The Alzena

14 F. 174 | E.D. Pa. | 1882

Butler, D. J.

The decision in The Clymene, 9 Feb. Rep. 165, and 12 Fed. Rep. 346, covers everything embraced in this case, except the question of remedy; and this must be determined against the respondent. In view of the following authorities no discussion seems necessary: The America, 1 Low. 178; The California, 1 Sawy. 463; The George S. Wright, 1 Deady, 591; The Glencarne, 7 Fed. Rep. 604.

A decree must be entered in favor of the libelant.

McKenkan, C. J., sat on the argument, and concurred in above opinion

Pilotage. The power of congress to legislate on any subject is exclusive only when a uniform rule is required; but whero it requires rules in different localities, the state may legislate in the absence of congressional legislation.^(a) It is exclusive only when exercised.^(b) Or where the subject is national, and admits of only one plan of regulation.^(c) Or in cases where the states are expressly prohibited.^(d) It is not so exclusive as to prevent states from enacting laws necessary to internal police.^(e) The commercial clause in the federal constitution does not operate as an absolute prohibition on the states to legislate on the subject.^(f) The mere grant of power to congress to regulate commerce does not forbid states from passing laws on the same subject. They have concurrent power on the subject.^(g) And so a territory may legislate, it being “a rightful subject of legislation.”^(h)

The grant to congress by the constitution of the power to regulate commerce does not of itself deprive the states of the power to regulate pilots; and- congress has not by legislation deprived the states of their power to legislate on the subject,⁽ⁱ⁾ but, on the contrary, state laws have been confirmed,^(j) But existing regulations or provisions making discrimination in the rates of pilotage between vessels sailing between the ports of different states, or any discrimination against steam-vessels or national vessels, are annulled and abrogated.^(k) So states may pass laws for the regulation of pilots, if they neither give a preference, of one port over another, nor require vessels to pay duties.^(l) The statutes of the several states regulatiug the subject of pilotage, in view of the numerous acts of congress recognizing and adopting them, are to be regarded as constitutional, until congress by its own acts supersedes them;^(m) but they are immediately abrogated when an act is passed by congress which conflicts with them.⁽ⁿ⁾ But the passage of congressional acts regulating pilots does not release pilots from the penalties incurred under state laws.^(o) — [Ed.

(a) Cooley v. Board of Port Wardens, 12 How. 299; Gilman v. Philadelphia, 3 Wall. 713; Ex parte McNeil, 13 Wall. 240; Pound v Turck, 95 U.S. 462; Mitchell v. Steelman, 8 Cal. 363; Oran-dall v. Nevada, 6 Wall. 35; People v. Cent. Pac. R. Co. 43 Cal. 404.

(b) Ogden v. Saunders, 9 Wheat. 1; Passenger Cases. 7 How 283; Master v. Ward, 14 La. Ann. 289; Master v. Morgan, Id. 595.

(c) Cooley v. Board of Port Wardens, 12 How. 299.

(d) In re Brinkman, 7 Bank. Reg. 425.

(e) Com. of Pilotage v. The Cuba, 28 Ala. 185.

(f) Id.

(g) Cooley v. Board of Port Wardens, 12 How. 319; People v. Coleman, 4 Cal. 46; Cisco v. Roberts, 6 Bosw. 494; Dryden v. Com. 16 B. Mon. 593.

(h) Edwards v. The Panama, 1 Or. 418.

(i) Cooley v. Board of Port Wardens. 12 How. 299.

(j) Act of Congress of August 7, 1789, § 4, (3 St. at Large, 64.)

(k) Act of July 13, 1866, (14 St. at Large, 93.)

(l) Cooley y. Board of Port Wardens, 12 How. 299; The Wheeling Bridge Case, 18 How. 421.

(m) Ex parte McNeil, 13 Wall. 236.

(n) The Panama, Deady, 27.

(o) Sturgis v. Spofford, 45 N. Y. 446.