in considering the exception expressly stated to be based upon the evidence. Not only this, but there is nothing of record exhibiting the fact that any exception was duly taken to the action of the court in overruling the objections urged by the railroad company to be confirmation of the verdict of the jury.

True it is that the transcript contains what purport to be certain instructions asked and refused, marked filed by the clerk. True also is it that there is in the printed transcript a petition and other papers concerning the evidence given before the jury, to which we have referred in the statement of the case. And it is also true that there is in the printed transcript an agreement between counsel, reciting that the court allowed the prayer of the petition. But in the absence of a bill of exceptions, allowed and authenticated by the judge, these documents form no part of the record in this court, which we have alone the right to consider in determining the merits of the errors assigned. Young v. Martin, 8 Wall. 354; Baltimore & Potomac R. R. Co. v. Sixth Presbyterian Church, 91 U. S. 127; Clune v. United States, 159 U. S. 590, 593; Nelson v. Flint, 166 U. S. 276, 279.

In Young v. Martin, where entries had been made by the clerk in his minutes, stating the filing of a demurrer, argument thereon and overruling of the demurrer, and that exception had been taken by plaintiff, it was held that the exception was not available. The court said (p. 356):

"These entries do not present the action of the court and the exceptions in such form that we can take any notice of them. It is no part of the duty of the clerk to note in his entries the exceptions taken, or to note any other proceedings of counsel, except as they are preliminary to, or the basis of, the orders or judgment of the court."

It may be observed in passing that whilst it is not now necessary to seal a bill of exceptions, Rev. Stat. sec. 953, the other requisites referred to are essential.

In Baltimore & Potomac R. R. Co. v. Sixth Presbyterian

Church-a case similar in character to that under review-the court said (pp. 130, 131):

"Neither depositions nor affidavits, though appearing in the transcript of a common law court of errors, can ever be regarded as a part of the record, unless the same are embodied in an agreed statement of facts, or are made so by a demurrer to the evidence, or are exhibited in a bill of exceptions.

*

"Exceptions may be taken by the opposite party to the introduction of depositions or affidavits; and the party introducing such evidence in a subordinate court may insist' that the court shall give due effect to the evidence, and, in case of refusal to comply with such request, may except to the ruling of the court, if it be one prejudicial to his rights. Where neither party excepts to the ruling of the court, either in respect to its admissibility or legal effect, the fact that such a deposition or affidavit is exhibited in the transcript is not of the slightest importance in the Appellate Court, as nothing of the kind can ever constitute the proper foundation for an assignment of error. Suydam v. Williamson, 20 How. 433.

"Inquisitions like the present one bear a strong analogy in many respects to the report or award of referees appointed under a rule of court, to whom is referred a pending action. Referees in such cases make their report to the court; and in such a case the report, unlike an award at common law, must be confirmed before the prevailing party is entitled to the benefit of the finding of the referees. When the report is filed in court the losing party may file objections in writing to the confirmation of the report, and may introduce evidence in support of the objections; and it is well-settled law that the ruling of the court in overruling such objections is the proper subject of a bill of exceptions. Railroad v. Myers, 18 How. 250."

In Clune v. United States, in the course of the opinion the court said (159 U. S. 593):

"Finally, there is a claim of error in the instructions, but the difficulty with this is that they are not legally before us. True, there appears in the transcript that which purports to be a copy of the charge, marked by the clerk as filed in his office among the papers in the case; but it is well settled that instructions do not in this way become part of the record. They must be incorporated in a bill of exceptions, and thus authenticated by the signature of the judge. This objection is essentially different from that of the lack or the sufficiency of exceptions. An appellate court considers only such matters as appear in the record. From time immemorial that has been held to include the pleadings, the process, the verdict, and the judgment, and such other matters as by some statutory or recognized method have been made a part of it."

That parties by their affidavits or agreements cannot cause that to become a bill of exceptions which is not such in a legal sense, is settled. Nelson v. Flint, 166 U. S. 276, 279; Malony v. Adsit, 175 U. S. 281, 285, and cases cited.

As it results that the record before us does not exhibit error, the judgment of the Court of Appeals of the District of Columbia must be and it is

Affirmed.

OLSEN v. SMITH.

ERROR TO THE COURT OF CIVIL APPEALS FOR THE FOURTH SUPREME JUDICIAL DISTRICT OF THE STATE OF TEXAS.

No. 42. Argued November 3, 1904.-Decided November 28, 1904.

State laws regulating pilotage, although regulations of commerce, fall within that class of powers which may be exercised by the States until Congress has seen fit to act upon the subject. Whether illegal provisions in a pilotage statute granting discriminatory exemptions to vessels of that State can be eliminated without destroying the other provisions of the statute, is a State and not a Federal ques

195 U.S.

Argument for Plaintiff in Error.

tion. For the purpose of determining the validity of state statutes in their Federal aspect this court accepts the interpretation given to the statute by the state court and tests their validity accordingly.

The effect of Rev. Stat. §§ 4237, 4444, is not to interfere with or abrogate state laws regulating pilotage, but to withdraw coastwise steam vessels from the pilotage charges imposed by such state laws.

A state pilotage law subjecting all vessels, domestic and foreign, engaged in foreign trade to pilotage regulations, but which exempts pursuant to law coastwise steam vessels of the United States, is not in conflict with provisions in the treaty between the United States and Great Britain to the effect that British vessels shall not be subject to any higher or other charges than vessels of the United States. Pilotage regulations being under the control of the State, a state pilotage law otherwise unobjectionable, is not violative of the Fourteenth Amendment because it prevents an unlicensed person from rendering services as a pilot or because it creates a monopoly in favor of the pilots who are licensed under the act.

THE facts, which involved the constitutionality of the pilotage law of the State of Texas, are stated in the opinion.

Mr. Walter Gresham for plaintiff in error:

The act constitutes one scheme and the illegal provisions cannot be separated from the legal provisions. Spraigue v. Thompson, 118 U. S. 94; Freeman v. The Undaunted, 37 Fed. Rep. 662. The statute conflicts with the treaty with Great Britain. U. S. Treaties, 1889, 411. The statute conflicts with the anti-trust law of July 2, 1890, 26 Stat. 647. As construed by this court this law prohibits all contracts and combinations creating monopolies or preventing free competition in traffic or commerce between the States or with foreign nations, or hindering or impeding the instrumentalities of interstate or foreign commerce. The Galveston Pilot Association is such a combination. United States v. Freight Assn., 166 U. S. 327; United States v. Joint Traffic Assn., 171 U. S. 569; Addyston Pipe Case, 175 U. S. 211; Northern Securities Co. v. United States, 193 U. S. 197; Montague v. Lowry, 193 U.S. 38.

The State cannot declare an occupation to which none of the functions of government attach, to be an office, limit the

Argument for Plaintiff in Error.

195 U. S.

number of citizens who may hold the same, and prohibit all others, whatever their qualifications and fitness, from pursuing it. The Texas statute which declares a pilot to be an officer, and limits the number of citizens who can serve as pilots to the defendants in error, and such deputies as they may choose to appoint, is void.

The Legislature has limited the number of deputies and delegated to defendants in error the power to select and limit the number of men who can become qualified to serve as branch pilots. Such a limitation and delegation of authority by the Legislature is illegal, whether a branch pilot be an officer of the State or not. Willis v. Owens, 43 Texas, 41; Peoples' R. R. Co. v. Memphis R. R. Co., 10 Wall. 50; Cooley's Constitutional Limitations, 6th ed., 137 and note 1. A pilot is not a public officer. Hobart v. Drogan, 10 Pet. 123; Dean v. Healy, 66 Georgia, 503; Navigation Laws of the U. S., 1899, 53.

He is merely a navigator,-one who is or ought to be familiar with taking charge of a ship, and taking it into or out of the port at the particular place where he is engaged in the business. 18 Am. & Eng. Ency. of Law, 444; United States v. Forbes, 1 Crab. 558; S. C., Fed. Cas. No. 15,129. As to who are officers, see Texas Const. art. II, § 1, art. IV, §1; Petterson v. Texas, 58 S. W. Rep. 100.

The right of the defendants in error to maintain this suit is based upon the hypothesis that a pilot is a state officer. United States v. Hartwell, 6 Wall. 385; Atty. Gen. v. Drohan, 169 Massachusetts, 534; Shelby v. Alcorn, 36 Mississippi, 273; Vance v. W. A. Vandercook Co., 170 U. S. 438.

If a State deprives a citizen who is a skilled seaman, qualified to be a pilot, of his natural right to pursue his occupation it deprives him of the "liberty" and "property" guaranteed him by the Fourteenth Amendment. Slaughter House Case, 16 Wall. 79; Brannon's Fourteenth Amendment, and cases cited pp. 109, 115; Smith v. Alabania, 124 U. S. 480; Yick Wo y. Hopkins, 118 U. S. 356; S. C., 82 Fed. Rep. 833; Powell v.