Sterrett v. City of Houston

Lipscomb, J. This suit was brought to recover a certain amount of wharfage dues from the appellant, as master of the steamer Neptune. The dues were imposed by the ordinance of the corporative authorities, under their charter. The first objection, assigned by the appellant, is, that the ordinances imposing these dues, ceased to be valid and operative when Texas became a member of the United States Confederacy; that the authority to enforce such ordinances is repugnant to the Constitution of the United States, because the imposition [157] of such dues is really imposing tonage duties, inhibited by the Constitution of the United States. We cannot so regard it. We consider it as merely regulating the compensation that owners and masters shall pay for the use of a wharf belonging to the corporation. And the Constitution does not assume to interfere with such right. The owners of the banks of our rivers and bays may, at considerable expense, make them convenient and useful to ship masters, and the right to compensation would result from the use of those conveniences. The charter of the city certainly limited the imposition of these dues to the specific object of improving the navigation of the Bayou, between Harrisburg and the City of Houston, and the wharves. If, however, the corporation has levied the dues, and failed to make a proper application of them, or made a misapplication of them, the fact of such failure to apply them, or misapplication of them to other objects, would not afford a defence to the payment of the dues, until the corporation had been restrained from the collection of them by an order or adjudication having that object directly in view. But if the corporation has failed to apply the funds so collected, to the specific object for which they were levied, and such neglect has resulted to the injury of any one navigating the Bayou, the corporation would certainly be liable to make compensation for such damages; I mean if a faithful application of the funds so collected would have averted the injuries or loss; and this brings us to the consideration of the plea of reconvention, pleaded by the appellant and overruled by the Court below. This plea sets up a loss by damage to the defendant’s steamer, that would not have occurred, had the money, as it is alleged, collected for that purpose, been applied to the improvement of the navigation of the Bayou. If the allegations contained in the plea are true, the defendant was entitled to conpensation, and that compensation could well be set up by the plea of re-convention. (Cannon v. Hemphill, 7 Tex. R. 184; Walcott v. Hendrick, 6 Id. 406; Egery v. Power, 5 Id. 501.) For the error in striking out the plea of reconvention, the judgment is reversed and the cause remanded. [158] It has been suggested that the amendment to the charter of the corporation, authorized a different application of the proceeds of wharfage money. If so, it has not been brought to our consideration by the record, or the brief on the part of the corporation. There may be such a private Act; and if so, it will be considered, on the trial below, how far the plea in re-convention may be affected by the Act of amendment. As the pleading stood on demurrer, the plea was good, and ought to have been answered, and not demurred to. Reversed and remanded.