Kotch v. Board of River Port Pilot Com'rs for Port of New Orleans

• Decision Date: 11 February 1946
• Docket Number: 37809.
• Citation: 209 La. 737,25 So.2d 527
• Parties: KOTCH et al. v. BOARD OF RIVER PORT PILOT COM'RS FOR PORT OF NEW ORLEANS et al.
• Court: Louisiana Supreme Court

25 So.2d 527

209 La. 737

KOTCH et al. v. BOARD OF RIVER PORT PILOT COM'RS FOR PORT OF NEW ORLEANS et al.

No. 37809.

Supreme Court of Louisiana

February 11, 1946

Rehearing Denied March 18, 1946.

Appeal from Civil District Court, Parish of Orleans Rene Viosca, judge.

O'Niell & O'Niell, of New Orleans, for plaintiffs-appellants.

Lemle Moreno & Lemle, of New Orleans, for defendants-appellees.

ROGERS Justice.

Plaintiffs hold first class pilot licenses from the United States Government and are experienced pilots on the Mississippi River and other waters. They brought this suit against the Board of River Port Pilot Commissioners for the Port of New Orleans and the individual members thereof to have Act 54 of 1908, as amended by Act 134 of 1942, under which the defendant Board was created and is operating, declared to be unconstitutional and to have its enforcement enjoined; or, in the alternative, to have the amendatory act declared to be unconstitutional and to have its enforcement enjoined. In the further alternative, plaintiffs pray if Act 54 of 1908 and its amendment be held to be valid, that the defendants be ordered by mandamus to examine them on their qualifications as pilots and, finally, to certify them to the Governor for appointment. Defendants filed an exception of no cause of action, which was sustained and the suit dismissed. Plaintiffs have appealed from the judgment.

In 1908 the Legislature passed an act regulating the system of river port pilotage for the Port of New Orleans, providing for a board of river port pilot commissioners, defining its duties, prescribing the necessary qualifications for port pilots and fixing their charges. Act 54 of 1908.

Section 1 of the act creates the Board of River Port Pilot Commissioners for the Port of New Orleans to consist of three citizens to be appointed by the Governor with the consent and advice of the Senate. Sections 2 and 3 provide for the appointment and commissioning by the Governor of twenty-eight pilots from those pilots who were actively and continuously engaged for one year previous to the passage of the act in piloting sea-going vessels from the head of the Passes to the Port of New Orleans and return. Section 4 declares that whenever there exists a necessity for more pilots among the river port pilots, the Board of River Port Pilot Commissioners shall hold examinations of applicants for appointment under such rules and regulations and with such requirements as they shall have provided, with the approval of the Governor; provided no applicant shall be considered by the Board unless he submits proper evidence of moral character, is a voter of the State, and shall have served six months apprenticeship in his proposed calling. Section 4 further provides, upon the certificate of the Board to the Governor that the applicant has complied with the provisions of the act, the Governor may in his discretion appoint to existing vacancies.

Act 134 of 1942 amends Act 54 of 1908 by providing it shall be the duty of the body of pilots known as 'River Port Pilots' to pilot sea-going vessels from Pilot Town to Southport and return and within the Port of New Orleans, and providing further that the river port shall be entitled to the exclusive right to pilot vessels within the Port of New Orleans between Southport and Mereauxville.

Plaintiffs' petition alleges, in substance, that Act 54 of 1908, on its face, is violative of the Fourteenth Amendment of the Federal Constitution and of Section 2 of Article 1 of the State Constitution. The petition further alleges that the legislative act does not contain any provision for competent examinations and also fails to lay down any rules for the Board to follow in the commissioning of pilots, but, on the contrary, the act vests in the Board arbitrary powers in that connection. That the Board has always assumed and exercised arbitrary authority in respect to the commissioning of pilots; that no examinations have ever been held by the Board; that appointments have always been made on a personal basis--the appointee being first 'elected' by vote of the members of the Port Pilots Association, an organization composed exclusively of commissioned river pilots; that the three members composing the Board are members of the Crescent River Port Pilots Association, and in the vast majority of cases the appointees have been kinsmen of one or more of the pilots, with no experience whatever as pilots prior to their election.

The petition further sets out the names of a number of pilots who were appointed in 1938 and 1944, the last time appointments were made, and also sets out their relationship to those pilots then holding commissions or to pilots formerly holding commissions; that thirty-four of the forty-one pilots presently holding commissions are related to other pilots or to their predecessors.

The petition alleges it is a matter of common knowledge that membership as a commissioned pilot is closed to all persons except those favored by the pilots; that nevertheless four of the petitioners, whose names are mentioned at various times, made formal application to the defendant Board to be considered as applicants for examination as pilots and that their applications have been ignored. That being barred by the provisions of Act 54 of 1908 from piloting vessels in foreign trade on the Mississippi River below the limits of the Port of New Orleans, petitioners in the past have largely centered their activity to the Port itself, but that under the provisions of Act 134 of 1942, amending Act 54 of 1908, they are prohibited from piloting vessels engaged in foreign trade within the Port and are placed in a position where they are not able to make a living since the coastwise business is not sufficient for their support.

The petition alleges that for the above reasons Act 54 of 1908 and its amendment, Act 134 of 1942, are unconstitutional, and that in addition thereto Act 134 of 1942 is unconstitutional because it is a local or special law which was not preceded by notice or publication as prescribed by Section 6 of Article 4 of the Constitution of 1921.

The contentions raised by the petition require this Court to determine whether Act 54 of 1908 and its amendatory Act 134 of 1942, on the face thereof are violative of the Federal and State Constitutions; whether if they are constitutional the acts have been rendered unconstitutional by the arbitrary, discriminatory and unjust way in which they have been administered by the defendant Board and, in the alternative, whether Act 134 of 1942 is a local or special law enacted without the constitutional requirement of notice or publication. In considering these contentions it should be kept in mind that under the exception of no cause of action only the well pleaded facts and not the conclusions of law contained in the petition must be accepted as true.

Pilot regulations are regulations of commerce upon navigable waters. In Ex parte McNiel, 13 Wall. 236, 238, 20 L.Ed. 624, it was said by the Supreme Court of the United States: 'It must be admitted that pilot regulations are regulations of commerce. A pilot is as much a part of the commercial marine as the hull a part of ship and the helm by which it is guided; * * *. Pilots are a meritorious class, and the service in which they are engaged is one of great importance to the public. It is frequently full of hardship, and sometimes of peril; night and day, in winter and summer, in tempest and calm, they must be present at their proper places and ready to perform the duties of their vocation. * * *'

It has long been settled by decisions of the Supreme Court of the United States that 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. Society for Relief of Distressed Pilots, Their Widows and Children, Board of Wardens of Port of Philadelphia to use of, 12 How. 299, 13 L.Ed. 996; Ex parte McNiel, 13 Wall. 236, 20 L.Ed. 624; Wilson v. McNamee, 102 U.S. 332, 25 S.Ct. 52, Olsen v. Smith, 195 U.S. 332, 25 S.Ct. 52, 49 L.Ed. 224, Anderson v. Pacific Coast Steamship Co. 225 U.S. 187, 32 S.Ct. 626, 56 L.Ed. 1047.

Since Congress has not acted to relieve vessels engaged in foreign trade from the provisions of state pilotage laws, the State has power to legislate concerning such pilotage.

Pilotage is not merely a business. It is a highly specialized and hazardous calling which, in the absence of action by Congress, is under the control of the State. By the adoption of Act 54 of 1908, as amended by Act 134 of 1942, the Legislature, in the protection of the public interest, has undertaken to regulate pilotage on the Mississippi River on vessels engaged in foreign trade from the Passes at the mouth of the river to Southport above New Orleans, which includes the pilotage of such vessels within the port itself.

Plaintiffs agree that the pilotage of vessels engaged in foreign trade is subject to state regulation, but they insist that such regulation must not be arbitrary or discriminatory which they contend is the case with respect to the statutes in question. Plaintiffs' contention is based upon the Fourteenth Amendment to the Federal Constitution and Section 2 of Article 1 of the State Constitution. The argument is that the right of a person to render pilotage services is a fundamental right guaranteed by the constitutional provisions, and that therefore Act 54 of 1908, as amended by Act 134 of 1942, providing for the commissioning of pilots and restricting the right to pilot to the duly commissioned pilots are violative of those provisions. But the argument in effect merely denies that pilotage is...