Daniels v. Commissioners of Pilotage for Bar of Tybee

• Decision Date: 18 October 1917
• Docket Number: 6.
• Citation: 93 S.E. 887,147 Ga. 295
• Parties: DANIELS ET AL. v. COMMISSIONERS OF PILOTAGE FOR BAR OF TYBEE.
• Court: Georgia Supreme Court

93 S.E. 887

147 Ga. 295

DANIELS ET AL. v. COMMISSIONERS OF PILOTAGE FOR BAR OF TYBEE.

No. 6.

Supreme Court of Georgia

October 18, 1917

Syllabus by the Court.

If exceptions pendente lite are duly taken to an interlocutory ruling of the court, and are regularly certified and entered of record in the cause, which at its final determination is carried by writ of error to the Supreme Court by the opposite party, error may be assigned by the defendant in error on the record in the Supreme Court upon the exceptions pendente lite, and a reversal of the ruling complained of in the exceptions pendente lite may be allowed when it is manifest that the erroneous decision of the court affected the final result of the case. Civil Code, § 6138; Hodgkins v Marshall, 102 Ga. 191, 29 S.E. 174.

A refusal by the commissioners of pilotage for the bar of Tybee and river of Savannah, upon ex parte application, to authorize licensed pilots upon that bar to operate a boat separate and independent from the pilot boat to which, under the rules of the commissioners, all pilots are required to be attached, is not the exercise of a judicial function by the commissioners of pilotage, and the writ of certiorari will not lie to such refusal.

The writ of mandamus does not lie to control the conduct of an officer vested with a discretion, except where the exercise of that discretion has been so capricious or arbitrary as to amount to a gross abuse. Under the law and ordinances applicable to the commissioners of pilotage for the bar of Tybee and river of Savannah, it was within the discretion of the commissioners to decline to authorize licensed pilots upon that bar to operate a pilot boat separate and independent from that to which, under existing rules of the commissioners, all pilots were required to be attached. Under the circumstances disclosed by the record, it does not appear that the commissioners of pilotage abused their discretion in refusing to grant authority to employ such an independent pilot boat; and the application for mandamus absolute was properly denied.

Error from Superior Court, Chatham County; J. L. Kent, Judge.

Mandamus by W. T. Daniels and E. C. Daniels against the Commissioners of Pilotage for the Bar of Tybee. Motion to dismiss the petition overruled, and on its renewal at a subsequent term sustained, and relators except, and respondents assign error on the exceptions pendente lite. Affirmed.

Under Civ. Code 1910, § 5180, refusal of commissioners of pilotage for bar of Tybee, acting under section 1897 et seq., on ex parte application to authorize licensed pilots to operate independent pilot boat is not exercise of judicial function so that certiorari will not lie.

Under Civ.Code 1910, § 6138, error may be assigned on exceptions pendente lite taken to interlocutory rulings and certified and entered of record in cause carried by opposite party to Supreme Court on error, and rulings may be reversed where error affected final result.

W. T Daniels and E. C. Daniels instituted an action against the commissioners of pilotage for the bar of Tybee and the river of Savannah for the writ of mandamus to compel the respondents as public officers to grant authority to the relators and their associates to use and operate a designated boat as a pilot boat for the bar of Tybee and river of Savannah and the several bars and inlets north of Sapelo bar and to require them to revoke a certain order theretofore passed by the commissioners whereby authority to use the boat had been declined. The alternative writ was duly issued, returnable to the May term of the superior court then in session. On the day appointed the respondents filed their return to the writ, and therein answered to the merits of the petition; and the court adjourned for the term. At the next term the case came on to be heard, and the respondents filed a motion to dismiss the petition on the grounds: "First. The relators have no right to the remedy by mandamus, for they have another specific legal remedy, to wit, writ of certiorari. Second. The petition is insufficient in law and sets up no cause of action; certiorari being the remedy to correct the alleged error of the commissioners."

The motion to dismiss was overruled, and exceptions pendente lite to this ruling were duly allowed and filed. The case then proceeded to a hearing before a jury, and resulted in a mistrial. The court adjourned for the term; and at the next term, with a different judge presiding, the respondents renewed their motion to dismiss the petition for mandamus. The relators moved to strike this renewal motion. The court overruled the motion to strike, and sustained the renewal motion to dismiss expressly on the ground that the relators' remedy, if any, was by certiorari. The relators excepted to this ruling and caused the record including the exceptions pendente lite to be brought to the Supreme Court. The respondents did not present a cross-bill of exceptions; but when the case was called for hearing in the Supreme Court, they assigned error on the exceptions pendente lite filed by them in the trial court.

Omitting formal parts, the petition for mandamus alleged the following in substance: The relators are duly licensed pilots upon the bar of Tybee and river of Savannah, and the respondents are the duly appointed commissioners of pilotage for the bar of Tybee and river of Savannah, and the several bars and inlets north of Sapelo bar, and are an official body created under existing laws of the state of Georgia, composed of designated individuals. As commissioners of pilotage they are empowered, under statutes of the state, to prescribe rules and regulations for the government of pilots, to become operative when approved by the city council of Savannah. The commissioners have duly passed rules which have been approved by the city council of Savannah, among which are rules 4 and 6 (set out in the opinion). A corporation organized under the name of Pilots Navigation Company a number of years ago became the owner of a steam pilot boat called John H. Estill, the name of which was afterwards changed to Leopold Adler, and all of the pilots of the bar became owners of shares of stock in the corporation. In the course of time the shares of stock were sold by the several pilots until only a few of them were interested as stockholders. The corporation above mentioned leased this pilot boat to an unincorporated company called the Savannah Pilots Association, upon the basis of the corporation receiving for the hire of the boat one-third of the net earnings.

All of the Savannah pilots used the boat in rendering services as pilots, for which they were licensed. Prior to the introduction of the John H. Estill the Savannah pilots operated several pilot boats propelled by sail entirely, upon each of which there were from four to six pilots; the boats operating independently of each other, and competing with each other for the pilot business over the bar. At intervals the pilots, under a voluntary arrangement, would operate the several sail pilot boats in their joint interest, and at other times they were operated independently and competitively. In 1916 the Leopold Adler was taken out of service as a pilot boat by the corporation owning it, and the lessor furnished to its lessee, the Savannah Pilots Association, a tugboat as a substitute. Shortly before, a number of Savannah pilots other than relators purchased the auxiliary schooner Eclipse, and, upon petition to the commissioners of pilotage, were granted permission to use that vessel as a pilot boat, and it went into commission as such on April 19, 1916. The relators, not desiring to operate the Eclipse in conjunction with the other pilots interested in her, purchased the auxiliary schooner Cumberland for use as a pilot boat. On April 12, 1916, relators "petitioned" the commissioners of pilotage, in behalf of themselves and those who might be associated with them, for authority to use the Cumberland as a pilot boat. The petition was in the form of a letter, the body of which was as follows:

"The undersigned have been in negotiation for the purchase of the auxiliary schooner Cumberland for use as a pilot boat for the bar of Tybee and Savannah river. The Cumberland is five years old, and has been in use for the past three years as pilot boat at Fernandina. She is 66 feet by 17 feet 3 inches, by 7 feet 2 inches, and has 50 tons burden. She has a fifty-horse four-cycle engine, two masts, eight berths, and can make eight miles an hour under power. Before closing for the purchase of the boat, we desire for ourselves and those who may be associated with us the right to operate the Cumberland for this purpose. We would appreciate very much your early action in this petition. Yours very truly."

The commissioners replied to this letter by writing another, which, omitting formal parts, was as follows:

"I beg to advise you that your petition of April 12th, asking that this board grant you authority to put into commission the auxiliary schooner Cumberland as a pilot boat on Tybee bar and Savannah river was to-day presented to the members of this board; and after having heard your petition and the statements of the members of your body, the commissioners have requested me to say to you that it is with sincere regret that they note your differences, which to their mind appear to be only personal ones which could easily be adjusted between you and the other pilots of the Savannah Pilots Association; and it is the sincere desire of the members of this board that you and the other pilots get together and adjust your differences, and continue to operate as one body, and continue to give the port the service that it is entitled to, and which it has had under the present

...