Be this, however, as it may, it is an undoubted rule of universal application that wharfage for the use of all public wharves must be reasonable. But then the 'question arises, by what law is this rule established, and by what law can it be enforced? By what law is it to be decided whether the charges imposed are, or are not, extortionate? There can be but one answer to these questions. Clearly it must be by the local municipal law, at least until some superior or paramount law has been prescribed. At Parkersburg it is the law of West Virginia. The rule referred to is a rule of the common law undoubtedly, but it has force in West Virginia because the common law is the law of that State, and not because it is the law of the United States. The courts of the United States do not enforce the common law in municipal matters in the States because it is Federal law, but because it is the law of the State.

The

We have said that the reasonableness of wharfage must be determined by the local law until some paramount law has been prescribed. By this we mean, that until the local law is displaced or overruled by paramount legislation adopted by Congress, the courts have no other guide, no other law to administer on the subject than the local or State law. Our system of government is of a dual character, State and Federal. States retain general sovereignty and jurisdiction over all local matters within their limits; but the United States, through Congress, is invested with supreme and paramount authority in the regulation of commerce with foreign nations and among the several States. This has been held to embrace the regulation of the navigable waters of the United States, of which the Ohio River is one. In the exercise of this authority over navigable waters Congress has, from the commencement of the government, erected light-houses, break-waters, and piers, not only on the sea-coast, but in the navigable rivers of the country; and has improved the navigation of rivers by dredging and cleaning them, and making new channels and jetties, and adopting every other means of making them more capable of meeting the growing and extending demands of commerce. It has extended its supervision in an especial manner to the Ohio River. Amongst other things, it has overcome the obstacle presented by the falls at Louisville by the construction of an

expensive canal. It has created ports of delivery along the river, of which the city of Parkersburg itself is one, and others are at Pittsburgh, Wheeling, Cincinnati, Louisville, Madison, Jeffersonville, New Albany, Evansville, Paducah, and Cairo. It has regulated the bridges which have been thrown across the river by authority of the States. It authorized the Wheeling bridge to stand, after this court had declared it to be a nuisance; requiring the officers of all vessels to regulate their pipes and chimneys so as not to interfere with the bridge, 10 Stat. 112; thus extending its common protection to commerce by land and commerce by water. It required the Newport and Cincinnati bridge to be removed or placed at a greater height above the water, after having been constructed in accordance with the laws of the States and of the United States. 16 id. 572.

Now wharves, levees, and landing-places are essential to commerce by water, no less than a navigable channel and a clear river. But they are attached to the land; they are private property, real estate; and they are primarily, at least, subject to the local State laws. Congress has never yet interposed to supervise their administration; it has hitherto left this exclusively to the States. There is little doubt, however, that Congress, if it saw fit, in case of prevailing abuses in the management of wharf property, — abuses materially interfering with the prosecution of commerce, might interpose and make regulations to prevent such abuses. When it shall have done so, it will be time enough for the courts to carry its regulations into effect by judicial proceedings properly instituted. But until Congress has acted, the courts of the United States cannot assume control over the subject as a matter of Federal cognizance. It is Congress, and not the Judicial Department, to which the Constitution has given the power to regulate commerce with foreign nations and among the several States. The courts can never take the initiative on this subject.

There are cases, it is true, which are so national in their character, and in which it is so essential that a general or national rule should exist, that any interference by the State legislatures therewith is justly deemed to be an invasion of the power and authority of the general government; and in such cases the courts will interpose to prevent or redress the

commission of acts done or attempted to be done under the authority of such unconstitutional laws. In such cases, the non-action or silence of Congress will be deemed to be an indication of its will that no exaction or restraint shall be imposed. Such is the import of the various passenger cases in which this court has pronounced unconstitutional any tax, duty, or other exaction imposed by the States upon emigrants landing in the country. Such is also the import of those cases in which it has been held that State laws imposing discriminating burdens upon the persons or products of other States are unconstitutional; it being deemed the intent of Congress that inter-state commerce shall be free, where it has not itself imposed any restrictions thereon. See Passenger Cases, 7 How. 283, 462; Cooley v. Board of Wardens, 12 id. 299, 319; Gilman v. Philadelphia, 3 Wall: 713; Crandall v. State of Nevada, 6 id. 42; Ward v. Maryland, 12 id. 418, 432; Case of the State Freight Tax, 15 id. 232, 279; Welton v. State of Missouri, 91 U. S. 275; Henderson v. Mayor of New York, 92 id. 259, 272; People v. Compagnie Générale Transatlantique, ante, p. 59.

But the case before us is not one of the kind referred to. Though the use of public wharves may be regulated by Congress as a part of the commercial power, it certainly does not belong to that class of subjects which are in their nature national, requiring a single uniform rule, but to that class which are in their nature local, requiring a diversity of rules and regulations. To quote the words of Mr. Justice Curtis in Cooley v. Board of Wardens, 12 How. 299, 319, "The power to regulate commerce embraces a vast field, containing not only many, but exceedingly various subjects, quite unlike in their nature; some imperatively demanding a single uniform rule, operating equally on the commerce of the United States in every port; and some, like the subject now in question [which was pilotage], as imperatively demanding that diversity which aloue can meet the local necessities of navigation. . . . Whatever subjects of this power are in their nature national, or admit only of one uniform system, or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress. That this cannot be affirmed of laws

for the regulation of pilots and pilotage is plain. The act of 1789 contains a clear and authoritative declaration by the first Congress, that the nature of this subject is such, that until Congress should find it necessary to exert its power, it should be left to the legislation of the States; that it is local and not national; that it is likely to be best provided for, not by one system, or plan of regulations, but by as many as the legislative discretion of the several States should deem applicable to the local peculiarities of the ports within their limits."

No words could be more fitly applied to the subject of the regulation of wharves than are here used by the court in reference to pilotage. It is true no act of Congress has relegated the subject of wharfage to the States, as was done in the case of pilotage; but this was not necessary: the regulation of wharves belongs prima facie, and in the first instance, to the States, and would only be assumed by Congress when its exercise by the States is incompatible with the interests of commerce; and Congress has never yet assumed to take that regulation into its own hands, or to interfere with the regulation of the States.

The power of the States to legislate in matters of a local character, where Congress has not by its own action covered the subject, is quite fully discussed by Mr. Justice Field in delivering the opinion of this court in County of Mobile v. Kimball, 102 U. S. 691, where the distinction taken in Cooley v. Board of Wardens, between those subjects which are national in their character and require uniformity of regulation, and those which are local and peculiar to particular places, is commented upon and enforced. Amongst other things, it is there said: "Where from the nature of the subject or the sphere of its operation the case is local and limited, special regulations adapted to the immediate locality could only have been contemplated. State action upon such subjects can constitute no interference with the commercial power of Congress, for when that acts the State authority is superseded. Inaction of Congress upon these subjects of a local nature or operation, unlike its inaction upon matters affecting all the States and requiring uniformity of regulation, is not to be taken as a dec

laration that nothing shall be done with respect to them, but is rather to be deemed a declaration that for the time being, and until it sees fit to act, they may be regulated by State authority." See also the remarks of the Chief Justice in Hall v. De Cuir, 95 U. S. 485.

It is not necessary to cite other cases. The principle laid down in Cooley v. Board of Wardens has become fully recognized and established in our jurisprudence; and it is manifest that no subject can be more properly classified as local in its nature, and as requiring the application of local regulations, than that of wharves and wharfage.

From this view, it is plain that the courts of the United States have no authority to ignore the State laws and regulations on the subject of wharves and wharfage, and to declare them invalid by reason of any supposed repugnancy to the Constitution or laws of the United States. As already remarked, the courts cannot take the initiative in this matter. Congress must first legislate before the courts can proceed upon any such ground of paramount jurisdiction. If the rates of wharfage exacted are deemed extortionate or unreasonable, the courts of the United States (in cases within their ordinary jurisdiction) as well as the courts of the States must apply and administer the State laws relating to the subject; and these laws will probably, in most cases, be found to be sufficient for the suppression of any glaring evils. At all events, there is not, at present, any Federal law on the subject by which relief can be obtained.

In the various bridge cases that have come before the courts of the United States, where bridges (or dams) have been erected by State authority across navigable streams, the refusal to interfere with their erection has always been based upon the absence of prohibitory legislation by Congress, and the power of the States over the subject in the absence of such legislation. Where the regulation of such streams by Congress has been only of a general character, such as the establishment of ports and collection districts thereon, it has been held that the erection of bridges, furnished with convenient draws, so as not materially to interfere with navigation, is within the power of the States, and not repugnant to such general regulation. The