COOLEY V. BOARD OF WARDENS, 53 U. S. 299 (1851)

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U.S. Supreme Court

Cooley v. Board of Wardens, 53 U.S. 12 How. 299 299 (1851)

Cooley v. Board of Wardens

53 U.S. (12 How.) 299


A law of the State of Pennsylvania that a vessel which neglects or refuses to take a pilot shall forfeit and pay to the master warden of the pilots, for the use of the Society for the Relief of Distressed and Decayed Pilots, their widows and children, one-half the regular amount of pilotage, is an appropriate part of a general system of regulations on the subject of pilotage, and cannot be considered as a covert attempt to legislate upon another subject under the appearance of legislating on this one.

Nor can the exemption of American vessels engaged in the Pennsylvania coal trade from the necessity of paying half pilotage be declared to be other than a fair exercise of legislative discretion acting upon the subject of the regulation of the pilotage of the port of Philadelphia.

The law of Pennsylvania is therefore not inconsistent with the second and third clauses of the tenth section of the first article of the Constitution of the United States, Imposts and duties on imports, exports, and tonnage were understood, when the Constitution was formed, to mean totally distinct things from fees of pilotage.

Nor is the law repugnant to the first clause of the eighth section of the first article of the Constitution, because, as the charge is not a duty, import, or excise, there is no necessity for its being uniform throughout the United States.

Neither is the law repugnant to the fifth clause of the ninth section of the first article of the Constitution, because it neither gives a preference of one port over another nor does it require a vessel to pay duties.

Upon this point, the act of Congress passed in 1789, 1 Stat. at Large 54, recognizing the pilot laws of the States is entitled to great weight as showing that these laws neither levied duties nor gave a preference of one port over another.

Moreover, the law is not inconsistent with the third clause of the eighth section of the first article of the Constitution.

It is true that the power to regulate commerce includes the regulation of navigation, and that pilot laws are regulations of navigation, and, therefore, of commerce, within the grant to Congress of the commercial power.

But the mere grant of the commercial power to Congress does not forbid the States from passing laws to regulate pilotage. The power to regulate commerce includes various subject, upon some of which there should be a uniform rule and upon chanrobles.com-red

Page 53 U. S. 300

others different rules in different localities. The power is exclusive in Congress in the former, but not so in the latter class.

Although Congress may legislate upon the subject of pilotage throughout the United States, yet they have manifested an intention not to overrule the State laws except in one instance. The law of Pennsylvania, not being overruled, is not repugnant to the Constitution of the United States.

These two cases were brought up from the Supreme Court of Pennsylvania by writs of error issued under the twenty-fifth section of the Judiciary Act.

They both depended upon the same principle, were argued and decided together, and will be treated as one. The only difference between them was that the pilotage was demanded from two different vessels, the Undine and the Consel. Cooley was the consignee of both vessels.

The twenty-ninth section of the act passed by the Legislature of Pennsylvania on the 2d of March, 1803, is set forth at length in the opinion of the court, and need not be repeated.

The board of wardens brought an action of debt before Alderman Smith against Cooley for half-pilotage, due by a vessel which sailed from Philadelphia without a pilot when one might have been had. The magistrate gave judgment for the plaintiffs, and the defendant appealed to the Court of Common Pleas.

In that court, a declaration in debt was filed by the plaintiff below. In the case of the Undine, the defendant demurred, and upon the demurrer, judgment was given for the plaintiff.

In the case of the Consul, the defendant put in two pleas.

1. That the Consul was engaged in the coasting trade, sailing under a coasting license from the United States.

2. That the said schooner was bound from the port of Philadelphia, in the state of Pennsylvania, to the port of New York, in the state of New York.

To both of which pleas there was a demurrer and a joinder in demurrer, and a judgment for the plaintiff.

The case was then carried to the Supreme Court of Pennsylvania, which, in January, 1850, passed the following judgment:


"the judgment of the Court of Common Pleas for the city and county of Philadelphia be affirmed because this court is of opinion that the twenty-ninth section of the act of the state of Pennsylvania, of the 29th of March, A.D. 1803, entitled An act to establish a Board of Wardens for the port of Philadelphia, and for the regulation of pilots and pilotages, and for other purposes therein mentioned, is not, in any of its provisions involved in this cause, at variance with any of the provisions of the Constitution or laws of the United States, but is a constitutional and legal enactment."

Cooley then brought the case up to this court. chanrobles.com-red

Page 53 U. S. 311


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