Daniels v. Commissioners of Pilotage for the Bar of Tybee & River

Atkinson, J. 1. The ruling announced in the first headnoto does not require elaboration. 2. In the Civil Code, § 5440, it is declared: “All official duties should be faithfully fulfilled; and whenever, from any cause, a defect of legal justice would ensue from a failure or improper fulfillment, the writ of mandamus may issue to compel a due performance, if there be no other specific remedy for the legal rights.” — 301 — The trial judge dismissed the action for the writ of mandamus solely upon the ground that the plaintiffs had a legal remedy by thority to use the boat “Cumberland,” because they conceived, untiorari will lie for the correction of errors committed by justices of the peace, corporation courts or councils, or any inferior judicatory, or any person exercising judicial powers, including the ordinary, except in cases touching the probate of wills, granting letters testamentary and of administration.” The powers and duties of the Commissioners of Pilotage for the Bar of Tybee and Biver of Savannah are set forth in the Civil Code, § 1897 et seq.; and certain rules were adopted by the commissioners of pilotage and approved by the city council of Savannah, some of which so far as material are set forth in the petition for mandamus. It appears from these that some of the duties of the commissioners of pilotage are merely ministerial, some executive, and others judicial. In this respect they are similar to the powers and duties ordinarily devolved upon municipal corporations. Carr v. Augusta, 124 Ga. 116 (52 S. E. 300), involved the question whether a municipal council, when proceeding to declare forfeited a license which has been issued by it, is exercising judicial powers. In the course of the opinion it was said: “If such action is in the exercise of judicial power, an error committed may be corrected on certiorari. The duties of a municipal council are varied. Some are merely ministerial, some are legislative, some are executive; but there are stilL others which are judicial in their nature, and the determination of where the legislative or ministerial duty ends and where the judicial duty begins is often attended with extreme difficulty. Harris on Certiorari, § 48. Where the duty is purely ministerial, or purely legislative, the error can not be corrected by certiorari. But where the .duty imposed upon the municipal council clearly requires the exercise of judicial powers, or even the exercise of quasi-judicial powers, the general rule is that an error committed may be reviewed on certiorari. 1 Smith on Mun. Corp. § 561. When a municipal council passes an ordinance it acts in its legislative capacity, and certiorari will not lie. But when, after having passed an ordinance, it proceeds to enforce the same, according to its terms, against one who has become liable to a penalty provided by the ordinance, in the determination of whether such person has violated it, and has thereby become subject to be — 302 — proceeded against under its provisions, a municipal council is exercising a judicial power of the same nature that any court would exercise in investigating whether a given person has violated a given law. The action of the council, no matter by what name it might be called, order, resolution or otherwise, which declares that a person has laid himself liable to penalties prescribed in the ordinance, is a judgment of the council, which can only be reached by the exercise of judicial functions, that is an application of the law as laid down in the ordinance to' the facts that appear before the council at the time the resolution is passed. The ordinance in effect imposed a penalty upon one holding a license to sell liquor when he did any one or more of the acts referred to in the ordinance. The ordinance devolved upon the council the determination of the question of fact as to whether he had been guilty of the acts declared illegal. . . But it is said that the city council had authority to revoke the license at pleasure; and this is true. Melton v. Moultrie, 114 Ga. 462 [40 S. E. 302]; Ison v. Griffin, 98 Ga. 623 [25 S. E. 611]. If in the exercise of its right the city had passed an ordinance or resolution simply revoking the license, this would have been done in the exercise of its executive powers, and the courts would not have reviewed the same on certiorari. But when they attempt to revoke the license for cause, under the provisions of the ordinance providing that a certain act shall be sufficient'cause for the revocation of the license, and do not proceed under their general discretionary power, then the determination by the council of the question as to whether the person holding the license has made himself amenable to. the provisions of the ordinance declaring a certain act to be sufficient cause for revoking the license, requires the exercise of judicial powers, and renders the action subject to reyiew on certiorari. In Asbell v. Brunswick, 80 Ga. 503 [5 S. E. 500], it was held, where a municipal council had the right to remove a policeman without trial, as well as to remove him after trial, that if the council proceeded under the latter method, their judgment of removal was subject to review on certiorari, while if they had proceeded under the 'former method, their action would have been in the exercise of their executive powers, and not subject to review on certiorari. See also, Gill v. Brunswick, 118 Ga. 85 [44 S. E. 830] ; Mayor of Macon v. Shaw, 16 Ga. 172.” All that is said may, by analogy, be properly — 303 — applied to the case under consideration in determining whether the commissioners of pilotage should have granted the request of the applicants to operate a separate pilot boat. The commissioners of pilotage made certain informal inquiries and took the statements of the applicants under consideration, and denied the'' request. This was not a judicial trial based on any existing right or wrong under the law or any rule of the commissioners, but merely entertainment and refusal of a request pertaining to the executive duties of the commissioners. What is here said is in accord with an elaborate discussion of the subject of judicial tribunals, in Muir’s Admrs. v. Bardstown, 120 Ky. 739 (87 S. W. 1096 (6), 1098). The case under consideration differs from Commissioners of Pilotage v. Low, R. M. Charlton, 298, and Low v. Commissioners of Pilotage, Ibid. 302, in which Low was formally tried by the commissioners of pilotage on ’ charges of neglect of duties. In the same manner, the case of Healey v. Bean, 68 Ga. 514, may be distinguished. That was a case in which a person filed an application to the commissioners of pilotage for a pilot’s license. The application was resisted by other licensed pilots, and after a formal hearing the license was granted. The other pilots sued out a writ of certiorari, and the trial judge reversed the judgment of the commissioners and revoked the license. This was held to be erroneous, on writ of error to the Supreme Court. It is not necessary to refer to other cases cited on the briefs of counsel for respondents, which upon the grounds mentioned are distinguishable from the present. It is sufficient to add that the trial court was in error in holding that certiorari was an available remedy and for that reason mandamus would not lie. 3. While the trial judge based his decision refusing a mandamus absolute on the ground that the applicants, had a specific remedy by certiorari, his judgment will not be reversed if there was no ground for mandamus. In the case of Wood v. Board of Education of Washington County, 137 Ga. 808 (74 S. E. 540), it is said: “It is declared by the code of this State that mandamus does not lie ‘to a public officer who has an absolute discretion to act or not, unless there is a gross abuse of such discretion; but it is not confined to the enforcement of mere ministerial duties/ Civil Code (1910), § 5441. ‘Ordinarily the writ of mandamus is — 304 — a remedy for official inaction. It does not lie to control the conduct of an officer vested with a discretion, except where the exercise of that discretion has been so capricious or arbitrary as to amount to a gross abuse. City of Atlanta v. Wright, 119 Ga. 207 (45 S. E. 994); Patterson v. Taylor, 98 Ga. 646 (25 S. E. 771); Dale v. Barnett, 105 Ga. 259 (31 S. E. 167).” In the Civil Code § 1897 et seq., it is provided that the corporate authorities of the several seaports in this State, including Savannah, shall have power respectively to appoint commissioners of pilotage for their respective bars. The boards of commissioners are required to be composed of “ship agents, exporters, merchants, pilots, or others who are engaged in, or are familiar with, marine shipping, and with the requirements of their respective ports.” 1 The commissioners of pilotage of each port are empowered to license such persons - (being citizens of the United States) of good character as they shall think most fit to act as pilots for the purpose of conducting vessels inward to, or outward from, the several ports and rivers for which they shall be licensed during their good behavior. No person other than a duly licensed pilot is entitled to receive any fee, gratuity, or reward for conducting or jiiloting any vessel inward to, or outward from, any port for which a pilot shall be licensed. The commissioners are also given power, and it is made their duty, to prescribe rules and regulations for the government of pilots, and to prescribe fees for their services; and they are authorized to impose such penalties, not inconsistent with law, for neglect of duty or for violation of the orders or - of the rules and regulations of the commissioners as they may think proper. It is provided in the Civil Code, § 1918, that “The commissioners shall preserve, in a neatly-bound book, a record of all their acts, and of the rules and regulations adopted by them for the direction and government of the pilots; but in the City of Savannah such rules and regulations shall not be operative until approved by the city council. . In conformity with this provision the Commissioners of Pilotage for the Bar of Tybee and River of Savannah made certain rules, which were duly approved by the authorities of the City of Savannah, for the government of pilots and the matter of piloting vessels within the territory over which they had jurisdiction. Among these were the following: “Rule 4. The pilots shall provide and maintain a steam pilot boat, with .accom — 305 — modations aboard for at least eight pilots, which boat shall always (weather permitting) remain on the station at the outer bar for the purpose of furnishing pilots to inward-bound vessels and relieving outward-bound vessels of pilots. .Said pilot boat shall not leave her station at the outer bar, except in cases of emergency, oftener than twice in twenty-four hours for the purpose of taking on or landing pilots at Tybee. Whenever pilot boat is compelled to leave outer station for coal or repairs, her place is to be supplied during such absence by a proper substitute, which temporary substitute, however, shall be required to have accommodations for not less than six pilots. The remaining two pilots needed to make the regular crew of eight at outer bar shall remain in the city office of the Savannah Pilots’ Association, during office hours as per Eule 1, ready to fill any vacancy in crew at outer bar. Whenever forced to leave station on account of stress of weather, or other emergency, she shall report back at station at- earliest possible moment.” “Eule 6. No vessel shall be used as a pilot boat, except by the authority and under the inspection of the Commissioners of Pilotage.' Said vessel must be able to go to sea at all reasonable times, and must carry signals as per rules prescribed by United States regulations.” The power to make rules for the government of pilots, subject to approval by the municipal authorities of the City of Savannah, as prescribed by the Civil Code, § § 1901,1918, construed with reference to the business involved and qualifications, prescribed for commissioners of pilotage, was sufficiently broad to authorize the commissioners to make rules requiring licensed pilots to become attached to one or more pilot boats, which in the opinion of the commissioners would subserve the business interest of the shipping public, and others involved in the marine commerce of the port, and to restrict the number of pilot vessels to be employed on the bar. Eules four and six, quoted above, were of that character and to that extent reasonable and lawful. A person could not have the advantage of engaging in the business of piloting vessels over the bar, and of exacting compulsory fees under the statute, without submitting himself to rules of the commissioners of pilotage. The rules being lawful, the commissioners had the authority to enforce them, or, in their discretion, to modify them by appropriate amendment to the extent of allowing the use of other pilot boats over the bar. Whether .they would do so, how — 306 — ever, was purely a matter of discretion, and not one of absolute right. In denying the application made to them, in the present ease, for authority to use a separate vessel, it can not be. said, under the circumstances of the case, that there was any abuse of discretion. Under the application of the rule stated in the first part of this division of the opinion, this was not a proper case'ior the grant of mandamus, and there was no error in refusing the application. Judgment affirmed. All the Justices concur, except Fish, C. J., and Beck, P. J., absent.