The People, ex rel. Ralph Noble, vs. The Board of Commissioners of Pilots

The People, ex rel. Ralph Noble, vs. The Board of Commissioners of Pilots. The 23d section of the pilot law giving ample remedy to any pilot of the port of New York who shall have been suspended, by an, appeal to the Board of Commissioners of Pilots, for a rehearing, a certiorari will not be granted, until that remedy has, been exhausted. THIS was an appeal from an order made at a special term, superseding a common law writ of certiorari. The writ was issued to the Board of Commissioners of Pilots, commanding them to certify their record and proceedings in suspending the relator from acting as a pilot of the port of Hew York. The relator, Ralph Hohle, is one of the Sandy Hook pilots, licensed by the Board of Commissioners of Pilots, pursuant to the authority conferred on them by the “ Act to provide for' the licensing and government of the pilots, and regulating pilotage of the port of Hew York,” passed June 28, 1853. (2 R. S. 429, 5th ed.) Hohle was suspended by resolution of the board, passed Hovember 26, 1861, for having improperly taken away from Stephen Stokes, a Hew Jersey pilot, the TJ.'S. ship “ Constitution,” and collected the pilot-age, amounting to #112, and refusing to refund the amount, pursuant to an order of the board made July 16,1861. The Board of Commissioners of Pilots of Hew York are authorized to make and enforce rules and regulations for the government of the pilots licensed by them, to declare and enforce forfeitures of pilotage on mismanagement or neglect of duty by any pilot, and to suspend any pilot, during their pleasure, for dereliction of duty or disobedience of their rules. (Pilot Act, 1853, §§ ,12, 13.) Sections 24 and 25, of the same act, prescribe the mode of proceeding in case of complaints made in writing against any pilot, and for a notice of five days, specifying the complaint, to be served personalty on the pilot, requiring him to appear before the board . and answer, &c.. Section 23 provides for an appeal to the board of commissioners for rehearing, in case of suspension of any pilot, and authorizes the board,., on such rehearing, to review and confirm or reverse their previous decision. By act of congress of March 2, 1837, (5 TJ. B. Btat. at Large, p. 153,) the Hew Jersey pilots have equal privileges with the Hew York pilots on the waters forming the boundaries of the two states. There is no distinction as to the powers and duties of branch pilots or deputy pilots under the pilot law of Hew Jersey. Begulation Ho. 10 of the pilot commissioners is as follows : <cHo pilot shall by any unfair means or by a reduced rate take a vessel from another pilot; and in case of his so doing, shall forfeit to the pilot displaced the full amount of the pilotage.” The return and amended return of the commissioners of pilots to the certiorari showed that complaint in writing was made against Hoble by the president of the board of Hew Jersey commissioners, on behalf of Pilot Stokes, charging Hoble with unfairly taking away from Stokes the TJ. S. ship Oonstitution. The complaint was received by the Hew York board July 9, 1861. Hoble appeared on the 16th July and made a statement of the facts, which was reduced to writing by the secretary of the board, signed by Hoble and submitted as his defense. Stokes made his statement, and the board decided that Hoble was not justified in taking the ship, and that he was bound to refund the pilotage to Stokes. On the 29th October, 1861, Hoble was, by order of the board, notified to appear before them on the 5th Hovember, 1861, which he did, and he then refused to pay over the pilotage. On the 12th Hovember, 1861, Stokes made a written complaint to the board that he had caused demand to be made on Hoble for the amount of the pilotage, and that he refused to pay it over to him. Hoble was thereupon served with notice to appear before the board on the 19th Hovember, 1861, and show cause why his license should not be revoked; the notice specified the complaint, and was served personally on the 13th Hovember. Hoble appeared and reiterated his refusal, and the board, after waiting a week longer, finally, on the 26th Hovember, 1861, suspended him. He made no appeal for-a rehearing, as provided in § 23 of the law. After the first return to the writ, a motion was made for a further return, to bring up the written complaint and notices, and certain matters of fact and testimony. The motion, after- a hearing before Justice Leonard, was granted as to producing the written, complaint, notices, &c., and in all other respects denied. There was no appeal from this order. On the hearing before Justice Ingraham on the further return, the writ was superseded and judgment ordered for the defendants. Flanagan & Cummings, for the appellant. Wm. Allen Butler, for the respondents. [New York General Term, May 5, 1862. [MAJORITY — Barnard, J.] By the Court, Barnard, J. Section 23 of the pilot .law gives the relator ample remedy by appeal for a rehearing, to the commissioners. We cannot assume that that "body, will necessarily adhere to their previous decision; but on the contrary must assume that if that body is convinced, on a rehearing, that the former proceedings were irregular, or that the former decision was erroneous either upon the facts or the law, it will promptly reverse its former decision. This remedy of a rehearing being given, the writ of certiorari should not be granted till such remedy has been exhausted. Order affirmedj with $10 costs. Ingraham, Leonard and Barnard, Justices.]