Joseph Henderson, Respondent, v. Paul N. Spofford et al., Appellants

Joseph Henderson, Respondent, v. Paul N. Spofford et al., Appellants. (Argued November 16, 1874; decided November 24, 1874.) The provisions of the act for the licensing and government of pilots (§ 29, chap. 467, Laws of 1853, as amended by chap. 243, Laws of 1857), requiring the masters of vessels from foreign ports to take a pilot and pay pilotage, etc., has not been abrogated, so far as it relates to sea-going steam vessels, by the act of Congress of 1866, regulating pilotage. (14 U. S. Stat. at Large, 257.) While Congress in the exercise of its power to regulate commerce between the States and foreign nations, can legislate upon that subject as well in ports and harbors as in the high seas; by so doing it does not repeal, but suspends State law upon the subject, and when the act producing this result is repealed, or so modified as to permit the operation of the State law, it becomes again valid and in force. If, therefore, the said provision was suspended by the act of Congress above mentioned, it was again made operative by the amendment to that act in 1867 (14 U. S. Stat. at Large, 412), declaring that nothing in said act shall be construed to annul or afEect any existing State law requiring vessels entering or leaving its ports to take a pilot. Appeal from judgment of the General Term of the Court of Common Pleas, held in and for the city and county of Hew York, affirming a judgment of the First District Court in favor of plaintiff. (Reported below, 3 Daly, 361; 10 Abb. Pr. [N. S.], 140.) This action was brought to recover fees for pilotage out of the port of Hew York of a sea-going steam vessel owned by defendants. The plaintiff was a pilot hy way of Sandy Hook, duly licensed hy the board of commissioners of the State, and as the vessel was leaving for San Domingo, offered his services to the master and owners to pilot her to sea, but they refused to take or employ him in that capacity, and the vessel proceeded to sea without having on board any pilot of the port. The right to recover was contested solely upon the ground that the State legislation “ to provide for the licensing and government of the pilots, and regulating pilotage of the port of New York” (Laws of 1853, chap. 467, p. 921; with the amending acts of 1854, chap. 196, p. 459; of 1857, chap. 243, p. 500; of 1863, chap. 412, p. 705; of 1865, chap. 137, p. 244), so far as it related to sea-going steam vessels, was superseded and repealed by the act of Congress passed July 5, 1866, which provided, that “every sea-going steam vessel, now subject, or newly made subject to the navigation laws of the United States, and to the rules and regulations aforesaid, shall, when under way, except on the high seas, be under the control and direction of a pilot, licensed by the inspectors of steam vessels.” Erastus Cooke for the appellants. The power conferred on Congress by the Constitution to regulate commerce, covers the whole subject of pilotage as well in the ports and harbors as upon the high seas. (Cooley v. Port Wardens of Phila., 12 How., 315, 316; Stshp. Co. v. Joliffe, 2 Wall., 459.) When the power is once exercised by Congress it becomes exclusive. (City of N. Y. v. Miln, 11 Pet., 158; People v. Brooks, 4 Den., 479; Smith v. Turner, 7 How., 395, 396, 408; Holmes v. Jameson, 14 Pet., 570.) The act of August, 1866, abrogated the statute laws of this State regulating port pilotage. (14 U. S. Stat at Large, 228; Sturgis v. Spofford, 45 N. Y., 451; Gibbons v. Ogden, 9 Wheat., 226; People v. Brooks, 4 Den., 479; Houston v. Moore, 5 Wheat., 22-24; Cooley v. Port Wardens, etc., 12 How., 318.) The proviso added by the act of 1867 took effect only from the time of its passage. (Ely v. Holton, 15 N. Y., 595; 46 Barb., 294.) William Allen Butler for the respondent. The provisions of section 29 of the State pilotage act of 1853, as amended by the act of 1857, are in full force, and have hot been repealed or superseded by any act of Congress. (Sturgis v. Spofford, 45 N. Y., 446, 451; Comrs. of Pilots v. P. M. Stshp. Co., 52 id., 609; Stshp. Co. v. Joliffe, 2 Wall., 450 ; Cisco v. Roberts, 36 N. Y., 292; 3 Daly, 361.) [MAJORITY — Grover, J.] Grover, J. The only question in this case is, whether section 29, of the act of 1853 (chapter 467), to provide for the licensing and government of pilots, and regulating pilotage in the port of Hew York, as amended by subsequent statutes, is still in force, or whether the same has been abrogated by the subsequent acts of Congress. That section provides that all masters of foreign vessels, and vessels from a foreign port, and all vessels sailing under a register, bound to or from the port of Hew York, by way of Sandy Hook, shall take a licensed pilot; or, in case of refusal to take such pilot, shall himself, owners or consignees, pay the said pilot-age, as if one had been employed. Other sections of the act declare what shall be done, by and under what circumstances a licensed pilot is entitled to recover such pilotage, etc., from the master, etc. It is insisted, by the counsel for the appellant, that this was repealed by the act of Congress, passed in 1866, regulating pilotage. (14 U. S. Stat. at Large, 228.) The power to regulate commerce between the States and foreign nations, authorizes Congress to legislate upon that subject, as well in ports and harbors as upon the high seas. In the exercise of this power, State laws upon the same subject may be abrogated. (The People v. Brooks, 4 Denio, 469; Smith v. Turner, 7 How. [U. S.], 395.) But when Congress legislates, it does not repeal, but suspends the State law. (Sturgis v. Spofford, 45 N. Y., 446.) When the act of Congress that produces this result is repealed, or so modified as to permit the operation of the State law, it, without further action by the legislature, becomes again valid, and in force. (Case last cited.) Congress may make its laws exclusive, and thus exclude all State laws, or it may legislate as to some particular matter, leaving others to be controlled by State legislation. This it did in respect to the right to recover the pilotage in question under the State law, by the act passed February 25th, 1867, amending that of 1866, providing, in substance, that nothing contained in the latter act should be construed to annul or affect any regulation established by the existing law .of any State, requiring vessels leaving or entering a port in such State to take a pilot duly licensed or authorized by the law of such State, etc. There can be no question as to the intention of this amendment. It was that, if the act of 1866, by its construction, suspended the State statutes in respect to the liability to pay pilotage to those licensed under the laws of the State, it should not thereafter be so construed, but should be so as to leave such State laws in full operation. It may well be that, between the passage by Congress of the act of 1866, and that amending the same in 1867, the operation of the State laws were suspended, but this was no longer so after the passage of the latter. (Sturgis v. Spofford, supra; The Board of Com. of Pilots v. The Pacific Mail Steamship Co., 52 N. Y., 609 ; Murray v. Clark, in this court, not reported.) The judgment appealed from must be affirmed, with costs. All concur. Judgment affirmed.