SAMUEL CRIBB, APPELLANT,

v.

THE STATE

FORWARD, J.,

delivered the opinion of the Court.

The indictment in this cause contains four counts.

The first count charges that Samuel Cribb, late, &c., “ did conduct a c&rtmn vessel, to-wit: the schooner F’ime Boys, into the harbor of Fernandina, and that the said Samuel Gribb did not then have a license from the Commissioners of Pilotage for the port of Fernandina, contrary to the form of the statute,” &a.

The second count, that' he did conduct “ a certain vessel, to-wit: the schooner Five Roys, out of the ha/rbor of Fernandina, and that.the said Samuel Cribb did not then have a license from the Commissioners of Pilotage for the port of Fernandina, contrary,” &c.

The third count, that “ being then and there a person residing within the jv/risdietion of the Commissioners of Pilotagefor the port of Fernandina, with force and arms, did hold a license as Pilot for the Bar of St. Marys from certain of the authorities of the State of Georgia, &c., the said Samuel Cribb, not then and there homing a special license from the Commissioners of Pilotage for the port of Fernandina to hold said license from the said authorities of the State of Georgia, contrary,” &c. Tlie fourth, “that the said Samuel Oribb, &c., being then and there a resident of the State of Florida, did, by virtue of license from certtdn of the authorities of the State of Georgia, the weight of evidence.

14th. For that the indictment concludes, contrary to the form of the statute, instead of contrary to the statutes.

The verdict of conviction being a general verdict of guilty the first question is as to the practice of the Court in passing judgment,, providing all the counts in the indictment are adjudged good, and such as on which judgment may he lawfully awarded, or providing some of the counts are considered bad in form or such as on which judgment cannot be awarded, for the reason there is no such offence in law as charged and for which he has been convicted. ¥e consider the rule tobe that if all the counts are good, and such as on which judgment can be awarded, and the evidence warrants the conviction, to pass judgment on the count charging the highest grade of offence; but where the grades of offences are equal in all the counts, as in the case at bar, the iwactice is to pass sentence on all the good counts of which the evidence is sufficient to sustain the verdict, if it is warranted by the law applicable to the offence charged in that count, on the presumption that it was to them that the verdict of the jury attached. In carrying out this rule, we turn to the record and take up the third count of the indictment, which charges the of-fence under the second section of the act of 1859, which is for holding a license, ha being a resident within the jurisdiction of pilotage for the port of Femaudina in Florida, from the State of Georgia. The offence under the said second section is not for piloting hut for holding a license from another State, the said defendant being a resident of Florida. The said count is in form good, the offence being charged in the language of the statute, and the evidence seems abundant to support the conviction.

The only question is whether the said section creating the offence is constitutional, and whether the judgment entered upon the conviction thereunder can be affirmed.

There can be no question that each State, being sovereign and independent, possessed and must possess the inherent right and power over her citizens aud of controlling her inhabitants or residents, while they remain as residents. This is a matter of police and internal arrangement for the common -welfare of all, the people being the judges for themselves what shall be a grievance as well as a matter of public convenience or inconvenience. Under this power, the State has a right to-declare what is a public grievance, aud prohibit one of her citizens, residing within her jurisdiction, amenable to her laws while he does thus reside, from holding and exercising a license or office from a sister State or any foreign power. The State is the judge of offences against her society, and may punish one of her citizens, resident within her boundaries, for the commission of any act constitutionally enjoined or forbidden by statute.

The offence thus created by statute is a statutory offence. The opinion of the Court is that this 2d section of the act of 1859 was not in violation of the constitution of the United. States, nor of any law nor treaty made in pursuance or under the authority of the constitution. But the difficulty of sustaining the conviction and judgment under this count, is, that although it enjoins or forbids the resident from holding the license, no penalty or remedy by indictment is prescribed. It is not an offence known to the common law. If it were, then our general statute (see Thompson’s Digest, 489, sec. 3,) would provide the punishment. The statute that creates the offence lias not prescribed the penalty. There is no evidence in support of the second count, but the first and fourth counts seem fully sustained, if weight and due consideration are given to reasonable presumptions forming a body of facts.

It is contended by the plaintiff in error, in the second error assigned, that judgment cannot be awarded on either of the last mentioned counts, because section 3rd of the act of 1859, under which said first and fourth counts are grounded, contravenes the act of Congress approved March 2,1837, providing for the pilotage of vessels into ports, upon waters dividing two States, by pilots licensed by either of such States, and is therefore unconstitutional. This is an important point, and upon it turns the affirmation or reversal of said judgment. The constitution has conferred on Congress the power “ to regulate oommeree with foreign nations, cmcl among the several States, and with the Indiam, tribes.” In giving effect to this article of the constitution, it is settled law that the power to regulate commerce includes the regulation of navigation ; that the regulation of navigation means the establishment of rules by which it must be carried on. The power extends to the persons who conduct it as well as to the instruments used. Thus in Cooley vs. Board of Wardens of the Port of Philadelphia, 12 How. Rep., 299, the Supreme Court of the United States say, “ If Congress has power to regulate the seamen who assist the pilot in the management of the-vessel, a power never denied, we can perceive no valid reason why the pilot should be beyond reach of the same power.” See also Nice’s Law Reports, 252.

We learn from good authority that a system of laws for the regulation of pilots and pilotage existed in the several States at the meeting of the first Congress under the constitution. By the 4th section of the Act of Congress of 7th August, 1789, Congress adopted the laws of the several States then existing, and went further. It declared “ that all pilots in the bays, inlets, rivers, harbors and ports of the .United States, shall continue to be regulated in conformity with the existing laws of the States respectively wherein such pilots may be, or with such laws as the States may respectively hereafter enact for the purpose, until further legislative provision shall be made by Congress. ”

The question arose under the Act of Congress whether Congress could prospectively adopt the laws which the several. States may hereafter enact upon the subject of commerce or any of its incidents. It was finally settled that the State possesses a concurrent power over the subject-of commerce, and under the 6th article and second clause of the constitution, which reads, “ That this constitution, and the laws of the United States made in pu/rsua/nce thereof, a/nd treaties made wider the authority of the United States, shall be the supreme power of the la/ndf it was held that when Congress exercises the power, the States cannot. But when Congress “ sleeps upon its post,” the State may seize its armor and exercise its authority. The laws which the States enact during the somnolency of Congress, the Supreme Court says are valid. The cases of Cooley vs Board of Wardens, &c., 12 Howard, 309, and license cases, 5 Howard, 612, settled the question. And the “ supreme power of the land” now declares that the laws of the several States for the regulation of pilots, “ are enacted by virtue of a power tjsiding in the States to legislate,” and are valid until Congress interposes and establishes some other system of regulations.

“ Farther legislative provision” was made by Congress, upon the subject of pilotage, by the passage of the Act oí March 2, 1837, which enacts that “it shall and may be lawful for the master or commander of any vessel coining into or going out of any port, situate upon waters which arc the boundary between two States, to employ any pilot duly licensed or authorized by the laws of either of the States bounded on tbe said waters to pilot said vessel to or from said port, any law, usage or custom to tbe contrary notwithstanding.”

There is no doubt that the respective States are the most competent to regulate the pilotage within tlieir own ports, and that itisforthegeneraladvantpgetliat.it should rest with them. With the exception of the said act of 1837, regulating pilotage in ports situate upon waters which are the boundary between two States, it lias been left to them. The question naturally suggest itself, why did Congress make this exception ? The auswer is, to relieve the commerce of the country from any embarrassment arising from the laws of different States situate upon waters which are the' boundary between them. In some sneli States, their laws compelled masters of vessels to take tlieir pilots on board. Each State, where there is a port situate upon waters which are the boundary between them, without this regulation of Congress, might embarrass commerce by insisting-that their pilot shall be taken as pilot. It was also to remedy the strife between the two States, so embarrassing to the master, that this act was passed. In fact it was to meet just such a state of things as exists between tbe States of Georgia and Florida at the ports of Fernandina 'and St. Marys. By the regulations undfer this act of Congress, there is no impediment to commerce. The master of the vessel can employ a pilot licensed by either State, and the licensed pilot of either State can pilot the vessel in or out of the harbor of either State and. over the St. Marys bar. Each State provides for the licensing of their own pilots, which is not interfered with by this Act of Congress. As we have already said, each State may prohibit her citizens, resident Avithin her limits, from holding a license from the other State, but one State cannot control the regulations of the other. — • In the opinion of the Court, the Act of Congress of 183.7, Avhich Avas passed before the act of 1859, Avas Avithin the scope of the constitutional power of Congress, and Avas the supreme Laav of the land Avhen said act of Florida Avas enacted, and that said 3rd section of said act of 1859 contravenes the Act of Congress approved March 2, 1837. This being the case, and there being a conflict between them, the State law must yield. 3 Wheaton, 209, 210; Low vs. Commissioners of Pilotage, R. M. Charlton’s Reports, page 314.

There being no count in the indictment upon which judgment could have been lawfully rendered, it follows that the Court below erred in not arresting the judgment.

It is therefore ordered and adjudged, that the judgment rendered in the Court below be reversed, and the plaintiff in error discharged therefrom.

Walker, J.

Whilst fully concurring in the judgment just pronounced, I do not fully concur in so much of the opinion as relates to the third count in the indictment. My mind is not clear that the section on which the 3rd count is based is not calculated to obstruct citizens in the discharge of duties which they might laAvfully exercise under a constitutional act of Congress, and is therefore void.