Opinion of the court.

two grounds: 1st. Because "over wharfage collected at private wharves, or wharves other than those owned by the city, or made at the ends or sides of public streets, lanes, and alleys, the city officers have no power or control. Its imposition and collection is the exclusive privilege of the wharf-owners; with it the officers of the city have no control. It is otherwise with wharfage collected at wharves owned by the city, or at the ends or sides of streets, lanes, and alleys. All these are called public wharves, are common highways, free for the use of the public, but at which tolls were collected by the town, now city, officers." And 2dly, because the commissioners of Baltimore town, who (as proprietors of the market-house lot) had consented to the making of this improvement by Dugan and McElderry, on the express condition "that the said canal wharves and streets on each side of the said canal be a common highway, free for the public use, but subject to such regulations as the commissioners and their successors shall from time to time establish," were not to be held to have relinquished their right to charge wharfage on said wharves.

That they meant only that the use of said wharves should be free as all the other public wharves of the city, and did not intend to surrender any right which belonged to them, either as proprietors or as trustees for the public, of charging wharfage on these wharves. Now if the right to regulate, carried with it the right to collect, wharfage, then that right was expressly reserved to the town commissioners in the permission. Again, the public by this dedication is the grantee, and the city for this purpose being its representative, could impose any incumbrance upon the rights of the public within the chartered power of the corporation. And the right of the city to make such a charge is admitted by the act of 1813. In the subsequent cases of Wilson's Lessee v. Inloes, 11 Gill & Johnson, 351, and Casey's Lessee v. Inloes, 1 Gill, 430, no question arose in reference to the city's right to collect wharfage on the city dock. The city had made and filled up the property in dispute under their various ordinances for the improvement of the Cove, and the question was, to whose benefit these improvements enured, whether to the holders of parts of "Mounteney's Neck," or to the holders of parts of" Fell's Prospect ?"

Opinion of the court.

The Court of Appeals decided that the right to improve this property, under the act of 1745, vested in those holding under the eldest patent (Mounteney's Neck), and that the improvement made by the corporation, under the ordinance of 1823, must enure to their benefit. But both of these cases decide a very important principle in reference to the act of 1745, which, in my opinion, shuts out the complainant from any part of the City Block. Judge Dorsey says, on page 368 of 5 Gill & Johnson, in speaking of the act of 1745: "The improvements authorized and encouraged were those made by improvers in front of their own lots, not of their neighbors." And Judge Stephen, in Wilson v. Inloes, 11 Gill & Johnson, 358, quotes the language of Judge Dorsey in the former cases as announcing the settled law of the court. Now it appears from the plat in this case, that the City Block lies entirely east of the east line of Liffey Street, and in no part in front of Judge Chase's original lot as purchased from Bowly, and which original lot he was authorized to extend in a southerly direction by the two permits from the city authorities.

I cannot for one moment suppose that, having extended his lot southerly according to the permission (even if he had completed his improvement), he would have any right to change his front and claim to extend his lot in an easterly direction. In this case such an extension would be for a large part of it in front of the lots on the east side of Jones's Falls. And it appears by one of the plats filed in this cause that, by the first plan proposed for the improvement of the Cove, the Falls was to have run south directly out into the basin, as it had always done, and a pier and drawbridge were to have been made at the foot of Albemarle Street, but as this plan would have carried all the deposits of Jones's Falls out into the basin, and would rapidly fill the docks and water at its mouth, to the injury of all the property in that neighborhood, the plan was adopted of turning Jones's Falls eastwardly, connecting the Block with the side of Liffey Street, and making the drawbridge at its present site. This plan saved the harbor, and was of great benefit to all those owning property on Liffey Street.

Now on the plot filed in this case, the line on the west side of Jones's Falls and east side of Liffey Street, from the old port

Syllabus.

wardens' line to the basin, is shown by a line which runs from D to I. Judge Archer, in granting the 7th instruction, asked for defendants in the ejectment case, says: "The court believes that the plaintiff would acquire no right by permission to any land not in front of his lot, and therefore could not have title to the land east of the line from D to 1." If, therefore, Baltimore County Court was right in this instruction, and of this I have no doubt, the question is asked, In whom then is vested the title to this Block? Let the act of Assembly of 1836, ch. 63, sec. 2, answer. That act says "that the mayor and city council of Baltimore shall be and they are hereby vested with the right and title to any land made or to be made out of the water in making and completing the improvement of the city dock according to the plan heretofore adopted by them, provided, nevertheless, that nothing in this act contained shall be construed to interfere with the vested rights of individuals." For these reasons I will sign a decree dismissing the bill filed in this case with costs.

United States Circuit Court, Eastern District of North Carolina. THE STATE OF NORTH CAROLINA v. TRUSTEES OF UNIVERSITY AND C. W. DEWEY, ASSIGNEE, et als.*

The circuit courts of the United States have not jurisdiction of a case, either at law or in equity, in which a State is plaintiff against its own citizens. The Constitution of the United States does not confer such jurisdiction, nor is it conferred by any act of Congress. Such jurisdiction is not conferred upon the Circuit Court in this case by the Bankruptcy Act of eighteen hundred and sixty-seven, because there are other necessary parties than the assignee in bankruptcy, and without such parties the plaintiff could not sustain this suit in any court.

IN equity.

BROOKS, J.-The attention of the court has not been invited to the question of jurisdiction in this case by either the

*This case is also reported in 5 N. B. R. R., 466.

Opinion of the court.

complainant or respondent in their arguments, yet that is a question to be considered in the opinion of the court, and the first properly demanding attention.

All the authority vested in the courts of the United States to hear and determine causes arises under the provisions of the Constitution of the United States or acts of Congress.

By the provisions of the Constitution the Supreme Court of the United States is established, and its jurisdiction prescribed directly, and it is further provided that Congress shall have power to create or establish inferior courts.

We are

Then we think that it necessarily follows that Congress has the power to prescribe the jurisdiction of such courts. sustained in this view by the opinion in the case of Osborne v. The United States Bank, 9 Wheat., 738, and Sheldon v. Gill, 8 How., 448.

The second section of the third article of the Constitution relates to the subjects or classes of cases declared to be within the jurisdiction or power of the United States courts, and is as follows:

"The judicial power shall extend to all cases in law and equity arising under this Constitution; the laws of the United States, and treaties made, or which shall be made under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States; between a State and citizens of another State; between citizens of different States; between citizens of the same State claiming lands under grants of different States;" and lastly, "between a State, or the citizens thereof, and foreign States, citizens, or subjects."

If the framers of our Constitution had proceeded no further, it might be contended with more reason that this suit as instituted comes within the jurisdiction intended to be conferred upon the circuit courts, but, as if to leave no doubt upon the subject, they proceed, in the second clause of the second section of the third article, to enumerate the class of cases over which the Supreme Court shall have original jurisdiction, and with these we find all cases affecting ambassadors, other public ministers and

Opinion of the court.

consuls, and those in which a State shall be a party; and it is further provided that, as to all other subjects included within the jurisdiction prescribed, the Supreme Court shall have appellate jurisdiction.

It may be said that, though original jurisdiction is by this provision of the Constitution conferred upon the Supreme Court, it is not exclusive, but only concurrent with some other tribunal.

We think that a fair construction of the language of the Constitution excludes such a conclusion, and we are happily sustained in this opinion by the opinion of the court in the case of Gale v. Babcock, 4 Wash. C. C. Rep., 199.

It will be seen that in this case it is decided that the circuit courts have no jurisdiction of a cause in which a State is a party.

If more authority should be desired upon this point, we refer to the case of Osborne v. The United States Bank, 9 Wheat., 820, in which it is declared that, in such cases in which original jurisdiction is conferred upon the Supreme Court, founded on the character of the parties, the judicial power of the United States cannot be exercised in its appellate form.

In the case before us the State of North Carolina is complainant, and the only complainant, and it is the character of that party that brings the case within the original jurisdiction prescribed for the Supreme Court, and consequently, according to the opinion of the court in the case last cited, is excluded from the appellate jurisdiction of that court.

Again, in the cases of Martin v. Hunter's Lessees, 1 Wheat., 237, Cohen v. Virginia, 6 Wheat., 392, it is decided that, in such cases as draw in question the laws, Constitution, or treaties of the United States, though a State may be a party, the jurisdiction of the Supreme Court is appellate, for in such a case the jurisdiction is founded, not upon the character of the parties, but upon the nature of the controversy. Such cases may be taken by appeal or writ of error from the highest judicial tribunal of a State to the Supreme Court of the United States.

The great American constitutional judge, in delivering the