60 S.E. 920 | N.C. | 1908
Plaintiff sues defendant, master of schooner H. E. Thompson, for recovery of pilotage fees, pursuant to provisions of ch. 625, Laws 1907. The pleadings and admissions of record disclose this case:
The General Assembly, at its session of 1907 (ch. 625), enacted a *68 statute regulating pilotage in the Cape Fear River, etc. Pursuant to section 1, the Governor, on 13 March, 1907, commissioned five persons to constitute the board of navigation, etc. Plaintiff, being duly qualified therefor, was, on 18 May, 1907, granted a license by the board as a full pilot for vessels going in and out of the Cape Fear River, and filed his bond as required by law. On 29 May, 1907, while in the discharge of the duties of his office, he spoke the schooner H. E. Thompson, a sailing vessel of more than 68 tons, from Boston, then running in for said bar, and offered to serve defendant, master of said vessel, as pilot over the bar to Southport. Plaintiff was the first pilot to speak said vessel. Defendant declined to accept plaintiff as pilot, and went over the bar and into the river without a pilot. On 15 June, 1907, learning the said schooner would sail the following day, plaintiff offered himself to pilot the vessel over the bar going out to sea, but was refused by defendant. At the time of offering to pilot said vessel over the bar, into and out of the river, plaintiff was ready, able, and willing to serve said vessel as pilot. Said schooner drew 16 1/2 feet of water. On both said days the weather was fair. There were at said time thirty-four pilots (91) authorized to receive license and acting under the act of 1907. The amount of pilot fees fixed for said vessel by the provisions of the statute is $70.22, which plaintiff duly demanded of defendant, payment whereof was refused.
The action originated in a justice's court, and came by appeal to the Superior Court of New Hanover County. Judgment was rendered for plaintiff. Defendant excepted and appealed. The assignments of error are set out in the opinion. After stating the case: Plaintiff's cause of action is based upon the provisions of chapter 625, Laws 1907, entitled "An act to protect and promote the commerce of the port of Wilmington and the State of North Carolina," ratified 6 March, 1907.
The statute creates a board of commissioners of navigation of the Cape Fear River, consisting of five persons, to be appointed by the Governor on or before 5 April, 1907, and on the same day every four years thereafter, the terms of their office to begin on 15 April, 1907. This board is required and empowered to make rules and regulations in regard to pilots, for the purpose of compelling them to be on duty, etc., to examine such persons as may offer themselves to be pilots for the Cape Fear River and bar, and to give to such as are approved and found qualified branches or licenses. Such persons as were qualified to serve *69 as pilots prior to 1 January, 1905, are to receive branches without examination: "Provided, that no new branches shall be given until after the number of pilots commissioned shall have been reduced, by death, resignation, or otherwise, to the number of twenty; and there shall not be at any time thereafter a greater number than twenty nor a less number than fifteen commissioned by the board." Two classes of branches are to be issued, and to be renewed annually, with power of (92) removal by the board.
Section 13 provides that "All vessels, coastwise or foreign, over 60 gross tons, . . . shall take a State-licensed pilot from sea to Southport and from Southport to sea." Rates of fees are fixed by this section. The first pilot speaking a vessel shall be entitled to the pilotage fees over the bar to Southport and out to sea again, provided said pilot shall be ready and willing to serve as a pilot, etc. Other sections are referred to in defendant's assignments of error, which will be set out when we discuss the phases of the case applying to them.
The first assignment is directed to the finding that the Governor issued the commissions to the members of the board of commissioners on 13 March, 1907, whereas the statute directs that the term of office shall not begin until 15 April, 1907, and that the Governor is directed to appoint "on or before the 5th day of April, 1907." Defendant cites Cook v.Meares,
In S. v. Shuford,
The learned counsel for defendant frankly concede the power of the State to regulate pilotage. We find, upon examining the statutes cited in the brief of plaintiff's counsel, that, prior to its separation from England and at all times since, statutes have been enacted by the Legislature of this State regulating pilotage, providing for licensing, and requiring vessels entering the ports to use them, prescribing their fees, etc. Laws 1786, ch. 27. The same is true of other States in fact, of all nations having seaports. In "Cooley v. Wardens, 12 How., 299, several of the objections made to this statute were pressed upon the Court. Counsel, in exhaustive briefs, sustaining the power, cite statutes of many of the States, including our own, showing that the States have asserted and exercised the power to regulate pilotage. Judge Curtis, in a learned and exhaustive opinion, says: "We think this particular regulation (94) concerning half pilotage fees is an appropriate part of a general system of regulation of this subject. Testing it by the practice of commercial States and countries legislating 915 this subject, we find it has usually been deemed necessary to make similar provisions. Numerous laws of this kind are cited in the learned arguments of the counsel for the defendant in error, and their fitness as a part of a system of pilotage in many places may be inferred from their existence in so many different States and countries. Like other laws, they are framed to meet the most usual cases, quae frequentius accidunt; they rest upon the propriety of securing lives and property exposed to the perils of a dangerous navigation by taking on board a person peculiarly skilled to encounter or avoid them, upon the policy of discouraging the commanders of vessels from refusing to receive such persons on board at the proper times and places, and upon the expediency and even intrinsic justice of not suffering those who have incurred labor and expenses and danger to place themselves in a position to render important service, generally necessary, to go unrewarded because a particular vessel either rashly refuses their proffered assistance or, contrary to the general experience, does not need it. There are many cases in which an offer to perform is deemed by law equivalent to performance. The laws of commercial States and countries have made an offer of pilotage service one of these cases, and we cannot pronounce a law which does this to be so *71
far removed from the usual and fit scope of laws for the regulation of pilots and pilotage as to be denied, for this cause, as a covert attempt to legislate upon another subject under the appearance of legislating upon this one." This language was quoted with approvel [approval] by Simonton,Circuit Judge, in The Carrie L. Tyler, 106 Fed., 422. He also says: "Nor can any objection be made to the provision of the law giving a pilot the same fees for services tendered and refused as he would have earned if the service had been accepted and performed." This case involved a construction of the pilotage law of this State. 2 Code (1883), (95) ch. 46, is in many respects the same as the act of 1907 and the act of 1786, ch. 27. Cooley v. Wardens, supra, has been uniformly approved, and the law as therein laid down has been regarded as "long since settled." Olsen v. Smith,
Defendant insists that the statute creates a monoply [monopoly] and thereby violates Article I, sections 7 and 31, of our Constitution, declaring "That no man or set of men are entitled to exclusive or separate emoluments or privileges," etc., and "That perpetuities and monopolies are contrary to the genius of a free State," etc. When it is conceded or established that the State has the right, under its police power, to prescribe the duties, fix the fees, and otherwise regulate pilots and pilotage, it would seem to follow logically that it has the power to prescribe the qualifications and establish methods of examining and licensing those who engage in the service. Whenever it is shown that pilotage is subject to governmental control and the (96) pilot is a quasi- public officer, the power and duty of the Legislature to prescribe rules for ascertaining and declaring who are competent, by reason of age, character, skill, experience, *72
etc., follow. The power comes within the principle upon which the State prescribes the qualifications of those who are admitted to practice law, medicine, dentistry, and other callings and professions so related to the public. This Court, following the uniform current of thought, has sustained the legislation applied to physicians. S. v. Van Doran,
There is, however, another view by which this and two other exceptions may be disposed of. If it were conceded that the power of the State to limit the number of persons otherwise competent to serve as pilots was open to serious controversy by reason of the principle urged by defendant and illustrated in S. v. Moore,
The owners of vessels against whom a judgment is rendered by a justice of the peace are prohibited from staying execution by giving bond pending appeal. Power is conferred upon the board of commissioners of navigation to hear and determine disputes between pilots and masters of vessels, etc. We find that these provisions are copied from the statute (chapter 46, The Code of 1883, secs. 3491, 3492), and were enacted as far back as 1802. It seems that jurisdiction to enforce pilotage regulations was formerly conferred upon admiralty courts. Doubtless these provisions found their way into our laws from ancient statutes conferring jurisdiction upon these courts. It is very doubtful whether they can be sustained under our present constitutional judicial system. For the reasons given in regard to the provision limiting the number of pilots, the question of their validity does not arise upon this record. The defendant was permitted to make a deposit in lieu (99) *74 of a bond. The action was brought before a justice of the peace, whose jurisdiction is conceded; hence, in neither aspect of the case is any right denied defendant by the provisions of the sections referred to.
The defendant assigns as error that his Honor declined to hold that the statute was in contravention of the Constitution of the United States, in that it undertakes to regulate commerce between the States and foreign countries. This objection was made to a similar statute in Cooleyv. Wardens, etc., supra, wherein Judge Curtis discusses the question and puts it at rest. That Congress has the power to regulate pilotage is conceded, but it is well settled that this is one of those powers exercised by the State at the adoption of the Constitution, which remained with them until Congress assumed control by legislation. At its first session Congress did legislate upon certain phases of the subject, providing "That all pilots in the bays, inlets, rivers, harbors, and ports of the United States shall continue to be regulated in conformity with the existing laws of the State, respectively, wherein such pilots may be, or with such laws as the States may respectively hereafter enact for the purpose, until further legislative provisions shall be made by Congress." Referring to this section, Judge Curtis says: "It manifests the understanding of Congress, at the outset of the Government, that the nature of this subject is not to require exclusive legislation. The practice of the States and of the National Government has been in conformity with this declaration from the origin of the National Government to this time; and the nature of the subject, when examined, is such as to leave no doubt of the superior fitness and propriety, not to say the absolute necessity, of different systems of regulation drawn from local knowledge and experience and conformable to local wants. . . . It is the opinion of a majority of the Court that the mere grant to Congress of the power to regulate (100) commerce did not deprive the State of the power to regulate pilots, and that, although Congress has legislated on this subject, its legislation manifests an intention, with a single exception, not to regulate this subject, but to leave its regulation to the several States." This has been the uniform ruling of the Supreme Court of the United States. Steamship Co. v. Joliffe,
The last assignment of error involves the construction of section 15 of the statute: "Any vessel coming into Southport from sea without the assistance of a pilot, the wind and weather being such that such assistance could have been reasonably given, shall not be liable for pilotage inward from sea, and shall be at liberty to depart without payment of any pilotage, unless the service of a pilot be secured." The meaning of the Legislature is not so clear as we would wish. To give it the construction suggested by defendant would be contradictory of other sections and to a large extent destructive of the general purpose of the act. It would seem, read in the light of other sections and to harmonize with the general purpose of the act, that if the wind and weather were such that the assistance of a pilot could have been reasonably given, but was *76 not offered, the vessel could not only proceed inward, but could go out without a pilot and without paying any fees, if she chose so to do. (102) Thus construed, it is an incentive to pilots to be on the lookout, ready to render assistance, or, upon failure to do so, lose the benefit of the statute. This is in harmony with the general purpose and scope of the entire statute.
The facts conceded upon this record show that the plaintiff has brought himself within the terms of the act, and, unless the entire statute is to be destroyed, is entitled to recover the fees prescribed. As we have seen, the sections of which complaint is made, if invalid, do not affect the general scheme which the Legislature has adopted to protect and promote commerce in the Cape Fear River. The power to do so being conceded, the plaintiff being duly licensed, the defendant's vessel being within the class of vessels subjected to pilotage regulation, the plaintiff having complied with the requirements of the law, his right to recover the fees is in no respect dependent upon the validity of the sections of which complaint is made. An examination of the recent legislation upon this subject and language found in the briefs indicates that there is a wide divergence of opinion respecting the wisdom of the statute and its effect upon the commerce of the chief commercial city of the State. These are questions for the consideration of the Legislature.
We have examined the entire record with care, and considered each exception in the light of the well prepared briefs. It is worthy of note that although, with the exception of the act of 1905, legislation in all essential respects similar to the act of 1907 is found in our statutes from the earliest period of our history, its validity has not before been called into question, or, at least, has not been before this Court. As we have seen, the questions discussed upon this record have received careful consideration in other courts, both State and Federal. In every instance they have been sustained.
No error.
Cited: S. v. Mathis,
(103)