Superior & M. R. R. Co. v. United States, 93 U. S., 442). This principle fairly includes the Government use of State or municipal wharf and harbor facilities. That is to say, the different kinds of Government property affected in this case, while used for public service and in sovereign and important operations of the Government, such as required this shipment, are not instrumentalities or agencies which are necessarily free from local charges for service or facilities generally legitimate. Indeed, from Railroad Company v. Peniston (18 Wall., 5, 36), showing that a tax upon property of agents of the United States does not necessarily hinder the efficient exercise of their powers or discharge of their duties, it seems to be a consequence that the same distinction would apply to the Government itself, and that a charge upon Government property which was not a tax upon the operations of Government or a direct obstruction to the exercise of Federal powers would not necessarily be invalid. This is also the conclusion to be drawn from Railroad Company v. United States (93 U. S., 442); so that, while Government property may not be taxed, nor Government instrumentalities or agencies nor the operations of Government be obstructed or burdened in any such way, if the Government is properly liable to pay charges for transportation, a charge for service or facilities analogous to transportation and connected with it would not be a tax and would not be invalid on that score.

In this case, although the act of July 27, 1866, provided that Congress might impose regulations restricting the charges for Government service by the Southern Pacific Railroad Company, it does not seem that Congress ever took any further steps for the regulation of such charges. At all events, it nowhere appears that the charge was the railroad company's rate for any service rendered or facility furnished by them.. Thus it seems that this inquiry regards only the validity under general constitutional principles, on the one hand of the wharfage toll charged at San Francisco, and on the other hand of the special charge of the Southern Pacific Railroad Company under their circular, as imposed on west bound freight received at San Francisco, whether local or for export, and as a State toll due the State of Cali

fornia, irrespective of the fact in both cases that the Government was the shipper.

1. The harbor rules, regulations, etc., which you submit (San Francisco, 1889), with amendments, in reference to tolls and wharfage of the same year, and the schedule of rates already referred to as identical with that of the Southern Pacific Company's circular, show that the State Harbor Commissioners are charged by the laws of California with the supervision and control of the wharves and landings of the harbor of San Francisco, with the right to lease the same and to confer the power upon lessees to collect dockage, wharfage, rent, or toll; to make and execute, through subordinates, rules and regulations for the stationing, anchoring, mooring, removing, or discharging of vessels, and for the collection of tolls, wharfage, and dockage. Their duties and powers include the usual and comprehensive authority given to port wardens and harbor commissioners, and the statutory provisions relating to them will be found collected in the political Code of California (1897) under Article IX, sections 2520 et seq., and in the Appendix to the same Code, pages 1035-1046.

As to the Harbor Commissioners' authority respecting charges, section 2524 of the Political Code cited above, providing for their control of a portion of the bay of San Francisco, together with the improvements, rights, privileges, easements, and appurtenances connected therewith, enacts: *** "And said Commissioners, in addition to a general control over said premises, shall have authority to use for loading and landing merchandise, with a right to collect dockage, wharfage, and tolls thereon, such portions of the streets. of the city and county of San Francisco ending or fronting upon the waters of said bay as may be used for such purposes, without obstructing the same as thoroughfares, and to fix and regulate from time to time the rates of dockage, wharfage, cranage, tolls, and rents.”

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The Commissioners are also authorized (but not directed) to modify the rates of dockage and wharfage so as to produce a certain limit of revenue, and thereupon to abolish the collection of tolls; and it may be noted that apparently such modification has not yet been made. By the same section it

appears that all classes of water craft must pay dockage, and that the charge for wharfage and tolls shall be a lien upon all goods, wares, and merchandise landed upon any of the wharves, piers, etc., of the described premises. The commissioners are given authority to make reasonable rules and regulations concerning the control and management of the property of the State intrusted to them which are not inconsistent with the laws of the State or of the United States. The purpose of the revenue collected being to construct and maintain in repair the various harbor facilities, the reasonableness of the rates is provided for by section 2526, reciting that no greater amount of money shall in the main ever be collected from dockage, wharfage, tolls, etc., than is necessary to construct and keep in repair the various wharves and landings: and a certain moderate exemption from tolls and wharfage is granted by section 2548, not involving any unjust or illegal discrimination.

The act of March 19, 1889 (Pol. Code, p. 1037), authorized the Harbor Commissioners to construct railroads and bridges over the lands within its jurisdiction along the exterior water front of San Francisco, and to grant to all railroad companies receiving or delivering freight and passengers within San Francisco, on equal terms, the right to use such railroads; and the commissioners were also authorized to adopt reasonable regulations respecting the passage of trains for the safe and convenient use of the streets.

2. Upon the facts stated and the deduction from them which I have made, I need not trace the history of the judicial development of the commerce clause of the Constitution defining the limits of Federal power and State authority over commerce, because the "State toll" obviously does not fall under the head of a tax or of such regulation of commerce by a State as is forbidden. No law of California is suggested or discovered by which the railroad company is taxed in respect of such traffic as this, nor does the railroad company appear to be imposing a far in its own or the State's behalf. So far as I can learn, both bills in question are referable solely to the State laws respecting the control and administration of the San Francisco water front.

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I will now advert to the decisions involving charges for such facilities as were furnished in this case.

3. Upon this subject I remark that the charges are not an impost which is invalid as a State regulation of commerce, as were the "tolls" involved in Lumber Company v. Patterson (33 Cal., 334). In general, the validity of munici pal or State wharfage charges has been sustained by the Supreme Court on the ground that reasonable charges for the use of property either on water or land are not an interference with the freedom of transportation between the States secured under the commerce power of Congress. In Packet Company v. Keokuk (95 U. S., 80), and in the other similar cases which I cite, the charge was imposed upon vessels mooring and landing at a municipal wharf, and the question of a tax proportioned to tonnage was involved. In that case the court said: "It has always been held that wharfage dues may be exacted, and it is believed that they have been collected in ports where the wharves have belonged to the State or a municipal corporation ever since the adoption of the Constitution;" and approved the language of the opinion in Cannon v. New Orleans (20 Wall., 577), holding that, ordinarily, there is no hindrance to the recovery from any vessel landing at a wharf or pier owned by an individual or by a municipal or other corporation of a just compensation for the use of such property. The charge in the latter case was held invalid, because it was not for wharfage or any service rendered; and it was pointed out in the Keokuk case that while neither a State nor a municipal corporation may impose a tax upon tonnage under cover of laws or ordinances ostensibly passed to collect wharfage, a clear distinction has always been recognized between wharfage and duties on imports or exports or duties on tonnage, citing Cooley v. Board of Wardens (12 How., 299).

In Packet Company v. St. Louis (100 U. S., 423, 429), the court, commenting upon Packet Company v. Keokuk, say: "We need not repeat the reasons there given for the distinction between tonnage dues which the States are prohibited from levying without the consent of Congress, and

wharfage duties properly so called imposed in good faith and to the extent only of fair remuneration for wharf accommodations furnished for the convenience of trade and commerce. We adhere to the doctrines announced in that case. *The city was not prohibited by the Federal Constitution from collecting the wharfage fees in question as reasonable compensation for the use of its wharves."

See also Vicksburg v. Tobin (id., 430); Packet Company v. Catlettsburg (105 U. S., 559); and Transportation Company v. Parkersburg (107 U. S., 691). In Packet Company v. Catlettsburg the court said:

"There is probably not a city or large town in the United States, situated on a navigable water, where ordinances, rules, and regulations like those of the town of Catlettsburg are not made and imposed by authority derived from State legislation, and the long acquiescence in this exercise of the power, and its absolute necessity are arguments almost conclusive in favor of its rightful existence."

And in touching upon the question of the reasonableness of the charges, and finding that they did not appear to be excessive when it was considered that a wharf constantly needs care and repair, the compensation of a wharf master, etc., the court said, "The money collected is not taxes in any sense whatever."

Finally, in the case of the Gloucester Ferry Company v. Pennsylvania (114 U. S., 196), it was held that freedom of transportation implies exemption from charges other than such as are imposed by way of compensation for the use of the property employed or for facilities afforded for its use.

4. The California laws relating to the Harbor Commissioners speak of dockage and wharfage or of dockage, wharfage, and tolls. These terms have been defined. The case of People v. Roberts (92 Cal., 659, 664) finds that wharfage is used in the Political Code in contradistinction to the word "dockage," and says throughout the section (sec. 2524) the word "wharfage" is used to designate the charge against merchandise for the use of the wharves, while the word "dockage" is used to designate the charge against vessels for the privilege of mooring to the wharves or in the slips.