Harbor Master & Port Wardens v. Captain Southerland

BECK, 0. J. The record in this, case is so imperfect and so defectively made up, that it is impossible to teJl whether the judgment of the circuit court is right or wrong. Where it does not manifestly appear from the record that the judgment is wrong, we are bound to presume it is right. This judgment must, therefore, be affirmed. The statement of facts says, “ That by virtue of the act of March 3d, 1870, and all the laws and ordinances of the city of Mobile which are in evidence, the harbor 'master of the port of Mobile went on board the ship H. Cooke, of which Henry Southerland is master, and offered his services to regulate and station said ship in the bay of Mobile,” &o. Now, we do not judicially know what “ all the laws and ordinances of the city of Mobile” on this subject are, and, as they axe not set out in the statement of facts, they can not properly be considered in disposing of the case. But, as we understand the main purpose of this appeal is to obtain a construction of the said act of the 3d of March, 1870, referred to, and an ordinance of said city having reference to said act, and copied in the record, approved by the mayor on the 22d of April, 1870; and as it is manifest, Bom this case, that doubts are entertained as to the meaning of and validity of said act and ordinance; to prevent future litigation, as far as possible, we proceed to state what appears to us to be the proper interpretation and legal effect of said act and ordinance. [515] The act is entitled, “An act to extend the jurisdiction, powers and duties of the harbor master and port wardens of Mobile.” The first section enacts that “from and after the passage of this act,'all laws and parts of laws creating a harbor master and port wardens for the port of Mobile be, and the same, are hereby made to extend to and include all vessels coming into the bay of Mobile; and the said harbor master and port wardens shall discharge the same duties to, and receive from said vessels the same fees, as though they were lying at the wharves of the city of Mobile.” The second section is as follows: “ That from and after the passage of this- act, the words ‘tonnage dues,’ whenever they occur in the city charter and code of ordinances, and in all the acts relating to the harbor master and port wardens of the city of Mobile, shall be stricken out, and in lieu thereof, the words “harbor fees” inserted; and that the number of such port wardens, their fees and rates of compensation in the city and bay of Mobile, shall be changed and fixed by the corporate authorities as they may deem necessary and expedient.” ' The said ordinance referred to is entitled, “An ordinance regulating and fixing the harbor master’s and port wardens’ fees in the port of Mobile, as per act passed by the legislature authorizing the same, and approved March 3d, 1870.” The first section is as follows, to-wit: “Eor every steamer or sailing vessel of any description whatever, that may come within the bay of Mobile, or within the corporate limits of the city of Mobile, for the purpose of either discharging or loading, or both, of freight of any description, and anchor in the lower bay, or proceed to the city, shall be subject to the following rates of harbor master’s fees, independent of survey, inspection, and certificates, already provided for in the city charter.” Then follows a list of fees, ranging from one to fifty dollars, according to the tonnage of the different vessels. If this act, and the said ordinance passed by the city authorities of Mobile, really mean that every steamer or sailing vessel that comes into the bay and harbor of Mo [516] bile for the purpose named in said ordinance, must pay the fees therein specified, whether the services of the harbor master and port wardens, or either of them, become necessary, or not, and when no services are in fact rendered, then we are prepared to pronounce the said act and ordinance unconstitutional. If no other reasonable construction can be given to said act and ordinance, then they amount to a regulation of commerce, and are in conflict with the constitution of the United States on this subject. Steamship Company v. Port Wardens, 6 Wall. 31. But, we think a different construction may be reasonably given to said act and ordinance — a construction that will relieve them from any constitutional objections. Courts are bound, if possible, to give a statute such a construction as will enable it to have effect, and in doing this, they may lean in favor of such an interpretation of the language used as may not, at first view, seem to be its most obvious and natural import. — Cooley Con. Lim. 184. An act of the legislature is to be so construed, if possible, as to make it consistent with, and not repugnant to, the constitution (Dow v. Norris, 4 N. H. 17); therefore, whenever an act can be so construed and applied as to avoid a conflict vsdth the constitution, it should be done, and never declared unconstitutional, if it can be upheld by any reasonable intendment or allowable presumption. — The People v. The Supervisors of Orange, 17 N. Y. 241. Applying these rules of construction to the said act and ordinance, we think they may reasonably be interpreted to mean, that every steamer or sailing vessel that may come within the bay of Mobile, or within the corporate limits of the city of Mobile, for the purpose of either discharging or loading, or both, of freight of any description, and anchor in the lower bay, or proceed to the city, and the sendees of the harbor master or port wardens, or either of them, become and are necessary to station said steamer or sailing vessel, or, when stationed, to change its location, or when any other services usually rendered by such officers ■become necessary, and are actually rendered, or offered to be rendered, then such steamer or sailing vessel shall be [517] subject to the rates of harbor master’s fees mentioned in said ordinance, and not otherwise. So construed, said act and ordinance become police regulations merely, and are relieved from all. constitutional objections. The fact that the said ordinance calls these charges harbor master's fees¡ is, it seems to us, an index to its intent and meaning, and justifies the interpretation we have put upon it. Why call them harbor master’s fees, unless the harbor master is required to render services to entitle him to receive them? The meaning of the word “fees” is, a recompense allowed by law to officers for their labor and trouble, &c. — 2 Bac. Abr. 463. Therefore, where there is no labor or trouble, no necessary services rendered, or offered to be rendered, no fees should be, or can be, properly allowed. Let the judgment of the court below be affirmed at the appellant’s costs.