Legislature for authority to pay said sum of $2830.50. The matter was submitted to the Legislature, and they passed the act recited in the opinion of the

court.

Plaintiff contends that the act is mandatory; that the Legislature being requested by the Board did allow the said sum of $2830.50 and ordered it paid. Defendants contend that the Board had no authority to petition the Legislature in the matter; that no facts were presented to the Legislature showing the justness of the claim; that only the bare petition was presented; that the language used in the two sections of the act (referred to in the opinion) shows that in the first section to be permissive and that in the second mandatory. The court below in effect declared the act to be mandatory.

Judgment reversed.

Jos. M. NOUGUES for plaintiff.

W. C. BURNETT for defendant.
By the court.

The first question to be determined is, whether the act of March 4, 1870 (Statutes 1868-70, p. 127), is mandatory or only permissive. This question must be solved by a consideration of the whole statute, and not by detached portions of it. By the first section the Board of Supervisors are "authorized and empowered to appropriate, allow, and order paid, out of the general fund, the sum of $2830.50 to Benjamin E. Harris, being money expended by him while Assessor of the city and county of San Francisco, for extra work in making up the assessment-roll," etc. There is certainly nothing in this section indicating an intention that the act should be mandatory. On the contrary, the language is strictly permissive, and, if interpreted according to its ordinary signification, could not be held to be mandatory. But the next section is in these words: "The Auditor of the city and county of San Francisco is hereby directed to audit, and the Treasurer of said city and county is hereby directed to pay the said sum allowed and ordered paid to the said Benjamin E. Harris, out of the general fund of said city and county of San Francisco." By the very terms of this section the demand could not be audited and paid until it had first been "allowed and ordered paid" by the Board of Supervisors. It is plain, on the face of the statute, that, until the claim had been allowed and ordered to be paid by the Board, the Auditor and Treasurer had no authority to act in the premises. The question then recurs whether it was obligatory on the Board to allow the claim and order it to be paid, without investigation, or whether it might inquire into the merits of the demand, and, after examination, allow it or reject it, in whole or in part, as justice and equity might require. As already stated, the language of the statute is as strictly permissive as it could well have been made; and though the rule is that the title can not be resorted to to control the body of a statute, it may, nevertheless, be referred to in doubtful cases to aid in construing ambiguous clauses. Under this rule, if the body of the statute was even ambiguous in its language, we might resort to the title to aid in its construction. The title is, "An Act to confer additional powers upon the Board of Supervisors of the city and county of San Francisco, and upon the Auditor and Treasurer thereof;" from which it is to be inferred that the intention was only to confer additional powers on the Board, and not to compel them to audit and allow the claim without examination.

The rule invoked by the respondent and the authorities cited in support of it do not, in our opinion, apply to this case.

Judgment reversed and cause remanded, with an order to the court below to enter judgment for the defendants.

[No. 4968.]

[Filed January 28, 1878.]

BRADY vs. KING ET AL.

RESOLUTION OF INTENTION-SUPERVISORS-ACT OF MARCH 25, 1874, UNCON

STITUTIONAL AND VOID.

The act of March 25, 1874, "to ratify and confirm certain ordinances," etc., is in violation of the Constitution of the State, and therefore void.

POWERS OF THE LEGISLATURE-ASSESSMENT.-The Legislature has no power to levy an assessment within a city, and where an act is passed confirming or ratifying ordinances that are fatally defective it is at best an attempt to levy an assessment, and is therefore void. DUE PROCESS OF LAW.-There is no difference between fixing a lien without authority of law and taking property without legal process. Therefore the act of the Legislature fixing a sum as due upon each lot, under a void assessment, was arbitrary and without due process of law.

The resolution of intention was in these words: "That the roadway of Eighth street, from Folsom street to Harrison street, be paved with cobblestones; that the cross-walks and curbs be furnished and laid thereon where necessary; that cross-walks be constructed thereon where not already constructed, and that the sidewalks and man-hole and cover be reconstructed where necessary."

By the court.

The "resolution of intention was fatally defective, and, as a consequence, the Board of Supervisors did not acquire power or jurisdiction to order the street work done. Flynn vs. Houghton, October term, 1874; Richardson vs. Heydenfeldt, 46 Cal. 68; People vs. Clark, 47 id. 465; People vs. Ladd, ibid,

603.

The act of March 25, 1874, "to ratify and confirm certain ordinances," etc. (Stats. 1873-4, p. 588), is in violation of the Constitution of the State, and, therefore, void. People vs. Lynch, 51 Cal. 15; People vs. Goldtree, 44 id. 323.

As the attempted assessment was absolutely void the act of the Legislature was an attempt to levy a contribution within a certain district, and to declare that each lot named in the original roll should pay a sum arbitrarily fixed. This would be to create a lien on defendant's real estate, which (if the law were valid) the courts would be compelled to enforce.

If this can be done the Legislature may take the property of the citizen without any legal process, for there can be no difference between taking the property directly and imposing a lien upon it. But no person 66 can be deprived of life, liberty, or property without due process of law." Constitution, Art. 1,

section 8.

The act of the Legislature is an attempt, at best, to levy an "assessment"

within a city. The Legislature has no power to levy such assessment. Taylor vs. Palmer, 31 Cal. 240; People vs. Lynch, supra.

Judgment reversed and cause remanded, with directions to render judgment for the defendants.

Wallace, C. J., did not express an opinion this case.

Recent Decisions.

United States Supreme Court.

October Term, 1877.

EX PARTE EASTON ET AL., PETITIONERS.

CONTRACT FOR USE OF WHARF A MARITIME ONE.

A contract for the use of a wharf by the master or owner of a ship or a vessel is a maritime contract, and as such is cognizable in admiralty, and being one made exclusively for the benefit of a ship or vessel, a maritime lien arises in favor of the wharf against the vessel for payment of reasonable and customary charges for such use, and the same may be enforced by a proceeding in rem or a suit in personam. A barge, though not propelled by wind or steam, or any motive power of its own, may be held liable for wharfage dues. Petition for a writ of prohibition. Sufficient facts appear in the opinion. Mr. Justice CLIFFORD delivered the opinion of the court.

Judicial power under the Federal Constitution extends to all cases of admiralty and maritime jurisdiction, and it was doubtless the intention of Congress, by the ninth section of the judiciary act, to confer upon the District Court the exclusive original cognizance of all admiralty and maritime causes, the words of the act being in terms exactly co-extensive with the power conferred by the Constitution. In order, therefore, to determine the limits of the admiralty jurisdiction, it becomes necessary to ascertain the true interpretation of the constitutional grant. On that subject three propositions may be assumed as settled by authority, and to those it will be sufficient to refer on the present occasion, without much discussion of the principles on which the adjudications rest: (1) That the jurisdiction of the District Court is not limited to the particular subjects over which the admiralty courts of the parent country exercised jurisdiction when our Constitution was adopted. (2) That the jurisdiction of those courts does not extend to all cases which would fall within such jurisdiction according to the civil law and the practice and usages of continental Europe. (3) That the nature and extent of the admiralty jurisdiction conferred by the Constitution must be determined by the laws of Congress and the decisions of this court, and by the usages prevailing in the courts of the States at the time the Federal Constitution was adopted. No other rules are known

which it is reasonable to suppose could have been in the minds of the framers of the Constitution than those which were then in force in the respective States, and which they were accustomed to see in daily and familiar practice in the State courts.

Authority is conferred upon the libelants as the proprietors of the wharf and slip in question by the law of the State to charge and collect wharfage and dockage of vessels lying at said wharf and within the slip adjoining the wharf of the libelants.

Sufficient appears to show that the respondents are the owners of the barge named in the libel; that on the tenth of October, 1876, she completed a trip from the port of Baltimore to the port of New York, and that she took wharfage at the wharf or pier of the libelants, where she remained for eleven days. For the use of the berth occupied by the barge the libelants charged thirty-four dollars and twenty cents as wharfage and dockage. Due demand was made, and payment being refused, the libelants instituted the present suit, which is a libel in rem against the barge to recover the amount of that charge. Process was served, and the respondents appeared and excepted to the libel, and set up that process of condemnation should not issue against the barge, for the following reasons: (1) Because no maritime lien arises in the case for the matters set forth in the libel. (2) Because no lien in such a case is given for wharfage against boats or vessels by the laws of the State. (3) Because the law of the State referred to in the libel as giving a lien for wharfage is unconstitutional and void, for the following reasons: (1) Because it imposes a restriction upon commerce. (2) because it imposes a duty of tonnage on all vessels of the character and description of that of respondents. (3) Because it discriminates against the boats or barges of persons who are not citizens of the State where the proprietors of the wharf reside.

Pending the proceedings in the District Court the respondents presented a petition here, asking leave to move this court for a prohibition to the court below, forbidding the District Court to proceed further in the case.

Pursuant to said petition this court entered an order permitting argument upon the merits of the petition and directing that due notice be given to the libelants and the clerk of the District Court. Hearing was had in conformity to that order, and the case was held under advisement.

Power is certainly vested in the Supreme Court to issue the writ of prohibition to the District Court when that court is proceeding in a case of admiralty and maritime cognizance of which the District Court has no jurisdiction. 1 Stat. at Large, 81; U. S. vs. Peters, 3 Dall. 129.

Where the District Court is proceeding in a cause not of admiralty and maritime jurisdiction the Supreme Court can not issue the writ, nor can the writ be used except to prevent the doing of something about to be done, nor will it ever be issued for acts already completed. Ex parte Christy, 3 How. 292; U. S. vs. Hoffman, 4 Wall. 158.

Admiralty and maritime jurisdiction is conferred by the Constitution, and Judge Story says it embraces two great classes of cases-one dependent upon locality, and the other upon the nature of the contract.

Damage claims arising from acts and injuries done within the ebb and flow of the tide have always been considered as cognizable in the admiralty, and,

since the decision in the case of The Genesee Chief, it is considered to be equally well settled that remedies for acts and injuries done on public navigable waters, not within the ebb and flow of the tide, may be enforced in the admiralty as well as for those upon the high seas and upon the coast of the sea.

Speaking of the second great class of cases cognizable in the admiralty, Judge Story says, in effect, that it embraces all contracts, claims and services which are purely maritime, and which respect rights and duties appertaining to commerce and navigation. 2 Story on Const. § 1666.

Public navigable waters, where inter-state or foreign commerce may be carried on, of course include the high seas, which comprehend, in the commercial sense, all tide-waters to high-water mark.

Maritime jurisdiction of the admiralty courts in cases of contracts depends chiefly upon the nature of the service or engagement, and is limited to such subjects as are purely maritime, and have respect to commerce and navigation within the meaning of the Constitution.

Wide differences of opinion have existed as to the extent of the admiralty jurisdiction, but it may now be said, without fear of contradiction, that it extends to all contracts, claims, and services essentially maritime, among which are bottomry bonds, contracts of affreightment, and contracts for the conveyance of passengers, pilotage on the high seas, wharfage, agreements of consortship, surveys of vessels damaged by the perils of the seas, the claims of material men and others for the repair and outfit of ships belonging to foreign nations or to other States, and the wages of mariners, and also to civil marine torts and injuries, among which are assaults or other personal injuries, collision, spoliation, and damage, illegal seizures or other depredations on property, illegal dispossession or withholding of possession from the owners of ships, controversies between the part owners as to the employment of ships, municipal seizures of ships, and cases of salvage and marine insurance. Conkl. Treatise (5th ed.),

254.

Wharf accommodation is a necessity of navigation, and such accommodations are indispensable for ships and vessels and water-craft of every name and description, whether employed in carrying freight or passengers, or engaged in the fisheries. Erections of the kind are constructed to enable ships, vessels, and all sorts of water-craft to lie in port in safety, and to facilitate their operation in loading and unloading cargo, and in receiving and landing passengers.

Piers or wharves are a necessary incident to every well-regulated port, without which commerce and navigation would be subjected to great inconvenience, and be exposed to vexatious delay and constant peril.

Conveniences of the kind are wanted both at the port of departure and at the place of destination, and the expenses paid at both are everywhere regarded as properly chargeable as expenses of the voyage. Commercial privileges of the kind can not be enjoyed where neither wharves nor piers exist, and it is not reasonable to suppose that such erections will be constructed for general convenience unless the proprietors are allowed to make reasonable charges for their use.

Compensation for wharfage may be claimed upon an express or implied contract, according to the circumstances. Where a price is agreed upon for the use of the wharf, the contract furnishes the measure of compensation, and when