This is an appeal from a decree dismissing a bill in chancery on demurrer. The complainant below, who is appellant here, according to the statements of the bill, is a corporation of West Virginia, organized for the purpose of carrying on a transportation business on the Ohio river, together with a general wharf and commission business; its principal office being located at the city of Parkersburg. It is the owner of several stean-boats, duly enrolled and licensed under the acts of congress, and plying between Pittsburgh, Wheeling, Parkersburg, Cincinnati, and Covington. The bill was filed against the city of Parkersburg, and its recorder and wharfmaster, to restrain the collection of certain demands for wharfage, and to recover back money previously paid on that account. It is contended that the city ordinance, under which the wharfage was demanded, is in conflict with the constitution of the United States; and this is the ground on which the jurisdiction of the circuit court of the United States was invoked. The bill alleges that many years ago the city of Parkersburg caused to be constructed on the banks of the Ohio river, at that place, a wharf or public landing, to be used by the various steam-boats trading on the river and landing at said city, and that said wharf is still controlled by the city under a certain ordinance passed by the mayor and common council in March, 1865, a copy of which was filed with the bill. By this ordinance it is ordained that every steam-boat, keel-boat, barge, flat-boat, and flat (except ferry-boats) that may discharge or receive freight, or land on or anchor at or in front of any public landing or wharf belonging to the city, or at which the city may lawfully charge and receive wharfage, for the purpose of discharging or receiving freight, shall pay the city for wharfage the following sums or rates for each respectively, to-wit: On steam-boats of less than 100 tons burden, three dollars for the first 24 hours or any part thereof, and one dollar and fifty cents for every subsequent 24 hours, or any part thereof; on steam-boats of 100 and less than 150 tons, three dollars and seventy-five cents for the first, and two dollars for every subsequent 24 hours, or any part thereof; and so on, regulating the charges according to the tonnage, and reducing them where only a small quantity of freight is discharged or received. Provision is then made for recovering the wharfage by bringing the parties before the recorder or a justice of the peace. The bill alleges that under and by virtue of this ordinance the city of Parkersburg has, ever since the organization of the complainant, required it and its agents to pay the charges provided in the ordinance for all the steam-boats owned or controlled by it, that have discharged or received freight or passengers, or landed at the said wharf, which payments have been made under protest. The bill then makes the following charge:
'Your orator further alleges that, as it is advised and believes, the said ordinance is wholly null and void, and is in conflict with those provisions of the constitution of the United States relating to the regulations of interstate commerce and prohibiting any state, without the consent of congress, from laying any duty of tonnage; and that the operation of the same tends to and does abridge the free use of the Ohio river by your orator, to which it is legally entitled, by virtue of the enrollment and license of its steam-boats, under the laws of the United States, as aforesaid. As by reference to said ordinance will appear, the rates of charges made by said city of Parkersburg upon steam-boats landing at or in front of the wharf of said city, are based upon, and regulated solely by, the 'tons burden' of said boats, and said charges are made indiscriminately, whether the boat lands or anchors at or in front of any public landing or wharf of said city. And your orator further avers that the congress of the United States has never given its consent to the passage or enforcement of said ordinance, but, on the contrary, tonnage duties are expressly prohibited by section 4220 of the Revised Statutes of the United States to be levied upon enrolled or licensed vessels trading from one port in the United States to another port within the same.'