Page:Federal Reporter, 1st Series, Volume 2.djvu/372

BEOECK V. BABGB JOHN M. WBLCH. 365 �$34.20, for wharfage and dockage as aforesaid; that pay- ment thereof was duly demanded of and from said vessel, that said amount is a maritime lien upon said vessel ; and is a lien thereupon by the laws of the state of New York; that neither the master nor the owners of said vessel have paid to the libellants the said sum; and that said sum, with interest, is still due to the libellants. On process issued on this libel the vessel was attached. On the return day, James T. Easton and James McMahon appeared and put in a claim to the vessel, and gave stipulation for her value, and then filed an answer containing exceptions. The answer alleged that process of condemnation ought not to issue against said vessel, because — (1) no maritime lien exists against the vessel, because of the matters set forth in the libel (2) no lien is given for wharfage, against vessels, by any law of the state of New York ; (3) the law of the state of New York referre d to in the libel as giving a lien for wharfage against boats and vessels, and which law was passed on the sixth day of May, 1870, is void and unconstitutional, for the following reasons: First, it imposes a restriction on com- merce ; Second, it imposes a duty of tonnage on ail vessels of the character and description of the barge John M. Welch ; Third, it draws a distinction, which is practical and effectuai, between ail such barges as the John M. Welch, owned by persons who are not citizens of the state of New York, and the same class of boats owned by citizens of the state of New York, which is done under cover of a nominal dis- tinction between boats or barges plying on the canals, or between ports of the state of New York, and the same class of boats plying between any port of the state of New York and the ports of another state. The answer furtber set up that, while it was admitted that from the ninth to the twentieth days of October, 1876, the John M. "Welch was given inside wharfage at the wharf aforesaid iox which wharfage the claimants should pay a reasonable compensation to whomsoever said compensation is legall;^ due, the claimants denied that for the use of said wharf for the period aforesaid, of eleven days, the sum of $3e.20, ����