of the defendant, and, on the ground that sels shall not, in any port of this state, no defense was stated, sustained a demurrer exceed $4 for each foot of water which the to the answer. A judgment was entered in vessel, at the time of piloting, draws, and favor of the plaintiffs, awarding an injunc- whenever a vessel, except of the classes tion as prayed. (Tex. Civ. App.) 68 S. W. below excepted, shall decline the services of 320. The case was taken to the court of a pilot, offered outside the bar, and shall civil appeals for the first supreme judicial enter the port without the aid of one, she district, was thence transferred to the court shall be liable to the first pilot whose servof civil appeals for the fourth supreme ju- ices she so declined, for the payment of half dicial district, where the decree below was pilotage; and any vessel which, after being affirmed, with a slight modification

modification not brought in by a pilot, shall go out without necessary to be stated. The supreme court employing one, shall be liable to the payof the state having declined to review the ment of half pilotage to the pilot who action of the court of civil appeals, this brought her in, or, if she has come in withwrit of error was prosecuted to the latter out the aid of a pilot, though offered outcourt.

side, she shall, ou so going out, be liable The defenses raised by the answer, which for the payment of half pilotage to the pilot the court below held to be no defense to who had first offered his services before she the action, and which are in effect reiterated came in; but if she has come in without the in the assignments of error, require us to aid of a pilot, or the offer of one outside, determine, first, whether the state of Texas she shall not, in case of going out without had power to enact laws regulating pilotage a pilot, be liable to half pilotage. in the ports of that state; and, second, if Article 3800. such power existed, whether the provisions The vessels excepted from the operation of the state statutes on that subject are of the foregoing provisions are thus stated void because they conflict with acts of Con- in article 3801: gress on the subject of pilotage, and because “The following classes of vessels shall be the statutes of Texas as to pilotage contain free from any charge for pilotage, unless provisions of such a character as to cause for actual service, to wit: All vessels of them to be repugnant to the 14th Amend twenty tons and under, all vessels of whatment or to the laws of Congress forbidding soever burthen owned in the state of Texas, combinations in restraint of trade or com- and registered and licensed in the district merce. Briefly, the pilotage laws of the of Texas, when arriving from or departing state of Texas provide as follows: The to any port of the state of Texas; all vesgovernor is authorized to appoint for each sels of seventy-five tons and under, owned port whose population and circumstances and licensed for the coasting trade in any shall warrant it, “a board of five persons part of the United States, when arriving of respectable standing, to be known as from or departing to any port in the state commissioners of pilotage.” Upon this of Texas; all vessels of seventy-five tons or board power is conferred to fix, within the under owned in the state of Texas and maximum limits provided by law, the licensed for the coasting trade in the discharges to be made by branch and deputy trict of Texas, when arriving from or depilots for their services, to regulate the parting to any port in the United States.” manner in which such pilots shall perform The first contention in effect is that the their duty, to examine them as to their state was without power to legislate conqualifications, to hear complaints made cerning pilotage, because any enactment on

, against them, and, if occasion requires, to that subject is necessarily a regulation of suspend them until the governor shall act commerce within the provision of the Conin the matter. Upon the governor is con- stitution of the United States. The unferred the authority to appoint such num- soundness of this contention is demonstrated ber of branch pilots as may from time to by the previous decisions of this court, since time be necessary, each of whom shall hold it has long since been settled that even aloffice for two years, subject to removal by though state laws concerning pilotage are the governor at pleasure, and any one who regulations of commerce, "they fall within is not a duly commissioned branch pilot or that class of powers which may be exercised deputy thereof is prohibited from engaging by the states until Congress has seen fit to in the business of pilotage so far as the act upon the subject.” Cooley V. Port statutes provide for pilotage services by the Wardens, 12 How. 299, 13 L. ed. 996; EX duly appointed pilots. Revised Statutes of parte McNiel, 13 Wall. 237, 20 L. ed. 624; the state of Texas for 1895, articles 3790, Wilson v. McNamee, 102 U. S. 572, 26 L. 3791, 3792, 3793, 3794, 3796, and 3803. ed. 234. The maximum rates of pilotage are provided The second proposition relied on is that, for as follows:

albeit the state had power to legislate con“The rate of pilotage on any class of ves: 'cerning pilotage until Congress acted, the state laws are void because in conflict with event, it is apparent that the observation the laws enacted by Congress. This is referred to, made in the case of Spraigue based upon two provisions of the Revised v. Thompson, has been qualified by the later Statutes of the United States, the one pro- decisions of this court to which we have viding that “no regulations or provisions previously referred. shall be adopted by any state which shall Of course, whilst accepting the construcmake any discrimination in the rate of tion of the state court as to the divisibility pilotage or half pilotage between vessels of the statute, the duty yet remains, for sailing between the ports of one state and the purpose of the Federal question, to de vessels sailing between the ports of different termine whether the statute as construed is states, or any discrimination against vessels valid. As the effect of the construction propelled in whole or in part by steam, or below was to eliminate the discrimination against national vessels of the United from the statute, it is clear, in view of the States, and all existing regulations or pro- power of the state to legislate concerning visions making any such discrimination are pilotage until Congress acts upon the subannulled and abrogated” (Rev. Stat. 4237, ject, that the statutes, as interpreted below, U. S. Comp. Stat. 1901, p. 2903); the other were within the power of the state, and not being the provision of the statutes (Rev. in conflict with any act of Congress. InStat. 4444, U. S. Comp. Stat. 1901, p. 3037) deed, it is obvious from the provisions of exempting coastwise steam vessels from the the Revised Statutes ($ 4237, U. S. Comp. operation of state pilotage laws. Undoubt- Stat. 1901, p. 2903) forbidding discriminaedly the exempting clause of the Texas tion in state legislation concerning pilotage, statute is discriminatory, and is therefore that Congress did not intend by that secvoid, because in conflict with the law of tion to revoke the power of the states on the United States. The court below so de- the subject, or to abrogate existing pilotage cided. It held, however, that the provisions laws of the several states, containing disdiscriminating in favor of Texas ships and criminatory provisions, but only to abrogate ports were separable from the remainder of the provisions making the discrimination. the statutes, and therefore the general reg- This results since the statute, after first ulations concerning pilotage were valid, al- generally prohibiting regulations by any though the discriminating provisions were state discriminating “in the rate of pilotage eliminated. Whether the illegal clauses or half pilotage between vessels sailing begranting discriminatory exemptions could tween the ports of one state and vessels be eliminated without destroying the other sailing between the ports of different states, provisions of the state laws regulating pilot- or any discrimination against vessels proage is a state, and not a Federal, question. pelled in whole or in part by steam, or For the purpose of determining the validity against national vessels of the United of the statutes in their Federal aspect this States," in careful language annuls and court accepts the interpretation given to abrogates only "all existing regulations or the statutes by the state court, and tests provisions making any such discriminatheir validity accordingly. W. W. Cargill tion.” And this construction of the section Co. v. Minnesota, 180 U. S. 452, 466, 45 L. in question disposes also of the argument ed. 619, 625, 21 Sup. Ct. Rep. 423, and that, if the statute be accepted as interauthorities there cited. True it is in preted by the state court, it is nevertheless Spraigue v. Thompson, 118 U. S. 90, 30 L. repugnant to the law of the United States, ed. 115, 6 Sup. Ct. Rep. 988, a case involv- since, if the exceptions found in the state ing the pilotage laws of Georgia, in the statute are eliminated, then those statutes course of the opinion it was remarked (p. impose pilotage charges upon all vessels, 94, L. ed. p. 116, Sup. Ct. Rep. p. 989) that and hence subject coastwise steam vessels the ruling of the supreme court of the state of the United States to such charges, alof Georgia, that the illegal provision of the though they are expressly exempted therestatute in question was separable, caused from. Rev. Stat. § 4444, U. S. Comp. Stat. the statute “to enact what confessedly the 1901, p. 3037. But the provisions of that legislature never meant.” But this remark section clearly contemplated that, by the was not made the basis of the conclusion, existing state laws, coastwise steam vessels since it was decided in that case that the of the United States were subject to pilotpilotage charge in question

question was invalid, age charges, and proposed, whilst withdraweven under the construction given by the ing such vessels from pilotage charges, not supreme court of the state of Georgia to in other respects to interfere with the state the state statute, because the exaction which laws on the subject of pilotage. This is was in controversy was in conflict with the plainly the result of the following provision provisions of the Revised Statutes of the contained in the section in question: United States, exempting coastwise steam “Nothing in this title shall be construed vessels from pilotage charges. any' to annul or affect any regulation established

In any

V.

by the laws of any state, requiring vessels | law. When the propositions just referred entering or leaving a port in any such state, to are considered in their ultimate aspect other than coastwise steam vessels, to take they amount simply to the contention, not a pilot duly licensed or authorized by the that the Texas laws are void for want of laws of such state."

power, but that they are unwise. If an Nor is there merit in the contention that, analysis of those laws justified such conas the vessel in question was a British vesclusion,- which we do not at all imply is sel, coming from a foreign port, the state the case,—the remedy is in Congress, in laws concerning pilotage are in conflict with whom the ultimate authority on the subject a treaty between Great Britain and the is vested, and cannot be judicially afforded United States, providing that “no higher or by denying the power of the state to exerother duties or charges shall be imposed in cise its authority over a subject concerning any of the ports of the United States on which it has plenary power until Congress British vessels than those payable in the has seen fit to act in the premises. same ports by vessels of the United States." Affirmed. [8 Stat. at L. 229, art. 2] Neither the exemption of coastwise steam vessels from

(195 U. S. 243) pilotage, resulting from the law of the United States, nor any lawful exemption of

MAGGIE A. BRADFORD. coastwise vessels, created by the state law, concerns vessels in the foreign trade, and, SOUTHERN RAILWAY COMPANY. therefore, any such exemptions do not operate to produce a discrimination against Appeal-necessity of security for costs. British vessels engaged in foreign trade, and in favor of vessels of the United States in 1. The right to prosecute a writ of error from such trade. In substance the proposition

a circuit court of appeals without giving se

curity for costs is not given by the act of but asserts that, because, by the law of the

July 20, 1892 (27 Stat. at L. 252, chap. 209, United States, steam vessels in the coast- U. S. Comp. Stat. 1901, p. 706) providing for wise trade have been exempt from pilotage the prosecution of suits or actions in forma regulations, therefore there is no power to

pauperis, as that act does not apply to appel. subject vessels in foreign trade to pilotage 2. A circuit court of appeals cannot, without

late proceedings. regulations, even although such regulations

statutory authority, permit the prosecution apply, without discrimination, to all vessels in forma pauperis of a writ of error sued out engaged in such foreign trade, whether do- of that court mestic or foreign. It remains only to consider the conten

[No. 151.) tions based upon the 14th Amendment and the anti-trust laws of Congress. The argu. Submitted October 19, 1904. Decided Novemment is, that the right of a person who is

ber 28, 1904. competent to perform pilotage services to Tender them is an inherent right

, guaran: 0 NSA CERTIFICATE from the United by Amendment, and that

States Circuit Court of Appeals for the therefore all state regulations providing for Sixth Circuit, presenting the question the appointment of pilots, and restricting whether the right exists to prosecute a the right to pilot to those duly appointed, writ of error from that court in forma parare repugnant to the 14th

the 14th Amendment. peris, and whether, in the absence of such But this proposition in its essence simply right, the court may permit such prosecudenies that pilotage is subject to govern- tion of the writ of error. Both questions mental control, and therefore is foreclosed answered in the negative. by the adjudications to which we have previously referred. The contention that (be- Statement by Mr. Chief Justice Fuller: cause) the commissioned pilots have a This case is brought here on the followmonopoly of the business, and by combina- ing certificate: tion among themselves exclude all others “This was an action of tort. The plainfrom rendering pilotage services, is also but tiff was a citizen of Tennessee, and the dea denial of the authority of the state to fendant a corporation organized under the regulate, since, if the state has the power laws of Virginia. The jurisdiction of the to regulate, and in so doing to appoint and court below was wholly dependent upon commission those who are to perform pilot- diversity of citizenship. There was a jury

. age services, it must follow that no mo- and verdict against the plaintiff in error nopoly or combination in a legal sense can and a judgment accordingly. arise from the fact that the duly authorized “The plaintiff in error sued out this writ agents of the state are alone allowed to per of error, and has lodged with the clerk of form the duties devolving upon them by this court, within the time required by law, a full transcript of the record in the courting in any affidavit provided for in this or below. The clerk refusing to docket same the previous section shall be punishable as unless the plaintiff would deposit with him perjury is in other cases. the sum of $35, as security for taxable “Sec. 3. That the officers of the court shall costs, as required by rule 16 of this court, issue, serve all process, and perform all the plaintiff has filed her petition, duly duties in such cases, and witnesses shall verified, praying to be allowed to prosecute attend as in other cases, and the plaintiff her writ in forma pauperis, and that the shall have the same remedies as are proclerk be required to docket said transcript, vided by law in other cases. and that the rule requiring a deposit to

“Sec. 4. That the court may request any cover costs be dispensed with. The petition attorney of the court to represent such poor shows a state of facts which entitle the person, if it deems the cause worthy of a plaintiff to prosecute her writ of error as trial, and may dismiss any such cause so a poor person, provided the act of July 20, brought under this act if it be made to 1892, 27 Stat. at L. 252, chap. 209, U. S. appear that the allegation of poverty is unComp. Stat. 1901, p. 706, applies to appei- true, or if said court be satisfied that the late proceedings.

alleged cause of action is frivolous or ma“Because this court has doubts to licious. whether the act of Congress above men- “Sec. 5. That judgment may be rendered tioned applies to appellate proceedings, it for costs at the conclusion of the suit, as is ordered that the foregoing statement be in other cases: Provided, That the United certified to the Supreme Court, and the in- States shall not be liable for any of the struction of that court be requested for the costs thus incurred.” proper decision of the following questions which arise upon the petition and motion of Messrs. Frederic D. McKenney and the plaintiff in error:

James Gallagher for Bradford. “1. Does the act of July 20, 1892 (27 Mr. Frank P. Poston and W. A. HenStat. at L. 252, chap. 209, U. S. Comp. Stat. derson for Southern Railway Company. 1901, p. 706), providing when a plaintiff may sue as a poor person, apply to the Mr. Chief Justice Fuller delivered the prosecution of a writ of error from this opinion of the court: court?

After the passage of the act of July 20, “2. If that act of Congress does not apply 1892, many applications were made to this to appellate proceedings, has this court any court for leave to prosecute writs of error authority to permit the prosecution of a or appeals in forma pauperis, and were writ of error in forma pauperis ?”

uniformly denied, as we were of opinion The act of July 20, 1892, above referred that the act had no relation to proceedings to, reads:

in this court. And we so stated in Galla“An Act Providing When Plaintiff May Sue way v. State Nat. Bank, 186 U. S. 177, 46

as a Poor Person and When Counsel Shall L. ed. 1111, 22 Sup. Ct. Rep. 811, where Be Assigned by the Court.

leave was asked to prosecute a writ of error "Be it enacted by the Senate and House to a state court without giving security as of Representatives of the United States of required by $ 1000 of the Revised Statutes America in Congress assembled, That any (U. S. Comp. Stat. 1901, p. 712). The rulcitizen of the United States, entitled to ing would have been the same if the review commence any suit or action in any court of the judgment or decree of a court of the of the United States, may commence and United States had been sought; because, in prosecute to conclusion any such suit or our view, the statute refers only to the court action without being required to prepay fees of original jurisdiction. And the same rulor costs, or give security therefor before or ing must necessarily obtain in the circuit after bringing suit or action, upon filing in courts of appeals. said court a statement under oath, in writ- The act consists of five sections. Of these. ing, that, because of his poverty, he is un- $8 3 and 4 obviously relate to the trial or able to pay the costs of said suit or action hearing. By § 5 "judgment may be rendered which he is about to commence, or to give for costs at the conclusion of the suit, as in security for the same, and that he believes other cases,” which we take to mean judghe is entitled to the redress he seeks by ment at the close of the trial or hearing, such suit or action, and setting forth briefly and not judgment then and also judgment the nature of his alleged cause of action. in appellate proceedings, or, in case of such

“Sec. 2. That after any such suit or ac- proceedings, no judgment for costs below tion shall have been brought, or that is now until judgment rendered above. pending, the plaintiff may answer and avoid The first section relates to the commencea demand for fees or security for costs by ment and carrying forward of a suit or acfiling a like affidavit, and wilful false swear- ' tion without plaintiff being required to prepay fees or costs or to give security there. | by way of restitution under or in consefor, whether the fees or costs accrue at the quence of the writ of error. Co. Litt. 288, beginning or during the progress of the suit 6; Bacon, Abr. Release, I. 2. This, howor action. The application is to be made at ever, I take it, proceeds rather upon an the outset, and the order, if granted, covers equitable, and therefore extended, constructhe fees or costs accruing when or after tion of the words in the release, beyond their the suit or action is commenced. And this strict meaning; for they generally reach the result is secured by the words "and its prose- original matter out of which the error arose, cution to conclusion.” That conclusion is that being the direct subject of an action the termination of the suit or action in the if the matter be thrown open by the writ of court where it is commenced. The second error. The original matter being released, section provides for a similar application therefore, the words are very properly conafter the suit or action has been brought. strued as reaching indirectly and in liberal

The words "suit or action" are used in construction to the writ of error itself, beboth sections, and the applicant is required cause that depends upon the original matter. to set forth "his alleged cause of action,” Yet, in strictness, no book holds the word and by § 4 the case may be dismissed "if 'action, or words 'cause of action,' to be it be made to appear that the allegation of identical with a writ of error or cause of a poverty is untrue, or if said court be satis- writ of error. fied that the alleged cause of action is friv- "There can be little doubt that the statute olous or malicious."

under which this motion is made should be Lord Coke defined "action” to be “a legal construed strictly; for the pauper comes to demand of one's right,” and cause of action litigate entirely at the expense of others. comprises every fact a plaintiff is obliged He is neither to pay his own attorneys or to prove in order to obtain judgment; or, counsel, nor is he liable to his adversary conversely, every fact the defendant would should the suit prove to be groundless. He have the right to traverse (Chesapeake & thus enjoys a great privilege and exemption 0. R. Co. v. Dixon, 179 U. S. 131, 139, 45 from the common lot of men, whereby, in L. ed. 121, 125, 21 Sup. Ct. Rep. 67). The respect to causes of action proper, he bewords "action" and "cause of action” are comes, as Lord Bacon says, rather able to not ordinarily applicable to writs of error, vex than unable to sue. Hist. of Hen. VII.” and, in our opinion, were obviously not so Lord Bacon was referring to the statute applicable here, but used diverso intuitu. 11 Hen. VII., chap. 12, and his language is And this is so whether a writ of error be elsewhere translated or explained to mean considered a new proceeding or a continua- “that the charity of the legislature thought tion of the original proceeding, as it is it better that the poor man should be able usually regarded in the Federal courts. to vex than that he should not be able to Cohen v. Virginia, 6 Wheat. 410, 5 L. ed. sue.” 6 Bacon's Works, 161. 292; Nations v. Johnson, 24 How. 205, 16 L. So in Bristol v. United States, 129 Fed. ed. 632; Re Chetwood, 165 U. S. 443, 461, 87, 63 C. C. A. 529, where the circuit court of 41 L. ed. 782, 788, 17 Sup. Ct. Rep. 385. appeals for the seventh circuit held that the

A leading case on the subject is Moore v. act of Congress of July 20, 1892, did not enCooley, 2 Hill, 412. The statute of New title a defendant in a criminal case to proseYork under consideration in that case was cute a writ of error out of the circuit court as follows (2 Rev. Stat. N. Y. 2d ed. 1836, of appeals in forma pauperis, Jenkins, J., dep. 362):

livering the opinion, said: “Every poor person, not being of ability “We do not think it can properly be said to sue, who shall have a cause of action that a writ of error is a suit or action withagainst any other, may petition the court in the statute so far as respects a writ of in which such action is depending, or in error in a criminal case. Were it not for which it is intended to be brought, for leave the words ‘prosecute to conclusion,' we doubt to prosecute as a poor person, and to have if any court would hold that the act apcounsel and attorneys assigned to conduct plied to an appeal or writ of error in a his suit."

civil cause. The applicant, by the statute, After quoting the statute Judge Cowen must declare the nature of his cause of acsaid:

tion. Surely an erroneous ruling by the "Strictly speaking, an error on which a trial court cannot be held to furnish a writ lies is not a cause of action; for, as 'cause of action, as that phrase is commonly Lord Coke says, there is a distinction be- understood. The statute, by that term, in tween writs and actions; and under this our judgment, refers to a legal demand by distinction he instances actions and writs one against another, not to the rulings of a of error. 2 Inst. 39, 40. And yet, a release trial court. Under a

Under a somewhat similar of all actions extends to writs of error, statute of the state of New York, its suwhen anything may be recovered or taken 'preme court, speaking through Judge Cowen,