Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1880-02-12
ERsKINE's OPINIONS
OF the Zane street and Wharf
age Question.

10 TIE hdgOf aIsa tVuiieH " VIC wy W
WLsilRg:
GEsfLKMES--At your last meeting
two questions were referred 10 me for
report, viz.
Ii the Wheeling and Belmont
Bridge Company under obligations to
keep Zane street in repair
2. Are the proposed amendments 10
the Wharfage Ordinance constitutional
The Wheeling and Belmont Bridge
Company was Incorporated ~ 1916.
Subst auently the wooden bridge Was
built and certain ferry franchises were
obtained, all OF which became the pro-
perty Of Daniel Zane AMI Ebenezer
Zane. In lSl7. this property was held
by trustees, Henry Moore being trustee
for Ebenezer Zane, and Daniel &. Last
being trustee for Daniel Zane. On Jan
nary q, ISI7, an agreement was made
between these parties on the one part
aud William Paxton and i've others on
the other part for the sale OF the pro-
perry TO Paxton and Others, who were
10 reorganiEe the Bridge Company IL
was not sale, but an agreement to sell.
There was To bc included in the pro-
posed sale right Of way sixty-six feet
wide across the Island from the western
terminus Of the bridge 10 be erected to
the eastern terminus OF the wooden
bridge, aud ii was agreed that the SAID
Paxton and others (either in their pro-
posed corporate capacity or otherwise,
as they should elect, should be bound
b. sad Moore and Last, trustees, To keep the
way in good condition and repair Tor all
time. Afterwards, on March 18Th, lSlI
an act oi the Legislature was passed re-
yir,nJ and keeping in force the former
charter Of the Bridge Company with
the said Paxton and others named rs
stockholders, having power to appoint
board OF managers.
Afterwards, on september 20, 1917,
all the conditions precedent To the
proposed sale aud conveyance having
been complied with, the said trustees
and Daniel Zane united in u deed con
vcyiug to the Wheeling and Belmont
Bridge Company mot to Paxton aud
others. ~ Individually the wooden bridge
and adjacent orappurtenant lands, all the
Terry rights and property and certain
lands ON the east SIDE of the Island Tor
new bridge abutments, &c, and right
al way sixty-siN feet wide across the Is
Land. i'm terms rs follows.
also the right OF way Tor said Bridge
Company, and all persons, vehicles OF
other things passing over either or both
ul said bridges, or any Terry hereby
granted, alung and over the following
described tract oi land, part oi said Is
land. containing three acres, three roods
and twelve peTChcS, more or less, and
bounded ~ follows Here follows in
the deed the courses and distances, com
prising hat is now Zane street. And
the right at all times To enter upon the
said tract oi three acres, three roods and
twelve prrchCs, over which right ol
way is hcrcinbeiore granted, Tor the
purpose 81 making, repairing and keep,
ing in repair good aud sufficient road
and way over the same by maCadamz-
ing ur otherwise, as to said Bridge Com
pauv or its assigns shall seem cNprdl'
cut,
Alter this deed Was made aud record
Ell. the same ground was dedicated 10
the public 10y the piats laying oil the
Island addition 10 the city, and was
called zane Sllttl.
ann not able To- see that the Bridge
Company il in any way required To
keep the street in repair.
As 10 its right to enclose 10y n fence
certain portions ui Zane street, IN front
ui "A brick house at the east end oi the
west bridge, ! have not found that 1t has
such right. and | have not learned
otherwise. as may be inferred from the
resolution Of Council, referring the qucs-
ton To me. that it has claimed such u
right.
The Wharfage Question.
rs To- the wharfage ordinance, I'M
derstand that the question raised is as
tu whether the provision therein rcqur,
iug the rates Of wharfage 10 bc estimated
by the ton, would be- q dI OU iOHHdg"
aud therefore within the terms Oi the
prohibition ui the Constitution Of the
United States. Heretofore the ordinance
has classified vessels, prrsCribinga liXod
sum Tor vessels Of from one 10 two hun
drrd tons burden aud another sum Tor
vessels IT iron two to three hundred
tons, aud So on Tor larger vessels -
sn that the tonnage OF
the vessel has ALWAYS been
the hasi, ul calculation IN fixing the
wharfage. TIE charge in this respect
maklug the rate 80 much per ton, has
been made partly Tor brcylty, partly To-
make it correspond with the systems oi
other cities. and partly because II IL
more Just than plan by which yes
sci ui lOl tons would pay the same toll
~ "a vessel oi 1910 tons.
Although questions about Wharfage
toll, have frequently been before the
courts. ! have not found that the con-
sululiunal question here suggested has
been squarcly raised OF decided until re-
Gently
I'm the case oi the Northwestern Union
Packet Company vs.. city Oi 81. Louis,
decided by Judges Dillon aud Treat IN
the 4. y Circuit Court, the provision
at the ordinance over which the contest
arose, Was rs follows:
There shall be- collected from each
aud every boat. oi whatever kind, eX-
crpt such ~ arr hereinafter excepted,
ipr each and every time the same shall
come within the harbur oi this city, or
land n, any wharf or landing, or hc
made fast thereto, or To any boat there
To fastened, or shall receive or DIS
charge freight or passengers IN this city
i've cents tor each ton Of said boats
lurdcu hy custom house measurement,
~ wharfage dues. -
The court held that the city could
lawfully charge reasonable cumpcnsa-
ton Tor the use Of expensive and artili-
cial cunycuienCcs which vessel may
use al It's option, there being ample
space elsewhere within the harhor for II
% land where no such improvements
exist. aud that the ordinance prcscrlb-
ing wharfage dues at the improved
whayvcs constructed by il, To be aScer-
tanned by the tonnage OF the vessel, Is
not ia conflict with the provisions OF
the Federal Constitution.
The city ui Wheeling constructed the
wharis contemplated by our proposed
ordinance at great expense, and has
ample legislative authority to levy tolls
iur wharfage, and | am Of the opinion
that the ordinance in question can be
fully enforced il adopted.
Respectfully,
WM. ERskINE.
Giy >iHi'or.