198 F. 460 | 2d Cir. | 1912
December 28, 1908, Frank R. Williams, the complainant, applied to John Molther and Robert Chestnut, as United States local inspectors of steamboats at the port of Oswego, for examination for a license as second-class pilot on Lake Ontario and River St. Lawrence.
On the same day the said inspectors refused to examine him because his application did not show that he had three years’ service in the deck department of a steam vessel, motor vessel, sail vessel, or barge consort, as required by sections 42 and 46 of rule 5 of the rules and regulations of the board of supervising inspectors of steam vessels. Thereupon he appealed to the supervising inspector at Cleveland, Ohio, who affirmed the decision of the local inspectors. Thereupon he appealed to the supervising inspector general at Washington, who affirmed the decision of the supervising inspector. Thereupon he appealed to the board of supervising inspectors, who decided that it was a matter over which the board has no control.
He then turned to the courts and first to the United States District Court, which we held had no jurisdiction. 180 Fed. 709, 103 C. C. A. 491. Finally, he began this action in equity against the local inspectors (appearing throughout on his own behalf) in which he alleged his own qualifications, the refusal of the defendants to examine him, and prayed that sections 42 and 46 of rule 5 of the board of supervising inspectors of the department of commerce and labor be declared illegal and void, and that the defendants be enjoined from enforcing the same, and from refusing to examine him for the license. The defendants answered, admitting that the complainant had made the application, and that they had refused it for reasons stated in the bill.
The cause was tried upon an agreed statement of facts which submitted to the decision of the judge holding the Circuit Court the single question of law whether the provisions of the rules complained of are invalid and void or are a lawful condition precedent to the right of ex-
“The plaintiff appears to be an honest citizen and is actuated by a belief that he has been deprived of a legal right; hence the government has not deemed it advisable to insist on technicalities concerning the form of action under which the question involved is sought to he determined.”
If the complainant were to ask leave to amend, we would certainly grant it. And there is authority for our holding that we may infer that unliquidated damages alleged to be in excess of $1,000 are not less than $2,000, exclusive of interest and costs, because of the conduct of the parties. Mr. Justice Holmes said in Giles v. Harris, 189 U. S. 475, 485, 23 Sup. Ct. 639, 641 (47 L. Ed. 909):
“It is true that by Act Aug. 13, 1888, e. 866, § 1, 25 Stat. 433, 434 [U. S. Comp. St. 1901, p. 508], the Circuit Courts are given cognizance of suits of a civil nature, at common law or in equity, arising under the Constitution or laws of the United States, in which the matter in dispute exceeds the sum or value of $2,000. We have recognized, too, that the deprivation of a man’s political and social rights properly may be alleged to involve damage to that amount, capable of estimation in money. Wiley v. Sinkler, 179 U. S. 58 [21 Sup. Ct. 17, 45 L. Ed. 84]; Swafford v. Templeton, 185 U. S. 487 [22 Sup. Ct. 783, 46 L. Ed. 1005]. But, assuming that the allegation should have been made in a case like this, the objection to its omission was not raised in the Circuit Court, and as it could have been remedied Ijy amendment, we think it unavailing. The certificate was made alio intuitu. There is no pecuniary limit on appeals to this court under section 5 of Act 1891, c. 517, 26 Stat. 826, 828 [U. S. Comp. St. 1901, p. 5491, The Paquete Habana, 175 U. S. 677, 683 [20 Sup. Ct. 290, 44 L. Ed. 320], And we do not feel called upon to send the case back to the Circuit Court in order that it might permit the amendment. In Mills v. Green, 159 U. S. 651 [16 Sup. Ct. 132, 40 L. Ed. 293]; s. c., 69 Fed. 852 [16 C. C. A. 516, 30 L. R. A. 90], no notice was taken of the absence of an allegation of value in a case like this.”
Reference may also be had to the language of the court in United States v. Trans-Missouri Freight Association, 166 U. S. 290, 310, 17 Sup. Ct. 540, 41 L. Ed. 1007.
In Wiley v. Sinkler, 179 U. S. 58, 21 Sup. Ct. 17, 45 L. Ed. 84, and Swafford v. Templeton, 185 U. S. 487, 22 Sup. Ct. 783, 46 L. Ed. 1005, it was held that the deprivation of a man’s political and social rights, such as the right to vote, may be alleged to involve damage in money.
“Sec. 4405. (Meetings of board; assignment of districts.) The supervising inspectors and the supervising inspector-general shall assemble as a board once in each year, at the city of Washington, District of Columbia, on the third Wednesday in January, and at such other times as the Secretary of ihe Treasury shall prescribe, for joint consultation, and shall assign to each of the supervising inspectors the limits of territory within which he shall perform his duties. The board shall establish all necessary regulations required to carry out in the most effective manner the provisions of this title, and suca regulations, when approved by the Secretary of the Treasury, shall have the force of law. The supervising inspector for the district embracing the Pacific Coast shall not be under obligation to altend the meetings of the board of tenor than once in two years; but when he does not attend such meetings he shall make his communications thereto, in the way of a report, in such manner as the board shall proscribe.”
And under this the board oí supervising inspectors have adopted sections 42 and 46 of rule 5:
“42. No original license as second-class pilot shall be issued to any person who has not had three years’ experience in the deck department of a steam vessel, motor vessel, sail vessel, or barge consort. The local inspectors shall, before granting a license as second-class pilot, satisfy themselves that the applicant'is qualified to steer; provided, that on the Mississippi and territory rivers one year of such required experience must have been in the pilot house as steersman.”
“4(5. No original license for pilot of any route shall be issued to any person, except l'or special license for steamers of 10 gross tons and under, who has not served at least three years in the deck department of a steamer, motor vessel, sail vessel, or barge consort, one year of which experience must have been obtained within the three years next preceding the date of application for-license, which fact ihe inspectors may require, when practicable, to be verified by the certificate, in writing, of the licensed master or pilot under whom the applicant has served, such certificate to be filed with the application of the candidate.”
The trial judge held that these rules were “necessary regulations required to carry out in the most effective manner” the provisions of title 52, and were not inconsistent with Rev. Stat. U. S. § 4442, which reads:
“See. 4442. (License of pilot.) Whenever any person claiming to be a skillful pilot of steam vessels offers himself for a license, the inspectors shall make diligent inquiry as to his character and merits, and if ■ satisfied, from personal examination, of the applicant, with the proof that he possesses the requisite knowledge and skill, and is trustworthy and faithful, they shall grant, him a license for the term of one year to pilot any such vessel within the limits prescribed in the license; but such license shall be suspended or revoked upon satisfactory evidence of negligence, unskillfulness, inattention to the duties of ids station, or intemperance, or the willful violation of any provision of this title.”
It is fair to say that Attorney General Miller came to a similar conclusion in respect to a master under section 4439, Rev. Stat. U. S., 20 Opinions Attorney General, 213.
We are not convinced by these opinions. Congress unquestionably has power to regulate commerce upon the waters involved, and in so doing to restrict the right to act as pilot upon steamers navigating them, to persons who shall have obtained a license. It can also make the very regulations complained of. But the question is whether these regulations are necessary to carry out the provisions of title 52, Rev.
The decree is reversed and the court below directed to enter a- decree declaring the provisions in question of rule 5 invalid, and directing the defendants to examine the complainant.