195 U.S.

Argument for Defendants in Error.

Pennsylvania, 127 U. S. 684; Butchers' Union Co. v. Crescent City Co., 1 U. S. 757, 762; Allgeyer v. Louisiana, 165 U. S. 589; Connolly v. Union Sewer Pipe Co., 184 U. S. 558, 567.

The power over the subject of pilots and pilotage is conferred upon Congress by the commercial clause of the Constitution. Art. I, §8, cl. 3. This power is without limit and exclusive and cannot be delegated or surrendered.

It has been recognized that the States, in the absence of Congressional action, have authority to regulate the subject of pilots and pilotage, although the lines of argument by which this conclusion has been reached are by no means uniform. At the time when the decisions cited by defendants in error were rendered Congress had not, except the act of 1789, legislated upon this subject, and most of the harbors and rivers of the United States were only known to the local pilots. These conditions are now changed and Congress has legislated in many matters respecting pilotage and the earlier cases can be distinguished.

Mr. James B. Stubbs, with whom Mr. Charles J. Stubbs was on the brief, for defendants in error:

The acts of Congress are paramount and nullify all conflicting provisions whatever in a state statute but the objectionable features of the Texas statute are separable. The Alameda, 32 Fed. Rep. 333; Reagan v. Trust Co., 154 U. S. 362; Telegraph Co. v. Texas, 62 Texas, 630; Keokuk &c. Co. v. Keokuk, 95 U. S. 89; Spraigue v. Thompson, 118 U. S. 90; The Undaunted, 37 Fed. Rep. 662, distinguished; Loeb v. Trustees of Columbia Township, 179 U. S. 490.

The rule requiring ships in the foreign trade to take a pilot, or pay half pilotage, can and was intended to be applicable to such vessels, in any event, regardless of the rules then or thereafter prescribed for domestic or coasting craft. The state exemption of such is broad, including many that the Federal act omits, and it is apparent that the legislature would not have hesitated, if called to its attention, to have made the

Argument for Defendants in Error.

195 U. 8.

state exemptions or options conform to the National. Tiernan v. Rinker, 102 U. S. 123; S. C., 47 Texas, 393; T. & P. Ry. Co. v. Mahaffey, 10 T. C. R. 779; Florida Central Ry. v. Schutte, 103 U. S. 118; Little Rock & Ft. S. R. Co. v. Worthen, 120 U. S. 102. This court will accept the construction of the Texas courts in such cases as this. Cargill Co. v. Minnesota, 180 U. S. 460; Tullis v. Lake Erie & W. R. Co., 175 U. S. 348; Mo. Pac. R. Co. v. Nebraska, 164 U. S. 403; Chicago, M. & St. P. R. Co. v. Minnesota, 134 U. S. 418; St. L., I. M. & S. R. Co. v. Paul, 173 U. S. 404; M., K. & T. Ry. v. McCann, 174 U.S. 586.

The statute does not contravene the foreign treaty or the anti-trust act.

No restraint of commerce or prevention of competition can exist by virtue of any agreement among the pilots themselves. The law alone is responsible for the limited number of pilots, and it alone prescribes the maximum rates of pilotage, and generally provides for the regulation of the service by the Commissioners who are responsible to the Governor. The formation of a partnership among all the pilots of the port is not unlawful. Petterson v. Board of Pilot Commissioners, 57 S. W. Rep. 1002; Jones v. Clifford, 5 Florida, 510; Levine v. Michel, 35 La. Ann. 121; The Pirate, 32 Fed. Rep. 490; The Dundee, 103 Fed. Rep. 698; S. C., 108 Fed. Rep. 678; Mason v. Ervine, 27 Fed. Rep. 459.

An agreement to be in conflict with the anti-trust act must directly and substantially, and not merely indirectly and incidentally, regulate interstate or foreign commerce. Anderson v. United States, 171 U. S. 615. And see besides cases cited by plaintiff in error. Hopkins v. United States, 171 U. S. 578.

The State has the right to limit the number of port pilots and require service as a deputy pilot as a condition precedent to appointment as pilot. Steamship Co. v. Joliffe, 2 Wall. 450; Petterson v. Board, 57 S. W. Rep. 1002;

The power exercised by States in enacting pilotage laws is an original power and not one delegated by Congress. The

195 U.S.

Argument for Defendants in Error.

Chase, 14 Fed. Rep. 854; Davidson v. Sadler, 57 S. W. Rep.

54.

The position of a pilot is that of a public officer. People v. Woodbury, 14 California, 43; Flynn v. Abbott, 16 California, 359; Doliver v. Parks, 136 Massachusetts, 499; The California, 1 Sawy. 596; S. C., Fed. Cas. No. 2313; Barnaby v. State, 21 Indiana, 450. See also laws in New York and Louisiana referred to in foregoing opinions.

Courts should declare a law unconstitutional only when it is clearly, so. Fletcher v. l'eck, 6 Cranch, 87. Where an employment or a duty is a continuing one, defined by rules prescribed by law and not by contract, such a charge or employment is an office. Measured by this rule the Galveston pilots are officers. 23 Am. & Eng. Ency. of Law, 2d ed., 324, and cases cited in note 1.

As to the deputies some preliminary training for pilots is essential, and it is well-nigh the universal practice in our maritime States to require a proper service as deputies or apprentices. Palmer v. Woodbury, 14 California, 45.

The Fourteenth Amendment was not designed to interfere with the police power of the State, and the pilotage laws are police regulations of commerce. Congress possesses the right to establish these regulations, but as long as it does not assume this power the States may exercise it. Gibbons v. Ogden, 9 Wheat. 1, 207. If Congress had taken charge of the entire subject its right to prescribe an apprenticeship or a deputyship could not be successfully challenged. Tiedeman's Lim. of Police Power, 626; Hughes on Admiralty, 28, 38; The China, 7 Wall. 53; Wilson v. McNamee, 102 U. S. 572.

Legislation limited in its application, but operating alike on all persons similarly situated, is not within the Fourteenth Amendment. Barbier v. Connolly, 113 U. S. 27; A., T. & S. F. Ry. v. Matthews, 174 U. S. 106; The Chase, 14 Fed. Rep. 854.

States have delegated to others the authority to recommend in one case, and to appoint in the other, the pilot commis

VOL. CXCV-22

sioners of the ports of Boston and New York respectively. Opinion of the Justices, 154 Massachusetts, 603; S. C., 31 N. E. Rep. 634; Sturges v. Spofford, 45 N. Y. 446; Cooley v. Board of Wardens, 12 How. 300; and see Ex parte McNeill, 13 Wall. 236.

Congress can, if it deems best, assume control of pilotage in every State, but it is well settled that the mere grant to Congress of the power to regulate commerce did not deprive the States of the power to regulate pilots, unless and until Congress should determine otherwise. The only question raised or doubt expressed was as to the validity of the laws or the authority of the States to enact them. The Carry L. Tyler, 106 Fed. Rep. 426; The Creole, Fed Cas. 13,033; Darden v. Thompson, 101 Virginia, 635, 755.

Pilot laws of other seaboard States are similar to this as to apprentices. Alabama Code, 1896, §§ 2992, 2996, 2999; Florida, Rev. Stat. 1892, §§ 938 et seq.; Delaware Code, 1893, 556, 558; Georgia Code, 1895, §§ 1651, 1653, 1683, 1684; New York, 3 Rev. Stat. pp. 2266, 2273; Virginia Code, 1887, §§ 1955 et seq.; New Jersey, 2 Gen. Stats., arts. 56, 59; Mississippi, Ann. Code, §§ 2252, 2258, 2260, 2261; Maryland, 2 Pub. Gen. Laws, art. 74, §§ 4, 6, 10; South Carolina, Rev. Stat.1893, §§ 1357, 1365; North Carolina, Battle's Rev. ch. 87, §§ 1, 7.

MR. JUSTICE WHITE delivered the opinion of the court.

The defendants in error, who were plaintiffs in the court of original jurisdiction, as the duly licensed state pilots of the port of Galveston, Texas, sued in a Texas District Court to recover the damages averred to have been caused them by the alleged illegal action of the defendant in offering, when he was not authorized by law to do so, his services "to pilot sail vessels or registered steamers, bound to or from foreign ports, in or out of the port of Galveston." An injunction was prayed restraining the defendant from acting "in any manner as branch or deputy pilot, or pilot under the laws of the State

of Texas, and of said port, or under the laws of the United States, with respect to the kind of vessels specified." The defendant filed a general demurrer, and, reserving the demurrer, answered, raising special defenses based on averments that the pilotage laws of Texas were in conflict with the Constitution and laws of the United States. The court overruled the demurrer of the defendant, and, on the ground that no defence was stated, sustained a demurrer to the answer. A judgment was entered in favor of the plaintiffs, awarding an injunction as prayed. 68 S. W. Rep. 320. The case was taken to the Court of Civil Appeals for the First Supreme Judicial District, was thence transferred to the Court of Civil Appeals for the Fourth Supreme Judicial District, where the decree below was affirmed, with a slight 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 Fourteenth 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