678
REPORTER.
fOlicy, which is in accordance with tho lil'oral anu. ... spirit of the age. In section 3187 of the Rovised Statuteo provision is made for ex')mpting certain property from distraint for internal-revenue taxes, and I think that these exemptions might well be extended to all the Jebts due the United :Hates upon collections made under execution; but this is a matter for the consideration and action of congress, and not for judicial liberality, as the courts must construe and enforce the law as it is written. The district attorney may draw the order requested b his motion.
BERRIAN
v.
CHETWOOD.·
(Circuit Court, S. D. New York. December 14,1881.\ 1. REMOVAL OF CAUSE AFl'ER DEFAULT IN PLEADlNG.
Where the petition for removal was presented after defendant's time to answer had expired, and he was in default, held, that there was no controversy between him and plaintiff, within the moanin!! of the statute. so as to make a case for removal.
Motion to Remand.
J. Even conceding that there W'3re pi'oper written extensions of time to answer till November 1st, nothing that then or before or afterwards occurred in oral conversation between the attorneys amounted to a C{lDSent by the plaintiff's attorney to extend the time to. answer beyond November 1st. So, on November 3d, when the petition for removal was pre-sented and the bond approved, the defendant's time to answer had expired, he was in default, and there was no controversy between him and the plaintiff, within the meaning of the statute, so as to make a case for removal. The motion to remand the cause is granted, with costs· BLATCHFORD, C.
'LEATHERS V. AIKEN.
679
LEATHERS
AIKEN, Adm'x.,·
(CIircuit Court,
}j].
fl. Louisiana.
December :21,1881.) ON Muin:CIPAL CORPO-
1.
CON8TITUTIONAL LAW-WHARFAGE RATIONS.
A municipal corperation cannot exact a charge upon vessels for, entering' or leaving a port, or'remaining therein, nor levy a taxon vessels and water-craft and landings, for the general reventering its port, and. using' the enue. of , ,. \ Oannon v. NeIJ)C)rZiians, 20 Wall. 677. Packet Oo-mpany v. Keokuk, 96, U. B. 80.
!1.
Soo--':S.um-POW,ER OF MUNICIPAL ConpORATION. '
A municipal owning improved wharves and other artificial means, Which it inaintains at its own cost, for the benefit of those engaged in commerce upon the public navigable watera the Unit\'!4 States, may charge fairly and collect, from parties using its wharves, such reasonable fee as remunerate it for the use of its property, Packet Oompany, v. St. UJuis, 100 U.I:l. 423. Vicksburgh Y. Tobin, Id. 430
of
In Equ:ity. Chas. S. Rice, for complainant. W. S. Benedict and GfJo. Denegre, for defendant. PARDEE, C. J. This case has been submitted on the bill, answer, and affidavits, and'under a rule nisi, to determine whether an injunction, pending the suit, ahouldissuEl. The evidence and arguments offered cover a very ",ide range, but the facts it is necessary to consider in reaching a decision can be succinctly stated as follows: (1) The complainant is the owner and of certain steam-boats, making weekly trips to the port of New Orleans, tying up, loading. and unloading at the artificial wharves and levees belonging to said city. (2} The city of New Orleans, by ordinance and contract, has fixed the rate of charges for the use of the wharves and levees according to the tonnage of the steam-boats using them, and has farmed out to the defendant, Aiken, the revenues derived therefrom for all the space lying in front of the first, second, third, and fourth'municipal cllatricts of the city, excepting therefrom such portions as have been leased or granted to other parties for private or exclusive use-this exception covering over one-fourth of the front of said four districts. (3) The defendant, Aiken, in consideration of this grant, undertakes to keep all of said wharves and levecs-except private or exclusive wharves-in good condition, making repairs according to certain specifications" to build certain new wharves and bUlk-heads when ordered, also, according to specifications, to light the whole front of said districts with the electric light, and, in addition, to pay to the city of New Orleans, in monthly instalments, $40,000 per year, $30,000 of which is to be devoted to the payment and maintenance of a harbor "Reported by J; P. Hornor, ESq., of the New Orleans bar.