« ΠροηγούμενηΣυνέχεια »
of the defendant, and, on the ground that sels shall not, in any port of this state, no defense was stated, sustained a demurrer exceed $4 for each foot of water which the to the answer. A judgment was entered in vessel, at the time of piloting, draws, and favor of the plaintiffs, awarding an injunc- whenever a vessel, except of the classes tion as prayed. (Tex. Civ. App.) 68 S. W. below excepted, shall decline the services of 320. The case was taken to the court of a pilot, offered outside the bar, and shall civil appeals for the first supreme judicial enter the port without the aid of one, she district, was thence transferred to the court shall be liable to the first pilot whose servof civil appeals for the fourth supreme juices she so declined, for the payment of half dicial district, where the decree below was pilotage; and any vessel which, after being affirmed, with a slight modification modification not necessary to be stated. The supreme court of the state having declined to review the action of the court of civil appeals, this writ of error was prosecuted to the latter court.
The defenses raised by the answer, which the court below held to be no defense to the action, and which are in effect reiterated in the assignments of error, require us to determine, first, whether the state of Texas had power to enact laws regulating pilotage in the ports of that state; and, second, if such power existed, whether the provisions of the state statutes on that subject are void because they conflict with acts of Congress on the subject of pilotage, and because the statutes of Texas as to pilotage contain provisions of such a character as to cause them to be repugnant to the 14th Amendment or to the laws of Congress forbidding combinations in restraint of trade or commerce. Briefly, the pilotage laws of the state of Texas provide as follows: The governor is authorized to appoint for each port whose population and circumstances shall warrant it, "a board of five persons of respectable standing, to be known as commissioners of pilotage." Upon this board power is conferred to fix, within the maximum limits provided by law, the charges to be made by branch and deputy pilots for their services, to regulate the manner in which such pilots shall perform their duty, to examine them as to their qualifications, to hear complaints made against them, and, if occasion requires, to suspend them until the governor shall act in the matter. Upon the governor is conferred the authority to appoint such number of branch pilots as may from time to time be necessary, each of whom shall hold office for two years, subject to removal by the governor at pleasure, and any one who is not a duly commissioned branch pilot or deputy thereof is prohibited from engaging in the business of pilotage so far as the statutes provide for pilotage services by the duly appointed pilots. Revised Statutes of the state of Texas for 1895, articles 3790, 3791, 3792, 3793, 3794, 3796, and 3803. The maximum rates of pilotage are provided for as follows:
brought in by a pilot, shall go out without
The vessels excepted from the operation of the foregoing provisions are thus stated in article 3801:
"The following classes of vessels shall be free from any charge for pilotage, unless for actual service, to wit: All vessels of twenty tons and under, all vessels of whatsoever burthen owned in the state of Texas, and registered and licensed in the district of Texas, when arriving from or departing to any port of the state of Texas; all vessels of seventy-five tons and under, owned and licensed for the coasting trade in any part of the United States, when arriving from or departing to any port in the state of Texas; all vessels of seventy-five tons or under owned in the state of Texas and licensed for the coasting trade in the district of Texas, when arriving from or departing to any port in the United States."
The first contention in effect is that the state was without power to legislate concerning pilotage, because any enactment on that subject is necessarily a regulation of commerce within the provision of the Constitution of the United States. The unsoundness of this contention is demonstrated by the previous decisions of this court, since it has long since been settled that even although state laws concerning pilotage are regulations of commerce, "they fall within that class of powers which may be exercised by the states until Congress has seen fit to act upon the subject." Cooley v. Port Wardens, 12 How. 299, 13 L. ed. 996; Ex parte McNiel, 13 Wall. 237, 20 L. ed. 624; Wilson v. McNamee, 102 U. S. 572, 26 L. ed. 234.
The second proposition relied on is that, albeit the state had power to legislate con
"The rate of pilotage on any class of ves- cerning pilotage until Congress acted, the
referred to, made in the case of Spraigue v. Thompson, has been qualified by the later decisions of this court to which we have previously referred.
Of course, whilst accepting the construction of the state court as to the divisibility of the statute, the duty yet remains, for the purpose of the Federal question, to de termine whether the statute as construed is valid. As the effect of the construction below was to eliminate the discrimination from the statute, it is clear, in view of the power of the state to legislate concerning pilotage until Congress acts upon the subject, that the statutes, as interpreted below, were within the power of the state, and not in conflict with any act of Congress. Indeed, it is obvious from the provisions of the Revised Statutes (§ 4237, U. S. Comp. Stat. 1901, p. 2903) forbidding discrimination in state legislation concerning pilotage, that Congress did not intend by that sec tion to revoke the power of the states on the subject, or to abrogate existing pilotage laws of the several states, containing discriminatory provisions, but only to abrogate the provisions making the discrimination. This results since the statute, after first generally prohibiting regulations by any state discriminating "in the rate of pilotage or half pilotage between vessels sailing between the ports of one state and vessels sailing between the ports of different states, or any discrimination against vessels propelled in whole or in part by steam, or against national vessels of the United States," in careful language annuls and abrogates only "all existing regulations or provisions making any such discrimina
state laws are void because in conflict with | event, it is apparent that the observation the laws enacted by Congress. This is based upon two provisions of the Revised Statutes of the United States, the one providing that "no regulations or provisions shall be adopted by any state which shall make any discrimination in the rate of pilotage or half pilotage between vessels sailing between the ports of one state and vessels sailing between the ports of different states, or any discrimination against vessels propelled in whole or in part by steam, or against national vessels of the United States, and all existing regulations or provisions making any such discrimination are annulled and abrogated" (Rev. Stat. 4237, U. S. Comp. Stat. 1901, p. 2903); the other being the provision of the statutes (Rev. Stat. 4444, U. S. Comp. Stat. 1901, p. 3037) exempting coastwise steam vessels from the operation of state pilotage laws. Undoubtedly the exempting clause of the Texas statute is discriminatory, and is therefore void, because in conflict with the law of the United States. The court below so decided. It held, however, that the provisions discriminating in favor of Texas ships and ports were separable from the remainder of the statutes, and therefore the general regulations concerning pilotage were valid, although the discriminating provisions were eliminated. Whether the illegal clauses granting discriminatory exemptions could be eliminated without destroying the other provisions of the state laws regulating pilotage is a state, and not a Federal, question. For the purpose of determining the validity of the statutes in their Federal aspect this court accepts the interpretation given to the statutes by the state court, and tests their validity accordingly. W. W. Cargill | tion." And this construction of the section Co. v. Minnesota, 180 U. S. 452, 466, 45 L. ed. 619, 625, 21 Sup. Ct. Rep. 423, and authorities there cited. True it is in Spraigue v. Thompson, 118 U. S. 90, 30 L. ed. 115, 6 Sup. Ct. Rep. 988, a case involving the pilotage laws of Georgia, in the course of the opinion it was remarked (p. 94, L. ed. p. 116, Sup. Ct. Rep. p. 989) that the ruling of the supreme court of the state of Georgia, that the illegal provision of the statute in question was separable, caused the statute "to enact what confessedly the legislature never meant." But this remark was not made the basis of the conclusion, since it was decided in that case that the pilotage charge in question was invalid, even under the construction given by the supreme court of the state of Georgia to the state statute, because the exaction which was in controversy was in conflict with the provisions of the Revised Statutes of the United States, exempting coastwise steam vessels from pilotage charges. In any
in question disposes also of the argument that, if the statute be accepted as interpreted by the state court, it is nevertheless repugnant to the law of the United States, since, if the exceptions found in the state statute are eliminated, then those statutes impose pilotage charges upon all vessels, and hence subject coastwise steam vessels of the United States to such charges, although they are expressly exempted therefrom. Rev. Stat. § 4444, U. S. Comp. Stat. 1901, p. 3037. But the provisions of that section clearly contemplated that, by the existing state laws, coastwise steam vessels of the United States were subject to pilotage charges, and proposed, whilst withdrawing such vessels from pilotage charges, not in other respects to interfere with the state laws on the subject of pilotage. This is plainly the result of the following provision contained in the section in question:
"Nothing in this title shall be construed to annul or affect any regulation established
by the laws of any state, requiring vessels | law. When the propositions just referred entering or leaving a port in any such state, to are considered in their ultimate aspect other than coastwise steam vessels, to take they amount simply to the contention, not a pilot duly licensed or authorized by the that the Texas laws are void for want of laws of such state." power, but that they are unwise. If an analysis of those laws justified such conclusion,--which we do not at all imply is the case, the remedy is in Congress, in whom the ultimate authority on the subject is vested, and cannot be judicially afforded by denying the power of the state to exercise its authority over a subject concerning which it has plenary power until Congress has seen fit to act in the premises. Affirmed.
Nor is there merit in the contention that, as the vessel in question was a British vessel, coming from a foreign port, the state laws concerning pilotage are in conflict with a treaty between Great Britain and the United States, providing that "no higher or other duties or charges shall be imposed in any of the ports of the United States on British vessels than those payable in the same ports by vessels of the United States." [8 Stat. at L. 229, art. 2] Neither the exemption of coastwise steam vessels from pilotage, resulting from the law of the United States, nor any lawful exemption of coastwise vessels, created by the state law, concerns vessels in the foreign trade, and, therefore, any such exemptions do not operate to produce a discrimination against British vessels engaged in foreign trade, and in favor of vessels of the United States in such trade. In substance the proposition but asserts that, because, by the law of the United States, steam vessels in the coastwise trade have been exempt from pilotage regulations, therefore there is no power to subject vessels in foreign trade to pilotage regulations, even although such regulations apply, without discrimination, to all vessels engaged in such foreign trade, whether domestic or foreign.
It remains only to consider the contentions based upon the 14th Amendment and
(195 U. S. 243)
MAGGIE A. BRADFORD.
SOUTHERN RAILWAY COMPANY.
The right to prosecute a writ of error from a circuit court of appeals without giving security for costs is not given by the act of July 20, 1892 (27 Stat. at L. 252, chap. 209, U. S. Comp. Stat. 1901, p. 706) providing for the prosecution of suits or actions in forma pauperis, as that act does not apply to appellate proceedings.
A circuit court of appeals cannot, without statutory authority, permit the prosecution in forma pauperis of a writ of error sued out of that court.
ber 28, 1904.
the anti-trust laws of Congress. The argu- Submitted October 19, 1904. Decided Novem ment is, that the right of a person who is competent to perform pilotage services to
render them is an inherent right, guaran
teed by the 14th Amendment, and that therefore all state regulations providing for the appointment of pilots, and restricting the right to pilot to those duly appointed, are repugnant to the 14th Amendment. But this proposition in its essence simply denies that pilotage is subject to governmental control, and therefore is foreclosed by the adjudications to which we have previously referred. The contention that (because) the commissioned pilots have a monopoly of the business, and by combination among themselves exclude all others from rendering pilotage services, is also but a denial of the authority of the state to regulate, since, if the state has the power to regulate, and in so doing to appoint and commission those who are to perform pilotage services, it must follow that no monopoly or combination in a legal sense can arise from the fact that the duly authorized agents of the state are alone allowed to perform the duties devolving upon them by
ON A CERTIFICATE from the United
States Circuit Court of Appeals for the Sixth Circuit, presenting the question whether the right exists to prosecute a writ of error from that court in forma pauperis, and whether, in the absence of such right, the court may permit such prosecution of the writ of error. Both questions answered in the negative.
Statement by Mr. Chief Justice Fuller: This case is brought here on the following certificate:
"This was an action of tort. The plaintiff was a citizen of Tennessee, and the defendant a corporation organized under the laws of Virginia. The jurisdiction of the court below was wholly dependent upon diversity of citizenship. There was a jury and verdict against the plaintiff in error and a judgment accordingly.
"The plaintiff in error sued out this writ of error, and has lodged with the clerk of this court, within the time required by law,
"Sec. 3. That the officers of the court shall issue, serve all process, and perform all duties in such cases, and witnesses shall attend as in other cases, and the plaintiff shall have the same remedies as are provided by law in other cases.
a full transcript of the record in the court | ing in any affidavit provided for in this cr below. The clerk refusing to docket same the previous section shall be punishable as unless the plaintiff would deposit with him perjury is in other cases. the sum of $35, as security for taxable costs, as required by rule 16 of this court, the plaintiff has filed her petition, duly verified, praying to be allowed to prosecute her writ in forma pauperis, and that the clerk be required to docket said transcript, and that the rule requiring a deposit to cover costs be dispensed with. The petition shows a state of facts which entitle the plaintiff to prosecute her writ of error as a poor person, provided the act of July 20, 1892, 27 Stat. at L. 252, chap. 209, U. S. Comp. Stat. 1901, p. 706, applies to appeilate proceedings.
"Because this court has doubts as to whether the act of Congress above mentioned applies to appellate proceedings, it is ordered that the foregoing statement be certified to the Supreme Court, and the instruction of that court be requested for the proper decision of the following questions which arise upon the petition and motion of the plaintiff in error:
"1. Does the act of July 20, 1892 (27 Stat. at L. 252, chap. 209, U. S. Comp. Stat. 1901, p. 706), providing when a plaintiff may sue as a poor person, apply to the prosecution of a writ of error from this court?
"2. If that act of Congress does not apply to appellate proceedings, has this court any authority to permit the prosecution of a writ of error in forma pauperis?"
The act of July 20, 1892, above referred to, reads:
"An Act Providing When Plaintiff May Sue as a Poor Person and When Counsel Shall Be Assigned by the Court.
"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That any citizen of the United States, entitled to commence any suit or action in any court of the United States, may commence and prosecute to conclusion any such suit or action without being required to prepay fees or costs, or give security therefor before or after bringing suit or action, upon filing in said court a statement under oath, in writing, that, because of his poverty, he is unable to pay the costs of said suit or action which he is about to commence, or to give security for the same, and that he believes he is entitled to the redress he seeks by such suit or action, and setting forth briefly the nature of his alleged cause of action.
"Sec. 2. That after any such suit or action shall have been brought, or that is now pending, the plaintiff may answer and avoid a demand for fees or security for costs by filing a like affidavit, and wilful false swear
"Sec. 4. That the court may request any attorney of the court to represent such poor person, if it deems the cause worthy of a trial, and may dismiss any such cause so brought under this act if it be made to appear that the allegation of poverty is untrue, or if said court be satisfied that the alleged cause of action is frivolous or malicious.
"Sec. 5. That judgment may be rendered for costs at the conclusion of the suit, as in other cases: Provided, That the United States shall not be liable for any of the costs thus incurred."
Messrs. Frederic D. McKenney and James Gallagher for Bradford.
Mr. Frank P. Poston and W. A. Henderson for Southern Railway Company.
Mr. Chief Justice Fuller delivered the opinion of the court:
After the passage of the act of July 20, 1892, many applications were made to this court for leave to prosecute writs of error or appeals in forma pauperis, and were uniformly denied, as we were of opinion that the act had no relation to proceedings in this court. And we so stated in Gallaway v. State Nat. Bank, 186 U. S. 177, 46 L. ed. 1111, 22 Sup. Ct. Rep. 811, where leave was asked to prosecute a writ of error to a state court without giving security as required by § 1000 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 712). The ruling would have been the same if the review of the judgment or decree of a court of the United States had been sought; because, in our view, the statute refers only to the court of original jurisdiction. And the same ruling must necessarily obtain in the circuit courts of appeals.
The act consists of five sections. Of these. §§ 3 and 4 obviously relate to the trial or hearing. By § 5 "judgment may be rendered for costs at the conclusion of the suit, as in other cases," which we take to mean judg ment at the close of the trial or hearing, and not judgment then and also judgment in appellate proceedings, or, in case of such proceedings, no judgment for costs below until judgment rendered above.
The first section relates to the commencement and carrying forward of a suit or action without plaintiff being required to pre
pay fees or costs or to give security there- | by way of restitution under or in consefor, whether the fees or costs accrue at the beginning or during the progress of the suit or action. The application is to be made at the outset, and the order, if granted, covers the fees or costs accruing when or after the suit or action is commenced. And this result is secured by the words "and its prosecution to conclusion." That conclusion is the termination of the suit or action in the court where it is commenced. The second section provides for a similar application after the suit or action has been brought.
The words "suit or action" are used in both sections, and the applicant is required to set forth "his alleged cause of action," and by 4 the case may be dismissed "if it be made to appear that the allegation of poverty is untrue, or if said court be satisfied that the alleged cause of action is frivolous or malicious."
Lord Coke defined "action" to be "a legal demand of one's right," and cause of action comprises every fact a plaintiff is obliged to prove in order to obtain judgment; or, conversely, every fact the defendant would have the right to traverse (Chesapeake & O. R. Co. v. Dixon, 179 U. S. 131, 139, 45 L. ed. 121, 125, 21 Sup. Ct. Rep. 67). The words "action" and "cause of action" are not ordinarily applicable to writs of error, and, in our opinion, were obviously not so applicable here, but used diverso intuitu. And this is so whether a writ of error be considered a new proceeding or a continuation of the original proceeding, as it is usually regarded in the Federal courts. Cohen v. Virginia, 6 Wheat. 410, 5 L. ed. 292; Nations v. Johnson, 24 How. 205, 16 L. ed. 632; Re Chetwood, 165 U. S. 443, 461, 41 L. ed. 782, 788, 17 Sup. Ct. Rep. 385.
A leading case on the subject is Moore v. Cooley, 2 Hill, 412. The statute of New York under consideration in that case was as follows (2 Rev. Stat. N. Y. 2d ed. 1836, p. 362):
"Every poor person, not being of ability to sue, who shall have a cause of action against any other, may petition the court in which such action is depending, or in which it is intended to be brought, for leave to prosecute as a poor person, and to have counsel and attorneys assigned to conduct his suit."
After quoting the statute Judge Cowen said:
"Strictly speaking, an error on which a writ lies is not a cause of action; for, as Lord Coke says, there is a distinction between writs and actions; and under this distinction he instances actions and writs of error. 2 Inst. 39, 40. And yet, a release of all actions extends to writs of error, when anything may be recovered or taken
quence of the writ of error. Co. Litt. 288, b; Bacon, Abr. Release, I. 2. This, however, I take it, proceeds rather upon an equitable, and therefore extended, construction of the words in the release, beyond their strict meaning; for they generally reach the original matter out of which the error arose, that being the direct subject of an action if the matter be thrown open by the writ of error. The original matter being released, therefore, the words are very properly construed as reaching indirectly and in liberal construction to the writ of error itself, because that depends upon the original matter. Yet, in strictness, no book holds the word 'action,' or words 'cause of action,' to be identical with a writ of error or cause of a writ of error.
"There can be little doubt that the statute under which this motion is made should be construed strictly; for the pauper comes to litigate entirely at the expense of others. He is neither to pay his own attorneys or counsel, nor is he liable to his adversary should the suit prove to be groundless. He thus enjoys a great privilege and exemption from the common lot of men, whereby, in respect to causes of action proper, he becomes, as Lord Bacon says, rather able to vex than unable to sue. Hist. of Hen. VII."
Lord Bacon was referring to the statute 11 Hen. VII., chap. 12, and his language is elsewhere translated or explained to mean "that the charity of the legislature thought it better that the poor man should be able to vex than that he should not be able to sue." 6 Bacon's Works, 161.
So in Bristol v. United States, 129 Fed. 87, 63 C. C. A. 529, where the circuit court of appeals for the seventh circuit held that the act of Congress of July 20, 1892, did not entitle a defendant in a criminal case to prosecute a writ of error out of the circuit court of appeals in forma pauperis, Jenkins, J., delivering the opinion, said:
"We do not think it can properly be said that a writ of error is a suit or action within the statute so far as respects a writ of error in a criminal case. Were it not for the words 'prosecute to conclusion,' we doubt if any court would hold that the act applied to an appeal or writ of error in a civil cause. The applicant, by the statute, must declare the nature of his cause of action. Surely an erroneous ruling by the trial court cannot be held to furnish a 'cause of action,' as that phrase is commonly understood. The statute, by that term, in our judgment, refers to a legal demand by one against another, not to the rulings of a trial court. Under a somewhat similar statute of the state of New York, its supreme court, speaking through Judge Cowen,