State laws regulating pilotage, although regulations of
commerce, fall
within that class of powers which may be exercised by the states
until Congress has seen fit to act upon the subject. Whether
illegal provisions in a pilotage statute granting discriminatory
exemptions to vessels of that state can be eliminated without
destroying the other provisions of the statute is a state and not a
federal question.
Page 195 U. S. 333
For the purpose of determining the validity of state statutes in
their federal aspect, this Court accepts the interpretation given
to the statute by the state court, and tests their validity
accordingly.
The effect of Rev.Stat. §§ 4237, 4444, is not to interfere with
or abrogate state laws regulating pilotage, but to withdraw
coastwise steam vessels from the pilotage charges imposed by such
state laws.
A state pilotage law subjecting all vessels, domestic and
foreign, engaged in foreign trade to pilotage regulations, but
which exempts pursuant to law coastwise steam vessels of the United
States, is not in conflict with provisions in the treaty between
the United States and Great Britain to the effect that British
vessels shall not be subject to any higher or other charges than
vessels of the United States.
Pilotage regulations being under the control of the state, a
state pilotage law, otherwise unobjectionable, is not violative of
the Fourteenth Amendment because it prevents an unlicensed person
from rendering services as a pilot or because it creates a monopoly
in favor of the pilots who are licensed under the act.
Page 195 U. S. 338
MR. JUSTICE WHITE delivered the opinion of the Court.
The defendants in error, who were plaintiffs in the court of
original jurisdiction, as the duly licensed state pilots of the
port of Galveston, Texas, sued in a Texas district court to recover
the damages averred to have been caused them by the alleged illegal
action of the defendant in offering, when he was not authorized by
law to do so, his services "to pilot sail vessels or registered
steamers, bound to or from foreign ports, in or out of the port of
Galveston." An injunction was prayed restraining the defendant from
acting
"in any manner as branch or deputy pilot, or pilot under the
laws of the State
Page 195 U. S. 339
of Texas, and of said port, or under the laws of the United
States, with respect to the kind of vessels specified."
The defendant filed a general demurrer, and, reserving the
demurrer, answered, raising special defenses based on averments
that the pilotage laws of Texas were in conflict with the
Constitution and laws of the United States. The court overruled the
demurrer of the defendant, and, on the ground that no defense was
stated, sustained a demurrer to the answer. A judgment was entered
in favor of the plaintiffs, awarding an injunction as prayed. 68
S.W. 320. The case was taken to the Court of Civil Appeals for the
First Supreme Judicial District, was thence transferred to the
Court of Civil Appeals for the Fourth Supreme Judicial District,
where the decree below was affirmed, with a slight modification not
necessary to be stated. The supreme court of the state having
declined to review the action of the court of civil appeals, this
writ of error was prosecuted to the latter court.
The defenses raised by the answer, which the court below held to
be no defense to the action, and which are in effect reiterated in
the assignments of error, require us to determine first whether the
State of Texas had power to enact laws regulating pilotage in the
ports of that state; and second, if such power existed, whether the
provisions of the state statutes on that subject are void because
they conflict with acts of Congress on the subject of pilotage, and
because the statutes of Texas as to pilotage contain provisions of
such a character as to cause them to be repugnant to the Fourteenth
Amendment or to the laws of Congress forbidding combinations in
restraint of trade or commerce. Briefly, the pilotage laws of the
State of Texas provide as follows: the governor is authorized to
appoint for each port whose population and circumstances shall
warrant it, "a board of five persons of respectable standing, to be
known as commissioners of pilotage." Upon this board power is
conferred to fix, within the maximum limits provided by law, the
charges to be made by branch and deputy pilots for their services,
to regulate the manner
Page 195 U. S. 340
in which such pilots shall perform their duty, to examine them
as to their qualifications, to hear complaints made against them,
and, if occasion requires, to suspend them until the governor shall
act in the matter. Upon the governor is conferred the authority to
appoint such number of branch pilots as may from time to time be
necessary, each of whom shall hold office for two years, subject to
removal by the governor at pleasure, and anyone who is not a duly
commissioned branch pilot or deputy thereof is prohibited from
engaging in the business of pilotage so far as the statutes provide
for pilotage services by the duly appointed pilots. Revised
Statutes of the State of Texas for 1895, Articles 3790, 3791, 3792,
3793, 3794, 3796, and 3803. The maximum rates of pilotage are
provided for as follows:
"The rate of pilotage on any class of vessels shall not, in any
port of this state, exceed four dollars for each foot of water
which the vessel at the time of piloting draws, and whenever a
vessel, except of the classes below excepted, shall decline the
services of a pilot offered outside the bar, and shall enter the
port without the aid of one, she shall be liable to the first pilot
whose services she so declined, for the payment of half pilotage,
and any vessel which, after being brought in by a pilot, shall go
out without employing one shall be liable to the payment of half
pilotage to the pilot who brought her in, or, if she has come in
without the aid of a pilot, though offered outside, she shall, on
so going out, be liable for the payment of half pilotage to the
pilot who had first offered his services before she came in; but if
she has come in without the aid of a pilot, or the offer of one
outside, she shall not, in case of going out without a pilot, be
liable to half pilotage. . . ."
Article 3800.
The vessels excepted from the operation of the foregoing
provisions are thus stated in Article 3801:
"The following classes of vessels shall be free from any charge
for pilotage, unless for actual service, to-wit: all vessels of
twenty tons and under, all vessels of whatsoever burthen
Page 195 U. S. 341
owned in the State of Texas, and registered and licensed in the
District of Texas when arriving from or departing to any port of
the State of Texas; all vessels of seventy-five tons and under
owned and licensed for the coasting trade in any part of the United
States when arriving from or departing to any port in the State of
Texas; all vessels of seventy-five tons or under owned in the State
of Texas and licensed for the coasting trade in the District of
Texas, when arriving from or departing to any port in the United
States."
The first contention, in effect, is that the state was without
power to legislate concerning pilotage because any enactment on
that subject is necessarily a regulation of commerce within the
provision of the Constitution of the United States. The unsoundness
of this contention is demonstrated by the previous decisions of
this Court, since it has long since been settled that, even
although state laws concerning pilotage are regulations of
commerce, "they fall within that class of powers which may be
exercised by the states until Congress has seen fit to act upon the
subject."
Cooley v. Port
Wardens, 12 How. 299;
Ex
Parte McNiel, 13 Wall. 237;
Wilson v.
McNamee, 102 U. S. 572.
The second proposition relied on is that, albeit the state had
power to legislate concerning pilotage until Congress acted, the
state laws are void because in conflict with the laws enacted by
Congress. This is based upon two provisions of the Revised Statutes
of the United States, the one providing that
"no regulations or provisions shall be adopted by any state
which shall make any discrimination in the rate of pilotage or half
pilotage between vessels sailing between the ports of one state and
vessels sailing between the ports of different states, or any
discrimination against vessels propelled in whole or in part by
steam, or against national vessels of the United States, and all
existing regulations or provisions making any such discrimination
are annulled and abrogated,"
Rev.Stat. 4237, the other being the provision of the statutes,
Rev.Stat. 4444, exempting coastwise steam vessels from the
operation
Page 195 U. S. 342
of state pilotage laws. Undoubtedly the exempting clause of the
Texas statute is discriminatory, and is therefore void, because in
conflict with the law of the United States. The court below so
decided. It held, however, that the provisions discriminating in
favor of Texas ships and ports were separable from the remainder of
the statutes, and therefore the general regulations concerning
pilotage were valid, although the discriminating provisions were
eliminated. Whether the illegal clauses granting discriminatory
exemptions could be eliminated without destroying the other
provisions of the state laws regulating pilotage is a state, and
not a federal, question. For the purpose of determining the
validity of the statutes in their federal aspect, this Court
accepts the interpretation given to the statutes by the state
court, and tests their validity accordingly.
W. W. Cargill Co.
v. Minnesota, 180 U. S. 452,
180 U. S. 466,
and authorities there cited. True it is, in
Spraigue v.
Thompson, 118 U. S. 90, a
case involving the pilotage laws of Georgia, in the course of the
opinion, it was remarked (p.
118 U. S. 94)
that the ruling of the Supreme Court of the State of Georgia that
the illegal provision of the statute in question was separable
caused the statute "to enact what confessedly the legislature never
meant." But this remark was not made the basis of the conclusion,
since it was decided in that case that the pilotage charge in
question was invalid, even under the construction given by the
Supreme Court of the State of Georgia to the state statute, because
the exaction which was in controversy was in conflict with the
provisions of the Revised Statutes of the United States exempting
coastwise steam vessels from pilotage charges. In any event, it is
apparent that the observation referred to, made in the case of
Spraigue v. Thompson, has been qualified by the later
decisions of this Court to which we have previously referred.
Of course, whilst accepting the construction of the state court
as to the divisibility of the statute, the duty yet remains, for
the purpose of the federal question, to determine whether the
statute as construed is valid. As the effect of
Page 195 U. S. 343
the construction below was to eliminate the discrimination from
the statute, it is clear, in view of the power of the state to
legislate concerning pilotage until Congress acts upon the subject,
that the statutes, as interpreted below, were within the power of
the state, and not in conflict with any act of Congress. Indeed, it
is obvious from the provisions of the Revised Statutes, sec. 4237,
forbidding discrimination in state legislation concerning pilotage,
that Congress did not intend by that section to revoke the power of
the states on the subject or to abrogate existing pilotage laws of
the several states containing discriminatory provisions, but only
to abrogate the provisions making the discrimination. This results
since the statute, after first generally prohibiting regulations by
any state discriminating
"in the rate of pilotage or half pilotage between vessels
sailing between the ports of one state and vessels sailing between
the ports of different states, or any discrimination against
vessels propelled in whole or in part by steam, or against national
vessels of the United States,"
in careful language, annuls and abrogates only "all existing
regulations or provisions making any such discrimination." And this
construction of the section in question disposes also of the
argument that, if the statute be accepted as interpreted by the
state court, it is nevertheless repugnant to the law of the United
States, since, if the exceptions found in the state statute are
eliminated, then those statutes impose pilotage charges upon all
vessels, and hence subject coastwise steam vessels of the United
States to such charges, although they are expressly exempted
therefrom. Rev.Stat. § 4444. But the provisions of that section
clearly contemplated that, by the existing state laws, coastwise
steam vessels of the United States were subject to pilotage
charges, and proposed, whilst withdrawing such vessels from
pilotage charges, not in other respects to interfere with the state
laws on the subject of pilotage. This is plainly the result of the
following provision contained in the section in question:
"Nothing in this title shall be construed to annul or affect
Page 195 U. S. 344
any regulation established by the laws of any state, requiring
vessels entering or leaving a port in any such state, other than
coastwise steam vessels, to take a pilot duly licensed or
authorized by the laws of such state."
Nor is there merit in the contention that, as the vessel in
question was a British vessel, coming from a foreign port, the
state laws concerning pilotage are in conflict with a treaty
between Great Britain and the United States, providing that
"no higher or other duties or charges shall be imposed in any of
the ports of the United States on British vessels than those
payable in the same ports by vessels of the United States."
Neither the exemption of coastwise steam vessels from pilotage
resulting from the law of the United States nor any lawful
exemption of coastwise vessels created by the state law concerns
vessels in the foreign trade, and therefore any such exemptions do
not operate to produce a discrimination against British vessels
engaged in foreign trade and in favor of vessels of the United
States in such trade. In substance, the proposition but asserts
that, because, by the law of the United States, steam vessels in
the coastwise trade have been exempt from pilotage regulations,
therefore there is no power to subject vessels in foreign trade to
pilotage regulations, even although such regulations apply without
discrimination to all vessels engaged in such foreign trade,
whether domestic or foreign.
It remains only to consider the contentions based upon the
Fourteenth Amendment and the antitrust laws of Congress. The
argument is that the right of a person who is competent to perform
pilotage services to render them is an inherent right, guaranteed
by the Fourteenth Amendment, and that therefore all state
regulations providing for the appointment of pilots, and
restricting the right to pilot to those duly appointed, are
repugnant to the Fourteenth Amendment. But this proposition, in its
essence, simply denies that pilotage is subject to governmental
control, and therefore is foreclosed by the adjudications to which
we have previously referred. The contention that, because the
commissioned pilots have a
Page 195 U. S. 345
monopoly of the business, and by combination among themselves
exclude all others from rendering pilotage services, is also but a
denial of the authority of the state to regulate, since, if the
state has the power to regulate, and in so doing to appoint and
commission those who are to perform pilotage services, it must
follow that no monopoly or combination in a legal sense can arise
from the fact that the duly authorized agents of the state are
alone allowed to perform the duties devolving upon them by law.
When the propositions just referred to are considered in their
ultimate aspect, they amount simply to the contention not that the
Texas laws are void for want of power, but that they are unwise. If
an analysis of those laws justified such conclusion -- which we do
not at all imply is the case -- the remedy is in Congress, in whom
the ultimate authority on the subject is vested, and cannot be
judicially afforded by denying the power of the state to exercise
its authority over a subject concerning which it has plenary power
until Congress had seen fit to act in the premises.
Affirmed.