Savannah morning news. [volume] (Savannah) 1868-1887, 1883-02-01

A.
Marbury's Digest, 572-S-4, Code l50o; X. ~ ~:
C.'s Reports. 2SS: Wall. 6S-lOZ; u 81 9'z'
Benediet's R., 1856.
of the ship is other than the act or the owners
in rejecting the prOffered services OF the PAIN
tiff The master is the agent or the owners
when acting within the scope OF his autnorl ly
II such were not the general law appllcaple
to all cases il would be law here IN TINS case,
because the master was following lnstructlolns
carrying out the contract made WIN the
other nilot bv his principals. The liability Is
under the implied contract TO employ and pay
the pilot first offering, and Is recoverable as
such. and not as penalty. q wallace o. 10
ib., 236.l .,..,.;o.o,s rhs4 ia
in conflict with the Constitution OF the United
StatesY The learned Judge IN the court pet .1V
80 thought and put his a0luucat..1{Ii "a S. tno
pOint on the fact that coasters IN TINS otate,
and between the ports of South CarOnna, anu
between those of Florida" are eXcepteu iloIh
its operation. 1t is insisted that TINS eA4ceP
ton is repugnant to paragraph l, seGIlon
and article of the Constitution OF the Unlteu
States. which declares that "the cltlIens OF
each State shall be entitled to all prlVueee9
and mmunitieS of citizens IN the stNoloi
States" But we cannot see that by TINS eX,
ception citizens of any state are eAcIuue:u
from owning or employing coasters IN tiIlS 5
State, or between the ports OF TINS 9ia'S anu
those of South Carolina, or between the poILS
Of this State and those OF tlorlda. II WIN
not do to say that citizens alone OF Oeorgla,
South Carolina and Florida own THESE cpas .,s
MANY other citizens of the Union IN otner
States are so interested and have such proper
ty. Certainly, they may II they WISH IheIe
is no prohibition against them IN TINS TesPeCt'
Nor win it do to urge that the place whence
VESSEL sails is the home OF Its owners. may VI
it may not be true. Nor Is there any Ple
sumption in law that the nome pIhLt 10 Of Ptba
sumed to be the place of citizenship Oh Wy
owners of the vessel. The presumption Woulu
certainly be inapplicable to the steamers
belonging to the Savannah steamship OoInPaa
T., fl,a o1 xr-raar
And it is believed that from all the ports OF
the world of any consequence, many shlps a5e
at home and out on the seas, whose owners 20
not reside at the same port ana are MOI CleA-
zens or subjects of the Slate or country wherein
the port is located. Be this as IL may, IL Woplu
be contrary to all principle and precedent 10
hold an act of the General Assembly unconstl-
tutiOnal on a presumption, however strohS;
This court has often ruled that an act passed
by a coordinate branch OF the government
would be reluctantly declared unconstltu-
tional by the judiciary, and its unconstltutlon-
ality must be made clearly to appear before III
will be done. Where statute mas stoo9 lne
test of almost q century OF trlal, IL MOulu DC
stretching judicial power beyond an prect-
dent now to pronounce it unconstitutional,
null and void because it is presumed that the
citizens of other States do not own vessels EN-
Moved in cOasting along the shores OF Georgia,
South Carolina and Florida, and therefore tnat
it is presumed that the General Assembly IN
tended to debar them OF the privilege OF own
ing and sailing or proPelllng coasters alonB
them or are they so engaged in buslneSsE nut
can they so engage, or are they prohibited
from so dolngE .,.-.
pugnant in section 1912 of the Code to the
fourteenth amendment of the Constitution, IL
is quite certain that it was not in contempla-
ton by the trainers of this law III lF5s 10 come
in collision with this amendment OF yeSter-
day. Because sail citizens OF the various
States are declared to be citizens of the Uni
ted States. and thatnO State snail make OF en-
/, CHI oil oil
leges and immunities OF citizens OF the OnlteQ
States, nor shall any state
deny to any person within lis Jufsdlc-
ton the equal protection of the laws" de-
clared in the said fourteenth amendment,
is now part of the Constitution, 1t does not ap-
pear to us that that instrument guards the
equal rights of all citizens OF the various states
with stronger arm or greater emphasis, sonar
as the right of engaging in the coastlng trade
of Georgia, South Carolina and Florida
is concerned than when the old covenant OF
the fathers proclaimed, with less vOluDllltY,
but with singular clearness, that 1.-THE citizens
of each State shall be entitled to all prtUitegeS
and iBamunitieS of citizens of the several
States" If the Georgia law of pilotage be
not repugnant TO the old Constitution, 1t Is
very difficult to see wherein 1t Is repugnant TO
the new amendment. See, cited by plain
tiff in error: y Howard, 299; Ii Wall, 236;
1902 IT, s., SIS; 2 Speer 5. c., 769; Wheat, !;
l Kent's Com 437-S-9: Sc n. Y, 292; Stat. at
Large, 1873; Revised Stat, 1896.
). The question remains, is the Georgia law
annulled by any act of Congress under the
Constitution of the United states?
1t is clear that Congress may under that in
strument pass general laws upon this subject,
and annui the StaEe lava thereon: because
they are therein empowered to regulate COM
merce between the several states. Has 1t
done so? Section 1912 of the Code, it is insis-
ted by defendant in error, has been. so
annulied by cnactments of the Congress codi-
fed in the Revised Statutes 1927 and 4444.
Those sections are as follows;
SEC. 1927. No regulation or provisions shall
l,io11s IaalI
examinations in the rate of pilOtage or half
pilOtage between vessels sailing between the
ports of different states, or any discrlmlna-
lions against vessels propelled in whole or in
part by steam, on against natiGnal vessels of
the United states: and all existing regulations
or provisions making any such discrimina-
ton arc annulled and abrOgated.
SEC. 4444. No State or municipal govern
ment shall impose upon pilots of steam vessels
any obligation to procure a State or other
license in addition to that issued by the United
States."or any other regulation which will inn
pede such pilots in the performance of the
duties required by this title; and in no case
shall the fees charged for the pilotage of any
steam vessel exceed the customary or legally
established rates in the State where the same
is performed, Nothing in this title shall be
construed to annul or afeet any regulation
established by the laws of any State requiring
vessels entering or leaving in any such State
other than coastwise vessels to take pilot
duly licensed or authorized by the laws of
such State, or of a State situated upon the
waters of such State.
First, is section 1872 of the Georgia Code an
nulled by paragraph 4237 of the Revised
Statutes? If it makes any discrimination be-
tween vessels from the ports of different
States she rate OF 1liS0tdge or hdtT pil0tGge,
it is annulledby the act of the 18th Of July,
1866, of Congress, c0difed IN said paragraph
4237, to the extent that it makes such discrimi
nation. In our Judgment, if 1872 of the
Georgia Code eXempts vessels sailing from
ports in Florida and South Carolina. alto
gether from pilOtage fees whilst it eXacts
those fees from vessels sailing from ports of
other States it is discrimination in the rate of
pilOtage in the sense and spirit of the act of
Congress.
The widest possible discrimination Is made
thereby between those two States and all
other States of the Union. The discrmina-
ton is between no fees at all and full fees.
The difference between naught and one hun
bred is greater then between any sum and
one hundred, and the discrimination is there
fore, all the greater between the two. Con-
gress could not have intended that the vessels
from one State should be exempted altogether
and those of another be charged full rates. The
meaning and sense ofthe statute puts all on
an equality.
But the act of Congress of 1866. above cited,
should be construed, we think, in connection
with the act of the I'd of March, 1887 to be
found in the paragraph of the Revised Stat
utes Immediately preceding paragraph 1927,
which is as follows:
SEC. 1926. The master of any vessel going
into or coming ont OF any port situate upon
waters WHICH are the boundary between two
authorized by the laws of either of the
States h0unded on such waters, to pilot the
vessel to or from such port,
South Carolina and Florida are the neigh
bors of Georgia, the first on the northern and
the other on the southern waters of the At
lantic ocean, which is the common boundary
of the three on the east. The waters of the
Atlantic are the boundary between the terri
tory of Georgia on this one hand and of those
two States on the other. Bays and inlets flow
into the territory of each, and divide or bound
Z baft In So fbpFpfOTp as ort
of South Carolina and Florida are concerned
which are 50 situated, it could not have been
the intention of Congress constituting these en-
actments, revised and coditledi side by
side, in pdri ndteriG, to annul the Georgia act
in reference to the exception which did not
compel vessels from such ports to employ
Georgia pilots; because such legislation would
have been in the teeth of the act of 1887,
though seemingly yiolatiYe of that of 1866; in
asmUch as the act of 1887 provides that pilot |
of the port of either State in such cases, duly |
licensed by that State, may be employed. |
And the reason of the act of 1887 Is obvious. |
In such contiguous ports, coasting vessels !
constantly plying between them, the pilot of
each would be familiar with the waters of
both. In respect, therefore, to such ports of
South Carolina and Florida as come within
the act OF Congress of 1887 Revised Statutes,
paragraph 1926, we think that section 1872 of
our Code is not affected by the Congressional
enactment of lS66-paragraph 4237 of the Re
vised Statutes; but that the provision or eX- |
ception in respect TO other ports of South Car
DINA and Florida not fairly within the sense |
of paragraph 1896 of the United States Revised |
Statutes, is annulled and abrogated.
But does the whole of section 1912 of the |
Georgia Code thereby fall? BY paragraph |
4237 of the L. S. Revised statutes, it is only |
''the regulations and provisions making such |
Determinations which are annulled and abrO- |
gatedn The exception in the Georgia statute, |
therefore, is ahrogated, but not the entire |
statute. Such is the rule, even if the Consti |
tuition of the United States itself had been |
lot hxyu aVtO f 81 a