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Mr. Justice Field delivered the opinion of the court:

This is a suit for an injunction to restrain the defendants from carrying on certain mining operations on a creek in the County of Clarke and Lewis, in the Territory of Montana, known as the Ten Mile Creek, by which it is alleged that the water diverted by the plaintiffs from the stream for mining purposes is deteriorated in quality and value. It appears from the evidence that the plaintiffs are the owners of two ditches or canals known respectively as the Helena Water Ditch and the Yaw-Yaw Ditch, by which the creek mentioned is tapped, and the water diverted and conveyed a distance of about eighteen miles, to certain mining localities known as the Last Chance and Dry Gulches, and there sold to miners. The parties through whom the plaintiffs derive their interest, asserted a claim to the waters of the creek in November, 1864, and during that year commenced the construction of the ditches, and continued work thereon until August, 1866. The work was then suspended, for want of means by the parties to continue it, until the following year, when it was resumed; and in 1867 the ditches were completed and put into operation. Their cost was $117,000.

"tailings" thus thrown into the current are carried down the stream into their ditches, thereby obstructing the flow of the water through them, and deteriorating it in quality and value; and they insist that, as prior appropriators of the waters of the stream, they are entitled to its use without such deterioration; and for the protection of their rights they ask an injunction to restrain the defendants from the further commission of the alleged grievance.

By the custom which has obtained among miners in the Pacific States and Territories, where mining for the precious metals is had on the public lands of the United States, the first appropriator of mines, whether in places, veins or lodes, or of waters in the streams of such lands for mining purposes, is held to have a better right than others to work the mines or use the waters. The first appropriator who subjects the property to use, or takes the necessary steps for that purpose, is regarded, except as [*511 against the government, as the source of title in all controversies relating to the property. As respects the use of water for mining purposes, the doctrines of the common law declaratory of the rights of riparian owners were, at an early day, after the discovery of gold, found to be inapplicable or applicable only in a very limited extent to the necessities of miners, and inadequate to their protection. By the common law, the riparian owner on a stream not navigable, takes the land to the center of the stream, and such owner has the right to the use of the water flowing over the land as an incident to his estate. And as all such owners on the same stream have an equality of right to the use of the water, as it naturally flows, in quality, and without diminution in quantity, except so far as such diminution may be created by a reasonable use of the water for certain domestic, agricultural or manufacturing purposes, there could not be, according to that law, any such diversion or use of the water by one owner as would work material detriment to any other owner below him. Nor could the water by one owner be so retarded in its flow as to be thrown back to the injury of another owner above him. "It is wholly immaterial," says Mr. Justice Story, in Tyler v. Wilkinson, 4 Mas., 379, "whether the party be a proprietor

Whilst this work was progressing, and in the summer of 1865, there was some mining on the Ten Mile Creek, about fifteen miles above the point where the ditches of the plaintiffs tapped the stream, but there was no continued mining at that place until 1867. From that period until the present time, the defendants have been working, and are still working mining ground 509*] situated at that point on the creek.* In that work they, in some places, wash down the earth from the side of the hills bordering on the stream; in other places they excavate the earth and throw such portions as are supposed to contain gold into sluices, upon which the water is turned. The earth from the washing on the hillsides and from the sluices designated in the vocabulary of miners as "tailings," and the water mixed with it, is carried into the creek and affects its whole current, which at that point has a volume of only about two hundred inches, according to the measurement of miners, filling the water with sand and sediment, and impairing its value at that point for fur-above ther mining.

The plaintiffs, in substance, alleged that the 248; Bliss v. Kennedy 43 Ill., 67; Rudd v. Williams, 43 Ill., 385; Gilman v. Tilton, 5 N. H., 231; Cowles v. Kidder, 24 N. H., 378; Stillman v. W. R., &c., Co. 3 Wood. & M., 550; Parker v. Hotchkiss, 25 Conn., 321; Keeney, etc., Mfg. Co. v. Union Mfg. Co., 39 Conn., 576; Tyler v. Wilkinson, 4 Mason, 397; Pugh v. Wheeler, 2 Dev. & B., 55; Blanchard v. Baker, 3 Greenl., 504, 23 Am. Dec., 504; Wadsworth v. Tillitson, 15 Conn., 366, 39 Am. Dec., 391. The common-law doctrine does not prevail in California and some other of the mining States and Territories. In those States property in a stream of water on the public lands may be acquired by mere appropriation for mining or other useful purposes, as for irrigation or for the operation of mills, and the first appropriator is, to the extent of his appropriation, the owner as against all the world except the government. Lobdell v. Simpson, 2 Nev., 274; Ophir Silver Mining Co. v. Carpenter, 4 Nev., 534; Barnes v. Sabron, 10 Nev., 217; Strait v. Brown, 16 Nev., 317, 40 Am. Rep., 497; Hill v. Newman, 5 Cal., 445; Kelly v. Natoma Water Co., 6 Cal., 107: Hoffman v. Stone, 7 Cal., 46; Hill v. King, 8 Cal., 336; Bear Riv., etc., Co. v. N. Y. Mining Co., 8 Cal., 327; McDonald v. Bear Riv. etc., Co., 13 Cal., 220; Kidd v. Laird, 15 Cal., 161; Ort

or below in the course of the river; the right being common to all the proprietors on the river, no one has a

man v. Dixon, 13 Cal., 33; Phoenix Water Co. v. Fletcher, 23 Cal., 481; Wixon v. Bear Riv., etc., Co., 24 Cal., 367; Hill v. Smith, 27 Cal., 480; Parks Can., etc., Co. v. Hoyt, 57 Cal., 44; Crane v. Winsor, 2 Utah, 248; Schilling v. Rominger, 4 Colo. 100.

Such rights have been confirmed by Congress. Act of July 26th, 1866.

This Act is held by this court to be a confirmation of pre-existing rights which the government has by its policy heretofore recognized. Broder v. Natoma Water, etc., Co., 101 U. S. 247, 25 L. ed. 790; Jennison v. Kirk, 98 U. S. 453, 25 L. ed. 240. This doctrine applies only to public lands. No such right can be acquired where the title to the lands upon which the stream is has passed from the government, but the owner of the land is the owner of the stream and the common law rule prevails. Union M., etc., Co. v. Ferris, 2 Sawy., 176; Vansickle v. Haines, 7 Nev., 249; Crandall v. Woods, 8 Cal., 136; Leigh v. Independent Ditch Co., 8 Cal., 323.

Where this right by appropriation is once vested, a subsequent grantee from the government takes subject to it. Broder v. Natoma Water, etc., Co., 101 U. S., 247; Barnes v. Sabron, 10 Nev., 217; Osgood v. Eldorado, etc., Co., 56 Cal., 571.

right to diminish the quantity which will, according to the natural current, flow to the proprietor below, or to throw it back upon a proprietor above. This is the necessary result of the perfect equality of right among all the proprietors of that which is common to all." "Every proprietor of lands on the banks of a river," says Kent, "has naturally an equal right to the use of the water which flows in the stream adjacent to his lands, as it was wont to run (currere solebat) without diminution or alteration. No proprietor has a right to use the water to the prejudice of other proprietors above or below him, unless he has a prior right 512*] *to divert it, or a title to some exclusive enjoyment. He has no property in the water itself, but a simple usufruct while it passes along. Aqua currit et debet currere ut currere solebat. Though he may use the water while it runs over his land as an incident to the land, he cannot unreasonably detain it or give it another direction, and he must return it to its ordinary channel when he leaves his estate. Without the consent of the adjoining proprietors he cannot divert or diminish the quantity of the water which would otherwise descend to the proprietors below, nor throw the water back upon the proprietors above without a grant or an uninterrupted enjoyment of twenty years which is evidence of it. This is the clear and settled doctrine on the subject, and all the difficulty which arises consists in the application." 3 Kent, Com., 439 (marg.)

This equality of right among all the proprietors on the same stream would have been incompatible with any extended diversion of the water by one proprietor, and its conveyance for mining purposes to points from which it could not be restored to the stream. But the government being the sole proprietor of all the public lands, whether bordering on streams or other wise, there was no occasion for the application of the common law doctrine of riparian proprietorship with respect to the waters of those streams. The government, by its silent acquiescence, assented to the general occupation of the public lands for mining, and to encourage their free and unlimited use for that purpose, reserved such lands as were mineral from sale and the acquisition of title by settlement. And he who first connects his own labor with property thus situated and open to general exploration, does, in natural justice, acquire a better right to its use and enjoyment than others who have not given such labor. So the miners on the public lands throughout the Pacific States and Territories by their customs, usages and regulations everywhere recognized the inherent justice of this principle; and the principle itself was at an early period recognized by legislation 513*] and enforced by the courts in those States and Territories. In Irwin v. Phillips, 5 Cal., 140, a case decided by the Supreme Court of California in January, 1855, this subject was considered. After stating that a system of rules had been permitted to grow up with a respect to mining on the public lands by the voluntary action and assent of the population, whose free and unrestrained occupation of the mineral region had been tacitly assented to by the Federal Government, and heartily encouraged by the expressed legislative policy of the State, the court said: "If there are, as must be admitted, many things connected with this system which

are crude and undigested, and subject to fluctuation and dispute, there are still some which a universal sense of necessity and propriety have so firmly fixed as that they have come to be looked upon as having the force and effect of res judicata. Among these the most important are the rights of miners to be protected in their selected localities, and the rights of those who, by prior appropriation, have taken the waters from their natural beds, and by costly artificial works have conducted them for miles over mountains and ravines to supply the necessities of gold diggers and without which the most important interests of the mineral region would remain without development. So fully recognized have become these rights, that without any specific legislation conferring or confirming them, they are alluded to and spoken of in various Acts of the Legislature in the same manner as if they were rights which had been vested by the most distinct expression of the will of the law-makers."

This doctrine of right by prior appropriation, was recognized by the legislation of Congress in 1866. The Act granting the right of way to ditch and canal owners over the public lands, and for other purposes, passed on the 26th of July of that year, in its 9th section declares "That whenever, by priority of possession, rights to the use of water for mining, agricul tural, manufacturing or other purposes, have vested and accrued, and the same are recog nized and acknowledged by the local cus- [*514 toms, laws and decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same." 14 Stat. at L., 253.

The right to water by prior appropriation, thus recognized and established as the law of miners on the mineral lands of the public domain, is limited in every case, in quantity and quality, by the uses for which the appropriation is made. A different use of the water subsequently does not affect the right; that is subject to the same limitations, whatever the use. The appropriation does not confer such an absolute right to the body of the water diverted that the owner can allow it, after its diversion, to run to waste and prevent others from using it for mining or other legitimate purposes; nor does it confer such a right that he can insist upon the flow of the water without deterioration in quality, where such deterioration does not defeat nor impair the uses to which the water is applied.

Such was the purport of the ruling of the Supreme Court of California in Can. Co. v. Vaughn, 11 Cal., 143, where it was held that the first appropriator had only the right to insist that the water should be subject to his use and enjoyment to the extent of his original appropriation, and that its quality should not be impaired so as to defeat the purpose of that appropriation. To this extent, said the court, his rights go and no further; and that, in subordination to them, subsequent appropriators may use the channel and waters of the stream, and mingle with its waters other waters, and divert them as often as they choose: that whilst enjoying his original rights the first appropriator had no cause of complaint. In the subsequent case of Ortman v. Dixon, 13 Cal., 33, the same court held to the same purport, that the measure of the right of the first appropriator of the

water as to extent follows the nature of the appropriation or the uses for which it is taken. See, also, Lobdell v. Simpson, 2 Nev., 274.

each day. The injury thus sustained, and which is only to a limited extent attributable to the mining of the defendants, if at all, is hardly appreciable in comparison with the damage which would result to the defendants from the indefinite suspension of work on their valuable mining claims. The defendants are also responsible parties, capable, according to the evimining produces, if any, to the plaintiffs. Under these circumstances we think there was no error in the refusal of the court below to inter

fere by injunction to restrain their operations, and in leaving the plaintiffs to their remedy, if any, by an action at law.

What diminution of quantity, or deteriora515*] tion in quality will constitute an invasion of the rights of the first appropriator will depend upon the special circumstances of each case, considered with reference to the uses to which the water is applied. A slight dete-dence, of answering for any damages which their rioration in quality might render the water un fit for drink or domestic purposes, whilst it would not sensibly impair its value for mining irrigation. In all controversies, there fore, between him and parties subsequently claiming the water, the question for determination is necessarily whether his use and enjoyment of the water to the extent of his original appropriation have been impaired by the acts of the defendant. This is substantially the rule laid down in Hill v. Smith, 27 Cal., 483; Yale, Mines, 194. But whether, upon a petition or bill asserting that his prior rights have been thus invaded, a court of equity will interfere to restrain the acts of the party complained of, will depend upon the character and extent of the injury alleged; whether it be irremediable in its nature; whether an action at law would afford adequate remedy; whether the parties are able to respond for the damages resulting from the injury, and other considerations which ordinarily govern a court of equity in the exercise of its preventive process of injunction.

If, now, we apply the principles thus stated to the present case, the question involved will be of easy solution. It appears from the evidence that there is at the point where the defendants work their mining claims only about two hundred inches of water in the creek, according to miners' measurement; that between that point and the point where the Helena ditch taps the creek, the distance is about fifteen miles; and that between those points the creek is supplied by several tributary streams of clear water, so that at the point where the water is diverted its volume amounts to about fifteen hundred inches. Of this water the Helena ditch diverts five hundred inches, and conveys it nearly eighteen miles to the localities where it is sold. Running water has a tendency to clear itself, and that result is often produced by a flow of a few miles. But in this case the 516*] *evidence shows that the water as it enters the Helena ditch is muddied and to some extent is affected by sand. At the same time there is a great preponderance in the evidence to the effect that the deterioration in quality from this circumstance is very slight and does not render the water to any appreciable extent less useful or salable for mining purposes at the localities to which it is conveyed; and that no additional labor is required on the ditch on account of the muddied condition of the water. There is also much doubt left by the evidence whether the sand carried into the ditch does not to a very great extent come from the hillsides lying between it and the mining of the defendants, or lying along the course of the ditch. A sand-gate at the head of the ditch is necessary, whether there is or is not mining on the stream above; and the accumulation of sand from all sources, from the hillsides as well as from the mining of the defendants, only requires the additional labor of one person for a few minutes

With respect to the water diverted by the Yaw-Yaw ditch, it is shown that its deterioration, so far as the deterioration exceeds that of the water in the Helena ditch, is caused by sand and sediment brought by a tributary which enters the creek below the head of the Helena ditch.

The decree is affirmed.

JOHN W. CANNON, Piff. in Err.,

v.

CITY OF NEW ORLEANS.

(See S. C., 20 Wall., 577-583.)

Tonnage tax, cannot be imposed by citycompensation for use of wharves, etc., when may be required-unlawful city ordinance.

1. An ordinance of the City of New Orleans, which demanded of all steamboats which shall moor or land in any part of the Port of New Orleans, a sum measured by the tonnage of the vessel, is a tonnage tax within the meaning of the Federal Constitution and, therefore, void.

2. It is a tax for the privilege of stopping in the Port of New Orleans, and cannot be justified under the plea that it is intended as a compensation for the use of the wharves built by the City. 3. For the use of wharves, piers and similar structures, whether owned by individuals or by the City, or other corporation, a reasonable compensation may be charged to the vessel, to be regulated in the interest of the public by the State Legislature or City Council.

4. But in the exercise of this right, care must be taken that it is not made to cover a violation of the Federal Constitution, which prohibits the State to lay any duty of tonnage.

5. Any duty or tax, or burden imposed under the authority of the States, which is in its essence a contribution claimed for the privilege of arriving and departing from a port of the United States, and which is assessed on a vessel according to its carrying capacity is a violation of that provision, unless the consent of Congress be obtained.

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In this case a petition was filed in the Eighth District Court for the Parish of Orleans for an injunction against the collection of certain wharf taxes or dues. Judgment having been given for the defendant and affirmed upon appeal by the Supreme Court of the State, the petitioner sued out this writ of error.

The case is fully stated by the court.
Messrs. P. Phillips, Wm. W. King and R. H.
Marr, for plaintiff in error:

The question is as to the constitutionality of
Headnotes by Mr. Justice MILLER.

NOTE.-State powers to tax external commercesee notes, 60 L. R. A. 649; 8 C. C. A. 492. Tonnage tax-see note, 24 L. ed. U. S. 118.

the ordinance, which provides "That the levee | dues on all steamboats which shall moor or land in any part of the Port of New Orleans, shall be ten cents per ton, etc."

It appears from the evidence that the shores of the port measure 24 miles, and the portion improved by wharves is less than a twelfth of that measurement.

If it were admitted that a charge for the use of a wharf could be sustained, still, it is submitted that the ordinance, as it now stands, must be condemned.

It is true that a statute may be held valid in part, though in another part it contains an illegal clause. But this only obtains where there are distinct provisions, and where the objectionable feature can be exscinded and still leave a complete enactment.

Here this cannot be done; the body of the ordinance levies the tax for mooring or landing anywhere in the port, and this tax is designated as levee dues.

Whatever may be the right of control over navigable rivers in other States, we are not left in doubt as to the relation of Louisiana to the Mississippi. She was admitted into the Union on the solemn pledge and condition: "That the River Mississippi, and the navigable rivers and waters leading into the same or into the Gulf of Mexico, shall be common highways and forever free to the inhabitants of said State, as to other citizens of the United States, without any tax, duty, impost or toll therefor imposed by said State." 2 Stat. at L. 642.

This free use of the river thus stipulated for, certainly includes the right to "moor or land." The Constitution of the United States, to which the State became a party, had already provided that vessels bound to or from one State should not be obliged to pay duty in another. It had also prohibited the State from taxing imports or exports or from laying a duty of tonnage.

It would, therefore, seem to be very evident that this stipulation imposed upon the State is other and further restriction than the Constitution, by general provision, had already declared to be obligatory on all the States of the Union. It is no answer to say that when the State was admitted, it was on a footing of equality with other States. This argument was made and fully refuted in a case which arose under a similar provision in the Ordinance of 1787. Spooner v. McConnell, 1 McL.

vessels. Its exercise would directly conflict with our commercial treaties.

The argument which rests the power of taxation on the ground of improvements in the erection of the levees leads to this: that however slight or unimportant the improvement may be, it calls into exercise the unlimited power of taxation.

Under such a power, the State might raise its whole revenue by taxes on commerce.

In the case of Weston v. Charleston, 2 Pet., 449, the Chief Justice says: "If the right to impose the tax exists, it is a right which, in its nature, acknowledges no limit and may be carried to any extent within the jurisdiction of the State or corporation which imposes it, as the will of each State or corporation may prescribe."

But, independent of these considerations, the ordinance is invalid as being a tax of tonnage.

Conceding the right of the State to levy a tax for mooring or landing within the port, it cannot, by the repeated decisions of this court, exercise the right by a tonnage tax.

In the State Tonnage Tax Cases, 12 Wall., 212, 20 L. ed., 373, a tax of so much a ton was levied on steamboats which were owned by citizens of Alabama, and engaged exclusively in the internal commerce of the State of Alabama. While admitting the full exercise of the state power over the subject, as to the amount of the tax to be levied, this court declared the Act to be void on the ground that the Constitution prohibited this power in the form of a tax on tonnage.

This decision was repeated at the last term in the case of Peete v. Morgan, in which a tonnage duty had been levied by the State of Texas, in the execution of the power of establishing quarantine laws.

The case of The First Municipality v. Pease, 2 La. Ann., 538, decided that a tax for wharfage might be maintained as constitutional, and not in contravention of the Act for the admission of the State.

The case was brought here on writ of error, and the judgment was affirmed on a divided court.

Here it will be perceived that the ordinance complained of, is one that exacts a levee due on any vessel that may moor or land in any part of the Port of New Orleans.

This is a much broader question than is covered by the decision.

The jurisdiction of the States over their rivers Whatever may be the true view of the power is not denied; but this jurisdiction cannot be of the State over this subject, it would seem to exercised so as to interfere with this free navi-be very clear, on the adjudications of this court gation.

William Jolly v. Terre Haute Bridge Co., 6 McL., 237.

If the City, under the authority of the Legislature, could levy a tax for the right to moor or land within the Port of New Orleans, then the Legislature could tax the right to moor or land anywhere in the State. We submit that this would be a palpable violation of the Constitution, as well as the Act of Congress regulating the coasting trade. The object of the one as well as the other is to secure a free commerce, which consists not only in an exchange of commodities, but extends to and includes navigation and intercourse.

The power thus to tax domestic vessels, would be equally potent for the taxation of foreign

that the power cannot be exercised in the form of a tonnage tax. This question did not arise in the case of The First Municipality.

Messrs. Wheeler H. Peckham and P. Phillips, for defendant in error:

The question whether the ordinance is unconstitutional on that ground, can only be raised by the owner of a vessel which has been taxed for landing where there were no wharves. It cannot be raised by this plaintiff, who has paid wharfage dues for landing at a good wharf.

6

In the case of Steamship Co. v. Port Wardens, Wall., 31, 18 L. ed., 749, "There were no services and no offer to perform any."

Suppose the services had been rendered at the request of the company; could it then have raised this question?

In State Tonnage Tax cases, 12 Wall., 204, 20 L. ed., 370, there was no pretense of any compensating service, either in fact or in the law. It was the general tax for general pur

poses.

In Cooley v. Board of Wardens, 12 How., 314, could the question have been raised by a vessel that had employed and been served by a pilot?

In Gibbons v. Ogden, 9 Wheat., 1, could the question have been raised, had Gibbons been running his boat between New York and Albany, instead of New Jersey and New York, merely because the statutes of New York complained of, covered by their terms the case of a boat run between New Jersey and New York? The case of Spooner v. McConnell, 1 McLean 337, is similar in principle.

To say that this is a levee due does not aid

the matter.

The dues were collected for wharfage services, and certainly it is the thing and not the name which is to be considered. Wadsworth v. Warren, 12 How., 314.

Benedict v. Vanderbilt, 1 Rob. (N. Y.), 194, is in point. It is cited and approved by this court in the State Tonnage Tax cases, 12 Wall., 220, 20 L. ed., 376.

The same question was considered in First Municipality v. Pease, 2 La. Ann., 538.

The action was brought to recover wharfage dues under an ordinance somewhat similar to this, for mooring in any part of the limits of the municipality. The plaintiff recovered, and the judgment on writ of error to this court was affirmed.

The case would seem to be conclusive.

580*] *Mr. Justice Miller delivered the opinion of the court:

This is a writ of error to the Supreme Court of the State of Louisiana.

| boats arriving and departing more than once in each week shall pay only seven cents per ton each trip." This was amended by article 1335, by using the words "levee and wharfage dues" instead of "levee dues," and by providing further that "Boats making three trips per week shall pay five cents per ton each trip."

It is argued in support of the validity of these ordinances that the money collected under them is only a compensation for the use of the wharves which are owned by the City, and which have been built and are kept in repair by the City Corporation.

Under the evidence in this case of the condition of the levee and banks of the Mississippi River within the limits of the City, to which the language of the ordinance must be applied, this contention cannot be sustained. It is in proof that of the twenty miles and more of the levee and banks of the Mississippi within the City, not more than one tenth has any wharf, and that vessels land at various places where no such accommodations exist. The language of the ordinance covers landing anywhere within the city limits. The tax is, therefore, collectible for vessels which land at any point on the banks of the river, without regard to the existence of the wharves. The tax is also the same for a vessel which is moored in any part of the Port of New Orleans, whether she ties up to a wharf or not, or is located at the shore or in the middle of the river. A tax which is, by its terms, due from all vessels arriving and stopping in a port, without regard to the place where they may stop, whether it be in the channel of the stream, or out in the bay, or landed at a natural river bank, cannot be treated as a compensation for the use of a wharf. This view is additionally enforced if, as stated by counsel for the plaintiff, in their argument, the Supreme Court of the State has decided that under the Act of 1843, *of the Louisiana [*581 Legislature, no wharfage tax or duty can be levied or collected by the City.

We are of opinion that, upon the face of the ordinance itself, as applied to the recognized condition of the river and its banks within the City, the dues here claimed cannot be support

The original suit was brought by the plaintiff in error, to enjoin the City of New Orleans from the further collection of a tax or duty on his steamboat, The R. E. Lee, which was claimed and had been collected for several years, under the name of levee dues. The peti-ed tion also claimed to recover the money so paid. The Supreme Court of the State held the ordinance to be valid, and dismiss the plaintiff's petition.

This writ of error is based upon the proposition that the city ordinance is in conflict with two clauses of the Constitution of the United States, namely: that which grants to Congress the right to regulate commerce with foreign nations, among the States, and with the Indian Tribes, and that which forbids the States to levy any duty of tonnage without the consent of Congress.

We shall only consider the question raised by

the latter clause.

Article 1332 of the ordinances of the City of New Orleans, reads as follows: "From and after the first day of January, 1853, the levee dues on all steamboats which shall moor or land in any part of the Port of New Orleans, shall be fixed as follows: ten cents per ton if in port not exceeding five days, and $5 per day after said five days shall have expired; Provided, That

as a compensation for the use of the City's wharves, but that it is a tax upon every vessel which stops, either by landing or mooring, in the waters of the Mississippi River within the City of New Orleans, for the privilege of so landing or mooring.

In this view of the subject, as the assessment of the tax is measured by the tonnage of the vessel, it falls directly within the prohibition of the Constitution, namely: "That no State shall, without the consent of Congress, lay any duty limited view may be entertained of the true of tonnage." Whatever more general or more meaning of this clause, it is perfectly clear that thority of the State, which is, by the law imposa duty or tax or burden imposed under the auing it, to be measured by the capacity of the vessel, and is in its essence a contribution claimed for the privilege of arriving and departing from a port of the United States, is within the prohibition.

There have been several cases before this court involving the construction of this provision. The more recent and well considered of these are Steamship Co. v. Port Wardens, 6 Wall., 31

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