# Steamship Company v. Joliffe

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## Dissenting Opinion

    Miller
United States Supreme Court
69 U.S. 450
Steamship Company v. Joliffe
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 shall be made by Congress.' With the single exception of a law of 1837, 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.' 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 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 skilful 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, 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 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.
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, re-enacting, 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 any one 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.
The case was well argued; seven judges sitting. Mr. McCullough, Attorney-General of California, supporting his preliminary point, that the writ of error would have to be dismissed, owing to the repeal (to which point Mr. G. Yale replied); and Mr. D. B. Eaton, for the plaintiff in error, arguing, with research and ability, for reversal on merits; that is to say, from the conflict of the California statute with the act of Congress of 30th of August, 1852, and its consequent unconstitutionality.
Messrs. Cope, Yale, and Carlisle, for the defendant in error; McCullough representing the State of California.
Mr. Justice FIELD delivered the opinion of the court.

## Notes

* ↑ Act of 7 August, 1789, 1 Statutes, 54.
* ↑ Act of 2 March, 1837, 5 Stat. at Large, 153.
* ↑ 10 Stat. at Large, 61.
* ↑ May 20.
* ↑ The case came here of course under § 25 of the Judiciary Act of 1789.
* ↑ The Chief Justice, though on the bench when judgment was rendered, took no part in it; not having taken his seat when the case was argued. Davis and Catron, JJ., were absent, from indisposition, through the term.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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