author: Pierrepont, J. Robertson, J. Woodruff, J.

text:
    George H. Cisco, Plaintiff, v. Marshall O. Roberts, Defendant.
    1. The laws of the State of New York providing for the licensing and government of pilots and regulating pilotage at the port of New York, and the Regulations of the Board of Commissioners of Pilots, so far as those laws and regulations are inconsistent with the provisions of the act of Congress (of August 30th, 1852,) to provide for the better security of passengers on board vessels propelled by steam, are abrogated thereby. (Laws of New York, of 1853, p. 921; of 1854, p. 459; of 1857, p. 500. U. S. Stat. at Large, vol. 5, p. 153; vol. 10, p. 61.)
    2. Although the Act of Congress of August 7th, 1789, expressly authorized the several States to regulate the subject of pilotage within the bays, inlets, rivers, harbors and ports within their respective jurisdiction, and State laws are enacted for that purpose, subsequent constitutional legislation by Congress on the same subject is of paramount authority.
    3. The power to regulate pilotage is included in the power to regulate commerce conferred upon Congress by the Constitution of the United States.

      4. The said Act of Congress of August 30th, 1852, providing for the licensing of Engineers and Pilots of steamers carrying passengers, by inspectors appointed under that act and making it unlawful for any person to employ, or any person to serve as Engineer or Pilot on such vessel who is not so licensed, applies as well to a port Pilot, or the Pilot who is to bring the steamer into port, as to the Engineer and Pilot who may conduct the steamer on her voyage.
    5. Accordingly, where the master or owners of a steamship, bound from a foreign place to the port of New York, refused to receive on board or accept the services of a Pilot of that port not licensed under the said act of Congress, they are justified and are not liable to such Pilot for pilotage or any compensation, notwithstanding such Pilot was licensed by the Board of Commissioners of Pilots for the Port of New York, was the first Pilot who offered his services, made such offer within the pilot ground established by the regulations of that Board, and by such regulations such steamer is required to take a licensed Pilot, and in case of refusal, the master or owners are thereby required to pay pilotage, and such pilotage is to be paid to the Pilot first offering his services.
    6. It seems that the laws of the State of New York, on the subject of pilot-age at her ports, and the regulations of such Board of Commissioners are valid and continue in force, so far as they are consistent with the acts of Congress.
    But such laws and regulations are wholly inoperative and ineffectual to authorize a Pilot to serve on board a steam vessel, who is not licensed under the act of Congress, or to make it the duty of the master or owner to employ him, or to entitle him to any compensation by reason of his offer to serve, or their refusal to permit him to do so..
    (Before Woodruff, Pierrepont and Robertson, J. J.)
    Heard, March 13th;
    decided, April 28th, 1860.
    This action was brought to recover the fees, allowed by the laws of the State of New York, for the pilotage of a vessel into the port of New York, (fixed by such laws at $57.60,) with the interest thereon from the 28th of December, 1857, upon the grounds: that the plaintiff is a Pilot, duly licensed for the port of New York by the Board of Commissioners of Pilots created and organized under and by virtue of the laws of this State; that the defendant is the owner of the vessel or steamship Empire City; that, on the day above-named, the said plaintiff offered his services as Pilot to the master of that vessel, the said vessel then being bound to the port of New York, having no Pilot licensed by such Commissioners on board, and the plaintiff being the first Pilot speaking or offering his services to such steamship; and that it was, by such laws, the duty of the master to receive him, but the said master refused to take or employ the plaintiff as Pilot.
    The answer of the defendant, (after denying the allegations of the plaintiff,) among other things, alleged that the said steamship (if so spoken, &c., by the plaintiff,) was, at the time, not within the jurisdiction of the State of New York; and that, prior to the time when the said steamship reached the pilot-ground or place where the services of a Pilot were necessary, a Pilot duly licensed for the port of New York by the Board of Commissioners of Pilots spoke the vessel, was received, and brought in the said steamship, and the defendant has paid him therefor.
    The action was tried before Mr. Justice Hoffman and a jury, on the 9th day of February, 1860.
    On the trial, the plaintiff proved —
    1. That the plaintiff is a licensed Pilot by the laws of the State of New York, and has been since 1854, having received his license from the Board of Commissioners of Pilots, created and acting under those laws; and that he has no license under the acts of Congress relating to the subject.
    2. That, on the 28th day of December, 1858, near Barnegat Lighthouse, he spoke the Empire City, owned by defendant, and offered to pilot her into the port of New York.
    3. That he was the first Pilot who offered his services, and that the master of the Empire City refused to accept him as Pilot.
    4. That the place where the plaintiff so spoke the Empire City was forty miles from the port of New York, about forty miles from the nearest point of the coast of New York, and not within the jurisdiction of the State of New York, but on the high seas, opposite the State of New Jersey, within seven miles of the coast of New Jersey. But such place was west of the line established by the Board of Commissioners of the State of New York to define the pilotage-ground of the port of New York, and within such ground, and where Sandy Hook light could not be seen from the deck of the vessel; at which distance from the port, for boarding vessels, “ off-shore pilotage,” or an extra charge, is allowed to Pilots by the regulations of the said Board.
    5. That said Empire City was bound on a voyage from a foreign port to the port of New York, and was propelled by steam.
    The plaintiff then rested.

      The defendant’s counsel then moved the Court for a dismissal of the complaint, on the ground that the power to legislate on the subject of pilotage belongs to Congress, and that Congress having, by the act of the 30th of August, 1852, legislated upon the subject, so far as respects steam vessels, the existing State laws are inoperative in respect to such vessels. And on the further ground that, on the facts proved, the plaintiff could not recover. The Court denied said motion, to which ruling and decision, the defendant excepted.
    It was then admitted, on the part of the plaintiff, that after the vessel was spoken by plaintiff, and before she reached this port, she took on board as pilot, John Maginn, who is a pilot duly licensed by the Board of Commissioners of Pilots, and who also holds a license under the act of Congress of 1852, and that said Maginn piloted said steamer into the port of New York.
    By consent, the boundaries of the State of New York, as described in the Revised Statutes, were made a part of the evidence for the defense.
    The following regulations of the Board of Commissioners of Pilots were put in evidence by the plaintiff.
    The 15th, as follows: “ Pilots are required to board the nearest vessel having a signal flying for a pilot, except in case there should be a vessel in sight, with a signal of distress, under a penalty of fifty dollars.”
    The 17th, “pilots are required to transport a vessel to any part of the port of New York, when applied to, under a penalty of twenty-five dollars; such service to be paid for as per section 21 of the law.”'
    The 19th, “ the pilotage ground of the port of New York, shall be deemed to be west of a line drawn in the shortest direction from Fire Island Light to that of Barnegat Light, which line will run S. W. \ S., and N. E. \ N., and that west of that line, vessels subject to pilotage must take the first pilot offering his services, or pay the pilotage.”
    Proof was also given of the practice of the Board in examining, selecting and licensing Pilots, and in enforcing their regulations.
    It was agreed that the amount of pilotage to which plaintiff would be entitled, if off-shore pilotage is recovered, is sixtysixT6/7 dollars; and that, if only entitled to ordinary pilotage, the amount of recovery should he fifty dollars.
    Both sides having rested, and there being no disputed question of fact, the jury, under the direction of the Court, rendered a verdict for the plaintiff for sixty-sixT6„6-o dollars, subject to the opinion of the Court at General Term, with liberty to reduce the amount to fifty dollars, if the plaintiff be not entitled to off-shore pilotage. Judgment to be suspended, and the case to be made by the plaintiff.

      Wm. Allen Butler, for the plaintiff.
    I. The plaintiff, being a Pilot duly licensed under the laws of this State, having spoken the vessel on pilot ground, and offered his services as Pilot, and being the first pilot so speaking or offering his services to such vessel, upon the refusal to accept his services, became entitled to the amount of the pilotage in like manner as if his services had been accepted and he had piloted the vessel into port.
    The provisions of the pilot laws now in force, are as follows:
    Act of June 28th, 1853: “ To provide for the licensing and government of the Pilots, and regulating pilotage of the port of New York,” and amendatory acts of 1854 and 1857.
    [The sections relied upon by the counsel are recited in the opinion of Mr. Justice Pierrepont.]
    II. The above provisions of the pilot laws of this State are not repugnant to the Constitution of the United States.
    1. It is true that the power to regulate commerce includes the . regulation of navigation, and that pilot laws are regulations of navigation. But 'the mere grant of commercial power to Congress, made by article 1, section 8, subdivision 3, of the Federal Constitution, does not forbid the States from passing laws to regulate pilotage, and Congress, by the act of August 17th, 1789, (1 Stats, at Large, 54,) expressly recognized the power of the several States in this respect, and committed to them the power of regulating pilotage. (Cooley v. Board of Wardens of Phil., 12 How. U. S. R., 299.)
    2. Nor does the fact that Congress, in 1852, passed an act requiring steam vessels to have on board a pilot for the voyage, supersede or contravene the laws of the several States, regulating pilotage, or deprive the States of the right to regulate it.
    This precise point has been decided in the Supreme Court of the State of South Carolina, in the case of Chapman v. Jackson. (9 Rich. Law R., 209.)
    In that case the defendant refused to take a licensed pilot, (the law being similar to that of this State,) on the ground that his vessel had on board at the time a pilot licensed under the act of August 30th, 1852. The plaintiff sued for his fees, and recovered the amount. On appeal the defendant claimed that the act of 1852 was a revocation pro tanto of the previous laws of Congress, on the subject of pilotage, and that the State law was therefore inoperative as respects steamships.
    The Court affirmed the judgment on the following grounds:

      (a.) That the act of 1789 is not expressly repealed by that of 1852, nor in any manner therein referred to, either by its date or subject-matter, so as to justify the inference that it was in the contemplation of Congress when the act of 1852 was passed.
    (b.) That even if in pari materia, the general purpose of the two acts is not the same, nor are their provisions inconsistent with each other. The act of 1789 being confined to conferring on the States power to regulate the Pilots of their respective harbors, while the act of 1852 was intended to remedy numerous defects in the boilers, engines, and management of steamers, whereby the lives of passengers were endangered; and to provide for the employment of skillful and competent Engineers and Pilots, to serve permanently on the vessel, without intending thereby to supersede the State regulations, existing in reference to pilotage, in entering and leaving harbors, especially as it does not require that .the pilots to be licensed under it shall possess any knowledge of the channels, ports and harbors which their vessels are to enter. The license required by the act of 1852 is not confined to any particular ports or channels, and if intended to supersede harbor Pilots would compel the steamer Pilot, under the penalty of the act, to take his vessel into a port, which he may never before have entered, and of which he knows nothing.
    It is submitted that this reasoning is sound and conclusive, and that upon an examination of the act of 1852 it will appear that it is in no sense a repeal or modification of the existing State laws relating to the subject of harbor pilotage, nor an abridgment of the power of the States in this respect.,
    III. There is no evidence in this case that, at the time the plaintiff offered his services, there was any pilot licensed under the act of 1852, on board of the steamship.
    .IV. The fact that the steamship, after the plaintiff boarded her,' took another licensed Pilot, who.brought her into port, does not affect plaintiff’s right to recover.
    1. The provisions of section 29 are to be construed in reference to the subject to which they relate, the nature of the service which they regulate, and the public benefit which they were designed to secure.
    2. Viewed in this light, it will be apparent that the policy of the law is to encourage capable and responsible persons to undertake the laborious office of Pilot, and to expose themselves to all the dangers incident to its discharge, by securing to them, not only the exclusive privilege of piloting vessels, but also an increased compensation in cases where they take increased risks, by venturing out from port, in the course of their duty, in quest of inward-bound vessels. (Commonwealth v. Ricketson, 5 Metc., 412, 417.)
    3. All pilotage regulations in European States, as well as our own, proceed on this principle. (See the citations from Hanseatic Ordinances, Maritime Law of Sweden, &c., collected on page 307 of 12th Howard, case of Cooley, &c., supra.)

    As early as the time of Louis XIV., (a. d., 1681,) if mariners refused a Pilot, they were to suffer corporal punishment, and the one. offering himself must be employed. (See, also, acts of the several States of the U. S., p. 308, S. C.)

    4. The provisions of section 29 must be construed in connection with that of section 13, so as to carry out the intent of the law, which is, to provide a bounty on the extra labor and hazard involved in the Pilot’s cruising off-shore, out of sight of Sandy Hook light, in the discharge of his duty, and also to inflict upon the master refusing to take the Pilot a suitable penalty. (S. C., 12 How., 312.)
    5. If the master of a vessel is at liberty to refuse the Pilot first offering, and yet avoid the penalty by taking one who subsequently offers, the above provisions are practically nullified, and the public benefit intended to be secured and the rights of the Pilots are defeated.
    5. The question is one which affects, not only the rights of a hardy and meritorious class of men, engaged in a perilous public duty, but also those of shipmasters and merchants, and, through them, the great interests of commerce. The Pilots are required, by the stringent regulations of the Board, which have the effect of law, to take the first vessel requiring their services. (Regulation 15.) But there is no inducement for them to go in quest of vessels if this rule is not reciprocal; and the regulation requiring vessels to take the first Pilot who offers, (Regulation 19,) is in accordance with the law, (§ 29,) and properly enforces its provisions. The master of the defendant’s steamship had, therefore, no right to refuse to take the plaintiff.
    6. The extra pilotage was properly included in the verdict. The Pilot, boarding a vessel out of sight of Sandy Hook light, is entitled to the off-shore pilotage, by section 13. An offer to board is equivalent to boarding, on the familiar principle that where there is a duty to render services, an offer, or readiness to perform, will, in law, be equivalent to performance. (12 How., 312.)
    The plaintiff is entitled to judgment on the verdict for the amount, with interest and costs.

      Gilbert Dean, for the defendant.
    I. That the power to “ regulate commerce” as provided in article 1, section 8, of the Constitution, is exclusive, has been settled by an unbroken series of decisions from Gibbons v. Ogden, (9 Wheat., pp. 1-240,) down to the present time. (Smith v. Turner; Norris v. City of Boston, 7 How. S. C. U. S., 283; 11 Pet., 158; Kent’s Com., 436, 437.)
    1. In Gibbons v. Ogden, it was held that a license under the act of Congress, to carry on the coasting trade, was an authority to do it within the limits of any State, a State law to the contrary notwithstanding.
    2. So the defendant insists, that a pilot licensed under the act of Congress may pilot a vessel into port without any penalty or forfeiture being incurred by the vessel.

      3. The decision in Cooley v. Port Wardens of Philadelphia, is not an exception to the rule as stated. (12 How. U. S. R., 299.)
    II. That the pilotage laws are within the power to regulate commerce, and that State laws to be valid must conform to the legislation of Congress, has also been decided. (Gardner’s Institutes, 233; Hobart v. Drogan, 10 Pet., 108, 117.)
    1. Where State laws conflict with the acts of Congress on this subject, they are void. (10 Wheat., 428; 6 Pet, 682; 12 How., 299, 313; 9 Wheat., 207.)
    2. The cases holding that the States may make certain police regulations, &c., connected with commercial affairs does not affect the present question, because the whole transaction in this case was beyond the jurisdiction of the State of Hew York, while the license laws, health laws, &c., which have been held valid are all regulations to be enforced within the State.

      3. Ho sovereign has a right to give the law beyond his own dominions— and if he attempts it, he may be lawfully refused obedience; for wherever the foundation of laws fail, there their force and jurisdiction fails also.
    4. That the laws of any State cannot by any inherent authority be entitled to respect extra-territorially, or beyond the jurisdiction of the State which enacts them, is the necessary result of the independence of distinct sovereignties. (Story’s Confl. of Laws, § 20; Blanchard v. Russell, 13 Mass., 4; Bank of Augusta v. Earle, 13 Pet., 584-591.)
    III. The act of Congress of March 2d, 1837, authorizing the master of any vessel coming into any port situate upon waters which are the boundaries of two States, to employ any pilot duly licensed or authorized by the laws of either of the States bounded on the said waters, to pilot the vessel to or from said port, any law, usage, or custom to the contrary notwithstanding, is alone a defense to this action. (Statutes at Large, vol. 5, pp. 153, 154.)
    1. At the time of the offer we were on the coast of Hew Jersey. We may have had a pilot licensed by Hew Jersey on board.
    2. The State Law, section 29, requiring a vessel to take the first pilot speaking or offering his services, being penal, will be construed to apply to the pilot first speaking or offering his services within the jurisdiction of the State enacting the law.

      3. The 19th by-law of the Board of Commissioners defining pilotage ground is void. The board may as well have taken the Atlantic Ocean for its boundary.
    IV. The act of 1852, (vol. 10, Statutes at Large, page 61,) is an exercise of the power to regulate pilotage by Congress, and a direct repeal of State laws, so far as they apply to vessels propelled by steam.
    1. Section 9, is “ instead of the existing provisions of law for inspection and equipment of steamers, and the present system of pilotage of such vessels

    2. The two inspectors mentioned in the act are the only persons who can license pilots for steamers. (§ 9, sub. 10.)
    V. Whatever powers the States may have in reference to pilot laws, they are derived from the acts of Congress, and are confined to the action of pilots “within the bays, inlets, rivers, harbors, and ports of the United States,” and outside of such bays, &c., they have no force. (1 Stat. at Large, 54; Gibbons v. Ogden, 9 Wheat., 207.)
    VI. The defendant is not liable to pay the plaintiff, even admitting the validity of the State laws. (§ 13, Act of 1853.)
    1. Plaintiff did not board this vessel.
    2. Section 29. The master did take a licensed pilot before coming into the port of New York.
    The defendant is entitled to judgment on the verdict.
   Pierrepont, J.

Since April 4th, 1857, the following provisions of the Pilot laws of this State have been in force (Laws of 1853, p. 921; Amendatory Act, April 11, 1854, Laws of 1854, p. 459; Amendatory Act, April 4, 1857; Laws of 1857, p. 500):

Sections 1-8: Create the Board of Commissioners of Pilots, consisting of five persons, three to be elected by the Chamber of Commerce, and two by the Board of Marine Underwriters, and provide for their term and tenure of office, &c.

Sections 9, 10: The Commissioners have power to license as many Pilots as they think necessary for the port of New York, to pilot vessels by the way of Sandy Hook. Provisions as to examination of applicants, in respect to character, capacity, &c., and bonds to be given by Pilots. • •

Section 12: The - Commissioners have power to make, promulgate, and enforce new rules or regulations, not inconsistent with the laws of this State or of the United States; to be binding upon all Pilots licensed by them, and upon all persons employing such Pilots.

Section 13: Establishes the rates of Pilotage, and provides as follows:

“When any ship or vessel, bound to the port of Hew York, and boarded by any Pilot licensed by this Board, at such distance to the southward or eastward of Sandy Hook lighthouse as that said lighthouse cannot be seen from the deck of such ship or vessel in the daytime and in fair weather, the addition of one-fourth to the rates of pilotage hereinbefore mentioned shall be allowed to such Pilot.”

Section 14: Prescribes the rates of pilotage.

Section 15: Provides that the rates of pilotage for any intermediate distance shall be determined by the Board of Commissioners, and promulgated in their rules and regulations for the government of Pilots.

Section 16: Relates to rates of pilotage in winter.

Section 17: The pilotage shall be payable by master, owner, consignees or agent entering or claiming the vessel.

Section 29: Provides that “ all vessels sailing under register, bound to or from the port of New York, by the way of Sandy Hook, shall take a licensed Pilot; or, in case of refusal to take such Pilot, the master shall himself, or the owners or consignees, shall pay the said pilotage, as if one had been employed; and such pilotage shall be paid to the Pilot first speaking or offering his services as Pilot to such vessel.”

Under these laws a Board of Pilot Commissioners was created, and article 19 of their by-laws declares that “ the pilotage-ground of the port of Hew York shall be deemed to be west of a line drawn in the shortest direction from Eire Island Light to that of Barnegat Light.” If these laws and by-laws are valid and binding upon the defendant, then the plaintiff is entitled to recover, since it is conceded that the plaintiff was a licensed Pilot under these laws, and that he was the first to offer his services after the defendant’s vessel reached the pilot-ground as defined by the Commissioners.

By the Constitution of the United States, (art. 1, § 8,) the power to regulate commerce is vested in Congress. The power to regulate commerce includes the power to regulate navigation, and pilot laws are regulations of navigation. This is settled law. (Gibbons v. Ogden, 9 Wheat., 1; Hobart v. Drogan, 10 Pet., 108; Cooley v. Port Wardens of Philadelphia, 12 How. U. S. R., 317; 11 Pet., 152; Norris v. City of Boston, 7 How. U. S. R., 283.)

The act of Congress of March 2, 1837, authorizes the master of any vessel, coming into any port situate upon waters which are the boundaries of two States, to employ any Pilot duly licensed or authorized by the laws of either of the States bounded on the said waters, to pilot the vessel to or from said port, any law, usage or custom to the contrary notwithstanding. (Statutes at Large, vol. 5, pp. 153, 154.)

On the 30th day of August, 1852, the Congress of the United States passed an act, entitled “ An act to amend an act entitled an act to provide for the better security of the lives of passengers on board of vessels propelled in whole or in part by steam, and for other purposes.’ ” (Statutes at Large, vol. 10, p. 61.)

By section 9 of that act it is provided that, “instead of the existing provisions of law for inspection and equipment of steamers, and the present system of pilotage of such vessels,” a Board of Inspectors shall be appointed, who alone can license engineers and pilots for such steamers.

Subdivision 7: The Inspectors shall “ license and classify all engineers and pilots of steamers carrying passengers.”

Subdivision 8: Whenever any person, claiming “to be qualified to perform the duties of engineer upon steamers carrying passengers, shall apply for a certificate, the Board of Inspectors shall examine the applicant,” &c.

Subdivision 9: Whenever any person, “ claiming to be a skillful pilot for any such vessel shall offer himself for a license, the said Board shall make diligent inquiry,” &c.

Subdivision 10: It shall be unlawful “for any person to employ, or any person to serve, as engineer or pilot on any such vessel, who is not licensed by the Inspectors,” &c.

The plaintiff was not a pilot licensed under this act, and the steamer was on the high seas, beyond the jurisdiction of New York, when, his services were tendered. The vessel afterwards took a pilot, (duly licensed under this law of Congress, and also licensed by the New York Board of Pilot Commissioners,) who conducted her into port.

Barnegat is not under the jurisdiction of the State of New York, and a line from Eire Island light to Barnegat is over the high seas, where New York has no authority.

Congress has the exclusive jurisdiction of this subject of navigation, including pilotage, and Congress had legislated upon the matter, and had declared what kind of pilot such vessel should take, and had made it unlawful to take any other.

The Act of Congress of August the 7th, 1789, (§ 4,) gives authority to the States to regulate pilotage only within the bays, inlets, rivers, harbors, and ports of the United States, but does not extend their jurisdiction over the high seas.

The Act of Congress, passed March the 2d, 1837, (Statutes at Large, vol. 5, p. 153,) authorizes the master of any vessel coming into any port situate upon waters which are the boundaries of two States, to employ any pilot duly licensed by the laws of either of the States bounded on the said waters. Hence, it follows, that if this steamer (under the Act of 1837) had taken a New Jersey pilot, and under the Act of 1852, had taken a United States pilot, she might still have been compelled to take a New York pilot, if he first spoke the vessel anywhere in the Atlantic Ocean before she could get into port, (if the plaintiff’s view of the law is correct.)

I think the by-laws of the Pilot Commissioners, under the laws of the State of New York, are in conflict with the act of Congress, and that the former must yield, and that the plaintiff cannot recover in this action.

The decision, in the case of Cooley v. The Port Wardens of Philadelphia, (12 How. U. S. R., 320,) will be found upon examination to sustain, and not to conflict with these views.

For these reasons, I think judgment should be entered for the defendant, with costs.

Robertson, J.

The right to recover a sum of money equal to what would have been the pilotage of the defendant’s steamship, the Empire City, must turn upon the question of the interference of the Act of Congress of 1852, (X., Stat. at Large, pp. 60-67,) .with the State Laws of New York, (Session Laws of 1853, p. 921; id., 1854, p. 459; id., 1857, p. 500.) In case of actual conflict, of course the former must control; if both cannot be carried out, the latter must give way.

It may be true that the residence of the power in Congress unexercised, will not deprive the States of concurrent power to make pilot laws; or that, if the permission of the former be necessary to enable the latter to exercise such power, the act of Congress of August, 1789, (I. Statutes at Large, 54,) gives it, (Cooley v. The Port Wardens of Philadelphia, 12 How. U. S. R., 299,) yet the moment the Federal power is put in motion, it overrides the State authority. (New York v. Milne, 11 Peter’s R., 158.)

Two separate evils appear to have been provided against by the State Laws, and the Act of Congress in question: the former were designed to create and nurse a class of hardy, adventurous seamen, well acquainted with the reefs, shoals, rocks and intricacies of harbor navigation and the tides, and winds, of the waters of the harbor in which they are to ply their trade; the latter to prevent the accidents arising from imperfect construction, management and control of the class of vessels propelled by steam, as well as the engines and apparatus belonging to them, and it is exclusively devoted to such class.

It is true, that the former may have had in view the encouragement of enterprise in venturing far out to sea, to hail vessels, and offer service, by giving the pilotage to the first pilot who should so offer his service, and also adding to it off-shore pilotage for open sea-service, and it may be legitimately within the power of the State to carry out its system by inflicting the payment of double pilotage upon vessels who attempt to interfere with its policy; but this will not be enough to warrant the defendant in incurring the penalty of violating United States laws in order to obey those of the State. If Congress has excluded all persons except those licensed under the Act of 1852, from directing the management of steamships, the State laws cannot inflict penalties upon those who do not surrender the management of such vessels to other persons, not so licensed; if it has so excluded any others, it is because it considered that the examination, appointment, and license of steamboat pilots required the interference of Federal authority, the States having omitted to provide specially for them. It is undoubtedly true that a pilot, duly examined and licensed under the Act of Congress, may be unfamiliar with the dangers of the harbor into which he is conducting the vessel under his charge; but it may. be equally true that the State pilot skilled in all those dangers may be utterly ignorant of the management of a vessel propelled by steam, for there is nothing in any State law requiring his acquaintance therewith.

The very respectable Board of Commissioners of Pilots, I presume, would not license a pilot who might be called upon to pilot steamers, unless he had such knowledge as would enable him to do so skillfully; but the law does not require it, and the Act of Congress does not make their decision as to such qualification binding. There is, therefore, no consideration extrinsic to the language of the Act of Congress to control its meaning; it professes to make new provisions “ instead of the existing provisions of law for the inspection and equipment of steamers and the present system of pilotage of such vessels,” (§ 9;) and pilots for steamers are thereby rendered incapable of being licensed except by the two named Inspectors, (§ 9, sub. 10,) and a penalty is inflicted upon any persons not so licensed for acting as pilots of steamers. Such law does not exclude State pilots from acting as pilots of steamers, if they have passed the ordeal of such examination by such Inspectors, and been licensed; nor would it interfere with any State law, which should enable those of its own pilots who were licensed under the Act of Congress, /who should first hail a steamer, to recover its pilotage. They might take the direction of a vessel from a pilot licensed by the United States law, who was not a State pilot, and give it to another who was, without interfering with the former, and the vessel would then be under the control of one who was skilled in avoiding both evils—'ignorance of managing a steamer, and of the difficulties of the harbor; because the evil intended to be guarded against by the United States law would then be prevented, and its exigency would be satisfied; but if the yielding of either law to the other was to be controlled by the superior magnitude of the evil remedied, it would require some deliberation to determine whether an ignorant engineer, or a person unacquainted with the coast, harbor, tides, and winds, was the most unsafe person on whom to rely.

The State law cannot take the control of a steam vessel from a licensed United States pilot, and give it to a State pilot not so licensed. In this case a pilot was actually taken on board having both qualifications, but that circumstance does not affect the right in this case. The plaintiff cannot recover this penalty for not taking him on board, and surrendering the control of the vessel to him under a State law, when the vessel became subject to a penalty for doing so under the United States law.

T have assumed that the State law compels the steamer not only to take the pilot on board, but to surrender the control of the vessel to him; for without that he would not be pilot, but mere adviser; and the words take a licensed pilot,” in the 29th section of the Act, undoubtedly include this compulsory surrender, otherwise it would not be pilotage paid for, but advice.

I fully concur in the view taken in Chapman v. Jackson, (9 Rich. Law R., 209,) that the Act of Congress of 1852 does not supersede or contravene the laws of the several States regulating pilotage, or deprive the States of the right to regulate it, but it does deprive them of the right of taking the control of a steamer from a licensed pilot of the United States, and giving it, through fear of a penalty, to any one not so licensed. As I have already stated, the State may take from one so licensed, and give to another so licensed such control, and it may designate what other qualifications the latter shall have. So, too, the Act of 1789, as to other vessels than steamers, and in reference to all matters except those provided for by the Act of 1852, was not repealed; the argument ab inconvenienti is equally strong against taking a State pilot knowing nothing of steam navigation, and against a United States pilot knowing nothing of the harbor he is entering. The fact whether there was, or was not, a pilot licensed by the United States Inspectors, was immaterial as to the taking of a subsequent licensed pilot.

These views render it unnecessary to consider the question whether the Act of Congress, giving coterminous States the power of appointing pilots for the waters which separate them, (V. Statutes at Large, 158, 154,) would or would not exempt the defendant from this penalty, and whether it was incumbent on the plaintiff to prove that the vessel was not within the jurisdiction of the State of New Jersey when he offered his services; and also how far the jurisdiction of each State, without any Act of Congress, or under that of 1789, which limits it to “bays, inlets, rivers, harbors, and ports of the United States,” extends, and whether such State can define its own jurisdiction, or rather enlarge it indefinitely. It would undoubtedly seem to be rather too liberal an exercise of power to bring a vessel within seven miles of the coast of the State of New Jersey, but forty miles from the nearest point of the coast of the State of New York, within the exclusive jurisdiction of the laws of the latter State, in the face of the Act of 1837 before cited.

On the other hand, I apprehend that under the State laws alone, it is no defense to the penalty for not taking the first pilot that the delinquent vessel took another. I do not see that the State law can be constructed into a mere police regulation as it stands; it might be, if it only required the pilot to be taken on board; but as it requires the vessel to be surrendered to him, it clashes with the United States regulation, and becomes void.

For these reasons, I think judgment should be rendered for the defendant, with costs.

Woodruff, J.

That the Congress of the United States, by virtue of the provisions of the Federal Constitution, (Art. 1, § 8, sub. 3,) has power to prescribe rules and regulations, which shall embrace the subject of pilotage, is claimed by the defendant in this case, and is conceded by the plaintiff’s counsel; and that the power to regulate commerce embraces this subject is, I apprehend, fully settled.

When this power is fully exercised by Congress, all State legislation must yield to its enactments, which, by force of the Constitution, are of paramount authority.

Until Congress saw fit to act in exercise of the power, the States were at full liberty to adopt such regulations for the government of the subject within their own jurisdiction respectively, as they deemed proper.

By the Act of August 7th, 1789, the Congress of the United States, either in recognition of this power in the States, or to place it beyond doubt, expressly authorized the several States to regulate the subject of pilotage within the bays, inlets, rivers, harbors, and ports of t^he United States, lying within their respective jurisdiction.

Under this situation of the power and legislation of Congress, our State pilotage system, (which began in 1693,) has been matured, and been sustained in force, without interference by our National Legislature down to the year 1837.

And it is clear, I think, that the power of this State over the subject is entirely ample and unabridged, whether it be regarded as residing inherently in the State jurisdiction, until Congress, in exercise of the Constitutional power, should assume its regulation, or as derived from the Act of Congress, expressly conferring it, except so far as the subsequent legislation of Congress is inconsistent therewith.

It is going too far to say that, because the Constitution has conferred upon Congress the power to regulate commerce, that power is necessarily exclusive, and renders all State legislation, which may properly be called a commercial regulation, void. It is void so far, and so far only, as it conflicts with the laws of the United States.

This conflict may arise either in the terms of the laws themselves, ór from a necessary implication. For example, if the Acts of Congress cover a particular subject in full, so that rights, privileges, or immunities plainly grow out of conformity to those Acts, the States can neither legislate in express contravention thereof, nor can they superadd conditions or restrictions, which shall, either incidentally or impliedly, operate as a modification of those Acts.

So it is going too far to say, that when Congress has legislated upon one topic, embraced within the power to regulate commerce, this is an exercise of the power, and thereupon all State legislation must cease. As to all provisions relating to the topic of national legislation, State laws inconsistent therewith mu'st yield; but other topics remain appropriately within the authority of the State, until Congress shall legislate further. For example, under the power to regulate commerce, Congress may and does sustain and regulate the light-house system. It would hardly be claimed, if no other commercial regulations existed by United States law, that the States were powerless to enact any.

' So, in relation to a particular subject, as for instance pilotage, it is going too far to say that, by legislating upon it in some one particular, Congress has taken all power over the subject, in any of its details, and in particulars not covered by such legislation, from the States, and that they can make no regulations; however consistent with the Acts of Congress, and capable of operating in entire harmony therewith.

This is especially true where Congress has itself, ■ by express enactment, declared that the States shall have power to régulate a particular subject.

And therefore, when the Act of 1789- is taken into view, the proposition is incontestible, that the power therein declared to be vested in the States, over the subject of pilotage, remains, so far and so long as Congress does not withdraw that power, either by an express repeal, or by legislation inconsistent with its exercise. And the laws of the States will, and do remain in force, except so far as they are modified or abrogated by laws of the United States, which, are inconsistent therewith. And so also, in the absence of express words of repeal, the Act of 1789 remains in force, except so far as subsequent Acts of Congress are inconsistent therewith. (New York v. Milne, 11 Peters’ R., 158; Cooley v. Port Wardens of Phil., 12 How. U. S. R., 299; Gibbons v. Ogden, 9 Wheaton R., 207; Hobart v. Drogan, 10 Peters’ R., 108.)

• These general principles bring me to the inquiry upon which, in my judgment, this case alone depends: Are the Acts of Congress of March 2d, 1837, and August 30th, 1852, inconsistent with the laws of New York, regulating pilotage; and if so, how far does that inconsistency extend, and alter or repeal our State laws ?

Placing my opinion, in the ease before us, upon a single point, as will hereinafter be seen, it will not be necessary that I should consider this question in all its details.

And for the like reason, it will not be necessary for me to express any opinion on the question, whether this State,' in defining the pilotage ground, or in making it the duty of vessels to accept the services of the first pilot who offers his services, although that offer be made at sea, far beyond the jurisdiction of the State, has exceeded its power.

It is proper to say, that our State pilotage system is the growth of years of anxious attention to the best interests of commerce at this port, and of high regard to the safety of life and property. It has been perfected under the care and conduct of large experience and mature wisdom, and it is not to be lightly condemned. Some of the particulars, in which the laws were complained of in this case, are in the highest 'degree calculated to promote ambition, energy and efficiency among our Pilots, and by awarding a just reward to the highest vigilance, to promote the safety of all vessels which approach our harbor, and so largely to benefit our commerce, and protect the lives of our citizens and our visitors. And there is, to my mind, no satisfactory reason why, if the power to regulate the subject at all still exists, this State may not say that all vessels who enter this port shall pay pilotage to the first pilot who offers his services, having all the requisite qualifications. Whether such offer may be made at a distance from port, beyond our jurisdiction, so as to bind the vessel to receive the pilot on board, or whether it may not be necessary that the pilot so offering should continue ready to serve and keep himself within call, to the time when the services of a Pilot are needed, or our State jurisdiction is reached, is a question admitting of discussion. It could hardly be claimed that our Pilots can visit a foreign port, and there tender their services, and make it the duty of ship-owners to receive them and bring them home, or pay pilotage if they refuse to do so. And there may be a limit to the seaward, beyond which our State cannot bind vessels to receive and bring home Pilots. Possibly, the duty to actually receive the Pilot on board cannot be made to arise until the vessel reaches our jurisdiction; but even that concession would not invalidate the law which requires that the Pilot first offering his services shall be received, or be paid the pilotage, if he is ready to perform the service when that jurisdiction is reached.

By the Act of 1837, (U. S. Statutes at Large, vol. 5, p. 153,) Congress authorized the master of any vessel coming into a port situated upon waters which are the boundary of two States, to employ a pilot who was duly licensed under the laws of either of such states. This undoubtedly operated as a modification of the Act of 1789, and the State laws regulating pilotage, so far as ¡such State laws were inconsistent with such Act of 1837, if any such inconsistency existed; and thereafter it could not by any law of the State of Kew York be made indispensable, under all circumstances, that a vessel coming into the port of Kew York should receive on board a pilot who was licensed under the laws of .this State.

If, when the Kew York pilot offered his services, a Kew Jersey pilot was already on board, the former could not claim a right to bring in the vessel; nor could any law of Kew York compel the payment of pilotage to him, if he was not employed to do so.

But this Act of 1837, is not so consistent with our port regulations as to repeal them entirely in respect to their requirement, that the first pilot who offers his services be employed, or be paid his pilotage.

As among our own pilots, this regulation still remained lawful and proper, certainly within our own jurisdiction.

When the master or owners of a vessel shall reject the services of a New York pilot, and shall afterwards accept the services of a New Jersey pilot, the question will arise whether, under the Act of 1837, the master or owners have a privilege of selection between Kew York pilots and Kew Jersey pilots, which is inconsistent with the regulation that he who first offers shall be employed.

The present case suggests no such question. Here one Kew York pilot was rejected, and afterwards another Kew York pilot, who was also duly licensed under the Act of Congress, was employed. And (subject to the question I have above noticed, whether a master can be, by any State law, compelled to take on board and bring in a pilot at any place on the ocean to which he may venture?) I have no doubt the Act of 1837, left the regulations entitling the pilot who first offers his services, to receive the pilotage, as between our own pilots, operative and legal.

Indeed, the true and proper construction of our State laws, and the regulations of the Board of Commissioners of Pilots, limits their operation to Kew York pilots; and the requirement that vessels shall take a licensed pilot, and that pilotage shall be paid to the pilot first speaking or offering his services, must be understood and construed in view of the law that authorizes the master of a vessel coming to this port to employ a New Jersey pilot. I think, therefore, that so far as the claim of the plaintiff here depends upon the effect of the Act of 1837, it is not prejudiced thereby.

The Act of Congress of August 30th, 1852, in amendment of previous enactments having the same general object, was designed, as its title indicates, to provide greater security to the lives of passengers on board of steamers. It is claimed, and insisted, on the one hand, that this Act is wholly inconsistent with the State laws concerning port pilotage, and operates as a repeal or abrogation thereof; and on the other hand, that it was framed and intended for a totally distinct and different purpose, and does not affect the subject of port pilotage at all; and the plaintiff’s claim, as last stated, is supported by the deliberate judgment of the Court of Appeals of the State of South Carolina, in Chapman v. Jackson. (9 Rich. Law R., 209.)

That the Act of 1852 has primary and principal reference to the condition and conduct of steam vessels on their voyage, I think is quite clear. But that it has reference to their condition and conduct during their whole voyage, is, I think, not less certain. The security to life intended to be provided was tó operate during the continuance of the dangers to which life was exposed.

Accordingly, the first section of the Act in clear terms declares that no license, register, or enrollment shall issue until the provisions of the Act are complied with; “ and if any such vessel shall he navigated with, passengers on hoard, without complying with the terms of this Act, the owners thereof and the vessel itself shall be subject to the penalties contained in the second section of the Act to which this is an amendment.”

The succeeding seven sections relate to precautions against fire, pumps, boats, and life preservers, to be taken and carried on board; the means of escape from lower deck, the carrying of gunpowder, camphene, turpentine, and other dangerous articles, and the stowage thereof when carried; and then, in the ninth section, the Act provides, “ that instead of the existing provisions of law for the inspection of steamers and their equipment, and instead of the present system of pilotage of such vessels, and the present mode of employing engineers, the following regulations shall be observed, to wit

The Collector, Supervising Inspector, and District Judge of the several designated Judicial Districts, within which are important commercial ports, are to appoint Inspectors, who are empowered and required to perform various duties specified in the subdivisions following: the first six of which provide for the examination and testing the hull and the boilers, and machinery ; the certificate of approval, the licensing to carry gunpowder, &c., and the keeping of a record of their certificates and licenses; and the seventh subdivision provides that the Inspectors shall license and classify all engineers and pilots of steamers carrying passengers. The eighth then provides for the examination and licensing of engineers; and the ninth, that “ when any person claiming to be a skillful pilot for any such vessel, shall offer himself for a license, the said Board shall make diligent inquiry as to his character and merits, and if satisfied that he possesses the requisite skill, and is trustworthy and faithful, they shall give him a certificate to that effect, licensing him for one year to be a pilot of any such vessels, within the limit prescribed in the certificate.”

Subdivision ten enacts, that “ it shall be unlawful for any person to employ, or any person to serve, as engineer or pilot on any such vessel, who is not licensed by the Inspectors,” and adds a penalty.

And section 88 of the act provides that all engineers and pilots of any such vessel shall, before entering upon their duties, make solemn oath * * * to be recorded * * * that he will faithfully and honestly, according to his best skill and judgment, perform all the duties required of him by the act, &c., &c.

And section 44: All parts of laws inconsistent with this act are repealed. (U. S. Statutes at Large, vol. 10, [Little and Brown’s Ed.,] pp. 61-67.)

I cannot avoid the conclusion, that this Act has principal reference to the pilots in charge of steamers on their voyage, and that it was not intended, even in respect to steamers, wholly to abrogate the various systems of port pilotage which exist under the laws of the several States. In order to affect such abrogation in the absence of words of repeal, the inconsistency between the Act and those State laws should be of the same character, and as irreconcilable as would be necessary to a constructive repeal of a previous Act of Congress, since laws regulating pilot-age, passed by the States after the Act of 1789, may be said to have the sanction of Congress itself. But in so far as such inconsistency does appear, the State law must yield.

In the first place, it is manifest that port pilotage was not, as a system, in the view of the National Legislature. The general subject of the security of passengers on vessels navigated by steam was the topic of legislation.

The Act does not in any wise relate to sailing vessels, and in so far as they are concerned the State system is clearly unaffected.

The qualifications of a port pilot demand that he have a thorough knowledge of the particular channel and harbor where he is to perform his duties, with its bars, banks, tides, currents, soundings, and its various fluctuations and changes, which can only be gained and preserved by constant and diligent study, experience and watchfulness; and yet the qualifications of the Inspectors, by whom pilots are to be examined, and licenses or certificates to pilots are to be given, as enumerated in the Act, do not embrace any knowledge on that subject; and what is still more conclusive, as well suggested in the case of Chapman v. Jackson, above cited, if this abrogates the system of port or harbor pilotage, there is nothing appearing on the face of the Act which forbids the Inspectors for the District of New York from giving a license that would authorize a pilot to take a steamer into the port of New Orleans, or any other port of the United States, though the pilot be wholly unacquainted with it, and when the Inspectors themselves are wholly incapable of judging of his qualifications therefor, if they desired to test his knowledge. In respect to this branch of the inquiry, I am disposed to concur with the opinion of Mr. Justice Munro, in the case above cited. And that it would be in the highest degree unreasonable to suppose that Congress would, when legislating for the safety of passengers, make such provisions that the Act might be fully complied with, and yet, during what is often the most difficult part of the voyage, the pilot be utterly unfit to direct the course and management of the vessel; and yet there is great force in the suggestion, that when, under the Act of Congress, a pilot has the certificate therein mentioned, “ licensing him for one year to be a, pilot of .any such vessels within the limit prescribed in the certificate,” such license is absolute and conclusive according to its very terms, whether, in this respect, the enactment was a wise one or the contrary.

.But while I am inclined to concur with much of the reasoning in the case cited, I think the conclusion that the act of 1852 does not operate at all upon the subject of harbor or port pilot-age, unwarranted. It may be, and I think must be conceded, that the provisions of the act primarily relate to the pilot or person who is to direct the course of the vessel on her voyage—it clearly includes him. There seems to me, however, no just reason for saying that it is confined to him.

Before the Act, there were pilots whose profession and employment was the bringing of vessels into the port or harbor. There were also pilots who were charged with the management of the helm, and directing the course of the vessel on her voyage. 'Congress, by the act in question, designed to furnish additional security. This was done by requiring that all who should “ serve as pilot on any steamer carrying passengers ” should submit themselves to examination, and first obtain the license or certificate mentioned in the act. That examination manifestly relates to familiarity with vessels propelled by steam and their machinery, and the management thereof; and one who may not serve as pilot on board a steam vessel, can neither conduct her through her voyage, nor on any part of it.

It is impossible to say that when Congress enacted that no person not licensed under the act shall serve as pilot on such vessel, they included one class of pilots, and not another performing duties of the same nature, and attended with like risks and hazards.

If it was important that the ship should be under the guidance of a pilot having the prescribed qualifications, when at sea, how can this Court say that it was less important that the ship should be in the same manner protected at the begining and end of the voyage ? If the claim of the plaintiff be allowed, viz.: that the ship may be required to take a pilot at sea, out of sight of land, no one can say it is not as important that he be skilled in navigating vessels propelled by steam, as it is that the pilot in any previous part of the voyage be so. And, again, some ports are so situated at a distance from the open sea, and are reached by so circuitous and difficult an approach, that skill in the management of a steamer is of indispensable importance; and, to my mind, the Act of Congress includes all pilots of steamers. It intended to superadd, as a requisite to entitle any person to serve as such pilot, into port, on the voyage, or out of port, that he be proved competent in the particulars referred to in the act, and obtain the license therein mentioned. While, on the other hand, it does not prevent the operation of port regulations under the State laws, so long as they do not require owners of steam vessels to take a pilot who has no such license; and it does not prevent the licensing of port pilots, among whom, for the piloting of steamers, shall be those who have the qualifications required by the Federal laws.

This construction of the Act seems to me eminently reasonable and beneficial.

Before the Act of 1852, under the operation of our State laws, the owners of steamships were under the necessity of taking any pilot who offered, whether he had any knowledge of the management of steam vessels or not, and though wholly ignorant of the construction or operation of their machinery, or the peculiar facilities or inconveniences in promoting their safe conduct; and this, no doubt, led to the anxiety of such owners to be permitted to make their own selection, or to have some security that the pilots whom they were required to confide in were properly qualified in these respects.

True, they could secure the assistance of two pilots, one of each class; but both could not control the ship, and the pilot in charge could not be compelled to yield to the directions or opinions of the other.

Under the construction of the Act which I have stated, it may be necessary to have two classes of port pilots, one of which, being licensed by the laws of the United States, and also by the Board of Pilot Commissioners, are alone authorized to bring a steamer carrying passengers into port, while the other class may, as heretofore, pilot sailing vessels without a license under the Act of Congress; and owners of steam vessels, and passengers, may now have the assurance that they shall not be subjected tothehazard of the management of any pilot, in any part of the voyage, who has not the due qualification in respect of the management of steamships which the Act of Congress contemplates.

And it is no unreasonable burden upon port pilots duly licensed under the State laws to require them to procure the further evidence of fitness to pilot a steamship provided for by the Act oi Congress, before they shall be permitted to serve upon such a vessel while carrying passengers.

My opinion, then, rests upon this single ground:

The plaintiff in this action was not, by the Act of Congress of 1852, a competent pilot. It is by that Act made unlawful for any person to employ, or any person to serve, on any such vessel, who is not licensed by the Inspectors.

The plaintiff had no such license, and the owners were not only not bound to endanger their vessel or the security of the passengers by employing him, but they would be subject to penalties if they had done so; and, in the face of that Act, no State legislation could make it their duty to employ him, or make it lawful for him to serve.

If not, he could be entitled to no compensation by reason of his offer to serve, or of their refusal to permit him to do so.

The defendant is, therefore, entitled to judgment.

Judgment for defendant.


source: Caselaw Access Project

author: By the Court—Hoffman, J.

license: Public Domain

text:
    James L. Cheeseman, Plaintiff and Respondent, v. James H. Sturges, Andrew Thorp and Thomas S. Thorp, Defendants and Appellants.
    1. Whiere a person holding real and personal property in trust, to be used for the joint benefit of himself and another, in specified proportions as • copartners in a joint enterprise, and under agreement not to dispose thereof without mutual consent, has made advances for the joint account, he cannot . be compelled to convey to such other his share unless nor until such other repays him the like proportion of his advances.
    2. If the Trustee in such case sells and conveys all the property without the consent of his copartner, and receives therefor stock of an incorporated ...company, such copartner has an election to .affirm the sale and transfer — in which case he will be entitled to Ms said share in the stock on paying the like share of the advances—or he may dissent from the sale and charge the Trustee with the actual value of the property so sold, have an accounting with him upon that basis, and recover his share of the balance due from the Trustee after crediting the amount of the latter’s advances against siich value.
    3. But the copartner or cestui que trust cannot, in the case last stated, charge the Trustee with the stock at its nominal or par value in satisfaction of such advances, (the stock being worth less than par,) and claim his share of the residue of the stock, in stock. This would be repudiating the transfer by the Trustee, in part, and affirming it in part.
    4. In either case the Trustee is not bound to credit the stock at par in satisfaction of his advances; no fraud nor bad faith being shown on Ms part, but only an error, in supposing his copartner was willing that the transfer should be made, or in supposing that it was lawful and proper for Mm to make the transfer which he deemed for the interest of all parties.
    (Before Hoffman and Woodruff, J. J.)
    Heard, April 11th;
    decided, April 28th, 1860.
    Appeal by the defendants from a judgment entered upon the report of Edward P. Cowles, Esq., Referee.
    The complaint herein alleges, in substance, that on the 12th of September, 1855, the plaintiff was possessed of land at Athens, in the State of New York, and entered into certain agreements with the defendant, James H. Sturges and one Braisted, by which it was agreed to put up buildings, machinery, &c., for the gathering of ice for sale. That the lands were to be contributed to the joint enterprise, and Sturges and Braisted were to furnish the means to carry on the enterprise. That the lands were thereupon conveyed to Sturges, who executed an instrument annexed to the complaint, declaring that he held the lands for the joint and equal benefit of the three parties, to be used in the said enterprise, with covenant not to dispose of or encumber the property without the consent of the others. That the plaintiff erected the buildings, &c., and Sturges advanced about sixty thousand dollars. That the plaintiff filled the ice-houses, and Sturges sold ice and received the proceeds to the amount of thirty thousand dollars; and afterwards Sturges, without the consent of the plaintiff, sold and conveyed all of the said lands, buildings, machinery, &c., to an incorporated company, called The New York Ice Company, for the consideration of one hundred and fifty thousand dollars, and exchanged that one hundred and fifty thousand dollars with that Company and received in the place of money, six thousand shares of the capital stock of that Company of the nominal value of twenty-five dollars per share. That this apparent sale for money was a pretense, and in truth and in fact, the money was not received by Sturges to be kept by him as the consideration of the conveyance, but in order to defraud the plaintiff and hinder him in realizing his portion or interest in the property and the consideration of the sale, and by arrangement between Sturges and the other defendants, (who were all Trustees of the Company,) the six thousand shares were the actual consideration of the conveyance (the money being used and employed as a temporary cover). That in order further to defraud, &c., the defendants, Thorps, by some transfer from Sturges, but with knowledge of the plaintiff’s rights, have received the whole of the stock from Sturges on the pretense that he owes them for moneys they advanced to him to enable him to perform his agreement with the plaintiff. That the real value of the stock is one hundred and fifty thousand dollars. That Sturges has acquired all the interest of Braisted in the money and stock. That plaintiff has applied to Sturges for his portion of the moneys and stock received by him. That with knowledge that the plaintiff is entitled to have his share or interest in the said stock paid over and delivered to him, the defendants, Thorps, hold it adversely to him and to prevent his realizing anything out of the property aforesaid.
    That Sturges is of slender means, raised the money by borrowing, and, without an injunction to prevent the transfer of the stock, his rights, &c., are in danger.
    The plaintiff, therefore, prays an injunction, and that Sturges may be adjudged to account concerning the ■ moneys and stock received by him, and the defendants be adjudged to pay over and transfer to this plaintiff his just and equitable share or portion of the said moneys and stock.
    The only parts of the answers of the defendants it is material to state here are, that all bad faith is denied. The original purchase of the lands for the joint enterprise, and payment therefor out of the moneys advanced by Sturges, is alleged. The advances of Sturges are stated to be upwards of $90,000. The receipts by Sturges for ice sold, are stated to be $3,000 less than the amount he paid for transportation and expenses of the same and of the sale thereof: that, before the transfer to the New York Ice Company, the defendants Thorps were admitted to a share in the enterprise by an arrangement between the plaintiff and Sturges, Braisted and themselves, by which, in consideration of their advancing moneys, each of the five parties was to have one-fifth of the property, after refunding to each all advances: that the transfer of the property to the New York Ice Company, and the taking of the stock of the Ice Company for the consideration, was made on account and in behalf of the said plaintiff, Braisted and Thorps, and at their request: that the transfer included two barges belonging to Sturges alone, and only $130,000 was received as the consideration for the property, and $20,000 for the barges: that the stock so received was to be held in the same manner as the property had been, and to be sold, in their discretion, to reimburse their advances, and to divide the surplus among the parties: in the meantime it is deposited with the Thorps, to secure about $80,000 they have advanced to Sturges, that being a part of the $90,000 Sturges had advanced as aforesaid: And the defendants are, and always have been, ready and willing to deliver to him his one-fifth thereof, on his repaying one-fifth of the advances made by Sturges to the joint enterprise; but the plaintiff has never offered or tendered the same. And, finally, the defendants allege that the plaintiff has received of the aforesaid moneys advanced by Sturges large sums, and also large sums for sales of ice, and has not accounted therefor, of which an account is prayed.
    The testimony given on the trial, as it appears in the Case on the appeal, is voluminous and conflicting. Numerous exceptions were taken to the admission and rejection of testimony; but, in addition to the above abstract of the pleadings, it will sufficiently explain the points decided at the General Term if the findings of the Referee be given, which were (omitting some details) as follows:
    “Decisions of Law and Findings of Fact, as settled bt the Referee.
    “ First. The instruments set forth in the pleadings, and bearing date respectively the 21st August and 25th September, 1855,, were executed by the parties to them respectively, as in the pleadings alleged.
    “ Second. At the time of the execution of said instrument the plaintiff was the owner in fee of the real estate named and referred to in such agreements, situate at Athens, Greene county.

      “ Third. Under the aforesaid agreement between plaintiff, the defendants Sturges & Braisted, the said Sturges proceeded to make advances in money under such agreement, and Oheeseman to fill the ice-houses at Athens with ice.
    “ Fourth. After the making of the aforesaid agreements, Braisted sold out his entire interest under such contracts to the defendant Sturges, after which Oheeseman was entitled to the one-third and Sturges to the two-third parts of the profits of the enterprise, provided for in and by such agreements.

      “ Fifth. The whole amount of the moneys advanced by Sturges, and which he was entitled to have refunded to him under said agreements, was the sum of $93,899.26. The whole amount of moneys received by Sturges from sales of ice, was the sum of $14,840.75.
    “ Of the moneys so as aforesaid advanced by Sturges, the sum of $41,540.74, went into the hands of plaintiff Oheeseman, of which the said Oheeseman has accounted for the sum of $40,088.30, expended by him in the joint business, making the balance of the advances, which Sturges is entitled to have refunded to him, as follows, viz.:
    The whole advances,..................................... $93,899 26
    Received from sales of ice,................................ 14,840 57
    $79,058 75
    Oheeseman has received as above from Sturges,---- $41,540 74
    Oheeseman accounts for,....................... 40,088 30
    Leaves in Oheeseman’s hands unaccounted for,... $1,452 44
    “ Sixth. While the filling of the ice-houses was going on, Sturges and the two defendants Thorps made an arrangement, by which the Thorps were to advance money to Sturges, and share with Sturges his portion of the profits of his agreement with Oheeseman, but Oheeseman was not a party to such agreement. Upon this agreement being made, the Thorps did make advances to Sturges of a portion of the moneys, which are above found to have been advanced by Sturges.
    “ Seventh. The defendants Thorps knew of the agreements and all of them, to which Cheeseman and Sturges were parties, and of the facts and circumstances, and all of them, under which the deed of the Athens property had been made by Cheeseman to Sturges.

      “Eighth. After the expenditure of the moneys as above set forth, the defendant Sturges, and the two Messrs. Thorps made an arrangement with certain other parties, by which it was agreed that the ice-house property, and all its ice, mentioned in the two foregoing agreements of 21st August and 25th September, and the deed from Cheeseman to Sturges, should be sold to a corporation to be created and called the ‘ Hew York Ice Company,’ and in accordance with such arrangement, such property, and all of it, together with certain other individual property of the defendant Sturges, of the value of $10,000, was conveyed to the Hew York Ice Company by said Sturges.
    “The Company paid in cash for the whole property so transferred the sum of $150,000, with which cash the said Sturges immediately bought 6,000 shares of the capital stock of the said Hew York Ice Company, which, at its nominal par value, amounted to $150,000.
    “The taking of the money for such conveyance was only an indirect mode of obtaining such stock, by a conversion of such property into such stock the agreement between Sturges, the Messrs. Thorps, and the said Company, being that such money should be paid out forthwith for such stock, and the transaction of receiving such $150,000 in cash, and disbursing it as aforesaid for said stock, took place at one and the same time. Cheeseman was not a party to such sale nor had he consented to it when made, nor did he subsequently ratify it.

      “Ninth. The capital stock of the Hew York Ice Company at the time of such sale and conveyance to it as last aforesaid, was $350,000, divided into shares of $25 each.
    “ Tenth. The $150,000 of the stock of the Hew York Ice Company was all received by the said Thorps, and no part of the same has been transferred to the said Cheeseman

      “Upon these facts, the Referee determines, as matter of law, that the plaintiff Cheeseman is entitled to judgment, that the said. defendants Sturges and Andrew Thorp and Thomas S. Thorp, do forthwith transfer to and vest in the said plaintiff Cheeseman, as his own individual property, discharged of all liens and incumbrances, 754 of the said, shares of the said capital stock of the aforesaid New York Ice Company; of full paid up stock of such Company upon which no assessments are remaining unpaid, and amounting, at its nominal par value, to the sum of $18,850, which amount is arrived at as follows:
    Amount of stock of New York Ice Company received on conveyance of
    property,.......................................... $150,000 00
    Deduct value of Sturges’ barges,........................ 10,000 00
    $140,000 00
    Credit balance of Sturges" money, advanced as above,........ 79,058 .75
    Leaves profits in enterprise, (in stock,).................... $60,941 25
    One-third of this is,..................................... 20,3.13 75
    Deduct from this the balance of moneys which Cheeseman has had, unaccounted for,.................................. 1,452 44
    Leaves the sum of............................... $18,861 31
    and is equal to 754 shares and a fraction over of stock of the New York Ice Company at $25 per share. Such judgment further to provide that the said defendants also pay to said plaintiff any dividends (if any) which may have been paid on such 754 shares stock up to the date of this report, the amount of such dividends, if necessary, to be ascertained by a reference to be made at the foot of the judgment to be entered herein, and that defendants also pay to said plaintiff the costs of this action.”
    Judgment being entered in conformity to this decision, the defendants appealed to the General Term.

      William M. Evarts, for the defendants (appellants).
    In addition to various points assailing the findings of the Referee on the facts.
    V. Upon the findings of the Referee, the only judgment to which the plaintiff was entitled, was for a transfer to himself of one-third of the stock of the New York Ice Company, held by the defendants as the proceeds of the property of the joint enterprise, viz.: one-third of $140,000 of said stock, upon the payment by said plaintiff of one-third of the charge of $79,058.75 against it, if found correctly by the Eeferee, and the further payment of $1,452.44 due from Cheeseman to Sturges for moneys advanced by the latter to the former to be disbursed on account of the concern, and which he, Cheeseman, retained.
    . 1. The plaintiff, upon the claim of his complaint, and upon the view of the evidence most favorable to himself was entitled to this only. This was “his just and equitable share or portion of the moneys and stocks,” for which he prayed.
    2. This is the measure of his rights as a partner in the results of the joint enterprise in which he had participated.
    8. If he held the position of cestui que trust in the original property, and seeks to assert against the substituted property the enforcement of the trust, this alone is the measure of his right.
    4. He has elected to follow the stock as substituted for the property, and it therefore would stand exactly in the same position as the original property stood, viz.: first, as security for the repayment of the advances; and second, for division of the surplus after the repayment of these advances among the parties interested.
    5. Indeed there,appears to be no difficulty upon this point between the parties, as the complaint not only claims it, but the Eeferee distinctly determines it.
    In his opinion rendered, he states, of the original arrangement, “himself (Sturges) and Braisted to be repaid their advances, and the remainder of the money resulting from the enterprise to be equally divided among the three as the profits of the adventure.”
    And he refers to the relations of the parties after the stock was acquired by Sturges in exchange for the property and after Braisted released to him any interest he had in the stock.
    “Sturges, after Braisted’s retirement, still held the property or its proceeds in trust:

      11 First. To pay all the advances previously spoken of.
    “ Second. To divide the balance between himself and Cheese-man, Cheeseman taking one-third and himself two-thirds."

      6. In fact no difficulty arises between the parties or on the part of the Referee in the determination of the general relation of the parties to each other down to this point, the suggestions under this head being merely preparatory to the consideration of the great error in law on the part of the Referee in decreeing payment to Sturges of his advances in stock at par, when it is even proved by both sides not to be worth par.
    VI. The judgment of the Referee, which applied the stock in the hands of the defendants as if it were money to the satisfaction of the charges against it, and imposed upon the plaintiff an equality of condition with the defendants in the residue only, is manifestly erroneous.
    1. The charges constituted a money debt, binding the plaintiff personally for his contributory third part, and a burden upon the property of the partnership, or of the trust, in whichever light it may be regarded.
    2. If the property upon which this charge rested had remained of its original character and investment, the requirement from the creditor partner, or from the trustee holding a claim upon the property, to take his pay in the property at any assumed, or even at any proved valuation, would have been clearly erroneous in principle, and most oppressive practically.
    3. Even though the exchange of the Athens property for stock had been made by Sturges, without Cheeseman’s procuration, this would be no ground for punishing Sturges as a wrongdoer, by directing the repayment of his money in stock or any other commodity.
    In that event the plaintiff had his election of remedies against Sturges, either

      (a.) To charge him for a wrongful conversion, or
    (b.) As a simple contract debtor upon a breach of trust, or
    (c.) To adopt the transaction as his own contract, recognize Sturges as his agent in its accomplishment, and follow the proceeds for his share of the same.
    He has elected the last named by the form of his action and the prayer of his complaint.
    Having made such election, the whole transaction of Sturges, as matter of law, must be treated as a contract voluntarily entered into by Cheeseman, and all charges and suggestions as to wrongdoing must be lost sight of and dropped. (Story’s Eq. Jur., §§ 1262, 1263, 1285, 1286; Murray v. Lylburn, 2 J. Ch. R., 442; Murray v. Ballou, 1 id., 581; Pocock v. Reddington, 5 Ves. R., 800; Long v. Stewart, id., note; Harrison v. Harrison, 2 Atk. R., 121; Vernon v. Vawdry, 2 id., 119; Collyer on Partnership, § 182; Story on Agency, §§ 439, 214.)
    4. The division and distinction which the Referee, in his report, has made between the stock, to the amount of the debt, and the surplus over and above that amount, requiring the defendants to account for so much of the stock held by them as is nominally equivalent to the debt as money, and as to the residue requiring them to account for the plaintiff’s proportion of the stock only in kind, is supported by no reason or principle.
    The stock is not worth its nominal or par value.
    The plaintiff is entitled to but one-third of the stock. By his complaint he asks for such share only. He owes one-third of the advances, and his share of stock is burdened with its payment.
    The creditor, (whether to be considered partner or trustee,) is under no contract to take his payment otherwise than in money, nor to limit the lien to any less than the whole of the debtor’s stock.
    5. $1,452.44 of the amount found by the Referee against Oheeseman is for moneys of Sturges actually taken and retained by Oheeseman, and converted to his own use, and never repaid.
    Sturges gave him $41,540.74 to make payments for the concern. The Referee finds that he only paid out $40,088.54, and that he appropriated the balance.
    This, also, we are repaid in stock!
    VII. The interest of Oheeseman in the stock being incumbered by a lien, the judgment, as far as he had a right to pray for one, could be for the delivery of nothing. There is no pretense that he ever made tender of his share of the advances. He could, at any time, have arranged to sell his stock (one-third), and tendered the purchase-money, if equal to one-third of the advances, and he would have obtained his stock.
    No action thereupon was necessary on his part, as he had his rights, at all times, without the assistance of the Court.

      The only judgment which could be properly granted in the cause would be on application of the defendants, and for a foreclosure of their lien, and a sale of the stock to repay same.
    Costs, therefore, should be allowed the defendants upon a reversal of the judgment.
    The judgment should be reversed, with costs.

      James W. Gerard, for the plaintiff (respondent).
    Besides arguing other points relating to the weight of the evidence.
    II. The defendants have no reason to find fault with the judgment by which the plaintiff is compelled to take the stock at par for the balance found in his favor.
    The plaintiff claimed, that he was entitled to have the balance paid to him in cash, but as Sturges was insolvent, that he had a right to have enough of the stock to pay his judgment in full, and if the sale of the whole stock was necessary for that purpose. The proof shows a flagrant breach of trust on the part of Sturges in combination with the Thorps, who were Trustees of the Company. Sturges held the real estate in trust, one-third for plaintiff, one-third for Braisted, whose share he bought, and one-third for himself. By the terms of the agreement and declaration of trust annexed to the complaint, and answers, Sturges could not sell the property without the consent of Cheeseman.
    Without Cheeseman’s consent, written or verbal, he sold the property to the New York Ice Company for $140,000.
    The $140,000 he received in cash, and immediately and by a previous understanding and arrangement, without the knowledge or consent of Cheeseman, invested that $140,000 in the stock of the Company at par. He then immediately transferred the whole or the greater part of those shares to the Thorps as collateral security for his antecedent debt to them, who at the time, and long before, knew of the agreement and contracts existing between Cheeseman and Sturges, and the trusts upon which Sturges held the lands. The Thorps, therefore, had no greater rights in the stock than Sturges had, and the same judgment for a proportion of the stock should be rendered against the Thorps as would have been rendered against Sturges if thestockhad remained in his hands. As Trustee, Sturges had no right to sell for anything but cash (even if he had had power to sell,) without the express consent of Cheeseman, and in every, view of the case, Sturges is to take the stock at par for his advances, the same as Cheeseman for the balance in his favor, especially as there is no proof of the value of the stock other than par, and that Sturges invested the trust fund into stock at par, without the consent of Cheeseman, as well as sold the property without his consent. Sturges, therefore, should be compelled, upon every principle of equity, to take the stock at par for his advances, if Cheeseman is compelled to take it at par for his balance, and the Thorps not being (as found by the Referee) bona fide purchasers of the stock for present value without notice, they stand in the same footing with Sturges and no higher.
    That the Referee would have been authorized to have given a judgment in favor of the plaintiff, for the balance found in his favor, with an equitable lien and power to sell any amount of stock that might be necessary to pay that balance, we cite -the following authorities; (2 Story’s Eq. Jur., §§ 1265, 1232, 1257, 1258, 1259; Hovenden on Frauds, pp. 468, 470, 471; Wallace v. Duffield, 2 Serg. & Rawle, 521, 529; 17 Ves., Jr., 47, 57; Lewis v. Maddocks, 16 U. S. Digest, p. 626, citing, 9 Texas, 482; Willes on Trust, 64.)
   By the Court—Hoffman, J.

It seems to me that the claims of the plaintiff upon the defendant Sturges must be adjusted upon one of two principles: 1st. Upon the assumption that the plaintiff has ratified the sale to the New York Ice Company; or, 2d. That he repudiates it altogether. Certainly, he cannot reap an advantage from it in one particular, and reject it in every other.

It deserves notice, in this connection, that the Referee has nowhere impeached the honesty nor even the utility of the sale in question, and acceptance of the stock for the-property. He finds that Cheeseman did not concur in it; but he does not find that it was made with any fraudulent intent, nor even that it was not an advantageous arrangement for all concerned. The evidence does not show that it was not beneficial and advisable.

It is, also, to be noticed, that there is no ground to hold Sturges chargeable with $140,000 as cash. No money was, in truth, passed upon the transaction. This is alleged in the complaint, admitted in the answers, and found by the Referee. “ The taking money for the conveyance was only an indirect mode of obtaining the stock, by a conversion of the property into such stock.”

1. It follows, on the first assumption, (viz., that the plaintiff had ratified the sale to the Ice Company,) that Oheeseman was under a liability to pay Sturges his share of the balance of the advances of the latter, viz., one-third of $79,058.75, and also two-thirds of his own debit balance, viz., two-thirds of $1,452.44, and had a right to the one-third of the stock substituted for the original property. It follows, also, that, to treat the stock in Sturges hands as actual cash, so as to liquidate his money advance bjr its par value, is inadmissible.

2. On the second hypothesis, viz., that the plaintiff repudiated the sale, the sale was, as to Oheeseman, void. The property is to be deemed to remain in Sturges’ hands. Its value must be ascertained as it existed at the time of such sale. Oheeseman has a right to be credited with his share of that value, to be offset against his proportion of the money advances, and must pay, or is entitled to receive, any balance which may be found.

Has the plaintiff elected his relief? I think it clear that he has. He expressly seeks “that Sturges shall pay over and transfer to him his equal joint share or portion of such money and stock so received by him as aforesaid.” He asks for an inj unction restraining Sturges and the other defendants from disposing of the said stock. He prays for an order restraining the defendants from transferring or incumbering said shares of the capital, stock, or property, or ¿hoses in action, which may have come into their hands as aforesaid, and any other stock, property or choses in action which may have come into their hands in exchange for, or in lieu of, said stock, received as aforesaid.”

It appears by the statement in the case, that an injunction was obtained, which was afterwards modified. The plaintiff sought to obtain his security and relief out of the stock of the New York Ice Company sold by the defendant. He has not proceeded upon a disaffirmance of the sale, and a demand for his share of the property sold according to its real value, to be adjudged against the defendant as a money demand, if a balance is found due to him. He follows the specific stock as a better indemnity and security for his rights.

He cannot then have more than his aliquot proportion of that stock, paying his due proportion of the money debt.

There is in the evidence, as stated by counsel, and known from motions and proceedings in the cause, to one of the Judges, that a change has been made in this stock upon a consolidation, as it is termed. It may be that the New York Ice Company stock really does not exist. We cannot say what, if any, changes may be made in the rights and obligations of the parties by such circumstances. They may perhaps be brought before the Referee, and .will receive from him what attention they deserve.

We think that there must be a n.ew trial. The defendant cannot be held responsible to take stock at par in discharge of his money demand.

In relation to the plaintiff ’s proportion, we do not find sufficient in the case to warrant the setting aside the conclusion of the Referee, that he did not consent to the introduction of the Thorps as partners. His share then remaining one-third.

There are several exceptions taken to the details of the accounts, which we have not examined, and upon the merits of which we are not to be considered as passing.

Judgment reversed, and new trial ordered, with costs to abide the event.