I find no language in the pilotage act (Laws of 1935, chapter 18, p. 36) which makes it the mandatory duty of the pilot commissioners to hold examinations for pilotage service at any time or issue licenses to all who may apply and be *Page 705 qualified. Neither do I find any language in the act from which such mandatory duties could be implied, if the imposition of mandatory duties can arise out of an implication. The act confers upon the commissioners broad powers and gives to them a wide discretion.
Section 8, p. 39, provides that no person shall pilot any vessel, subject to the provisions of the act, on Puget sound or adjacent inland waters, unless he "be appointed" and licensed to pilot such vessel thereon, under and pursuant to the provisions of the act; and further provides that no person shall be eligible to be "appointed a pilot" unless he possesses the qualifications specified therein.
Section 9, p. 39, provides that the board is authorized to make rules and regulations, not in conflict with the act, covering the matter set forth therein, to establish the qualifications of pilots and provide for their examination, to issue licenses to qualified persons, to provide for the maintenance of efficient and competent pilotage service on the waters covered by the act, to do such other things as are reasonable and necessary to insure proper and safe pilotage on the waters covered by the act, and to facilitate the efficient administration thereof.
The apparent purpose was to give the board of pilot commissioners complete jurisdiction over the pilotage service on the waters covered by the act. Waters covered thereby being navigable waters of the United States, it was primarily within the power of Congress to regulate and control the pilotage service thereon. Congress not having acted, the state had a right to make such regulations. A state legislature may, in the absence of Congress having acted, provide that the number of pilots may be limited or controlled by an executive officer thereof or a board of commissioners. *Page 706
In Palmer v. Woodbury, 14 Cal. 43, an act of the state of California was sustained which provided for a board of commissioners and gave them power to appoint such number of pilots as they might deem necessary, not exceeding thirty. There, it was left to the judgment or discretion of the board to determine the number of pilots, with only the provision of having the maximum number fixed by the legislature.
In Caples v. McNaught, 147 Ore. 72, 31 P.2d 780, an act of the legislature was sustained which created a board of pilot commissioners and made it its duty, under the act, "`to maintain a sufficient number of pilots upon the bar and river pilot grounds to satisfy the demands of commerce, . . .'" There, the legislature conferred upon the pilot commissioners the power to determine the number of pilots.
In Olsen v. Smith, 195 U.S. 332, 49 L. Ed. 224, 25 S. Ct. 52, an act of the legislature of the state of Texas was sustained which conferred upon the governor of the state the power to appoint such number of branch pilots as might from time to time be necessary, and it was there said:
"It remains only to consider the contention based upon the Fourteenth Amendment and the anti-trust laws of Congress. The argument is, that the right of a person who is competent to perform pilotage services to render them is an inherent right guaranteed by the Fourteenth Amendment, and that therefore all state regulations providing for the appointment of pilots and restricting the right to pilot to those duly appointed, are repugnant to the Fourteenth Amendment. But this proposition in its essence simply denies that pilotage is subject to governmental control, and therefore is foreclosed by the adjudications to which we have previously referred. The contention that because the commissioned pilots have a monopoly of the business, and by combination among themselves exclude all others from rendering pilotage services, is also but *Page 707 a denial of the authority of the State to regulate, since if the State has the power to regulate, and in so doing to appoint and commission, those who are to perform pilotage services, it must follow that no monopoly or combination in a legal sense can arise from the fact that the duly authorized agents of the State are alone allowed to perform the duties devolving upon them by law. When the propositions just referred to are considered in their ultimate aspect they amount simply to the contention, not that the Texas laws are void for want of power, but that they are unwise. If an analysis of those laws justified such conclusion — which we do not at all imply is the case — the remedy is in Congress, in whom the ultimate authority on the subject is vested, and cannot be judicially afforded by denying the power of the State to exercise its authority over a subject concerning which it has plenary power until Congress has seen fit to act in the premises."
So far as I am informed, no act of a legislature which conferred the power upon an executive officer or a board of commissioners to fix or limit the number of persons who might engage in the pilotage service, has been held unconstitutional.
Cases which hold that an ordinance of a municipality which authorizes the issuing or withholding of a license to engage in a lawful business and commits to an officer or set of officers the power to decide the number of persons that shall engage in that business, have no application to an act of the legislature which vests in a board of pilot commissioners the power to license and determine who shall render a pilotage service, and limiting the number thereof.
Pilotage regulations are regulations of commerce upon navigable waters, and in Ex parte McNiel, 80 U.S. 236,20 L. Ed. 624, it was said:
"It must be admitted that pilot regulations are regulations of commerce. A pilot is as much a part of the commercial marine as the hull of the ship and the helm by which it is guided; and half-pilotage, as it is called, *Page 708 is a necessary and usual part of every system of such provisions."
It seems to have been the thought of the legislatures that have enacted pilotage laws, and the courts that have sustained them, that it is necessary to limit the number of pilots in order to maintain an efficient pilotage service.
In my opinion, the judgment in the case now before us should be affirmed; and, for the reasons indicated, I dissent.
BLAKE, C.J., concurs with MAIN, J.