People v. Sperry

50 Barb. 170 | N.Y. Sup. Ct. | 1867

By the Court,

Gilbert, J.

The defendant was convicted in the court of ses sions of Queens county of a misdemeanor in towing a vessel in violation of section 3 of chapter 115 of the Laws of 1865. This statute provides, that “if any person, other than a branch Hell Gate pilot, shall pilot or tow for any other person any vessel of any description, or board such vessel for that purpose (excepting a minor class) &e., &c. without the aid of a branch Hell Gate pilot on board, he shall be deemed guilty of a misdemeanor,” &c.

. A certificate of probable cause having been given, the case has been brought here by the people upon a certiorari. It was proved on the trial, that a tug boat employed in towing' vessels, called the O. Vanderbilt, was about to commence towing of the schooner Gopia, when one Harris, a Hell Gate pilot, went on board the Gopia and offered his services as such pilot, to the defendant, who was in charge as “pilot” of the 0. Vanderbilt. His services were refused ; nevertheless Harris remained on board, without rendering any aid. Nor was he applied to by the defendant to render any aid. On the contrary, the defendant, when reminded of his duty, under statute of 1865, said “he didn’t care—he was going to tow her (the Gopia) through.” He did tow her through, and we are of opinion, that this was a clear violation of the statute.

It is contended, however, by the defendant’s counsel, that the statute is in conflict with that provision of the constitution of the United States, which grants to congress the power to regulate commerce.

The answer to this is twofold.

1. The state act is not an exercise of the power vested exclusively in congress, but is a mere police regulation. The distinction is well defined, and has been settled by repeated adjudications of the Supreme Court of the United States. (The Licence Cases, 5 How. 504. The Passenger Cases.. 7 id. 302. City of New York v. Milne, 11 Peters, 102.) There are many state regulations which relate to and more or less affect commerce, but.which are not regulations of commerce within the meaning of the grant of power to congress. The cases cited show instances. It would be easy to suggest many more. The case before us presents one. The object of it is, the protection and preservation of property and life. This is a subject of great interest to the state, and we think falls appropriately within the scope of that legislatation which, under our system of government, the state ought to exercise, in preference to congress.

2. The law in question has been sanctioned and adopted by the congress of the United States, unless such sanction and adoption has been withdrawn by some act of congress, passed since the act of August 30, 1852. This point was expressly decided in Steamship Co. v. Joliffe, (2 Wallace, 450.) The court in this case hold that the clause of the constitution of the United States, containing the grant to congress “ does not in terms exclude the exercise of any authority by the states to regulate pilots.” On the contrary, they say “ the authority of the states to regulate the whole subject, in the absence of legislation on the part of congress,has been recognized from the earliest period of the government. On the formation of the union, there were laws in force, in the different states bordering on the sea, for the regulation of pilots and pilotage, and at its first session, in 1789, congress passed an act, adopting the existing regulation's, and such as might be provided by subsequent legislation of the states .” This case involved the validity of an act of the state of California, which made it a misdemeanor for any person not having a license from the Board of Pilot Commissioners, created by the act, to pilot any vessel in or out of the port by the way (called the Heads) which leads to and from the ocean. It was contended, on the argument, that the. act of congress of August 30, 1852, was in conflict with the provisions of this state act. The court, in deciding this point, referred to and commented upon the legislation of congress from the act of 1789 to the act of 1852 inclusive, and say : “ We do not perceive in its provisions any intention to supersede the state legislation recognized by the act of 1789, .or any inconsistency with the port regulations established by the act of California of 1861.” The provisions of the acts of June 8, 1864, and July 13, 1866, are merely supplementary to the act of August 30, 1852. Neither of them purport to establish regulations for port pilotage, any more than similar provisions in the act of August 30, 1852. They are, therefore, within the rule established by the case of Joliffe, supra.

In the face of this decision, it can hardly be expected of us that we should hold that the state authorities are violating the constitution of the United States, by exercising powers, expressly. conferred upon them by the statute in question, and which have been so distinctly accorded to the state by the supreme federal tribunal.

It is also contended that the enrollment and coasting license' of the G. Vanderbil protected the defendant. Our opinion is, that such protection does not extend beyond the vessel licensed, and does riot authorize the towing of other vessels. The charge to the jury appears to be correct. The having been employed by another to commit a misdemeanor is no excuse.

[Orange General Term, September 9, 1867.

The conviction must be affirmed, and the record remitted to the court below, with directions to proceed and render judgment.

Lott, J. F. Barnard and Gilbert, Justices.]