DANIEL, J., Separate Opinion

SUPREME COURT OF THE UNITED STATES

53 U.S. 299

Cooley v. Board of Wardens

Mr. Justice DANIEL.

I agree with the majority in their decision that the judgments of the Supreme Court of Pennsylvania in these cases should be affirmed, though I cannot go with them in the process or argument by which their conclusion has been reached. The power and the practice of enacting pilot laws, which has been exercised by the states from the very origin of their existence, although it is one in some degree connected with commercial intercourse, does not come essentially and regularly within that power of commercial regulation vested by the Constitution in Congress, and which, by the Constitution, must, when exercised by Congress, be enforced with perfect equality, and without any kind of discrimination, [p326] local or otherwise in its application. The power delegated to Congress by the Constitution relates properly to the terms on which commercial engagements may be prosecuted, the character of the articles which they may embrace, the permission or terms according to which they may be introduced, and do not necessarily nor even naturally extend to the means of precaution and safety adopted within the waters or limits of the states by the authority of the latter for the preservation of vessels and cargoes and the lives of navigators or passengers. These last subjects are essentially local -- they must depend upon local necessities which call them into existence, must differ according to the degrees of that necessity. It is admitted on all hands that they cannot be uniform, or even general, but must vary so as to meet the purposes to be accomplished. They have no connection with contract, or traffic, or with the permission to trade in any subject, or upon any conditions. They belong to the same conservative power which undertakes to guide the track of the vessel over the rocks or shallows of a coast or river, which directs her mooring or her position in port for the safety of life and property, whether in reference to herself or to other vessels, their cargoes and crews, which for security against pestilence subjects vessels to quarantine, and may order the total destruction of the cargoes they contain. This is a power which is deemed indispensable to the safety and existence of every community. It may well be made a question, therefore, whether it could, under any circumstances, be surrendered, but certainly it is one which cannot be supposed to have been given by mere implication, and as incidental to another to the exercise of which it is not indispensable. It is not just nor philosophical to argue from the possibility of abuse against the rightful existence of this power in the states; such an argument would, if permitted go to the overthrow of all power in either the states or in the federal government, since there is no power which may not be abused. The true question here is whether the power to enact pilot laws is appropriate and necessary, or rather most appropriate and necessary, to the state or the federal governments. It being conceded that this power has been exercised by the states from their very dawn of existence; that it can be practically and beneficially applied by the local authorities only; it being conceded, as it must be, that the power to pass pilot laws, as such, has not been in any express terms delegated to Congress, and does not necessarily conflict with the right to establish commercial regulations, I am forced to conclude that this is an original and inherent power in the states, and not one to be merely tolerated, or held subject to the sanction of the federal government. [p327]

This cause came on to be heard on the transcript of the record from the Supreme Court of Pennsylvania for the Eastern District, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Supreme Court in this cause be, and the same is hereby, affirmed with costs.