs, in the City of San Francisco, in a certain sum, and that sum is, by law, payable in gold coin.
The defendant’s counsel presents the point that the statute under which the action is brought (Sec. 2 of Water Front Act of 1864, Stats. 1863-4, p. 139) is unconstitutional. The ground taken is that this is a case of admiralty and maritime jurisdiction, and that “ as the Judiciary Act of 1789, passed in pursuance of section two of Article IH of the Constitution of the Hnited States, provides that the District
The defendant’s counsel, in stating the facts of the ease, says that “ the action is brought to recover wharfage while the steamer was engaged in navigating the high seas, and conveying passengers and freight to and from this port and ports in Central America.” But it does not appear from the complaint that the steamer was engaged in commerce and navigation. This fact, or one of similar import, must be stated in the pleadings, in order to make a case falling within the admiralty and maritime jurisdiction. The Court cannot take judicial notice that a vessel found at a wharf is engaged in navigating the high seas, or the navigable inland waters of the State, or is employed in trade, commerce or navigation, of any sort or in any manner. That is a fact of jurisdictional consequence, and must be expressly alleged or be necessarily inferable from the other facts alleged. The precedents of libels in admiralty, although “ there is no special custom extant ” with respect to their form, state this fact, and it is very generally found in all the reported cases. This fact not appearing in the case, the question presented by the defendant’s counsel does not arise.
It is objected that the Harbor Commissioners have no
The third point is, that the Court erred in ordering judgment in gold coin. It is provided by section eleven of the Water Front Act that “All tolls, dockage and wharfage charges, by this Act authorized and required to be collected, shall be due and collectable exclusively in gold and silver money of the United States.”
The case does not fall within the provisions of the Specific Contract Act, as there was no contract in writing for the payment of the wharfage. The several sums required to be paid for dockage, wharfage, etc., are in the nature of public revenue. The funds are raised and appropriated by the Glovernment for the purpose of constructing wharves and other works for the protection and improvement of the harbor of San Francisco, and to aid and facilitate commercial intercourse between this and other ports. The enterprise was •set on foot for public benefit, and is one in which the public are interested, and was undertaken and carried on by the State in her sovereign capacity, and not as a mere private proprietor. The tolls, dockage and wharfage charges provided for in that section, are levied under the same authority as license, poll and ad valorem taxes, and, in our opinion, they are charges upon the property, to raise money for public purposes, within the principles laid down in Perry v. Washburn, 20 Cal. 350.
The liability for the payment of such charges does not arise out of contract, or, if so in any manner, only in the remote degree that it does in case of license taxes. They are dues to the public treasury, and, as such, it was competent to the Legislature to make them payable in coin, or
Judgment affirmed.