dissenting. — My reasons for dissenting from the foregoing opinion are:
I. The right to recover a reasonable compensation is based on the fact that the boats of the defendant landed at the constructed wharves. There is no count in the petitions basing the right to recover on a quantum, meruit. The theory upon which a recovery is sought is, that the plaintiffs possessed the power to establish and construct wharves; that by ordinance such have been established and constructed, and a compensa*214tion for their use fixed thereby. It is that compensation, fixed by the ordinance for which a recovery is sought in these actions, and not a reasonable one for the voluntary use of wharves constructed by the city.
The compulsory use of anything can never be the basis of a reasonable compensation for its use. Under the ordinances the defendant was compelled tó pay just as much if the vessels-were landed anywhere in the city' limits, or anchored in' the stream,- as at the constructed wharf. Whatever might be the rule under proper pleadings as to the recovery of a reasonable compensation, no such question is presented in the record in these cases. '
II. I am unable to distinguish the ordinances in question from that in Cannon v. New Orleans, 20 Wal., 577. The port of New Orleans was twenty miles in length, and the constructed wharf only two; but this fact was not deemed material by the court. If, however, it was of importance, the proportion qf established to constructed wharf in, the Fort Madison case is fully ás great as in the New Orleans case — the established wharf being about two miles and the constructed about six hundred feet.
The ordinances in all the cases constitute the whole city front a wharf, and in one case the wharf extends to the middle of the main channel- of the river, and in another to one hundred feet in front of any public landing. It is not shown in either of these cases along how much of the city front wharves have been constructed. If such wharves extend the whole length of the city front, the plaintiff should have so averred.
The burden was on the plaintiffs to establish such- fact. It does not appear whether the vessel landed at the constructed wharf or not in the New Orleans case. It follows, however, that this circumstance, in the opinion of the court, made no difference, or it would have been alluded to. If the vessel landed, in -the New Orleans case, at the constructed wharf, then, according to the opinion of the majority of this court, the judgment should have been in favor of the city. Evidently this fact, in the opinion of the Supreme Court of the United States, was not deemed material. It is intimated as the city *215lias, under the police power, the right to compel vessels to laud at certain designated places within the limits of the city frontage, that it necessarily follows they may be compelled to land at a constructed wharf, and compensation collected therefor.
I do not impugn the correctness of the rule laid down in Dubuque v. Stout, 32 Iowa, 80; but I do deny that any such consequence as compensation for the use of the wharf follows. That case has nothing whatever to do with the subject under consideration. The decision is based solely on the police power, and has no bearing on the question whether these ordinances are void because in conflict with the Constitution of the United States. Even if wrong in this, I recognize the principle that in this class of questions the decisions of the Supreme Court of the United States are conclusive in this court. As I have said, these cases caimot be distinguished from the New Orleans case, and this court is bound thereby.
It.is said in that case “the tax is therefore collectible for vessels which land at any point on the banks of the river, without regard to the existence of wharves.” The same result must follow in the cases at bar, for the facts and purport of the ordinances are identical.
It is also said in that case: “ The tax is also the same for a vessel which is moored in any part of the port of New Orleans, whether she ties up to a wharf or not, or is located at the shore or in the middle of the river.” Here, again, the same result must follow, for the ordinances in this respect are identical.
It is further said in that case: “ A tax which by its terms is due from all vessels arriving and stopping in a port, without regard to the place where they may stop, whether it be in the channel pf the stream, or out in the bay, or landed at a natural river bank, cannot be treated as a compensation for the use of a wharf.” Here, again, the cases at bar fulfill exactly all the conditions and limitations above stated. In the opinion of the majority of the court stress is laid on that portion of the opinion in the New Orleans case which intimates that a reasonable compensation may be recovered for the use of a con*216strncted wharf. What is meant in that case as to such recovery is simply this: The power of the city is likened to that of an individual, and if the city under its charter has the power and does construct 'a wharf, a reasonable compensation may, by ordinance, be collected from vessels using it; but the city cannot, by ordinance, establish a wharf, construct it, and then provide that vessels landing at the natural bank of the river or mooring in the stream shall pay wharfage dues. Such dues are neither more or less than a tax for stopping in port, and not compensation for the use of the wharf.
If, under the police power, vessels may be required to land at the constructed wharf, and the right to compensation follows because of this compulsory use, then the Constitution of the United States is but a rope of sand, and vessels engaged in commerce on the navigable waters of the country are at the mercy of every municipality located on the borders of the stream. Such power might be so exercised as to annihilate and destroy the commerce of the Mississippi river.
It is maintained that one part of the ordinances may be held valid even though another portion be void. While I concede there is such a rule, I deny its application to the ordinances in question, for the reason that there is but a single subject matter contemplated thereby. There is- nothing said as to constructed wharves or any charge made for landing vessels thereat. Nor do they contain two separate prohibitions relating to dilferent acts with distinct penalties for each. I am, therefore, unable to see how one part can be held valid when another part is void, or rather how the subject matter can be separated or divided by judicial construction, when the ordinances detine and contemplate but a single subject matter as a distinct whole: The length of this dissent forbids that I should further enlarge on this subject. In my opinion the judgment of the court below should be reversed.