that law. It is clear, therefore, that the complainant in filing its bill in the United States Court on the ground that the wharfage complained of is in violation of the Constitution or laws of the United States, has totally miscon ceived its rights, and the proper means of obtaining redress. Unless it has some other ground for coming into the Federal Court, it must seek redress in the state courts; and whether the question of reasonableness of wharfage is submitted to the determination of the one forum, or the other, it is only determinable by the laws of the State within whose jurisdiction the wharf is situated. Since the parties are all citizens of West Virginia, and since the case cannot be sustained as one "arising under the Constitution or laws of the United States," there was no error in the decree dismissing the bill of complaint. The decree of the Circuit Court is, therefore, afTrue copy. Test: James H. McKenney, Clerk, Sup. Court, U. S. Mr. Justice Harlan, dissenting: The City of Parkersburg, which has been created a port of delivery in conformity with the laws of the United States, exacts and collects for the use of its wharf by boats engaged in commerce on the Ohio River, certain fees or dues, called wharfage charges, which, as shown by the ordinance of May 17, 1865, are, in every case, measured by the tonnage or capacity of the boat so using the wharf. Wheeling Bridge, as originally constructed, presented a complete obstacle to the passage of steamboats with high chimneys, such as navigated the Ohio River to and from Pittsburgh; and hence presented a case of interference with navigation analogous to that of the exclusive monopoly granted to Fulton and Livingston by the State of New York, which was the ground of complaint in the case of Gibbons v. Ogden. But, besides this, it was a case in which this court exercised its original jurisdiction by reason of the character of the parties, a State being the complainant in the suit; and having jurisdiction on this ground, it was competent for the court to decide upon the lawfulness or unlawfulness of the structure in reference, not only to the laws of the United States, but also to the local municipal law, and to the general law relating to the mutual rights of the States. The charter granted to the Wheeling Bridge Com-firmed. pany by the State of Virginia, had expressly provided "That, if the said bridge shall be so constructed as to injure the navigation of said river, the said bridge shall be treated as a public nuisance, and shall be liable to abatement upon the same principles and in the same manner that other public nuisances are." In addition to this, in 1789, an Act was passed by the State of Virginia, consenting to the erection of the State of Kentucky out of its territory on certain conditions, among which was one, "That the use and navigation of the River Ohio, so far as the territory of the proposed State, or the ter- It is conceded by the demurrer to the bill ritory that shall remain within the limits of that, from these fees, the City has long since this Commonwealth lies thereon, shall be free been re-imbursed for the actual cost of conand common to the citizens of the United States," structing the wharf; that the amount, annually and to this Act the assent of Congress was given. collected for its use by boats, is largely in ex1 Stat. at L., 189. "This compact," the court cess of any expense incurred in its maintenance said, "by the sanction of Congress, has become and repair; that the wharf has been permitted a law of the Union." Upon all these grounds, to become and remain in bad repair, at times alit was held that the State of Pennsylvania, hav- most unfit for use; that nearly all the money so ing large interests which were affected by the raised is applied by the City to increase its generection of the bridge, was entitled to a decree eral revenue, and to payment of its indebtedfor its prostration as a nuisance, unless such al-ness; lastly, that the wharfage charges are unterations should be made in its construction as to leave the navigation of the river unimpaired. This case, therefore, cannot be relied on, any more than the other cases referred to, to show that the courts of the United States have any peculiar jurisdiction as such, to vindicate the supposed rights of commerce and navigation against the laws of the States, in matters of a local nature, such as the regulation of wharfage is, where no express provision of the Constitution is violated, and no Act of Congress has been passed to regulate the subject. As no Act of Congress has been passed for the regulation of wharfage, and as there is nothing in the Constitution to prevent the States from regulating it, so long as Congress sees fit to abstain from action on the subject, our conclusion is, that it is entirely within the domain and subject to the operation of the state laws. The effect of this conclusion upon the present case is obvious. The gravamen of the bill is really nothing but a complaint against exorbitant rates of wharfage. These rates are established by a municipal body, itself the proprietor of the wharves, and professing to act under the authority of state law. It cannot be supposed that the law authorizes exorbitant charges to be made; but whether the charges exacted are exorbitant or not can only be determined by reasonable in amount and oppressive. The opinion of the court, if I do not wholly misapprehend it, proceeds upon the broad ground that municipal wharfage charges, even where measured by the tonnage of the boat, and however much in excess of fair and reasonable compensation, are not duties of tonnage within the meaning of the Federal Constitution, nor does their exaction infringe any right given or secured by the Constitution or the existing statutes of the United States. If such charges are, in the case supposed, duties of tonnage, or if their collection violates any right, so given or secured, plainly, then, this is a case arising under the Constitution or laws of the United States and, therefore, one of which the circuit court, under the Act of 1875, could take original jurisdiction, without reference to the citizenship of the parties. I had supposed, and am still of opinion, that a vessel or boat, duly enrolled and licensed under the laws of the United States, as those of plaintiff in error are conceded to be, and engaged in commerce upon the Ohio River, a public navigable water, is entitled, in virtue of the Constitution and laws of the United States, to enter any port on that stream and, also, to land at any wharf established for public use, without being subjected, apart from mere police regulations, to any burden, tax or duty, therefor, beyond reasonable compensation to the owner of the wharf for its use. Such I have understood to be the doctrine of this court as announced in Cannon v. N.O., 20 Wall., 577 [87 U. S., XXII., 417]; Packet Co. v. Keokuk, 95 U. S., 80 ]XXIV., 377]; Packet Co. v. St. Louis, 100 U. S., 428 [XXV., 690]; Vicksburg v. Tobin, Id., 430 (XXV., 690]. The court holds that Congress, under the power to regulate commerce with foreign Nations and among the several States may, by statute, provide for the protection, through the courts, of those engaged in commerce upon the public navigable waters of the United States against unreasonable charges for the use of wharves by boats. But without further legislation, specifically directed to that end, the courts, I submit, should adjudge that local regulations, such as those adopted by the City of Parkersburg, come within the prohibition upon the States to levy duties of tonnage and are, besides, inconsistent with the compact between Virginia and Kentucky which this court, in the Wheeling Bridge Case, 13 How., 564, declared had become, by the sanction of Congress, a law of the Union. In that compact, it is declared that "The use and navigation of the River Ohio, so far as the territory of the proposed State, or the territory that shall remain within the limits of this Commonwealth (Virginia) lies thereon, shall be free and common to the citizens of the United States." In the opinion of the court, a duty of tonnage is defined to be a charge, tax or duty on a vessel for the mere privilege of entering or lying in a port. The City of Parkersburg cannot, therefore, constitutionally impose a charge, tax or duty upon or for the exercise of that privilege. Now, do the Constitution and the existing laws of the United States extend their protection no further than to secure the bare, naked right of entering a port free from local burdens or duties upon its exercise? May not the boat, in virtue of the Constitution and existing laws, also land at any wharf, at least at any public wharf, on the Ohio River for the purpose of discharging and receiving freight and passengers? Of what value would be the right to enter the port without the privilege of landing its passengers and freight? Is not the substantial privilege of landing passengers and freight necessarily involved in the right of entering the port? If so, it would seem that the right to fand a boat at a public wharf on a navigable water of the United States, is as fully protected by the Constitution and the existing laws of the United States, as that of entering the port. A charge, tax or duty imposed upon the exercise of the right to land is, consequently, for every practical purpose, as much a duty of tonnage as a charge, tax or duty upon the privilege of entering the port. The constitutional prohibition upon the levy, by the States, without the consent of Congress, of duties of tonnage; the power given Congress to regulate commerce among the States; the statutes of the United States, in the exercise of that power, providing for licensing vessels, establishing ports of entry and imposing duties and inflicting penalties upon officers of boats engaged in navigation; and the sanction by Congress of the compact between Virginia and Kentucky, declaring that the use and navigation of the Ohio River shall be free to all citizens of the United States, give to the boats of the plaintiff in error the right to enter the Port of Parkersburg and land at the wharf provided for the use of boats engaged in navigation. It is a right given and secured by the Constitution and the existing laws of the United States and, therefore, one which the courts of the Union may protect against invasion or violation. For its protection additional legislation does not seem to be necessary, since original jurisdiction is given to the Circuit Courts of the United States of all suits arising under the Constitution and laws of the United States when the matter in dispute exceeds a prescribed amount. These principles are entirely consistent with the City's ownership of the wharf or with the right to demand fair compensation for its use. As decided in the before mentioned cases, the City may require all who use its wharf, by landing thereat or in any other way, to pay what such use is reasonably worth. It cannot, as the court states, rightfully demand more. Reasonable compensation for the use by boats of the additional facilities furnished to commerce by means of wharves, even when such compensation is measured by the capacity of the boats, is not, within the meaning of the Constitution and the laws of the United States, an infringement of the right of free commerce upon the public navigable waters of the United States. Upon this ground, the wharfage charges imposed by the cities of St. Louis, Vicksburg and Keokuk were sustained. [Packet Co. v. St. Louis] 100 U. S., 428 [XXV., 690]; [Vicksburg v. Tobin] Id., 430 [XXV., 690]; [Packet Co. v. Keokuk 95 Id., 80 [XXIV., 377]. But it is an entirely different matter when a municipal corporation assumes in effect, if not in terms, to burden the constitutional privilege of entering the port of any city, situated on a public navigable stream, with the condition that if the boat lands at the public wharf of that City, it must submit to the payment of larger compensation for the use of that wharf than the corporation has the legal authority to demand. It requires no further legislation by Congress to enable the courts of the Union to protect the rights of free commerce against exactions of that kind. It is, I think, their duty to adjudge all such local regulations to be in conflict with the supreme law of the land. To burden the exercise of a constitutional right with conditions which materially impair its value, or which, practically, compel the abandonment of the right rather than to submit to the conditions, is, in law, an infringement of that right. The opinion of the court, I repeat, rests necessarily upon the ground that the enforced exaction and collection by a municipal corporation of unreasonable compensation for the use of its wharf by a boat, duly enrolled and licensed under the laws of the United States, and engaged in commerce upon the Ohio River, does not infringe or impair any right given or secured either by the Constitution or the existing laws of the United States. To that proposition I am unable to give my assent. For the reasons stated, I dissent from the opinion and judgment. True copy. Test: James H. McKenney, Clerk, Sup. Court, U.S. Cited 114 U. S., 217, 316, 631. FIRST NATIONAL BANK OF XENIA, v. DANIEL M. STEWART AND MARTHA (See S. C., 17 Otto, 676-678.) National bank-lending by it on its stock. 1. Section 5201 of the Revised Statutes imposes no penalty, either upon a national bank or a borrower, for a loan by it on the security of its own 2. When the contract has been executed, the security sold and the proceeds applied to the payment of the debt, the courts will not interfere with stock. the matter. Messrs. E. M. Johnson, George Hoadley and Edward Colston, for defendants in error. Mr. Justice Field delivered the opinion of the court: Section 5201 of the Revised Statutes declares that "No association shall make any loan or discount on the security of the shares of its own capital stock, nor be the purchaser or holder of any such shares, unless such security or purchase shall be necessary to prevent loss upon a debt previously contracted in good faith, and stock so purchased or acquired shall, within six months from the time of its purchase, be sold or disposed of at public or private sale, or, in default thereof, a receiver may be appointed to close up the business of the association." ing association from making a loan upon the While this section, in terms, prohibits a banksecurity of shares of its own stock, it imposes no penalty, either upon the bank or borrower, if a loan upon such security be made. If, therefore, the prohibition can be urged against the validity of the transaction by anyone except the government, it can only be done before the contract is executed, while the security is still subsisting in the hands of the bank. It can then, if at all, be invoked to restrain or defeat the enforcement of the security. When the contract has been executed, the security sold, and the proceeds applied to the payment of the debt, the courts will not interfere with the matBoth bank and borrower are in such case equally the subjects of legal censure, and they will be left by the courts where they have placed themselves. Statement of the case by Mr. Justice Field: The plaintiffs are administrators of the estate of Daniel McMillan, deceased, and the defendant is the First National Bank of Xenia, Ohio, a Corporation formed under the National Bank Act of the United States. The action is brought to recover the sum of $4,200, with interest; the complaint alleging that in October, 1876, the Bank was in possession of thirty shares of its capital stock belonging to the deceased; that itter. then unlawfully converted them to its own use and sold them, receiving therefor the sum mentioned, which it refuses to account for or deliver to the plaintiffs, although a demand for it has been made. The Bank, in answer to the complaint, avers that in April, 1876, the deceased was owing to it a debt previously contracted, greater in amount than the value of the shares of capital stock; that it being necessary to secure the Bank from loss, he delivered to it certificates of the shares with other property, as collateral security for the debt; that in October, 1876, the debt being unsatisfied and overdue, the Bank sold the shares at their full market value and applied the proceeds as a credit upon it; and that after such application a large amount remained due to the Bank, which is still unpaid. The evidence produced at the trial tended to show that the shares of stock were delivered by the deceased to the Bank as collateral sccurity for money loaned to him at the time, and continued to be thus held until they were sold. The court charged the jury that if they found from the evidence that the Bank stock was delivered by the deceased to the Bank as a pledge or collateral security for a loan of money made by him at the time, the plaintiffs were entitled to recover the amount of the proceeds, with interest from the time of sale; as the defendant was prohibited by the Currency Act from thus receiving its own stock. To this charge the defendant excepted. The plaintiff's recovered a verdict, and to review the judgment entered thereon the case was brought to this court on a writ of error. Messrs. John Little, Alphonso Taft and II. P. Lloyd, for plaintiff in error. There is another view of this case. The de ceased authorized the Bank, in a certain contingency, to sell his shares. Supposing it was unlawful for the Bank to take those shares as security for a loan, it was not unlawful to authorize the Bank to sell them when the contingency occurred. The shares being sold pursuant to the authority, the proceeds would be in the Bank as his property. The administrators, indeed, affirm the validity of that sale by suing for the proceeds. As against the deceased, however, the money loaned was an offset to the proceeds. In either view the administrators cannot recover. The judgment of the court, therefore, must be reversed and the cause remanded for a new trial; and it is so ordered. True copy. Test: James H. McKenney, Clerk, Sup. Court, U. S. GEORGE W. CAMPBELL AND GEORGE v. UNITED STATES. (See S. C., 17 Otto, 407-413.) Drawback on goods imported. A person who, under section 4 of the Act of 1861, is entitled to an allowance of drawback may maintain an action therefor in the court of claims if payment thereof is refused, and the rights which the law thus gives to him cannot be defeated by the refusal of the Secretary of the Treasury or the officers of customs, to act, nor by their decision that no drawbacks respectively." 12 Stat. at L., 292. drawback was due. [No. 232.] Argued Apr. 5, 1883. On the 22d of January, 1862, the Secretary established such regulations as he deemed ap Decided Apr. 30, 1883. propriate, the first of which is this: APPEAL from the Court of Claims The history and facts of the case appear in the opinion of the court. Messrs. J. H. Choate, William M. Evarts and C. F. Southmayd, for appellants: The denial of jurisdiction by the Court of Claims rested upon two misconceptions: I. It gave to the judgment of this court in Nichols v. U. S., 7 Wall., 122 (74 U. S., XIX., 125), the effect of an authority upon the question presented in this case, when its whole subject-matter and its whole reasoning refers to the wholly distinguishable case of recovering back duties illegally exacted. II. The second misconception of the Court of Claims in disposing of this case below, was in treating the process and verification provided by the Government, for and in the payment of drawbacks, as being a provision of a mode, and a tribunal or quasi tribunal, for determining, measuring and enforcing a right. But the Secretary of the Treasury, in case of drawback upon merchandise exported in the condition in which it was imported, had no function whatever to perform, except to pay back the duty, less one per cent. The following cases in the Court of Claims, sustain the jurisdiction of that court in the present case, when freed from these misconceptions: Patton v. U. S., 7 Ct. Claims, 362; Daily v. U. S., 7 Ct. Claims, 383; Broulatour v. U. S.,7 Ct. Claims, 564; Shelton v. U. S., 8 Ct. Claims, 487; Kaufman v. U. S., 11 Ct. Claims, 659. Mr. William A. Maury, Asst. Atty-Gen., for appellee: Did Congress intend that the Court of Claims should administer the revenue laws without any regard to the rules and safeguards which are deemed necessary in the ordinary administration of those laws? A stronger case than this, to show the wisdom of this court in laying down,in Nichols v. U. S., 7 Wall., 122 (74 U. S., XIX., 125), that "Cases arising under the revenue laws are not within the jurisdiction of the Court of Claims," could hardly be imagined. 1. "To entitle the exporter to such allowance of drawback, he must, at least six hours previous to the putting or lading any of the articles intended to be exported by him for benefit of drawback on board any vessel or other conveyance for exportation, lodge with the Collector of Customs for the district from which such exportation is to be made, an entry setting forth his intention to export such articles, and the marks, numbers and a particular description of the same, with their quantity and value, and designating the manufacturer thereof, the place where deposited, the name of the vessel or other conveyance in or by which, and the port or place to which the same is intended to be exported; and also describing in such entry the material or materials severally from which he claims the articles to have been manufactured, designating when, where, whence, by whom and in what vessel or other conveyance the same was or were imported, and specifying the quantity and value thereof used in the manufacture. This entry shall, upon presentation, be verified by the oath or affirmation of the proprietor and the foreman of the manufactory in which such articles were made." Other regulations require the collector and the surveyor to make the necessary examination to ascertain if the articles described in this entry be as stated, and to mark and designate them accordingly, and to verify the weight, gauge, measure or amount, and to superintend the lading for export, etc., etc. All this having been done, and the oath of the exporter and his bond, with condition prescribed by the rules, being given, the collector is to give a certificate of the amount to which the party is entitled as drawback, on which he is to receive the money. The appellants in this case sued in the Court of Claims for a drawback, on account of large amounts of linseed cake made by them out of linseed imported from a foreign country, and which cake they exported to London. Their petition was dismissed by that court, on the ground, as stated in their opinion, that it was not a case of which they had jurisdiction. The decision of the revenue department on The court, however, did entertain jurisdicthe question of drawback should be final, leav-tion of the case; an answer was filed on behalf ing the claimant no other recourse than an application to Congress. Mr. Justice Miller delivered the opinion of the court: The 4th section of the Act to provide increased revenue from imports to pay interest on the public debt, and for other purposes, approved August 5, 1861, reads as follows: of the United States denying the allegations of the petition; testimony was taken and a full and elaborate finding of facts was made, and on this the court, as a conclusion of law, find that for want of jurisdiction of the subject-matter the petition is dismissed. This finding of facts shows that in the months of September, October, November and December, 1870, claimants imported from Calcutta "That, from and after the passage of this Act, large quantities of linseed, for which they paid there shall be allowed, on all articles wholly the duty of sixteen cents per hundred pounds manufactured of materials imported, on which according to law, which was by them, without duties have been paid, when exported, a draw-intermixture with any other linseed or other back equal in amount to the duty paid on such materials, and no more, to be ascertained under such regulations as shall be prescribed by the Secretary of the Treasury; Provided, That ten per centum on the amount of all drawbacks, so allowed shall be retained for the use of the United States by the collectors paying such material, manufactured into linseed oil and linseed cake, of the latter of which article there was produced therefrom 5,156,585 pounds. It was for the exportation of part of this latter product that the drawback is claimed in this suit. As, however, this was done by several shipments at different times, and as the finding of facts is precisely the same in the case of each | porter to receive drawback upon subsequent exshipment, except as to date, quantity, and the name of the vessel, we give here verbatim the finding as to the first: "On the 19th day of January, 1871, the claimants and said Ludlow D. Campbell were the owners of and had in their possession, 447,712 pounds of Lindseed cake, being parcel of the aforesaid 5,156,585 pounds, and desiring and intending to export the same from New York to London for the benefit of the drawback authorized by the 4th section of the "Act to provide increased revenue from imports to pay interest on the public debt, and for other purposes," approved August 5, 1861, duly presented to and lodged with the Collector of Customs for the Port of New York, before putting or lading any of the said cake on board any vessel for exportation, an entry of said linseed cake for export by the ship Sterling Castle, which was accompanied with the certificate and oath required by and was in all respects in conformity with the regulations prescribed by the Secretary of the Treasury, in pursuance of the requirement of the 4th section of said Act, and the said claimants and said Ludlow D. Campbell in all respects conformed to such regulations in respect to drawback, which allowance had been by said regulations fixed at seventeen cents per one hundred pounds, and made payable by the United States thirty days after clearance of the vessel by which exportation was made; but the said collector, acting under instructions from the Secretary of the Treasury, given on the 5th day of December, 1870, wholly refused to perform or cause to be performed in any manner any other act than the receipt of said entry prescribed by said regulations to be done, or caused to be done, by a Collector of Customs under the 4th section of said Act. Thereafter, in the month of January, 1871, the said 447,712 pounds of linseed cake were shipped by the claimants and said Ludlow D. Campbell, on the said ship Sterling Castle, which vessel, with said linseed cake on board, cleared at the custom-house at the Port of New York for London, on the 30th day of January, 1871, and said cake was thereupon exported and carried by said vessel from New York to the Port of London, in England, and there discharged and delivered, and no part thereof has been at any time relanded in any port or place within the limits of the United States." The argument of counsel for the United States and the opinion of the Court of Claims is, that, until the officers of the customs comply with all the regulations of the Secretary of the Treasury, and the collector issues the drawback certificate, the law imposes upon the United States no obligation to pay anything for such drawback. That the law conferred upon the Secretary the right to make the regulations and the collector the power to make the certificate for payment of drawback, and that the refusal of the collector to perform the duties imposed upon him preliminary to making his certificate, and then refusing the certificate, totally defeats the claim of the party, who, by the law, is guarantied a right to his drawback, and who has complied with all that the law requires of him to secure and enforce it. portation of the imported article on which he had paid duty, had empowered the Secretary by regulations, which might be proper to secure the government against fraud, to defeat totally the right which Congress had granted. If the regulations of themselves worked such a result, no court would hesitate to hold them invalid as being altogether unreasonable. But the regulations in this case are not unreasonable. Nor do they interpose any obstacle to the full assertion and adjustment of plaintiffs' right. It is the order of the Secretary of the Treasury forbidding the collector to proceed under these regulations or in any other mode, which is the real obstacle. Is that order a defense to this action? Can the Secretary, by this order, do what he could not do by regulations, repeal or annul the law? Can he thus defeat the law he was appointed to execute, by making regulations and then, by ordering his officers not to act under them, and not to act at all, place himself above the law and defy it? We think the Court of Claims has jurisdiction of such a claim: 1. Because it is founded on a law of Congress; and 2. Because the facts found in this case raise an implied contract that the United States will refund to the importer the amount he paid to the Government. The finding of the court is that, by the regulations, this allowance of drawback had been fixed at seventeen cents per hundred pounds. The Act of Congress having declared that on exportation there shall be allowed a drawback equal in amount to the duty paid on such material, and the Secretary having established by a regulation that, as regarded the cake resulting from the manufacture of the linseed into oil and cake, the latter represents at seventeen cents per hundred pounds the duty on the imported seed so converted into cake, there resulted a contract that when exported the Government would refund, repay, pay back, this amount as a drawback to the importer. If this be not so, it is because it is impossible to make a contract when the details of its execution or performance are left to officers who refuse to carry them out. So it is equally clear that this claim is founded on the law allowing drawback. The Court of Claims makes the mistake of supposing that the claim is founded on the reg ulations of the Secretary of the Treasury. This view cannot be sustained. It is the law which gives the right, and the fact that the customs officers refuse to obey these regulations cannot defeat a right which the Act of Congress gives. The 2d section of the Act of September 20, 1850, granting all the overflowed and swamp lands to the States, in which they lie, declares: "That it shall be the duty of the Secretary of the Interior, as soon as may be practicable, after the passage of this Act, to make out an accurate list and plats of the lands granted as aforesaid and transmit the same to the Governor of the State and, at the request of said Governor, cause a patent to be issued to the State therefor; and on that patent the fee to the lands shall vest in the State. 9 Stat. at L., 519. This duty was almost wholly neglected by the Secretary. In the case of R. R. Co. v. Smith, 9 Wall., 95 It would be a curious thing to hold that Con- [76 U. S., XIX.,599], it was insisted that the gress, after clearly defining the right of the im-failure of the Secretary to act made these lands |