Roberts

This action was brought on behalf of the people on relation of the harbor commissioners to recover a certain sum, claimed to be due to plaintiff for wharfage. The defendant’s barge and lighter part of the time were attached to the wharves by hawsers and lines fastened to mooring piles, which had been placed there for that purpose by the respondents, and part of the time they were not attached to *373 the wharves, but were fastened by lines to the sides of other vessels, which were moored up against and fastened to the wharves. Appellant contends, first, that his vessels did not use the wharves, and, therefore, the charge is one upon tonnage and in conflict with section 10, article 1, of the constitution of the United States; second, that appellant is exempt from the charge made, because his vessels are engaged in transferring merchandise between different points within the state.

There is no merit, we think, in the first contention. The court found that the appellant did use the wharves, and that finding is not challenged, but it also found that appellant’s vessels were not in all cases attached directly to the wharves. The barge and lighter were, however, within the slips which…