Jones v. Fell , 5 Fla. 510 ( 1854 )

BALTZELL, C. J.,

delivered the opinion of the Court 3 •

This is a suit instituted by a pilot of the harbor of Pensacola, to recover from one of his associates, a share of the profits claimed to be due him under agreement to unite in the business of pilotage;

The error complained of is in the refusal of the Circuit Court to give an instruction asked in the following terms s “ If the Jurors are satisfied that there were three pilots appointed by the Board of Port Wardens, then they are to presume that the public service required three pilots, and that any partnership or combination amongst the pilots so appointed, by which one or two were relieved from duty even for a day, was, therefore, in derogation of a public duty, and consequently void.”

This maintains the position that all the pilots of a port are to he constantly engaged, and that an arrangement foi* the relief of one of them, for any time, however small, is illegal and improper. Whilst the act of 1822, providing for the appointment of pilots, prohibits persons from acting who are not appointed, under a penalty, (Duval 62,) yet, the regulation of them and establishment of all such ordb dances as they shall deem advisable, with the power of removal and to fix and alter the rates of pilotage, is by special law left to the Board of Port Wardens for the harbor. Thompson’s Dig., 256.

There is no rule or regulation (as appears from the record), of this Board of Officers making provision for this constant attention to duty, and it may be questioned, we think, whether one carried to such an extreme of strictness, would be either politic or proper. It would he a different thing to require that a sufficient number of tbe pilots appointed should be kept engaged to supply the wants of the harbor.

Nor does it follow as a necessary consequence, that because three were appointed, the engagement of them all, without any relief, was necessary or requisite. Tbe reasonable presumption, we think, is that a number was appointed sufficient to provide for casualties and sickness, and to give such relief as the exigencies,* not only of a day, but even a longer time might make necessary for one or more of the pilots.

As a general rule, the law gives its command to its officers, with a large discretion as to the mode of execution, yet exacting a faithful performance. Thus, pilots whose business it is, of most delicate and important character, to guide and conduct vessels in safety over the bars, and through the intricacies of a channel into a harbor, are required to be on the alert, to render in due season the requisite assistance. For neglect of duty or other misconduct, they are liable to be discharged or dismissed, and have their license revoked; they are also responsible in damages to the parties injured. As already remarked, they are placed under the governance and directions of officers, whose duty it is to give licenses, only to persons possessed of an intimate acquaintance with the particular navigation, of integrity, diligence, activity, sobriety and steadiness, and of the skill to manage all the vessels that may trade to the port.

It seems to be the practice in other ports to require bond and security, and an oath to discharge the duties faithfully. The Port Wardens may possibly possess the power to establish a rule, such as is insisted on, and if one had been shewn in this case, it would certainly have received from the Court a very respectful consideration. As it is, we have no power to declare or create such a one, or to consider this case as if one existed, and had been disregarded by the pilots.

It is insisted that an association “ amongst pilots is in violation of public policy, tending to impair competition between them, and diminish their exertions in the public service; that they share alike in the profits is sufficient to destroy all emulation.” It is also insisted that the Court shall affirm tb a truth of these prop<x,,th/£is as matter of law, and without reference to the facie.

it will be seen at once that the question is, and would be embarrassing to parsons unacquainted with, and having little practical knowledge or experience of the subject, whether such an association is wise or unwise, hen uncial or injurious to commerce, and may not be determined by reference to tbe books, for no authority has been cited, or is to be found on the subject, so far as research has extended, but would best be ascertained by the examination of persons whose interest or duty may prompt them to watch its operation. In this case one of the Port Wardens, Mr. Kelly, thinks it injurious, whilst two of the others, Messrs. Le-Baron and Mitchell, advised it — the Board not acting nor prohibiting it. At the bar of the Mississippi there are fifty pilots organized into an association having a principal and Board of Directors, with regular government and rules for distribution of service, pay, &c.

After an experience of ten years, the system was found to work well. The evidence for the good order, faithfulness, decorum and entire efficiency of the pilot union was unani' mous. See report of Committee of Legislature of Louisiana, 2 DeBow In. Res. 8, 10.

V Associations are so common an element, not only in ' commerce, but in all the affairs of life, that it would be rather perilous on the part of the Court, to assert that they impair competition, destroy emulation and diminish exertion. There is scarcely an occupation in life, scarcely a branch of trade, from the very largest to the smallest, that does not feel the exciting and invigorating influence of this wonderful instrumentality, it made and conducts our government, couotrncir, our railroads, our steam vessels, ora* nnigmfteeivt sMp.q our temples* of worship, strneturoij for public and private use, our manufactories, creates our institutions for learning, builds up our cities and towns.

Its very office is to do what individual exertion may not accomplish, and in a degree distinguishes civilized from savage life. Why then should this important agency be denied to this meritorious class of our citizens ? They are in general men of small means, to whom an association may rfot only be desirable, but necessary and indispensable. V Were our minds less clear on tbe subject, we are'not permitted to assert the invalidity of the act on this account.

“ An agreement is not void on this ground, unless it expressly and unquestionably contravene public policy, and be manifestly injurious to tbe interests of tbe State.” Chitty on Cont., 664.

We are tben of opinion, that there was no error in the Court’s refusing the instruction asked.

The second instruction asked was given in substance by tbe Court, in tbe last charge, that a contract, tbe tendency of wbicb was dangerous and injurious to commerce, was void as against public policy, nor is there any reason, that we can perceive, for granting a new trial.

The judgment will be affirmed with costs.