The bill in this case was filed in the circuit court of the United States by the appellants, for themselves and all others in like interest who should come in and contribute to the expenses of the suit, against Catherine M. Aiken, administratrix of Joseph A. Aiken, and others, residents of New Orleans, doing business under the firm name of Joseph A. Aiken & Co., and against the city of New Orleans. The complainants are owners of steamboats plying between New Orleans and other ports and places on the Mississippi river and its branches in other states than Louisiana; and the burden of their complaint is that the rates of wharfage which they are compelled to pay for their vessels at New Orleans are unreasonable and excessive are really duties of tonnage, and imposed in violation of the constitution of the United States. The defendants Joseph A. Aiken & Co., at the time of filing the bill, were lessees of the public wharves belonging to the city of New Orleans, under a lease from the city made in May, 1881, for the term of five years; and, as such lessees, charged and collected the wharfage complained of. The object of the bill, as shown by its prayer, was to obtain an injunction to prevent the defendants from exacting the excessive charges referred to, the complainants expressing a willingness to pay all reasonable wharfage.
The bill alleges that on the seventeenth of January, 1875, the council of the city of New Orleans adopted an ordinance 'fixing and regulating charges for wharfage, levee, and other facilities afforded by the city of New Orleans to commerce,' by which ordinance, among other matters and things, it was ordained that the wharfage dues on all steam-boats shall be fixed as follows: 'NOT OVER FIVE DAYS, TEN CENTS PER TON, and each day thereafter, five dollars per day; boats arriving and departing more than once a week, five cents per ton each trip; boats lying up for repairs during the summer months, to occupy such wharves as may not be required for shipping, for thirty days or under, one dollar per day.' The entire ordinancd was filed with the bill as an exhibit, showing the rates of wharfage to be charged for vessels of every kind. The bill then states that on the seventeenth of May, 1881, the council of the city adopted an ordinance directing the administrator of commerce to advertise for sealed proposals for the sale of the revenues of the wharves and levees for the term of five years, upon certain conditions specified, among which were the following, viz.: To keep the wharves and levees in good repair; to construct such new wharves as might be necessary, not exceeding the expenditure, in any one year, of $25,000; to light the wharves with electric lights; and to pay he city annually the sum of $40,000, of which $30,000 should be devoted to the maintenance of a harbor police for the protection of commerce, and the remaining $10,000 should be devoted exclusively to the payment of salaries of wharfingers, signal officers, and other employes on the levees. The sale was to be adjudicated to the persons who should agree to charge the lowest rates of wharfage. Joseph A. Aiken put in a proposal to take the lease on the conditions specified, at the rates of wharfage named in the ordinance of 1875, with certain reductions which he agreed to make from time to time; and this proposal was accepted by the council.
The power to construct and maintain levees and wharves, and to prescribe and collect rates of levee dues and wharfage, had been conferred upon the city council by its charter, (act March 16, 1870, No. 7, § 12;) and, by the act of March 13, 1871, it was authorized to lease the wharves upon adjudication, for any term not to exceed 10 years at a time, (Laws 1871, No. 48, § 7.)