59 P.2d 373 (Wash. 1936), 26052, State ex rel. Foss Co., Inc. v. Kelly

Docket Nº:26052.
Citation:59 P.2d 373, 186 Wash. 589
Opinion Judge:TOLMAN, Justice.
Party Name:STATE ex rel. FOSS CO., Inc., et al. v. KELLY et al.
Attorney:John S. Robinson, of Seattle, for appellants. G. W. Hamilton and W. A. Toner, both of Olympia (Daniel Baker, of Olympia, of counsel), for respondents.
Judge Panel:GERAGHTY, BEALS, HOLCOMB, and STEINERT, JJ., concur. BLAKE, Justice (dissenting). MILLARD, C.J., and MAIN and MITCHELL, JJ., concur in the views expressed by BLAKE, J.
Case Date:July 09, 1936
Court:Supreme Court of Washington

Page 373

59 P.2d 373 (Wash. 1936)

186 Wash. 589

STATE ex rel. FOSS CO., Inc., et al.


KELLY et al.

No. 26052.

Supreme Court of Washington, En Banc.

July 9, 1936

Appeal from Superior Court, Thurston County; D. F. Wright, Judge.

Action by the State, on the relation of the Foss Company, Inc., for a writ of prohibition against E. Pat Kelly, as director of the Department of Labor and Industries, and others. From a judgment of dismissal, plaintiffs appeal.

Reversed, with instructions.

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John S. Robinson, of Seattle, for appellants.

G. W. Hamilton and W. A. Toner, both of Olympia (Daniel Baker, of Olympia, of counsel), for respondents.

TOLMAN, Justice.

The appellants, as plaintiffs, by this action sought the issuance of a writ of prohibition to prevent the defendants from in any manner enforcing or attempting to enforce chapter 200, Laws 1907 (page 425), as against them. From a judgment of dismissal, entered after trial on the merits, the plaintiffs have appealed.

[186 Wash. 590] The material facts are now very little in dispute and may be briefly summarized as follows: The appellants own and operate 139 motor-driven tugs, of which 111 are less than 65 feet in length. Some of these tugs are registered and the remainder are all enrolled and licensed under federal laws. For the most part, these tugs are employed in intrastate commerce, but some tow to and from British Columbia ports and some tow back and forth across the Columbia river, or from other ports in Washington to ports in Oregon. Practically all of these tugs are capable of engaging in interstate or foreign commerce and will do so if and when opportunity offers. Some of the larger tugs have towed and will tow to California ports. The main business, however, of most of the tugs is confined to moving vessels engaged in interstate and foreign commerce, and other work in and about the harbors where they are stationed.

The United States government has for many years maintained a steamboat inspection service, but neither that nor any other federal agency has been empowered by federal legislation to inspect motordriven tugs for seaworthiness or as to the condition of their mechanical equipment, or to license the officers who operate them.

Chapter 200, Laws 1907 (page 425), is a comprehensive and complete code for the inspection and regulation of every vessel operated by machinery which is not subject to inspection under the laws of the United States.

It is charged by the complaint and admitted by the answer that unless prohibited the department and its officials will (1) enforce as against the appellants and their vessels the provisions of section 9 of the act referred [186 Wash. 591] to (page 431), relating to signal lights; and (2) that appellants will be proceeded against for penalties unless, among other things, they will do the following:

'(a) Submit such vessels to inspection annually or oftener if the director shall deem it reasonable, at a cost to said owners of not less than five nor more than twenty dollars for each inspection.

'(b) Make such changes, repairs and improvements as said director may thereupon require.

'(c) Carry such officers on said vessels as the Director shall after examination license as masters, pilots, and engineers.

'(d) Carry such crews as he shall deem necessary to manage each vessel with safety.

'(e) Carry such life saving equipment as he shall require and approve.

'(f) Carry such fire prevention apparatus as he shall require and approve.

'(g) Keep on board at all times a copy of the license to be issued by the director authorizing the vessels to navigate in and upon the waters within the territorial limits of the state, the same to be posted in a conspicuous place.

'(h) Keep a copy of the first twenty-two sections of the act posted in a conspicuous place on said vessel.

'(i) Keep two copies of the navigation rules set out in section 8 of the act posted in the vessel, one in the pilot house, the other in a conspicuous place.

'(j) Keep the vessel's name painted on her stern in the character and colors prescribed by section 16 of the act.

'(k) Comply with all orders, regulations and requirements of the Commissioner (section 25).'

The appellants' main contentions are (1) that Congress has exclusive power to make laws for the government of foreign and interstate commerce, which includes the power to make rules governing navigation upon the navigable waters of the United States; that as to some things its power is absolute and exclusive and as to others, where there is a concurrent [186 Wash. 592] power, legislation by the state must give way when Congress has occupied the field whether such legislation conflicts with federal legislation or not; and (2) that therefore the state had no right to legislate as to most

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of the provisions of the act in question. Some other questions are presented which, however, it does not appear necessary to consider.

There are lakes within the state which are navigable. These are land locked and both sides agree that the state has exclusive jurisdiction of all matters pertaining to the navigation thereon and that this act of the Legislature may and does apply to all vessels operating on such land locked waters.

Within, or adjacent to the boundaries of the state, are also navigable waters known as inland waters, over which the federal government has control, and the high seas, over which the federal control is limited by international rules which our government has adopted by agreement with other maritime nations.

While the appellants' tugs mostly operate in inland waters, some go upon the high seas and, in any event, if the state may not legislate in the manner here disclosed with reference to operations in inland waters, of course...

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