State Ex Rel. Foss Co. v. Kelly , 186 Wash. 589 ( 1936 )


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  • The relators, some thirty-one companies, partnerships and individuals, operating power tugboats and towing vessels of less than sixty-five feet in length in navigable waters of this *Page 597 state, brought this action in the superior court of Thurston county to obtain a writ of prohibition directed to E. Pat Kelly, as director of the department of labor and industries. The writ sought would prevent the director from enforcing or attempting to enforce any and all provisions of chapter 200, Laws of 1907, p. 425 (Rem. Rev. Stat., § 9843 [P.C. § 2880] et seq.), entitled:

    "AN ACT regulating steam vessels, and vessels or boats operated by machinery, navigating the waters within the jurisdiction of this state, excepting vessels which are subject to inspection under the laws of the United States, and providing penalties for the violation thereof."

    The cause was tried on issues joined by answer to the complaint. From judgment entered dismissing the action, relators appeal.

    As indicated by what has been said, relators attack the validity of the act in its entirety. It is a mass attack on the whole of a legislative enactment. Under such circumstances, it is not the function of the court to "anticipate a question of constitutional law in advance of the necessity of deciding it."Steamship Co. v. Emigration Commissioners, 113 U.S. 33,5 S.Ct. 352; Abrams v. Van Schaick, 293 U.S. 188, 55 S.Ct. 135;Wilshire Oil Co. v. United States, 295 U.S. 100, 55 S.Ct. 673. Nor will the court "decide questions of a constitutional nature unless absolutely necessary to a decision of the case." Burtonv. United States, 196 U.S. 283, 25 S.Ct. 243; Stephenson v.Binford, 287 U.S. 251, 53 S.Ct. 181, 87 A.L.R. 721.

    Under such an attack as made by relators, the question to be determined is whether any portion of the act is valid and enforcible. If any portion of the act is found valid and enforcible, the court should not extend the inquiry further nor undertake to say in *Page 598 this action what portion of the act may be invalid and unenforcible. What was said in Steamship Co. v. EmigrationCommissioners, supra, is peculiarly pertinent to the method of attack adopted by relators in this case:

    "If, on the other hand, we should assume the plaintiff's case to be within the terms of the statute, we should have to deal with it purely as an hypothesis, and pass upon the constitutionality of an act of Congress as an abstract question. That is not the mode in which this court is accustomed or willing to consider such questions. It has no jurisdiction to pronounce any statute, either of a State or of the United States, void, because irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies. In the exercise of that jurisdiction, it is bound by two rules, to which it has rigidly adhered, one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. These rules are safe guides to sound judgment. It is the dictate of wisdom to follow them closely and carefully."

    As I proceed, I think it will be apparent why the question to be decided in this case should be so circumscribed.

    The question, as circumscribed, dispenses with the necessity of analyzing chapter 200, Laws of 1907, p. 425 (Rem. Rev. Stat., § 9843 [P.C. § 2880] et seq.), in detail. As indicated by its title, it contains regulations with respect to the operation of automotive vessels in the navigable waters of this state. The act specifically disclaims any intent to control navigation or regulate vessels in any situation where Congress has enacted legislation upon the subject. Thus circumscribed, the problem resolves itself into two phases: (1) Does the maritime jurisdiction of the *Page 599 United States preclude the state from enacting any regulatory legislation with respect to the operation of vessels on navigable waters within the boundaries of the state? (2) If not, are there any regulations prescribed by chapter 200, Laws of 1907, p. 425 (Rem. Rev. Stat., § 9843 [P.C. § 2880] et seq.), which cover a field not occupied by Federal legislation?

    First: There can be no question but that the United States has primary jurisdiction over the navigable waters of this state. It is also without question that such jurisdiction is exclusive when exercised. In other words, a state may not legislate upon a subject within maritime jurisdiction if the United States has occupied the field. But it does not follow that a state may not legislate upon a subject within maritime jurisdiction when there is no Federal legislation on the subject.

    In the case of United Dredging Co. v. Los Angeles,10 F.2d 239, the rule is stated as follows:

    "It may be admitted that reasonable police regulations may be imposed upon maritime craft, where considerations of safety are present in the locality under the jurisdiction of a municipality. Such regulations must be reasonable ones, and may be enforced, provided that the United States government has not already taken possession of the field in which it has primary jurisdiction. The law applicable was well stated by Judge Brown in The City ofNorwalk (D.C.), 55 F. 98, where he said that the rule in favor of federal jurisdiction did not `exclude general legislation by the states, applicable alike on land and water, in their exercise of the police power for the preservation of life and health, though incidentally affecting maritime affairs: Provided that such legislation does not contravene any acts of Congress, nor work any prejudice to the characteristic features of the maritime law, nor interfere with its proper harmony and uniformity in its international and interstate relations.'" *Page 600

    The rule as thus stated has ample support in decisions of the supreme court of the United States. Sherlock v. Alling,93 U.S. 99; County of Mobile v. Kimball, 102 U.S. 691; Pittsburg Southern Coal Co. v. Louisiana, 156 U.S. 590, 15 S.Ct. 459. In the case of County of Mobile v. Kimball, supra, it is said:

    "The uniformity of commercial regulations, which the grant to Congress was designed to secure against conflicting State provisions, was necessarily intended only for cases where such uniformity is practicable. Where from the nature of the subject or the sphere of its operation the case is local and limited, special regulations adapted to the immediate locality could only have been contemplated. State action upon such subjects can constitute no interference with the commercial power of Congress, for when that acts the State authority is superseded. Inaction of Congress upon these subjects of a local nature or operation, unlike its inaction upon matters affecting all the States and requiring uniformity of regulation, is not to be taken as a declaration that nothing shall be done with respect to them, but is rather to be deemed a declaration that for the time being, and until it sees fit to act, they may be regulated by State authority."

    Regulatory measures by states with respect to railroads engaged in interstate commerce have been upheld on the same principle. Chicago, R.I. P.R. Co. v. Arkansas, 219 U.S. 453,31 S.Ct. 275; Vandalia R. Co. v. Public Service Commission ofIndiana, 242 U.S. 255, 37 S.Ct. 93. The former case involved the "full crew" act of the state of Arkansas. To the contention that the act was an obstruction to, or placed a burden on, interstate commerce, the court said:

    "The validity under the Constitution of the United States of such statutes is not to be questioned in a Federal court unless they are clearly inconsistent with some power granted to the General Government or with some right secured by that instrument or *Page 601 unless they are purely arbitrary in their nature. The statute here involved is not in any proper sense a regulation of interstate commerce nor does it deny the equal protection of the laws. Upon its face, it must be taken as not directed against interstate commerce, but as having been enacted in aid, not in obstruction, of such commerce and for the protection of those engaged in such commerce."

    Second: Now applying the principle of these cases to the facts of the case at bar, we find that the United States has not provided for the inspection of vessels less than sixty-five feet in length, either as to seaworthiness, safety of machinery or adequacy of crews. The relators operate vessels of less than sixty-five feet in length, which are therefore not subject to inspection under Federal laws. Section 9, p. 431 (Rem. Rev. Stat., § 9851 [P.C. § 2888]), of our act does provide for inspection and regulation of vessels in these respects. True, the provisions do not specifically refer to vessels of less than sixty-five feet in length, but they are none the less effective as to such vessels. Thus there is a field unoccupied by congressional legislation in which our act may be operative. To this extent at least, chapter 200, Laws of 1907, p. 425 (Rem. Rev. Stat., § 9843 [P.C. § 2880] et seq.), is valid and enforcible. Here the inquiry should stop, since we have found a field in which our act is valid and enforcible. It may be that some portions of our act are in conflict with now existing laws of the United States. If so, such portions of the act must give way. But the whole act does not therefore fall.

    On this record, the court is not warranted in granting a writ of prohibition. Relators' rights may be amply protected in specific instances, if and when the director attempts to enforce provisions of the act which are in conflict with the laws of the United States. *Page 602

    For these reasons, I think the judgment should be affirmed.

    MILLARD, C.J., MITCHELL, and MAIN, JJ., concur with BLAKE, J.