York. Thus on June 29, 1916, an ordinance enacted by the select and common councils of the city of Philadelphia provided as follows:

The select and common councils of the city of Philadelphia do ordain, That the mayor, city controller, and city solicitor, or any two of them, be, and they are hereby, authorized to borrow at such times and in such proportions as, in their judgment, the best interests of the city demand, either by popular subscription or from the highest bidder or bidders by advertisement, at not less than par, on the faith and credit of the city of Philadelphia a sum, or sums, which in the aggregate shall not exceed sixty-seven million one hundred thousand ($67,100,000) dollars, to be expended as provided for in the second section of this ordination. (I. e., “to be used for the construction and improvement of wharves and docks, including the acquisition of land upon which to erect them; the construction of bulkheads, and for the reclamation of land to be used for the construction of wharves and docks; toward the construction and improvement of subways, tunnels, railways, elevated railways, and other transit facilities.")

That is, no distinction was made between loans for the construction of wharves and docks and loans for transit facilities generally. In New York, the city, by resolution of the board of estimate and apportionment, finances port improvements and the acquisition of water-front property through the issuance of "dock bonds" and 66 corporate stock." 12

(d) Authorization by special act of the State legislature, subject to a referendum vote of the local electorate.-A recent example of this procedure is that of the Baltimore port development loan. The Maryland Legislature in 1920 authorized 18 an aggregate loan of $50,000,000 for the development of the port of Baltimore, each issue of securities to be approved by the voters of the city at a regular election. On November 2, 1920, the electors of the city of Baltimore ratified the issuance of such bonds in the sum of $10,000,000; and each subsequent issue must likewise be ratified by ballot of the city electorate.

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(e) Authorization by vote of the electors of a city or port district upon referendum by the governing body of the port.-This procedure exists in Portland, Oreg., where the local commission of public docks under a charter of its own operates as a separate corporation, not subject to city ordinances. By this process the local voters have authorized dock bonds," "elevator bonds," and "general harbor improvement bonds."14 By a similar scheme the port of Seattle is authorized to issue bonds "in an amount not exceeding three (3) per cent of the taxable value of all property in such port district, upon a three-fifths majority vote of the qualified voters in such port district voting thereon.15

12 See Laws of New York, 1919, ch. 322.

13 Maryland Laws, 1920, ch. 560.

14 Annual reports of the commission of public docks.

15 Pierce's Washington Code, sec. 4475,

While the foregoing enumeration is in no sense exhaustive it serves to illustrate the variety of means whereby bond issues for port improvements may be authorized. The relative merits of these various procedures involve questions of finance and public administration which are beyond the scope of the present work.

Section 35.-THE RIGHT OF THE PORT AUTHORITY TO LEVY TERMINAL CHARGES.

The right to collect wharfage for the use of a public water terminal is in the nature of a franchise 16 conferred by legislative grant. And it is generally held that the local authority which undertakes to exact such charges must have express legislative authority for the purpose.1 Except by express authority from the State the public wharves of a city are (in many jurisdictions) no more liable to wharfage than any one of the streets of a city are subject to toll. In certain States, in fact, wharves and landings erected at the termini of streets are regarded as extensions of the streets and free to the public.18

In the leading case of Packet Company v. Keokuk 19 it was held that a municipal corporation having by its charter an exclusive right to make wharves on the banks of a navigable river upon which it was situated, and the right to collect wharfage and regulate rates, could, consistently with the Constitution of the United States, charge and collect from the owner of enrolled and licensed steamboats, mooring and landing at its wharves, a wharfage proportioned to their tonnage. The court was careful to point out, it should be noted, that the city was acting by virtue of specific legislation of the State of Iowa conferring upon the common council of Keokuk the right to fix the wharfage to be levied on watercraft moored at or landing at its wharves.

So long as the terminal charge (dockage, wharfage, storage, cranage, elevation, etc.) is reasonable as regards the service performed, and is not a “tonnage" charge,20 it is not considered unlawful by the Federal courts.

16 The Geneva, 16 Fed. 875 (1883).

17 St. Martinsville v. "The Mary Lewis," 32 La. Ann. 1293; City of Chester v. Hagan, 116 Fed. 223 (1902).

18 Case note to The Geneva, supra; The Wharf case, 3 Bland (Md.) 361.

19 95 U. S. 80 (1877). See also Packet Co. v. St. Louis, 100 U. S. 423 (1879).

20 See p. 6.

Chapter VII.-ORGANIZATION AND POWERS OF THE AUTHORITY-THE CITY-DEPART

LOCAL PORT

MENT TYPE.

Section 36.-WHAT IS A PORT?

1

It was declared in an early English decision 1 that the term "port was not capable of any very rigid definition. It was a question of fact, each case furnishing its own definition. One justice, however, was inclined to greater precision, declaring that a port was a place of loading and unloading, viz:

What do you go to port for? Because you want either to load or unload goods. Everyone who understands ships knows that you can not conveniently load or unload goods in a place where the ship itself would be in danger. Therefore all people possessed of common sense, instead of taking their boats onto a beach on an open sea, where they might be knocked to pieces in a storm, go to what they call a port, which is always a sheltered place. It is a place of safety for the ship and the goods, whilst the goods are being loaded or unloaded.

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* The moment you can find that the loading and unloading of ships takes place at a particular spot you may safely infer that the parties understood that spot to be within the port," because, as a general rule, people do not load or unload goods outside of a port. They do sometimes, but very seldom and only under exceptional circumstances. If therefore you can find a place of loading and unloading, you have another safe rule.

The idea of a harbor or haven is frequently associated with that of a place for landing and unloading as within the meaning of the term "port." "That a place may be a port, it seems that it should have somewhere for vessels to lie safely, and a shore where goods may be safely landed; also that there should be some conveniences for trade, such as wharves and warehouses, and that it should be a place to which vessels are allowed to come by the Government of the country. 99 2

3

As regards the municipal corporation known as a port, the Oregon court says that the term "has a recognized status and is used in its larger acceptation as comprising under one name a district of many places classed together for the purpose of revenue.

*

In another sense the term "port" means port of entry, i. e., a place where persons and goods are allowed to pass into and out of

1 Sailing Ship Garston Co. v. Hickie & Co., 15 Q. B. Div. 580 (1855).

Carver's Carriage by Sea, quoted in Hamburg-American Steam Packet Co. v. United States, 250 Fed. 763.

Straw v. Harris, 54 Or. 424, 103 Pac. 777.

the realm, and at which customs officers are stationed for the purpose of inspecting or appraising imported goods. But for the present work this port-of-entry conception is too technical and merely serves to indicate a phase of port control which is assumed by the Federal Government. 4

5

Among terminal engineers there is some inclination to distinguish between "the port" and "the harbor." MacElwee suggests that "the harbor may be defined as consisting of the waterways and channels as far in as the pierhead lines, and the port as including everything on the landward side of those lines; that is, the piers, slips, wharves, sheds, tracks, handling equipment, etc." In the Chambers report it is defined as "a harbor so improved as to offer facilities for the transaction of business between ocean and land carriers."

A definition fully as inclusive as this last is required for the purposes of the present work. For the area subject to the administration of a port authority is frequently coterminous with, or larger than, the city limits; and the jurisdiction conferred almost invariably includes the harbor as well as the water frontage. In a legal sense, as already stated, the definition of the term "port" is a question of fact, varying with local conditions. But it generally includes a place for anchoring, mooring, loading and unloading, and the ordinary facilities for transshipment between land and water carriers.

Section 37.-GENERAL MUNICIPAL POWERS OVER WATERFRONT AND HARBOR.

On the Atlantic seaboard and the Great Lakes the ports are more frequently controlled (so far as they are subject to public control) by a department of the municipal government, generally subordinate to the governing body' of the city. In some ports-New York and Philadelphia, for example-the powers and duties of this department have been defined by statute; in others by local ordinance. This general form of organization usually means that the administration of the port is looked upon as a function of the municipal government, comparable to the administration of parks and streets; except that the port facilities are directly related to the volume of commerce in the port and frequently produce substantial revenues for the city treasury. For these reasons they have sometimes aroused more interest than the nonrevenue-producing properties of the city.

In a few important instances the regulation of the port is not delegated to any single agency but comes within the partial control

See p. 131.

R. S. MacElwee, Ports and Terminal Facilities, 1918, p. 8.

• House Doc. No. 709, 67th Cong., 1st session, p. 13.

'See Delaware V. Trans. Co. v. Trenton, 85 N. J. L. 479, 90 Atl. 5.

of numerous uncoordinated and overlapping departments and offices. Thus in Chicago no less than six separate governmental agencies or offices have some jurisdiction over the harbor waters. In addition to Federal supervision and maintenance of the river channels and canals the State of Illinois assumes jurisdiction over the same area through the division of waterways, department of public works and buildings. The committee on harbors, wharves, and bridges of the city council initiates legislation for the control and improvement of the port by the municipality. An agency known as the harbor board, consisting of officials from various related departments, operates the Municipal Pier. The bureau of rivers and harbors under the harbor master polices the harbor waters, performs certain engineering functions, and may issue certain wharfing permits with the approval of the commissioner of public works. The commissioner of public works exercises control over private construction work in the harbor through the issuance of permits. Two separate park boards have certain powers to improve the lake front and reclaim submerged lands. Finally, the sanitary district, organized to control the disposition of sewage, has been engaged for several years in making important improvements in the navigable channels.

In many of the States there is some provision for port administration in the general laws relating to cities. An important instance of the powers conferred upon cities in an act of this sort appears in the New Jersey session laws of 1920. By this act the cities fronting upon navigable waters in the State are authorized to establish municipal docks, warehouses, ferries, terminals and shipping and industrial facilities, and to operate or lease the same in whole or in part; to construct connecting railways; and "to acquire in fee simple all the lands, lands under water, and all other property, easements, rights and appurtenances as may be necessary to carry out the purposes of this act." And the city, through its governing body, is authorized "to raise all moneys necessary for carrying out the provisions of this act by issuing and selling bonds of such city to be known as 'Industrial Terminal Bonds' to the amount necessary for such purpose."

* * *

A similar act was already in effect in New Jersey 10 (prior to 1920) with a provision that it should remain inoperative in any city until ratified by the electors. The act of 1920 largely supersedes this and provides for a referendum only after a formal protest 11

8 As of 1922.

11

Laws of 1920, chap. 176. For additional powers see Supp. Comp. Stats. N. J., 1915, pp. 262-267; Laws 1916, chaps. 249; Laws 1917, chaps. 152, 234; Laws 1920, chap. 331. 10 Laws of 1917, chap. 127.

11 Signed by electors equal in number to 15 per cent of the entire vote at the last preceding general election, and they must also be taxpayers owning property amounting to 15 per cent of the ratables.