United States v. McKee. upon the statute authorizes the trial to be had the record copy of the indictment instead of the original, this may be done. (Harrall v. State, 26 Ala. 52; Major v. State, 2 Sneed [Tenn.] 11; Bishop v. State, 30 Ala. 34; Reynolds v. State, 11 Texas, 120; Ruby v. State, 7 Mo. 206; Bramlette v. State, 31 Ala. 376.) Whether the defendant may be tried or sentenced upon a copy of a lost indictment, is not a question before us, and in respect of which there may be doubt under the decisions, unless it is a copy of record. (Ganaway v. State, 22 Ala. 722; Bradshaw's Case, 16 Gratt. [Va.] 107; Mount v. State, 14 Ohio, 295; Ruby v. State, 7 Mo. 206; 1 Bish. Crim. Pro. [2d ed.] sec. 1215, and cases cited.) In the case of Browning v. State, 30 Miss. 656, it was urged that the court erred in forcing the prisoner to trial on a copy of the indictment instead of the original. He was indicted in one county, and the venue was changed to another county. In a change of venue in civil cases the statute directed that the original papers be transmitted, but the statute in criminal cases made no provision on the subject. The clerk transmitted a certified copy of all the orders, etc., including a copy of the indictment, and it was held that the defendant was properly tried thereon. The court remarked that unless authority to transmit the original papers "is conferred by the legislature, it would be clearly illegal for the clerks of the circuit courts to part with the original papers or records pertaining to a prosecution therein pending. All that a clerk could do in such cases-and we must infer that it was all the legislature intended to be done-is to transmit a perfect transcript of all the original papers in the cause, the minutes or records of the court containing the orders, and proceedings of the court in relation to the same, properly certified." In Shoemaker v. State, 12 Ohio, 43, 51, the statute in terms required the "original indictment" to be transmitted when the prisoner elected to be tried in the supreme court. Our judgment is that there is no positive requirement in the statute (Rev. Stats. sec. 1037) that the original indictment should be sent; that, like the other proceedings in the case, the United States v. McKee. indictment is part of the record of the cause, and that it was properly certified as such to the circuit court, and that on the filing of the same, with the order of remission, that court had jurisdiction to try the defendant on the indictment and record thus certified and filed. But suppose we are mistaken in the view that the statute authorizes or requires the copy instead of the original indictment to be sent, does it follow that the court acquired no jurisdiction? A certified copy was sent. It is not suggested that it. was not a faithful copy, word for word. The defendant treated the exemplified or record copy as the indictment. He demurred to it, and afterwards went to trial upon it. He made no objection to it. If he had been acquitted, it would certainly have been severe to have applied to him the doctrine his counsel now maintain to be correct, namely: that the whole proceeding was coram non judice and void, because the court had no jurisdiction, and hence he would be liable to be again tried. It is indisputable that the defendant has suffered no prejudice in fact because he was tried upon the certified copy instead of the original. Having treated the record copy throughout as equivalent to the original, the defendant must be taken to have waived the right, if it exists, to a trial upon the original indictment, when he fails to make the objection until after verdict. The cases are numerous, particularly in modern times, and where the offense is a misdemeanor, in which rights, technical in their character, and where no prejudice has resulted, have been considered as waived. (Ruby v. State, 7 Mo. 206; Major v. State, 2 Sneed [Tenn.] 11; Shaw v. State, 18 Ala. 547; Patterson v. United States, 2 Wheat. 221; 1 Bish. Crim. Pro. secs. 117, 118, 125.) Inasmuch as it is not claimed that the exemplification of the indictment on which the defendant was tried is in any respect variant from the original on file in the district court, we have the means of a positive assurance that there has been, and could be, no prejudice to the defendant because the trial was upon the one instead of the other. Thus the case, in any view which can. North-Western Union Packet Co. v. St. Louis. be taken of it, comes within the remedial provisions of section 1025 of the Revised Statutes: "No indictment found and presented by a grand jury in any district or circuit or other court of the United States, shall be deemed insufficient, nor shall the trial, judgment, or other proceedings thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant." The motion in arrest and to dismiss are overruled. MOTIONS OVERRULED. NOTE. Judgment was then pronounced, by which the defendant was ordered to pay a fine of $10,000 and be imprisoned in the county jail for two years. Subsequently, the defendant, on the petition of a large number of the citizens of St. Louis, was granted an unconditional pardon by the President. Indictment and charge of the court to the jury in this case: See United States v. McKee, 3 Dillon, 546, 551. Effect of the judgment and of the pardon on the civil liability of the defendant for the penalty denounced by section 3296 of the Revised Statutes: See United States v. McKee, post. NORTH-WESTERN UNION PACKET COMPANY v. CITY OF ST. LOUIS. 1. A city cannot levy a tax in the nature of a tonnage duty upon vessels or commerce, nor can it do so by way of discrimination. But a city, under legislative authority, can lawfully charge reasonable compensation for the use of expensive and artificial conveniences, which a vessel may use at its option; there being ample space elsewhere for it to land within the harbor, where no artificial or expensive improvements have been made. 2. The ordinance of the city of St. Louis prescribing certain wharfage dues at the improved wharves constructed by it, graduated according to the size of the vessel, to be ascertained by its tonnage, is not in conflict with the provisions of the federal constitution in respect to inter-state commerce, nor with the prohibition that "no state shall, without the consent of congress, lay any duty of tonnage." 3. Taxes or dues paid under protest may be recovered back if the taxes or assessments were illegal, and the payment thereof involuntary. North-Western Union Packet Co. v. St. Louis. 4. Whether the payment of the taxes, under a mere written protest, delivered from time to time, without any process being issued by the city, and where the mode of enforcing the wharfage dues, as prescribed by the ordinance, is by action against the owner or person in charge of the boat, in which it is provided that, if convicted, the judgment shall be a fine in a sum double the amount of wharfage due the city, payment of which fine and costs shall operate as a discharge in full of the demand, is such an involuntary or compulsory payment of the taxes as will give the party so paying the right to recover back the amount, even if the ordinance under which the tax was demanded is illegal-quære? (Before DILLON and TREAT, JJ.) Tonnage Duty.-Wharfage Dues.— Taxes paid under Protest. THIS action against the city of St. Louis is to recover back wharfage dues, collected by the city in 1870, 1871, and up to March, 1872, from the plaintiff's boats. The payments were made under "written protest, without waiving the right of the owners of the boats to recover the same from the city by an action at law."\ D. D. Duncan and James H. Davidson, for the plaintiff. TREAT, J.-This case involves the right of the plaintiff to recover back money paid under protest. Within adjudicated cases, the right of action exists if the taxes or assessments were illegal, and the payment thereof was involuntary. The main proposition, therefore, requires a determination of the question as to wharfage tax proper-what it is, and where it ends. Under the decisions of the United States supreme court as to tonnage duties, regard being had to dicta concerning wharfage tax, the rules of law may be thus stated: 1st. The general power of a state to tax property must, in its exercise, impose the tax, not on the tonnage of the vessel, but on the money value of the vessel. 2d. It is beyond the power of a state or municipality to tax a vessel, foreign or domestic, for the privilege of landing or anchoring in any port, whether the tax is upon the North-Western Union Packet Co. v. St. Louis. tonnage of the vessel or otherwise. 3d. It is in the power of a municipality, under legislative authority, to exact reasonable wharfage for the privilege of landing at an improved wharf, care being had to prevent the municipality from imposing tonnage or other prohibited rates or taxes, under the pretence of collecting wharfage dues. It is very difficult, in the light of adjudicated cases, to draw the precise line, in general terms, between the various classes. The foregoing rules must suffice for a guide. It appears from the facts agreed that the city claims to be proprietor of most of the river front, a part of which has been improved, graded, and paved by the city, at large cost. Under the supposed authority vested in it by charter, and under ordinances pursuant thereto, it has made many regulations of a police nature, not only as to the parts of the harbor where vessels, rafts, etc., may land, but also as to the safety of the inhabitants dependent upon the character of the cargo-whether explosive, dangerous, etc. It is admitted that, under said regulations, the plaintiff used the improved part of said landing, or the so-called wharf, thus artificially made and designated for specific purposes. The rates of wharfage charged were not in all cases a specific sum for a specified time, but a rate dependent on the tonnage of the vessel. If the city had a right to charge wharfage, then the sole question is, whether it is prohibited from making its rates dependent on the tonnage of the vessel, eo nomine, instead of its length, denoting the space it would occupy, or whether the city should fix its rate of wharfage, arbitrarily, upon every craft landing, irrespective of tonnage, size, etc. It would be a narrow view of the question to admit that wharfage is collectible, and to hold at the same time that the amount of wharfage dues is not collectible because that amount, though reasonable, is, instead of a sum certain upon every craft, adjusted to the size of the craft, to be ascertained by its tonnage. It may be conceded that no municipality can forbid the entry, anchoring, or landing of a vessel engaged in foreign or inter-state commerce, unless it pays a tonnage duty for said privilege. It must also be held that, when there is ample space for landing within a harbor outside of the improved part |