Olsen v. Smith
| Decision Date | 23 April 1902 |
| Citation | 68 S.W. 320 |
| Parties | OLSEN v. SMITH et al.<SMALL><SUP>1</SUP></SMALL> |
| Court | Texas Court of Appeals |
Bill by A. D. Smith and others against Otto Olsen. From a decree in favor of complainants, defendant brings error. Modified.
Gresham & Gresham, for plaintiff in error. Jas. B. & Chas. J. Stubbs, for defendants in error.
The suit was brought by defendants in error, as duly commissioned branch pilots of the port of Galveston, against plaintiff in error, to enjoin him from piloting or attempting to pilot sail vessels or registered steamers bound to or from foreign ports in or out of the port of Galveston, and from acting or assuming to act in any manner as branch or deputy pilot, or with respect to such vessels. The decree was for injunction accordingly. The petition alleged, in substance: That defendant is not a branch pilot or deputy pilot, but, notwithstanding his want of power or right to act, he assumes to act and does act as such; offers his services to incoming and outgoing vessels, and is occasionally taken on board and employed by them as a pilot, contrary to law; and declares his purpose to continue holding himself out as a pilot, and petitioners believe and aver that his threats of such intended violations of law will be carried into effect, unless he is restrained. That his unlawful acts and conduct, and his avowed determination of persisting therein, have caused and are causing plaintiffs substantial and irreparable injury, and prevent plaintiffs from exercising their official rights and duties as pilots, and from earning and receiving the fees and compensation fixed by law and by the board of pilot commissioners of said port. That defendant is insolvent, and plaintiffs have no other adequate remedy than that of injunction. The substance of defendant's answer will appear from the several assignments of error as they are discussed. Demurrers were made to the petition, which were overruled, and plaintiffs' demurrers to the answer were sustained, and decree was entered granting plaintiffs the relief prayed for; the decree reciting that it appeared to the court that they were entitled to such relief. There is no statement of facts, and we infer that the judgment was rendered on admission in the answer.
The following is appellant's proposition under the first and second assignments: "The bar heretofore existing between the waters of the Gulf and the harbor of Galveston having been removed, and the federal government having extended the harbor lines one mile beyond the sea end of the jetties, defendant in error have no right, under the law, to demand half pilotage." The only relevant allegation in the answer is that "the federal government by the construction of the jetties has deepened and widened the channel across the bar existing at the entrance to the harbor of Galveston, and has designated and marked the channel in said harbor by buoys and lights, so that the same can be navigated by vessels drawing 22 feet of water as well by night as by day, and has also established the harbor lines of said port at a point one mile beyond the sea end of said jetties." The proposition has no connection with the first assignment of error, which is that the court erred in overruling defendant's general demurrer to plaintiffs' petition. Appellant must be asserting said proposition under the second assignment, as the court sustained a special demurrer to the portion of the answer above quoted. We think there is nothing in the point. The deepening and widening of the channel across the bar, and the extension of the harbor limits, do not affect the applicability of our statutes to the harbor. The legislature evidently intended, by the words "outside the bar," outside the harbor limits.
Under the third and eighth assignments the following proposition is advanced: "The statute that gives to the pilot whose services are offered to, and refused by, a vessel outside of the bar, a claim for half pilotage against the vessel, and a claim for a forfeit of $50 against the person piloting such vessel into or out of the port, and then exempts certain vessels from the provision of the act, is in conflict with the laws and treaties of the United States, and void." In 1866 and in 1871 congress enacted the following statutes: In 1866: "No regulations or provisions shall be adopted by any state which shall make any discrimination in the rate of pilotage or half pilotage between vessels sailing between the ports of one state and vessels sailing between the ports of different states, or any discrimination against vessels propelled in whole or in part by steam, or against national vessels of the United States, and all existing regulations or provisions making any such discrimination are annulled and abrogated." Rev. St. U. S. § 4237. In 1871: Id. § 4444. The former of these provisions conflicts with article 3801 of our statutes, in that the latter exempts "all vessels of whatsoever burthen owned in the state of Texas when arriving from or departing to any port in the state of Texas," and the second also conflicts with our statutes, in that they subject certain coastwise steam vessels to pilotage. There can be no question that the acts of congress on the subject are paramount, and nullify at least so much of our statutes as are inconsistent with them. Appellant insists that the several provisions of our pilot law constitute one entire scheme, and the intent of the legislature to exempt Texas vessels engaged in strictly state commerce, and to include all coastwise vessels over 75 tons burden, are so interwoven and connected that it is impossible to separate them, or to declare that the legislature would have enacted the law at all if they had in view the illegality of such particular exemption and inclusion. That the objectionable provisions are separable from the rest of the provisions seems to us too plain for discussion....
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...Houston v. O'Leary, 1943, 140 Tex. 345, 348, 167 S.W.2d 719, 720. Pilotage — one of the oldest recognized monopolies, Olsen v. Smith, Tex.Civ.App. 1902, 68 S.W. 320, 321 — is, however, a service supplied by the individual whose relationship toward the vessel is comparable to an independent ......
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..."Now the harbor lines of Galveston Harbor begin in the Gulf a mile south of and beyond the sea end of the jetties. Olsen v. Smith, Tex.Civ.App., 68 S.W. 320 (error denied), 195 U.S. 332, 25 S. Ct. 52, 49 L.Ed. 224. They extend north to the south line of Harris County Houston Ship Channel Na......
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...of this state, but by the Supreme Court of the United States. Petterson v. Board, 24 Tex. Civ. App. 33, 57 S. W. 1002; Olsen v. Smith (Civ. App.) 68 S. W. 320; s. c., 195 U. S. 332, 25 Sup. Ct. 52, 49 L. Ed. 224. Also, the courts of this state have uniformly sustained the acts of the Legisl......
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...follow the business, or engage therein, is sustained by the courts (Petterson v. Board, 24 Tex. Civ. App. 33, 57 S. W. 1002; Olsen v. Smith [Civ. App.] 68 S. W. 320, which case was appealed to and sustained by the Supreme Court of the United States [195 U. S. 332, 25 Sup. Ct. 52, 49 L. Ed. ......