1. When a right has arisen upon a contract or a transaction in
the nature of a contract authorized by statute and has been so far
perfected that nothing remains to be done by the party asserting
it, the repeal of the statute does not affect it or an action for
its enforcement. It has become a vested right, which stands
independent of the statute.
Ex. gr., where a pilot, licensed under a statute, had
tendered his services to pilot a vessel out of port and such
services were refused, his claim to the half-pilotage fees, allowed
by the statute in such cases, became perfect, and the subsequent
repeal of the statute does not affect a judgment rendered in an
action brought to recover the claim, or the jurisdiction of this
Court to view the judgment on writ of error.
2. The Act of Congress of August 30, 1852, "to amend an act
entitled An act to provide for the better security of the lives of
passengers on board of vessels propelled in whole or in part by
steam," does not establish pilot regulations for polls; its object
is to provide a system under which the masters and owners of
vessels, propelled in whole or in part by steam, may be required to
employ competent pilots to navigate such vessels on their
voyage.
3. The Act of the State of California of May 20, 1861, entitled
"An act to establish pilots and pilot regulations for the port of
San Francisco," is not in conflict with it.
This was a suit involving the subject of the passage by a state
and by the United States of laws regulating port pilots, and raised
the question whether the United States had, by enactment, in A.D.
1852, regulated pilotage generally. The case, a decision of which,
it was understood, would settle several cases like it, was
thus:
In 1787, when the Constitution of the United States was adopted,
the different states had each laws of their own for the regulation
of pilots and pilotage.
By the Constitution, power was
given to Congress "to regulate commerce with foreign nations and
among the several states." In 1789, Congress passed a law enacting,
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
states, respectively, wherein
such pilots may be, or with such laws as the states may
respectively
hereafter enact for the purpose, until
further legislative provision
Page 69 U. S. 451
shall be made by Congress. [
Footnote 1]"
With the single exception of a law of 1837, [
Footnote 2] by which it is made
"lawful for the master or any commander of a vessel, coming in
or going out of any port situate upon the waters which are the
boundary between two states, to employ any pilot licensed by the
laws of either of the states,"
no other legislation on the subject was had until the 30th of
August, 1852. An act was then passed entitled
"An act to amend an act entitled 'An act to provide for the
better security of the lives of
passengers on board of
vessels, propelled
in whole or in part by steam, and for
other purposes.' [
Footnote
3]"
It consists of forty-four sections. Its first declares that no
license shall issue until the provisions of the act are complied
with,
"and if any such vessel shall be navigated with passengers on
board without complying with the terms of the act, the owner and
vessel shall be subjected to penalties set forth."
Succeeding sections relate to precautions as to fire -- pumps,
hose, life boats and life preservers, buckets, floats, axes, safety
valves, plugs &c., the means of escape from the lower deck, the
carrying of gunpowder, camphene, turpentine, and other dangerous
articles, and the stowage thereof when carried, and then the act (§
9) provides,
"That
instead of the existing provisions of law for the
inspection of steamers and their equipment,
and instead of the
present system of pilotage of such vessels and the present
mode of employing engineers on board the same,"
certain regulations shall be observed, to-wit, the collectors,
supervising inspector, and district judge of the several designated
judicial districts, within which are important commercial ports,
are to appoint inspectors, who are empowered and required to
perform various duties, specified in the subdivisions following,
the first six of which provide for the examination and testing the
hull and the boilers and machinery, the certificate of approval,
the license to carry gunpowder &c., and the keeping of a record
of their certificates and licenses, and the
Page 69 U. S. 452
seventh subdivision provides, that the inspectors shall license
and
classify all engineers and
pilots of steamers
carrying passengers. San Francisco is included among the ports
where inspectors are to be.
The ninth enacts that
"When
any person claiming to be a skillful pilot for
any such vessel shall offer himself for a license, the said board
shall make diligent inquiry as to his character and merits, and if
satisfied that he possesses the requisite skill and is trustworthy
and faithful, they shall give him a certificate to that effect,
licensing him for one year, to be a pilot of
any such
vessel
within the limit prescribed in the
certificate."
Subdivision ten enacts that it shall be
unlawful for
any person to
employ or any person to
serve as
engineer or pilot on
any such vessel who is not licensed
by the inspectors. It nevertheless provides
"That if a vessel leaves her port with a complement of engineers
and pilots, and
on her voyage is deprived of their
services &c., the deficiency may be supplied without
penalty."
Section twenty speaks of the
"master, engineer, pilot, or
owner."
Section thirty-eight provides that
all engineers and pilots
of any such vessel shall, before entering upon their duties,
make solemn oath that they will faithfully perform all the duties
required of them by the act.
The act is full. Reports of pilots' names from port to port,
except as to San Francisco, and signals are provided for. Parts of
laws inconsistent with the act are repealed.
With this statute of the United States in force, the
State
of California, in 1861, [
Footnote 4] passed "An act to establish pilots and pilot
regulations for the port of San Francisco." This statute created a
Board of Pilot Commissioners and authorized the board to license
such number of pilots for the port as it might deem necessary, and
prescribed their qualifications, duties, and compensation. It made
it a misdemeanor, punishable by fine or imprisonment, for any
person not having a license from the board, to pilot any vessel in
or out of the port by the way (called the Heads) which leads to
Page 69 U. S. 453
and from the ocean. It enacted that
"All vessels, their tackle, apparel, and furniture, and the
masters and the owners thereof shall be jointly and severally
liable for pilotage fees, to be recovered in any court of competent
jurisdiction."
And it declared that when a vessel was spoken by a pilot and his
services declined, he should be entitled to
one-half pilotage
fees except when the vessel was in tow of a steam tug outward
bound, in which case no charge should be made unless a pilot should
be actually employed.
In this condition of statutes, national and state, one Joliffe,
a pilot commissioned
under the statute of California spoke
the steamship
Golden Gate, an American registered steamer
(owned by the Pacific Mail Steamship Company) and exclusively
employed in navigating the ocean and carrying passengers and
treasure between San Francisco and Panama, then being in the port
of San Francisco and about to proceed to sea, and offered his
services (he being the first pilot that did so) to pilot her out.
The vessel had upon her no pilot licensed under the act of
Congress. The master declined to receive his services, and the
pilot brought a suit in the Justices' Court of California, against
the Steamship Company for half-pilotage.
The claim was opposed on two grounds:
1. That the statute of California was in conflict with the
already mentioned Act of Congress of 30th of August, 1852.
2. That it was therefore, and for other reasons, repugnant to
the provisions of the federal Constitution giving to Congress the
power to regulate commerce.
The court below thought otherwise, and accordingly gave judgment
for $52 against the Company, a judgment subsequently affirmed in
the County Court of the City and County of San Francisco, "the
highest court" of law in which a judgment or review could be had in
the case in the State of California. The correctness of this
judgment was the point brought up in error from below. [
Footnote 5]
Page 69 U. S. 454
A new point, however, arose in this Court. The case had been
called at the last term, when, it being suggested that the
constitutionality of the statute of the State of California would
be involved in the consideration, a decision was suspended until
the State of California could be represented. The attorney general
of the state now accordingly appeared and filed a brief. After the
action of the court as just stated, the Legislature of California
passed a new statute on the subject of pilots and pilot regulations
for the port of San Francisco,
reenacting in substance the
provisions of the original act, but at the same time in terms
repealing that act.
The new act was more extensive, however, in its operation than
the old one, for it embraced within its provisions the ports of
Mare Island and Benicia as well as the port of San Francisco. It
created a Board of Pilot Examiners for the three ports in place of
the Board of Commissioners for the port of San Francisco, and it
prohibited the issue of licenses to anyone disloyal to the
government of the United States. The new point now accordingly made
in this Court -- one by the Attorney General of California -- was
that, by reason of the
repeal, the present action could
not be maintained, his position being that as the claim to
half-pilotage fees was given by the statute, the right to recover
it fell with its repeal; that this Court accordingly would be
obliged on that ground to dismiss the writ of error.
Page 69 U. S. 455
MR. JUSTICE FIELD delivered the opinion of the Court.
This case arises upon the Act of the State of California of the
20th of May, 1861, entitled "An act to establish pilots and pilot
regulations for the port of San Francisco." The act provides for
the creation of a Board of Pilot Commissioners and authorizes the
board to license such number of pilots for the port as it may deem
necessary, and prescribes their qualifications, duties, and
compensation. It makes it a misdemeanor, punishable by fine or
imprisonment, for any person not having a license from the board to
pilot any ship or vessel in or out of the port by way of the
"Heads" -- that is, by the way which leads directly to and from the
ocean. It enacts that
"All vessels, their tackle, apparel, and furniture, and the
masters and the owners thereof shall be jointly and severally
liable for pilotage fees, to be recovered in any court of competent
jurisdiction."
And it declares that when a vessel is spoken by a pilot and his
services are declined, he shall be entitled to one-half pilotage
fees except when the vessel is in tow of a steam tug outward bound,
in which case no charge shall be made unless a pilot be actually
employed.
On the 1st of November, 1861, the plaintiff in the court below,
the defendant in error in this Court, was a pilot for the port of
San Francisco, having been regularly appointed and licensed by the
board created under the act of the state. At that time, the
steamship
Golden Gate was lying in the port and about to
proceed to Panama, carrying passengers and treasure. This vessel
was then, and ever since 1852 had been an American ocean steamer,
registered at the custom house in the port of New York and
exclusively employed in navigating the ocean, and carrying
passengers and treasure between San Francisco and Panama, and was
owned by the Pacific Mail Steamship Company, a corporation created
under the laws of the State of New York. To the master of this
steamship the plaintiff offered his services
Page 69 U. S. 456
to pilot the vessel to sea; but his services were refused, and
to recover the half-pilotage fees allowed in such cases by the act
of 1861 the present action was brought.
At the last term of this Court it was suggested that the
constitutionality of the act in question was involved in the
decision of the case, and the Court thereupon reserved its
consideration until the State of California could be represented.
The attorney general of the state has accordingly appeared and
filed a brief in the case. Since the action of the Court in this
respect, the Legislature of California has passed a new statute on
the subject of pilots and pilot regulations for the port of San
Francisco, reenacting substantially the provisions of the original
act but at the same time in terms repealing that act. And the first
point made by the attorney general is that, by reason of the
repeal, the present action cannot be maintained. His position is
that as the claim to half-pilotage fees was given by the statute,
the right to recover the same fell with the repeal of the statute,
and that this Court must dismiss the writ of error on that
ground.
The claim to half-pilotage fees, it is true, was given by the
statute, but only in consideration of services tendered. The object
of the regulations established by the statute was to create a body
of hardy and skillful seamen, thoroughly acquainted with the
harbor, to pilot vessels seeking to enter or depart from the port,
and thus give security to life and property exposed to the dangers
of a difficult navigation. This object would be in a great degree
defeated if the selection of a pilot were left to the option of the
master of the vessel or the exertions of a pilot to reach the
vessel in order to tender his services were without any
remuneration. The experience of all commercial states has shown the
necessity, in order to create and maintain an efficient class of
pilots, of providing compensation not only when the services
tendered are accepted by the master of the vessel, but also when
they are declined. If the services are accepted, a contract is
created between the master or owner of the vessel
Page 69 U. S. 457
and the pilot, the terms of which, it is true, are fixed by the
statute, but the transaction is not less a contract on that
account. If the services tendered are declined, the half fees
allowed are by way of compensation for the exertions and labor made
by the pilot, and the expenses and risks incurred by him in placing
himself in a position to render the services which, in the majority
of cases, would be required. The transaction in this latter case
between the pilot and the master or owners, cannot be strictly
termed a contract, but it is a transaction to which the law
attaches similar consequences -- it is a
quasi-contract.
The absence of assent on the part of the master or owner of the
vessel does not change the case. In that large class of
transactions designated in the law as implied contracts, the assent
or convention which is an essential ingredient of an actual
contract is often wanting. Thus, if a party obtain the money of
another by mistake, it is his duty to refund it, not from any
agreement on his part, but from the general obligation to do
justice which rests upon all persons. In such case, the party makes
no promise on the subject, but the law, "consulting the interests
of morality," implies one, and the liability thus arising is said
to be a liability upon an implied contract. [
Footnote 6] The claim for half-pilotage fees
stands upon substantially similar grounds.
"There are many cases," says Mr. Justice Curtis speaking for
this Court,
"in which an offer to perform, accompanied by present ability to
perform, is deemed by law equivalent to performance. The laws of
commercial states and countries have made an offer of pilotage
services one of those cases. [
Footnote 7]"
The claim of the plaintiff below for half-pilotage fees resting
upon a transaction regarded by the law as a
quasi-contract, there is no just ground for the position
that it fell with the repeal of the statute under which the
transaction was had. When a right has arisen upon a contract or a
transaction in the nature of a contract authorized by statute,
Page 69 U. S. 458
and has been so far perfected that nothing remains to be done by
the party asserting it, the repeal of the statute does not affect
it or an action for its enforcement. It has become a vested right
which stands independent of the statute. And such is the position
of the claim of the plaintiff below in the present action: the
pilotage services had been tendered by him, his claim to the
compensation prescribed by the statute was then perfect, and the
liability of the master or owner of the vessel had become
fixed.
And it is clear that the legislature did not intend by the
repealing clause in the act of 1864 to impair the right to fees
which had arisen under the original act of 1861. The new act
reenacts substantially all the provisions of the original act
relating to pilots and pilot regulations for the harbor of San
Francisco. It subjects the pilots to similar examinations, it
requires like qualifications, it prescribes nearly the same fees
for similar services, and it allows half-pilotage fees under the
same circumstances as provided in the original act. It appears to
have been passed for the purpose of embracing within its provisions
the ports of Mare Island and Benicia as well as the port of San
Francisco, of creating a Board of Pilot Examiners for the three
ports in place of the Board of Pilot Commissioners for the port of
San Francisco alone, and of prohibiting the issue of licenses to
any persons who were disloyal to the government of the United
States. The new act took effect simultaneously with the repeal of
the first act; its provisions may therefore more properly be said
to be substituted in the place of, and to continue in force with
modifications, the provisions of the original act, rather than to
have abrogated and annulled them. The observations of Mr. Chief
Justice Shaw in
Wright v. Oakley [
Footnote 8] upon the construction of the Revised
Statutes of Massachusetts, which in terms repealed the previous
legislation of the state, may with propriety be applied to the case
at bar.
"In construing the revised statutes and the connected
Page 69 U. S. 459
acts of amendment and repeal, it is necessary to observe great
caution to avoid giving an effect to these acts which was never
contemplated by the legislature. In terms, the whole body of the
statute law was repealed; but these repeals went into operation
simultaneously with the revised statutes, which were substituted
for them, and were intended to replace them, with such
modifications as were intended to be made by that revision. There
was no moment in which the repealing act stood in force without
being replaced by the corresponding provisions of the revised
statutes. In practical operation and effect, therefore, they are
rather to be considered as a continuance and modification of old
laws than as an abrogation of those old and the reenactment of new
ones."
On the trial in the court below, two grounds were urged in
defense of the action: 1st, the unconstitutionality of the act of
the state of May 20, 1861, and 2d, the repugnancy of its provisions
to the act of Congress of August 30, 1852. Similar grounds were
urged in this Court for the reversal of the judgment.
The unconstitutionality of the act was asserted from its alleged
conflict with the 3d clause of the 8th section of the 1st article,
which declares that "the Congress shall have power to regulate
commerce with foreign nations, and among the several states, and
with the Indian tribes." The power conferred by this clause is
without limitation; it extends to all the subjects of commerce, and
to all persons engaged in it; it embraces traffic, navigation, and
intercourse, and necessarily, therefore, the whole subject of
pilots and pilotage. But the clause does not in terms exclude the
exercise of any authority by the states to regulate pilots. On the
contrary, 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 regulations and
Page 69 U. S. 460
such as might be provided by subsequent legislation of the
states. The act reads as follows:
"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 states respectively wherein such pilots
may be,
or with such laws as the states may respectively
hereafter enact for the purpose, until further legislative
provision shall be made by Congress."
In 1837, another act was passed making it
"lawful for the master or commander of any vessel coming in or
going out of any port situate upon the waters which are the
boundary between two states to employ any pilot duly licensed or
authorized by the laws of either of the states."
No other legislation has been had by Congress impairing the
right of the states to adopt such system for the regulation of port
pilots as they might deem best, unless it be found in the act of
August 30, 1852.
It is insisted by the plaintiff in error that this act of 1852
is in conflict with the provisions of the act of the state of May,
1861; that in fact it has superseded all state legislation
concerning port pilotage, so far as steamers carrying passengers
are concerned, and to that extent has modified or repealed the act
of 1789.
From a careful examination of the act of 1852 we have arrived at
a different conclusion. 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 local port regulations
established by the act of California of 1861. The act of 1852 was
intended, as its title indicates, to provide greater security than
then existed for the lives of passengers on board of vessels
propelled in whole or part by steam. Previous to its passage,
frequent accidents, occasioning in some instances great loss of
life, occurred to steamers arising from the imperfect construction
of the vessel, defective machinery, inadequate protection against
fires, the carrying of dangerous articles, or the want of pumps,
life boats, and other means of escape in case of danger. To guard
against accidents from these and like sources was the general
purpose of the act of 1852. It therefore contains provisions
Page 69 U. S. 461
relating to fires, pumps, boats, life preservers, buckets, the
means of escape from the lower to the upper deck, the carrying of
gunpowder, camphene, and other dangerous articles, and their
stowage. It also provides for the appointment of two inspectors,
one of whom is to possess a practical knowledge of shipbuilding and
the uses of steam in navigation and the other is to possess
knowledge of and experience in the duties of an engineer of steam
vessels, and of the construction and use of boilers and machinery
and appurtenances connected with them, and the two are required to
make an examination of the hulls of the vessels, to inspect and
test the boilers and machinery, and to require licenses to be
obtained before dangerous articles can be taken aboard.
The act contains few provisions relating to pilots -- indeed, it
was not directed to the remedy of any evils of the local pilot
system. There were no complaints against the port pilots; on the
contrary, they were the subjects of just praise for their skill,
energy, and efficiency. The clauses respecting pilots in the act
relate, in our judgment, to pilots having charge of steamers on the
voyage, and not to port pilots, and the provision that no person
shall be employed or serve as a pilot who is not licensed by the
inspectors has reference to employment and service on the voyage
generally, and not to employment and service in connection with
ports and harbors.
Thus, the ninth section speaks of a vessel
leaving her
port with a complement of engineers and pilots, and provides
for temporarily supplying the deficiency in case she is deprived of
their services
on her voyage. [
Footnote 9] And again the same section speaks of pilots as
belonging to the vessels on which they are employed, and
requires them to assist in the inspection of the vessels --
language which is entirely inappropriate to local or port pilots,
whose employment lasts but a few hours, and who have no connection
with any vessel except to bring into or take it out of port.
[
Footnote 10]
The term "pilots" is equally applicable to two classes of
persons --
Page 69 U. S. 462
to those whose employment is to guide vessels in and out of
ports and to those who are entrusted with the management of the
helm and the direction of the vessel on her voyage. [
Footnote 11] To the first class, for the
proper performance of their duties, a thorough knowledge of the
port in which they are employed is essential, with its channel,
currents, and tides and its bars, shoals, and rocks, and the
various fluctuations and changes to which it is subject. To the
second class knowledge of entirely a different character is
necessary. Yet the act in question does not require the inspectors,
who are to license pilots under its provisions, to possess any
knowledge of the harbors for which, under the theory of the
plaintiff in error, pilots are to be licensed, or to exact any such
knowledge from the pilots themselves. They are to issue their
license to a pilot when satisfied, from "inquiry as to his
character and merits," that he "possesses the requisite skill, and
is trustworthy and faithful." The qualifications thus required may
be sufficient for the pilot of the steamer on her voyage at sea,
but are entirely insufficient for the intricacies of harbor
navigation.
On the argument at the bar, much stress was laid by counsel for
the plaintiff in error upon the language of the first clause of the
ninth section, as indicating an intention to supersede state
legislation on the subject of port pilotage. That section
declares
"that instead of the
existing provisions of law for the
inspection of steamers and their equipment, and instead of the
present system of pilotage of such vessels and the present
mode of employing engineers on board the same,"
certain regulations should be observed as prescribed by the act.
But in our judgment the section excludes the inference drawn by
counsel. No explanation is given as to the meaning of the term
"system" as here used, but it is clear that it does not refer to
any system established by law. The section supersedes in express
terms
"existing provisions of law" for the inspection of
steamers and their equipment, but it uses different language when
speaking of pilotage. If
Page 69 U. S. 463
the section had also been directed against the law recognizing
state regulations in respect to port pilotage, the intention of
Congress in that respect would undoubtedly have been expressed with
equal clearness, and not left to be implied from the use of an
indefinite and ambiguous term.
The act does not purport to establish regulations for port
pilotage, and we cannot suppose that in a measure intended to give
greater security to life, Congress would have swept away all the
safeguards in this respect provided by state legislation without
substituting anything in their place. Under the act, the ports may
be left entirely without resident or local pilots, for it does not
require the appointment of such pilots, though the necessity for
them must have been obvious. Having omitted this important
requirement, the act omits, of course, all provisions as to the
number of pilots, their duties, responsibilities, and compensation.
These are matters of the greatest consequence, are contained in all
state regulations, and without them no effective system can ever be
established.
Judgment affirmed.
[
Footnote 1]
Act of 7 August, 1789, 1 Statutes 54.
[
Footnote 2]
Act of 2 March, 1837, 5 Stat. at Large 153.
[
Footnote 3]
10 Stat. at Large 61.
[
Footnote 4]
May 20.
[
Footnote 5]
The case came here of course under § 25 of the Judiciary Act of
1789.
[
Footnote 6]
Argenti v. San Francisco, 16 Cal. 282; Maine on Ancient
Law 344.
[
Footnote 7]
Cooley v. Board of Wardens
of Port of Philadelphia, 12 How. 312.
[
Footnote 8]
5 Metcalf 406.
[
Footnote 9]
Subdivision 10.
[
Footnote 10]
Subdivision 15.
[
Footnote 11]
Abbott on Shipping 195; Bouvier's Law Dictionary, term
"Pilots."
MR. JUSTICE MILLER (with whom concurred WAYNE and CLIFFORD, JJ)
dissenting:
In this case, seven members of the Court heard the argument and
participated in its decision. Of this number, only four concur in
the judgment and opinion of the Court. These facts, as well as the
importance of the main question whether the act of the California
Legislature concerning pilots is in conflict with the act of
Congress of 1852 on the same subject, and therefore void, justify a
statement of the views of the minority.
There was a preliminary point, however, raised by the Attorney
General of California, much pressed and well argued on both sides,
on which I had hoped the case would have been decided without
reaching the question just stated -- a point I think well taken and
fully sustained by the authorities. The proposition is that the
statute of California
Page 69 U. S. 464
under which plaintiff below recovered his judgment has been
repealed since the writ of error was sued to this Court, and that,
the action being wholly dependent on the statute, the repeal takes
away the right, and the judgment which he has obtained must be
reversed and the case dismissed.
That the 26th section of the Act of April 4, 1864, [
Footnote 2/1] does, in express terms,
repeal the act under which plaintiff's proceeding was instituted is
not denied. It is equally clear that there is no clause in the act
of 1864 saving rights which had accrued under the act repealed. I
take the law to be well settled that a right of action not growing
out of contract, but which is solely dependent upon a statute,
ceases and determines with the statute on which it depends.
One of the earliest cases on that subject is
Miller's
Case. [
Footnote 2/2] That was
a case in which Miller had been made, under a compulsory clause in
a statute of insolvency, to give in a schedule of his property and
deliver it up to his creditors. The statute then authorized a
discharge from all his debts. He accordingly moved for such
discharge. But the justices of the county court for some reason
delayed this from time to time until the compulsory clause of the
act was repealed, and then refused it altogether. On an application
for mandamus in the King's Bench, Lord Mansfield held that the
repeal of the law carried with it the right to a discharge, and
overruled the application. In
Surtees v. Ellison,
[
Footnote 2/3] where the same
question was raised on an act repealing the bankrupt law then in
existence, Lord Tenterden said that notwithstanding the disastrous
effect of the repeal on previous cases of bankruptcy, and on
proceedings then in progress under the act, they were not at
liberty to break in upon the general rule. In the subsequent case
of
Key v. Goodwin, [
Footnote
2/4] Tindal, C.J., says:
"I take the effect of the repealing statute to be to obliterate
the repealed statute as completely from the records of Parliament
as if it had never passed, and that it must be considered as a law
that never existed, except for
Page 69 U. S. 465
the purpose of those actions or suits which were commenced,
prosecuted, and concluded while it was an existing law."
This principle is also sustained by numerous American cases,
cited in the note below. [
Footnote
2/5]
It is maintained, however, that in this Court, on a writ of
error, we can only determine if there was error in the record as
the law stood at the time the decision of the court was made which
is brought here for review.
In the cases of
Hartung v. People and
Sanches v.
People, [
Footnote 2/6] which
are very recent cases and were much considered, the Court of
Appeals of New York unanimously held that while on a writ of error,
the case must be decided on the record as made in the court below,
the question of error or no error must be determined by the law as
it stands at the time the case is heard in the Court of Appeal.
Such also is the decision in the Pennsylvania case of
Commonwealth v. Duane, [
Footnote 2/7] which was an indictment for libel in which
the statute on which it was founded was repealed after the
defendant had been found guilty in the court below, and the
appellate court held that for that reason the case must be reversed
and the libel dismissed.
Lewis v. Foster, [
Footnote 2/8] in the Supreme Court of New
Hampshire, decides the same thing on a case of review under their
statute. The cases of
Yeaton v. United States [
Footnote 2/9]
and Schooner Rachel
[
Footnote 2/10] in this Court
decide that on appeal from an admiralty decree, that decree will be
reversed because the law under which the vessel became forfeited
had expired by its own limitation pending the appeal, although the
vessel had been sold and the money paid into the Treasury of the
United States before the statute expired.
Unquestionably the appellate tribunal is bound to take
Page 69 U. S. 466
judicial notice of the repealing statute. If so, I fail to see
how it can affirm a judgment which, by the law in existence at the
time of such affirmance, has become erroneous, though not so when
rendered. And so are the authorities without exception, as far as I
am aware.
But it is said that plaintiff, by his judgment in the court
below, acquired a vested right to the sum of money for which he
recovered that judgment which could not be taken away by a repeal
of the act.
I deny that a party suing another for a statute penalty can
acquire a vested right in the sum which the law allows in such
cases until he has actually received the money into his own
possession. Such is evidently the principle deducible from the
cases of
Yeaton v. United States and the
Schooner
Rachel, above referred to. Such is also the express decision
of this Court in the case of
Norris v. Crocker, [
Footnote 2/11] except that in that case,
the repeal took place while the suit was pending and before
judgment. This Court held, in the language of Judge Catron, that
"as the plaintiff had no vested right in the penalty, the
legislature might discharge the defendant by repealing the
law."
A judgment is only one of the steps in the progress of a suit by
which the plaintiff, if successful, obtains what he is seeking. It
only
declares the right of the party, but does not
create it. It may be set aside or reversed, and gives the
plaintiff no right superior to that which he had before he obtained
it.
If the claim on which he proceeded was a vested right, it
remains so after judgment -- not because of the judgment, but
because it existed before, and the judgment only ascertains that
fact and enables him to enforce it. If the judgment was founded on
a statute right, it still only declares that on the facts as the
law then stood, the plaintiff was entitled to recover; but that
right is no more sacred or no more protected from legislative
action than before. If there is such a thing as a vested right in a
statute penalty, it must become
Page 69 U. S. 467
vested either when the facts occur which give the right, or when
the plaintiff makes his claim to the benefit of the statute by
commencing an action for the sum which the law allows. That no such
right accrues from either of those circumstances the cases which I
have last cited seem conclusive.
But it is said that although the Act of April 4, 1864, repeals
the prior act, it reenacted the same provisions on the subject of
pilots, and that this operates as a continuance of the former law.
It may be answered that if such were the intention of the framers
of the new law, the repealing clause is not only useless, but, if
effectual, it must operate to defeat that intention. In the next
place, the appropriate and usual mode of expressing such an
intention is by a saving clause, and lastly, by a well settled rule
of construction, the new statute can have no retrospective
operation unless by its own express language or by necessary
implication -- neither of which exist in this case. The case of the
Board of Trustees v. City of Chicago [
Footnote 2/12] was one where proceedings to
condemn property for public use were instituted under the city
charter. While they were pending, the legislature passed an act
which amounted to a new charter, but which contained no repealing
clause. The supreme court held that the new charter by implication
repealed the old one, and although it granted the right to condemn
as the other one had done, yet the right to proceed under the old
charter was gone, and the party must begin and proceed under the
new one.
No authority, I believe, can be found to controvert this
principle. The remark of C.J. Shaw concerning the necessity of so
construing the Revised Statutes of Massachusetts, when the entire
laws of the state had been revised and reenacted, as to prevent a
total lapse of all rights existing under the statutes thus revised
can have no application to the case of a single statute expressly
repealed by a clause in a new law on the same subject.
It is contended by counsel in the argument that the judgment
Page 69 U. S. 468
in this case is based on contract, and that no repeal of the
statute by state law can impair its obligation. This idea seems to
me without foundation. The statute enacts, for the protection of
the pilots of San Francisco, that a vessel approaching or leaving
the harbor shall employ the first pilot, licensed under that law,
who offers his services, and if the officers of the boat refuse, it
renders the owners liable in an action by that pilot to half the
usual pilot fees. If the officers of the vessel accept the pilot
and his services, unquestionably the law implies a contract to pay
either what they may reasonably be worth or the sum fixed by
statute. But if they refuse to accept him or his services, they
violate the law, for which violation it imposes the penalty of half
the usual pilot fees. Here is no element of contract; no consent of
minds; no services rendered for which the law implies an obligation
to pay. It is purely a case of a violation of the law in refusing
to perform what it enjoins, and the enforcement of the penalty for
the benefit of the party injured. It is just as easy to see a
contract in a hundred other cases where the law imposes a penalty
for its violation and gives an action of debt for the recovery of
that penalty.
It is my opinion, then, that we should have reversed the
judgment and ordered the dismissal of the case on the grounds just
discussed.
As regards the merits of the case, it seems to me still clearer
that the judgment should have been reversed. The case of
Cooley
v. Board of Wardens [
Footnote
2/13] raises the question of the relation of pilots and
pilotage to commerce, and holds that the power of regulating pilots
by law and framing a system for their government and control is
clearly conferred upon Congress by the Constitution. It also holds
that in the absence of the exercise of that power by Congress, the
states may provide such rules and regulations on the subject as may
be necessary and proper; but the implication is forcible that if
any such regulation is in conflict with any act of Congress,
Page 69 U. S. 469
it is void, and indeed that if Congress has legislated on the
same subject with a view to provide a system of rules, that there
is no place left for state legislation. The proposition is too
plain for argument that if Congress has power to pass such laws and
has passed them, any act of a state legislature in conflict with
them must necessarily be void. I do not understand the majority of
the Court to controvert this principle or even to deny that if
Congress has legislated on this precise subject and provided rules
for this very class of cases, that then the act of the Legislature
of California is to that extent void. But the precise point of
difference between us is that while I contend that an Act of
Congress of August 30, 1852, covers the subject matter of the
statute of California under which defendant in error claims, they
deny that it does cover the case or was intended to apply to pilots
of harbors and ports of the several states.
That act is in terms confined to vessels propelled in whole or
in part by steam, and its object, as stated in the title, is the
better security of the lives of passengers on board such vessels.
The ninth section of the act, which is a very long section,
composed of fifteen subsections, opens by declaring
"That instead of the existing provisions of law for the
inspection of steamers and their equipments,
and instead of the
present system of pilotage of such vessels and the present
mode of employing engineers on board the same, the following
regulations shall be observed, to-wit. . . ."
Here, then, is a declaration that it is the purpose of the act
to abolish the old systems and establish new ones on three distinct
subjects: 1st, as to the inspection of steamers and their
equipments; 2d, as to a system of pilotage; and 3d, as to the mode
of employing engineers. The regulations adopted by this act are
declared to be "instead of the [then] present system of pilotage."
What system of pilotage was then in existence? Certainly none had
been established by Congress. The act of 1838, to which this was an
amendment, does not say a word about pilots or engineers. The Acts
of August 7, 1789, and March 2, 1837, had provided that state
regulations should prevail until further action by Congress.
Page 69 U. S. 470
The system of pilotage, then, which was in existence when the
act of 1852 was passed was the state regulations of each port,
almost all of which are substantially the same with the act of the
California Legislature of 1861. And it was this system which was to
be superseded, and the one provided in the act of Congress
introduced in its stead. This idea derives support from the
significant fact that the decision of this Court, holding that the
state regulation were in force because no system had been adopted
by Congress, was made in the winter of 1851-1852, and this act,
which provides such a system, was passed by Congress, August 30,
1852. Unquestionably, Congress intended to supply that very system
which the supreme court had intimated was needed and was in the
power of Congress to provide.
Let us examine, now, some of the provisions of this act which
concern pilots.
Section nine creates a board of inspectors in each of
twenty-three different ports of the Union, including San Francisco.
Subdivision seven of that section says that these inspectors shall
license and classify all engineers and pilots of steamers carrying
passengers. Subdivision nine says:
"Whenever any person, claiming to be a skillful pilot for any
such vessel, shall offer himself for a license, the board shall
make diligent inquiry as to his character and merits, and if
satisfied that he possesses the requisite skill and is trustworthy
and faithful, they shall give him a certificate to that effect,
licensing him for one year to be a pilot of any such vessel
within the limit prescribed in such certificate."
It also provides for revocation of the license for proper
cause.
Subsection ten says:
"It shall be unlawful for any person to employ or any person to
serve as engineer or pilot on any such vessel who is not licensed
by the inspectors, and anyone so offending shall forfeit one
hundred dollars for such offense."
Subsections thirteen and fifteen of section 9, and sections 20
and 38, all provide that these pilots shall be under the control of
the boards of inspectors, shall take an oath to discharge their
duties faithfully, and shall be liable to removal
Page 69 U. S. 471
and other penalties for unfaithful or unskillful conduct.
Section 23 requires the collectors of each port to report to the
collectors of every other port the pilots licensed at their
respective ports. From this provision the port of San Francisco is
excepted. The obvious reason is that being the only port on the
Pacific coast where a board of inspectors is established by the
law, there is no reason to suppose that pilots will be licensed at
other ports for that coast, or at San Francisco for any other than
the Pacific coast and ports.
In these enactments and in the regulations which are authorized
to be made of a set of signals in passing each other, we see a
system of pilotage as complete, or more so, than any which had
previously existed, and, in my judgment, one more judicious, and
better calculated to secure safety of life and property than the
one provided by the California statute. If, then, the principle be
a sound one that when Congress has provided such a system, those
existing under state laws must give way, and if, as it appears
manifestly from this act, the system thus provided was intended to
be instead of and in exclusion of the state systems, how can the
act of the California Legislature stand?
It is said that the act of Congress was only intended to provide
pilots for a voyage, and is not applicable to the local pilots of
the ports. I am not able to perceive anything in the relation of
these port pilots to the federal government and its right to
regulate commerce, or in the nature of the special service which
they are expected to perform, which can furnish any ground for this
distinction. All the other regulations of commerce extend to the
ports, and they are emphatically the theater where commercial
regulations are most needed, and where Congress has oftenest
exercised its power to regulate commerce. As to the services
usually rendered by these pilots, if they are more difficult and
require a higher degree of skill than others, there would seem to
be the greater necessity why they should be thoroughly examined and
licensed by the proper authority, and also why they should be under
the control of proper officers and subjected
Page 69 U. S. 472
to laws and rules calculated to compel a strict performance of
their duties. All these are well provided for in the act of
Congress.
It seems to be supposed, however, that the pilots licensed under
the act of Congress must necessarily be for long voyages, and that
such licenses cannot issue limited to the bays and harbors of the
various ports. This is a great mistake. The board of inspectors for
each port should be as competent to determine the qualifications of
these local pilots as any such examiners appointed by the state.
That portion of subsection nine of section 9 which I have quoted in
italics says that they are to license a person "to be a pilot on
any such vessel within the limits prescribed in his certificate."
If, then, the pilot licensed is particularly skilled as a port
pilot, and competent for no more, his license will restrict him
accordingly. If he is competent for the voyage and not for the
harbor, his license will exclude him from piloting in the harbor.
This idea is in direct conflict with the language of the act of
Congress, which declares that the boards of inspectors "shall
license and classify all engineers and pilots of steamers carrying
passengers." The opinion assumes, in the face of this language,
that there may be a very large class of pilots allowed to exercise
their profession without such a license.
Again, all these regulations apply in the same terms of license
and prohibition to engineers and pilots. But can it be pretended
that a vessel may go into a port and out of it without a licensed
engineer, and yet be guilty of no violation of the law? If the
statute is only applicable to pilots on a voyage, it must also
apply only to engineers on a voyage.
But it is argued that the whole system of pilotage relates to
the voyage, and does not include the ports, because a proviso to
subdivision ten of section nine says that if the owners of the boat
shall, without default of theirs, be deprived of the services of a
licensed pilot or engineer on the voyage, they shall be relieved of
the penalty which the law imposes for navigating their vessel
without one until such time as they can procure a licensed pilot or
engineer. From
Page 69 U. S. 473
this proviso I draw an inference precisely the reverse. For this
statute evidently means that if this loss of the services of a
licensed pilot or engineer takes place before the port is left, it
is no protection against the penalty, because it may be supplied.
And so if it occurs after the port is left, and is not supplied by
a licensed pilot as soon as you approach the port where one can be
obtained, the protection ceases.
It may be urged that the system provided by Congress is
incomplete, because there is no provision for compensation of
pilots and none for compelling vessels to accept, in their due
order or rotation, those who may offer. Congress may well have
thought that these matters might be prudently left to the laws of
supply and demand and to the ability of the parties concerned to
take care of their own interests.
If this principle prevails, that the ports are exempt from the
law of Congress as to pilots, I expect to see every town on the
lakes, the Mississippi and Ohio Rivers, as well as all their
tributaries, passing its ordinances that when steamboats come
within a mile of their landing, they must stop and take on board a
local pilot or pay him compensation for refusal. If the states
where seaports exist can make laws thus to burden commerce, I see
no reason why the states which have towns on navigable rivers
should not pass similar laws. I may add here that if we permit the
states to interject their legislation at every point, however
minute or unimportant, which they may fancy that Congress has left
unoccupied, then in all that class of cases in which it has been
held that the states may legislate until Congress acts on the
subject, we shall have this piebald, conflicting, and incongruous
system of laws, with a persistent struggle on the part of the
states to control the legislation of Congress.
But not only is the act of the California Legislature void
because Congress has provided a system of pilotage which is in its
nature exclusive, but it is also void because its provisions are in
direct conflict with the act of Congress. The statute of California
provides that if one of the pilots which it recognizes shall offer
his services to a vessel and is refused, the owner of the vessel
shall pay the penalty, and it does not
Page 69 U. S. 474
require as condition for claiming this penalty that such pilot
shall have the license required by act of Congress. The act of
Congress provides that if any person shall be employed as a pilot
on such vessel without such license as it prescribes, the owner
shall forfeit the sum of one hundred dollars. Here is a manifest
conflict. It is made a part of this case, as found by the court
below, that the plaintiff did not have any such license as the act
of Congress required. Defendant, notwithstanding this, has been
compelled by the state court, under the state law, to pay fifty-two
dollars for refusing to take this pilot. If he had accepted him, he
would have forfeited to the United States the sum of one hundred
dollars for violating the act of Congress. The conflict of the two
statutes is too obvious for comment. I think the act of Congress
ought to prevail.
[
Footnote 2/1]
Statutes of California, 1863-1864, page 392.
[
Footnote 2/2]
1 William Blackstone, 451;
s.c., more at large, in 3
Burrow 1456.
[
Footnote 2/3]
9 Barnwall & Cresswell 750.
[
Footnote 2/4]
4 Moore & Payne 341.
[
Footnote 2/5]
Butler v. Palmer, 1 Hill N.Y. 324;
Hartung v.
People, 22 N.Y. 95;
Sanches v. People, ibid., 155;
Commonwealth v. Duane, 1 Binney 601;
Board of Trustees
v. City of Chicago, 14 Ill. 334;
Yeaton v.
United States, 5 Cranch 281;
Schooner
Rachel, 6 Cranch 329.
[
Footnote 2/6]
Cited in note,
supra.
[
Footnote 2/7]
1 Binney 601, cited
supra in note.
[
Footnote 2/8]
1 N.H. 61
[
Footnote 2/9]
9 U. S. 5 Cranch
281.
[
Footnote 2/10]
10 U. S. 6 Cranch
329.
[
Footnote 2/11]
54 U. S. 13 How.
429.
[
Footnote 2/12]
14 Ill. 334.
[
Footnote 2/13]
53 U. S. 12 How.
299.