St. George v. Hardie

• Decision Date: 11 March 1908
• Citation: 60 S.E. 920,147 N.C. 88
• Parties: ST. GEORGE v. HARDIE.
• Court: North Carolina Supreme Court

60 S.E. 920

147 N.C. 88

ST. GEORGE v. HARDIE.

Supreme Court of North Carolina

March 11, 1908

Appeal from Superior Court, New Hanover County; Biggs, Judge.

Action by William St. George against Frank P. Hardie. From a judgment of the superior court for plaintiff, on appeal from justice court, defendant appeals. Affirmed.

Every statute must be construed with the light cast upon the language by the Constitution and other legislation, and such construction given it, if possible, as will give it operation consistent with the Constitution and other language.

Plaintiff sues defendant, master of schooner H. E. Thompson, for recovery of pilotage fees pursuant to provisions of chapter 625, p. 903, Pub. Laws 1907. The pleadings and admissions of record disclose this case:

The General Assembly at its session of 1907, c. 625, p. 903, Pub Laws, enacted a statute regulating pilotage in the Cape Fear river, etc. Pursuant to section 1, the Governor, on March 13 1907, commissioned five persons to constitute the board of navigation, etc. Plaintiff, being duly qualified therefore was, on May 18, 1907, granted a license by the board as a full pilot for vessels going in and out of the Cape Fear river, and filed his bond as required by law. On May 29 1907, while in the discharge of the duties of his office, he spoke the schooner H. E. Thompson, a sailing vessel, of more than 68 tons, from Boston, then running in for said bar, and offered to serve defendant, master of said vessel, as pilot over the bar to Southport. Plaintiff was the first pilot to speak said vessel. Defendant declined to accept plaintiff as pilot, and went over the bar and into the river without a pilot. On June 15, 1907, learning that said schooner would sail the following day, plaintiff offered himself to pilot the vessel over the bar going out to sea, but was refused by defendant. At the time of offering to pilot said vessel over the bar into, and out of, the river, plaintiff was ready, able, and willing to serve said vessel as pilot. Said schooner drew 16 1/2 feet of water. On both said days the weather was fair. There were, at said time, 34 pilots authorized to receive license, and acting under the act of 1907. The amount of pilot fees fixed for said vessel, by the provisions of the statute, is $70.22, which plaintiff duly demanded of defendant, payment whereof was refused. The action originated in the justice's court and came, by appeal, to the superior court of New Hanover county. Judgment was rendered for plaintiff. Defendant excepted and appealed. The assignments of error are set out in the opinion.

Polston Cumming, Jr., and Russell & Goodman, for appellant.

E. S. Martin and Rountree & Carr, for appellee.

CONNOR J.

Plaintiff's cause of action is based upon the provisions of chapter 625, p. 903, Pub. Laws 1907, entitled, "An act to protect and promote the commerce of the port of Wilmington and the state of North Carolina," ratified March 6, 1907.

The statute creates a board of commissioners of navigation of the Cape Fear river consisting of five persons to be appointed by the Governor, on or before the 5th day of April, 1907, and on the same day every four years thereafter, the term of their office to begin on the 15th day of April, 1907. This board is required and empowered to make rules and regulations, in regard to pilots, for the purpose of compelling them to be on duty, etc. To examine such persons as may offer themselves to be pilots for the Cape Fear river and bar, and to give to such as are approved and found qualified branches or licenses. Such persons as were qualified to serve as pilots prior to January 1, 1905, are to receive branches without examination; "Provided, that no new branches shall be given until after the number of pilots commissioned shall have been reduced, by death, resignation or otherwise, to the number of twenty, and there shall not be, at any time thereafter, a greater number than twenty, nor a less number than fifteen, commissioned by the board." Two classes of branches are to be issued and to be renewed annually, with power of renewal by the board.

Section 13 provides that "all vessels, coastwise or foreign, over sixty gross tons *** shall take a state-licensed pilot from sea to Southport and from Southport to sea." Rates of fees are fixed by this section. "The first pilot speaking a vessel shall be entitled to the pilotage fees over the bar to Southport and out to sea again, provided said pilot shall be ready and willing to serve as a pilot," etc. Other sections are referred to in defendant's assignments of error, which will be set out when we discuss the phases of the case applying to them.

The first assignment is directed to the finding that the Governor issued the commission to the members of the board of commissioners on March 13, 1907, whereas, the statute directs that the term of office shall not begin until April 15, 1907 and that the Governor is directed to appoint "on or before the 5th day of April, 1907." Defendant cites Cook v. Meares, 116 N.C. 582, 21 S.E. 973, to sustain this exception. In that case the Legislature elected the relator to an office not then in existence, but created by an act which was not ratified at the time of the election; hence, as the court held, no such office had been created at the time of the election. Here, the act creates the office, or, in the language of the statute, "the board of commissioners of navigation is hereby constituted," etc. This was done March 6, 1907. It is conceded that the commissioners duly qualified on April 15, 1907, the day upon which their term commenced. If they had not been appointed prior to April 15, it would hardly be contended that the date of their appointment was so essential that an appointment could not have been made after April 15, 1907. The office existed without regard to the appointment. The purpose of the Legislature was to constitute a board of commissioners of navigation; the term of office beginning April 15, 1907. The time of making the appointment is merely directory. The power to act-to discharge the duties of the office-is derived from the qualification which was in strict accordance with the statute. In State v. Shuford, 128 N.C. 588, 38 S.E. 808, the statute creating the district expressly provided that it should go into effect June 30, 1901. The appointment was made before that day, and the judge was discharging the duties of the office prior thereto. As said by Clark, J.: "There can, therefore, be no Sixteenth district till June 30th, and consequently, until that date, there can be no such office as judge of the Sixteenth district." The distinction between the cases is obvious. Again, an office having been duly constituted and the commissioners being duly qualified, they become, in any point of view, de facto officers. An appointment made by them, pursuant to the duty prescribed by law, cannot be drawn into question, collaterally. It would seem that even upon a quo warranto proceeding the appointment by a de facto officer is valid. Norfleet v. Staton, 73 N.C. 546.

The learned counsel for defendant frankly concede the power of the state to regulate pilotage. We find, upon examining the statutes, cited in the brief of plaintiff's counsel, that prior to its separation from England, and at all times since statutes have been enacted by the Legislature of this state regulating pilotage, providing for licensing, and requiring vessels entering the ports to use them, prescribing their fees, etc. Acts 1786, c. 27. The same is true of other States-in fact of all nations having seaports. In Cooley v. Board of Wardens, 12 How. (U. S.) 299, 13 L.Ed. 996, several of the objections made to this statute were pressed upon the court. Counsel in exhaustive briefs sustaining the power, cite statutes of many of the states, including our own, showing that the states have asserted and exercised the power to regulate pilotage. Judge Curtis, in a learned and exhaustive opinion, says: "We think this particular regulation concerning half pilotage fees is an appropriate part of a general system of regulation of this subject. Testing it by the practice of commercial states and countries legislating on this subject, we find it has usually been deemed necessary to make similar provisions. Numerous laws of this kind are cited in the learned arguments for the counsel for the defendant in error; and their fitness, as a part of a system of pilotage in many places, may be inferred from their existence in so many different states and countries. Like other laws that are framed to meet the most usual cases quae frequentius accidunt, they rest upon the propriety of securing lives and property exposed to the perils of a dangerous navigation by taking on board a person peculiarly skilled to encounter or avoid them; upon the policy of discouraging the commanders of vessels from refusing to receive such persons on board at the proper times and places; and upon the expediency and even intrinsic justice of not suffering those who have incurred labor and expense and danger to place themselves in a position to render important service generally necessary to go unrewarded because of a particular vessel, which either rashly refuses their proffered assistance or, contrary to the general experience, does not need it. There are many cases in which an offer to perform is deemed by law equivalent to performance. The laws of commercial states and countries have made an offer of pilotage service one of those cases; and we cannot pronounce a law which does this to be so far removed from the usual and fit scope of laws for the regulation of pilots and pilotage as to be denied, for this cause, a covert attempt to legislate upon another subject under the appearance of legislating upon this...