| New York Court of Chancery | Sep 15, 1894
The facts in this case, as appear by the bill as amended, are substantially as follows:
The complainants are all pilots on the bay and river
Some time prior to the 23d day of June, A. D. 1891, one John B. Merritt, a pilot on the bay and river Delaware, made application to said Board of Pilot Commissioners to assign to and obtain a place for him on some of the boats used by the pilots on said waters, for the purpose of enabling him to pursue his business as a pilot, and in pursuance of such application, the said board directed that the said Merritt be allowed to cruise on the said Thomas Howard; and subsequently, on the 23d day of June, A. D. 1891, the secretary of said board served notice as follows upon all the owners of said boat, except James W. Marshall and James Rutherford:
“Wilmington, Del., June 23, 1891.
“ Dear Sir.-—• At a special meeting of the pilot commissioners, held to-day, on motion, it was
“ Resolved, That if the pilots of the pilot boat Howard do not comply with the rules of the board in the case*154 of Mr. Jno. B. Merritt within twenty days, the license of said pilots shall he revoked.
“ Tours truly,.
“R F. TOWNSEND,
“ Secretary.”
After the receipt of the foregoing notice, the complainants and Marshall Bertrand, Thomas H. Carpenter, Harry O. Maull and Jacob Teal, being the owners of eight-tenths of the said boat Thomas Howard, refused to comply with the said order directing the said John B. Merritt to be placed upon said boat, he having no share nor interest therein.
At the time of the application of the said John B. Merritt to the said Board of Pilot Commissioners as aforesaid, and ever since and now, the said pilot boat Thomas Howard was, has been, and is well and sufficiently manned with duly-licensed pilots for the full and satisfactory performance of its duties' as a pilot boat; and that the sole object of the defendant in insisting that the said Merritt should be received upon the said Thomas Howard, as aforesaid, was to give employment to the said John B. Merritt, as pilot, to the end that he should render pilotage service, he not then being employed upon any pilot boat.
To the bill the complainants pray that the defendant be perpetually restrained from revoking the licenses of the complainants by reason of their unwillingness to take on board the boat Thomas Howard the said John B. Merritt, etc., together with the usual prayers for an answer, further relief and subpoenas.
To the bill the respondent demurred generally.
The act of April 5th, 1881, contains three provisions, under one of which the Board of Pilot Commissioners must have acted in assigning John B. Merritt to the pilot boat Thomas Howard. These are,
First. The clause in section 1, which empowers the board “ to make rules for their ” (pilots) “ government while employed in that ” (pilotage) “ service.”
Second. The clause in section 1 which empowers the board “ to decide all differences which may arise between masters, owners and consignees of ships and vessels and pilots, except in cases hereinafter excepted.” And,
Third. The clause in section 4 of the act which provides “ If any pilot shall enter into any combination with a view of preventing any other person from executing such duties, every such pilot being thereof duly convicted, shall for the first offense, forfeit his license as a pilot for the bay and river Delaware for the space of three months; for the second offense, for the space of one year; and for the third offense, absolutely.”
We will consider these provisions in their reverse order.
Has any combination been shown into which the complainants had entered with a view of preventing John B. Merritt from executing his duties as a pilot? The simple fact that they refused to allow him to' cruise in their particular boat can hardly he considered a combination within the intent and meaning of this provision, there still remaining to him a number of different ways in which he might, have discharged these duties. He might have found employment upon one of the other
But even if it should be conceded that such a combination as that contemplated by the provision of section 4, just quoted, to have existed prior to the notice which was seawed upon certain of the complainants, threatening the revocation of their respective licenses', it nowhere appears that such pilots were ever duly convicted of such an offense. Conviction by due course of law is made by the statute a condition precedent to a forfeiture of the licenses held by those who may enter into such a combination. It has not been shown that the board gave the complainants an opportunity to be heard, so that it might determine after a, full hearing (assuming for the purposes of this case that it has such power), whether or not they were guilty of a violation of the statute and had incurred the. forfeiture prescribed as a penalty against such combination.
Furthermore, so far as the facts disclose, this combination, admitting it to be such, was the first offense-
Let us now see whether the action of the board can be justified under the power given by section 1 to decide all differences between owners of vessels and pilots.
Granting now that the refusal of the complainants to allow John B. Merritt to cruise on board the Thomas Howard, was a difference between them, of which the board could take cognizance, it had no right to proceed in the way it did. The method which the board adopted of coercing submission to its decisions of these alleged differences, was by declaring a revocation or forfeiture of complainants’ licenses. This, however, the board had no authority to do, inasmuch as this power was not expressly given to it by the act, or any of its supplements. The power vested in the board h> make rules for the government of pilots and to decide differences carries with it the incidental power to- enforce the same by the imposition of reasonable pecuniary penalties, without any express grant of power to that effect. But the right to inflict a forfeiture as a penalty must be plainly given, and cannot be derived from usage or raised by implication.
If it be insisted that the action of the'board was authorized by that clause in section 1 which empowered it to make rules for the government of pilots, then the exact meaning and extent of the power thus granted must
First. Does the authority given by the act to the Board of Pilot Commissioners to make rules for the government of pilots while in the pilotage service, extend to their boats, and if so, how far?
Second. Granting for the salce of the argument that it does, did the board, in the exercise of this authority, proceed in accordance with the provisions of the act which gave it that authority?
As to the first question, it is undeniably true that the Board of Pilot Commissioners has at least a qualified authority over pilot boats. While these boats may be property of individuals, as was the case with the Thomas Howard, yet being employed in the pilotage service by their owners, they were by such act dedicated to a use or service in which the public has an interest, to which individual property rights, to the extent of the public good, are subordinate.
It is only necessary to suggest the extent and importance of the commerce carried on upon the bay and river Delaware, to appreciate the vital interest which the public has therein. Pilotage service is a necessary auxiliary to commerce, and it was to promote or increase the efficiency of that service upon these waters that the act of April 5th, 1881, was passed, whereby the Board of Pilot Commissioners was established. This board is empowered “ to malee rules for the government of pilots Avliile in this ” (pilotage) “ service.” In order to render this power effective, it must extend to the instruments of the pilots’ trade or vocation. Pilot boats, are, there
At the same time, however, the exact extent of the interest which the public has in the pilotage service must not be forgotten. The public has no interest in the government of pilots or their boats, except so far as it is conducive to the public good. Any rule or set of rules which shall have any other purpose than this, even though they be made for the benefit of some of the pilots themselves, unless expressly authorized by the provisions of the act, are without its scope, and void.
How, in the present case, it has not been shown how the installment of John B. Merritt upon the pilot boat Thomas Howard will inure to the public good. It is stated in the bill, and admitted by the demurrer, that the Thomas Howard was at that very time well and efficiently manned and equipped. She was prepared and competent to act her part in the discharge of this 'pilotage service so important to the public at large. If the placing of Merritt upon the Howard would have in any way improved the service, then that fact should have been presented by the respondent. This, however, has not been done, and I have no facts before me which can by any possibility lead me to such a conclusion.
The action of the board, then, not having been shown to have been inspired in the interest of the public generally, must rest its authority, if at all, upon some express and positive provision of the act. Such a provision, however, I have not been able to find. The clause authorizing the board to make rules for the government of pilots while in this service, having for its
As to the second question, the answer must be in the negative. Under the clause authorizing the Board oi Pilot Commissioners “ to make rules for the government of pilots,” etc., the orderly course of procedure would have been to make general rules in pursuance of this power. In this case, however, the board assigned John B. Merritt to the boat Thomas Howard before making any rule upon the subject. This action of the board partook more of the nature of an order than of a rule. These words “ rule ” and “ order,” when used in a statute, have a definite signification. They are different in their nature and extent. A rule, to be valid, must be general in its scope and undiscriminating in its application; an order is specific and limited in its application. The function of an order relates more particularly to the execution or enforcement of a rule previously made. How the mode adopted by the board to place Merritt upon the Howard wras really an order and not a rule, because it applied and was directed to only one particular boat and its owners. This proceeding of the board then, not being in strict compliance with the provisions of the statute which created it, is irregular and, therefore, void.
I do not wish, however, to be understood as questioning the power of this board, within the limitations of the act, and to the extent of the public interest, to control the conduct of the pilots in the pursuit of their vocations. Such power it certainly has, but it must be exercised by the formulation of rules and not by orders alone.