The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1900-01-13

OF ,nesc qualifications can be dispensea
WIN ny the board OF pilot commissioners Or
.ne appointing power, bccause the law. the
eource Of all power In the premises com.
'uands that these things must exis, beforn
any person can exercise the functions OF
| branch pilot
~ volume IL, American and English En-.
vyciopedia OF Law, page 44T. II is said;
me plot commissioners have discretion
Ing certain qualifications as TO length Of
/ service, ETC.. prescribed by the statute.
nut no rover to appoint one who has not
those qualifications
inc California pilot law, passed In 1855,
contains the following provision:
The candidate flor pilotl must be not
only an American citizen not under II
years OF age. but have served two years
on board pilot boat. or have commanded
square rugged vessel In the coasting
trade IN and ont of the harbor OF San
francisco for three years" etc. Under
this law person was appointed pilot, and
quo warranto suit was instituted against
the appointee, upon the ground that he
was Ineligible to this place because. irs.
ne had not served two years abourd a pilot
boat IN the harhor OF San Francisco he
Tore the grant Of license, and. second. TINT
ne had never commanded square rugged
! $500 80 Nht washing lIdue IN anu OUT OF
tne harbor of San Francisco for three years
before such grant. On appeal OF this case
TO the supreme court of California (see
Palmer vs.. Woodbury., IL Cal, u. i5) the
court held Though by the acts OF the
legislature already cited power of ap-
pointment is given to the board OF com
missioners, the power is not unlimited IL
does not authorize the board TO appoint
whomsoever 1t chooses to this office.
/ 6tERTptinu te ct. -.
10 be appointed, and this discretion. the
courts can not control. but no discretion
as 10 the classes from which these in
dividuals shall be taken. The legislature
I mad right TO declare the tests OF eligi-
niiity, as well as to give the power to Sc
| lect
They have declared them: l. The APP
| pointee must be an American citizen. g
! Not under II years old. B. He must have
| served two years GU board n pilot boat.
| or snail have commanded a square rugged
vessel in the coasting trade in and out Of
the narbor of San Francisco.
| The board, acting as a special commits
sion, organized by act OF the legislature
has just such power as the act confers
| upon It. 1t can not transcend those pow
| ers. 1t must make its appointments from
\ the classes of persons prescribed In the
act 1t could no more appoint a man as
J pliOA WIZ uuN not served Two years OF CON-
| manded vessel than 1t could appoint a
/ free negro or a woman"
The above comparison OF the supreme
court of California at the present day
sounds little strange but as the decision
was rendered before the war and prior to
the freedom OF the negro Its force can
be readily perceived. No, recurring to
article S791 Revised Statutes, which pre-
scribes the duty of the board OF pilot com
mssioners. among other things occur the
following; And 1t shall be their duty
to examine each new applicant for the
office of branch or deputy pilot. and 10
decide on his qualifications recommending
10 the governor, when new appointments
are proper, such as are mertorious.
| What Is the object of this exsminat<J IN
| 1t is to decide as to the qualifications OF
an applicant under the law. as we'll as
his competency and fitness, and to recon-
mend to the governor such only as possess
the qualifications prescribed by law and
who are meritorious The board has no
power to recommend for appoint
ment. an applicant unless he possess
the qualifications Of residence and ser
vice as a deputy pilot. and the governor
has no power to appoint person not
possessed of such qualifications, for the
law very plainly says that no person can
exercise the functions OF branch pilo
unless he possesses those qualifications.
The law certainly could not have con-
templated an examination OF an applicant
for branch pilot who did not possess both
of the above qualifications. and who could
neither be recommended by the board nor
appointed by the governor.
If the governor should appoint a person
branch pilot who had not resided in the
State two years or more, or who had not
served as deputy pilot for the periods In
4 both cases fixed by the board OF pilot COM
missioners, such person, being ineligible
could not hold the office and could he
.ousied thcrefrom by the State in que
warranto proceeding.
In nineteeth American aud English En-
cyclopedia of Law, page 6S2. it is said in
the note: when the State by quo war
ranto calls upon an individual to show his
title TO an office he must show the con
tinued existence OF every qualification
necessary to the enjoyment OF that offce. .
people VS.. Mayworm. 5 Mich, 1916 State
VS.. Bacher, Is Ohio. 1881
n the applicants under consideration
were to resort to the courts to compel the
board of pilot commissioners. by man
damus to examine them, they would have
no standing in court unless they ave-red
in their petition that they possessed tho
qualifications prescribed by law for the Of
fce: that Is that they were eligible to
hold the office by reason OF citizenship oil
residence aud service as deputy pilot
II certainly could not have been in the
contemplation OF the law that the board
of pilot commissioners should waste theii
time in the examination of Ineligible per
sons whom they could not under the Law
recommend for appointment or who II APP
pointed could not hold the office. From
a careful examination of the statute ant
the authorities am forced to answer th'
question. "Cap a person apply and b.
examined for the position OF branch piio
without first having served as deputy
pilot?" in the negative.
/ herewith return the letters submitted
am very respectfully,
r. II. Ward
Office OF Assistant Attorney General