166' twice in November, and $100 in January,-from which it follows that there is due him only $243.33, instead of $260, as alleged in the libel. The claimant swears that he paid him $30 additional at his house, which the libelant flatly denies. The libelant had a current memorandum of moneys received, which he produced and submitted to counsel. The claimant, although a man of business habits, and engaged in business affairs, and although it appears from the evidence that he keeps an office where the affairs of this boat are reported and kept an account of, did not produce any memorandum or entry in support of his statement. Under these circumstances, the burden of proof being all him to establish the payment, I must conc1udethat he is mistaken as to the payment of the $30. . In conclusion, I find that the libelant was not guilty of misconduct as pilot and master of the Governor Newell, and that the claimant is not entitled to recover of him any damage for the injury occurring to said boat oil January 30, 1887; and that at and before the commencement ofthissuit the claimant was indebted to the libelant in a balance of $243.33 for services as pilot and master of said boat, which, by the law of this state, (Sess. Laws 1876, p. 9,) is a lien thereon; for which sum, together with six months' interest thereon, ($8.73,) in all $252.06. the libelant is entitled to a decree; and it is so ordered.
'fint (District
ALAMEDA.
NEAL V.THJt ALAMEDA.
Gourt,
N. D., qaUfornia. June 20, 188'1J
PILoTs-,Prr.OTAGE R..\.TEs-DISCRUUNATION.
Section 2466, Pol. Code Cal., a schedule of pilotage rates into or out of San Francisco. and further provides that when a vessel is spoken inward or outward bound. and the services of a pilot are declined. one-half of the rates shall be paid. Section 2468 provides that all vessels coasting between Sari Francisco'and any port in Oregon. or Washington or Alaska territories. and all vessels coasting bet.ween the ports of California are exempt from all charges for pilotag.e. unless a pilot be actually employed. Section 4287, Rev. St., provides that no regUlation or provision shall be adopted by any state which shall make any discrimination in the rate of pilotage or half pilotage, between vessels sailing between, the. ports of one state and vessels sailing between the ports of different'·states Held, that the above provisions of the Political are unconstitutional and invalid, so far as they relate 'to coasting vessels, but that:they are valid in respect to vessels engaged in foreign trade. '
1n Admiralty. P. D. Wigginton, (lJ,oyd&: Wood, of co,l;tnsel,) foHibelant. MiltcJrI. .An(ir08, (Poge &: EeU8, of counsel,) for claimant. HOFFMAN,J. On the twenty-nlnthMarch, 1887, the libelant, a dulyllC>Bnsedpilot for this harbor,spokewithin the cruising. grounds, Ilnd:outsidethe bar, the steamer Alameda, inward bound from foreign ports, to the master of which he offered his services as pilot. These ser¥ices were declined, and the vessel proceeded into port without hav-
THE ALAMEDA.
867
ing on board any licensed pilot. The libelant now sues for half pilotage, under the provisions of section 2466 of the Political Code of California. Exceptions are filed to the libel on the ground· that the sE;ction of the Political Code referred to is opposed to the provisions of section 4237 of the Revised Statutes of the United States, and is consequently inoperative and void. Title 6, c. 1, art. 6, Pol. Code Cal., entitled "Pilot Regulations for San Francisco, Mare Island, and Benicia," provides: The following shall be the rates of pilotage into or out of San "Sec. Francisco: All vessels under 500 tons, $5 per:foot draught; all.vessels over 500 tons, $5 per foot draught, and 4 cents per ton each and every ton registered measurement. When a vessel is spoken, inward or outward bound, and the services of a pilot are declined, one-half of Ute above rates shall. be paid. .In all cases where inward-bound vessels are not spoken until inside of the bar, the rates of pilotage and one-half pilotage above providedshaU be reduced 50 per cent. Vessels engaged in the whaling or fishing trade shall employed." ... be exempt from all pilotage, except wbere a pilot is "Sec. 2468. All vessels coasting between San Francisco and any portiJ;1 Oregon, or Washington or Alaska territories, and aU vessels coasting bet\Veen the ports of this state, are exempt. from all charges for pilotage, unless a pilot be actually employed." By the Revised Statutes ofthe United States it is provided as follows: "Sec. 4237. No regUlations or provilJions. shall, be. adopted by any state which shall make any discrimination in the rate of }?ilotage or half pil'otage between vessels sailing between the ports of one stateanl1 vessels sailing be- ' tween the ports of different states; or any discrimination against vessels propelled in whole or in part by steam, or against national vessels of the United :5tates; and all eXisting regulations or prOVisions making any such qiscri)llnation are annulled and abroga,ted." It is not disputed that the sections of the Political Code above cited do contain such discriminations as are prohibited by section. 4237 of the RevIsed Statutes. A similar discrimination,contained in the Georgia Code, was held to be invalid by the supreme court, in Spraigue v.TMmp80n, 118 U.S. 90, 6 Sup. Ct. Rep. 988. In that case the validity of the discrimination :had been .recognizedby the supreme court of Georgia.. But that court held that so much of the section as makes these illegal exceptions. might be disregarded, ·and the rest of the seetion, as thus read, might stand upon the principle that a separable part of a statute, which is unconstitutional, may he rejected. and the remainder preserved and enforced. This view was rejected by the supreme court for the very sufficient reason ·'that, by rejecting the exceptions intended by the legislature of Geollgia, the statute is made to enact what confessedly the legislature never meant. It confers a. positiveoperll.tion beyond the legislative intent, and beyond what anyone can say it would have enacted in view of the illegality of the exceptions." So, in the case at bar, it is iIripossibleto say whether the !egislature of California, if apprised of the illegality of the discrimination ,between coasting vessels of different states, would have elected to subject aJl, such vessels to the one-half pilotage charge, or would have exempted all. · The law, therefore, is invalid with respect toa11 coasters, and the. ,only· question presented in the case at bar is whetherthe provisions requiring half pilotage to be paid by .and,Americani
868
FEDERAL REPORTER.
riving from foreign ports-are so inseparably connected with the ions with respect to coasters that the whole statute fails, and the charge can no longer be collected. It is unnecessary to enlarge upon the policy and the necessity which has led commercial states, in order to create and maintain an efficient class of pilots, to provide compensation, not only when the services tendered are accepted by the master· of the vessel,but when they are declined. Per Mr. Justice FIELD;:Stearn8hip Co. v. Joliffe, 2 Wall. 457. Also see ,Ex parte McNiel, 13 Wall. 238; Oooley v. Board of Wardens, 12 How.3J2. Bef()re rendering a decision which will strike down the system of half pilptage adopted by this state, should be convinced that there is no alternative. It may, perhaps, admit of doubt whether the question now presented can be raised by the claimants in this case. The only invalidity of the law is an attempted discrimination between coast,ers Of differeIltstates.. The Alameda is not, as was theSa:x:on, in Spmigue v· ThompsO'n, a licensed coast-wise 'vessel. She is an American registered vessel, eilgaged in foreign trade; , She is not injured or affected' by the discrimination between coasters. She is merely subjected to a just and necessary tax, which, if the court should declare her to be now exe:mpt frpni; p,robably, as it might be, lawfully reimposed as soon all, the legislature convl;lnes. She has undoubtedly an interest in defeating the'law, for sbe seeks to escape its operation; but she is in no way injured by those of its provisions which make an illegal discrimination between vessels of a class to which she does not belong. But, waiving this point, the inquiry remains, "Are the unconstitutional provisions so connected with the general scope of the law as to make it impossible, if they are stricken out, to give effect to what appears to htLve been the intent of the legislature?" Allen v. Louisiana, 103 U. S. 84. The advocates for the libelant suggest in their brief that the provisions making a discrimination be stricken out, so that the general provisions with respect to half pilotage would apply to all vessels entering or leaving this port. But this, as held by the supreme court in Spraigue v;· Thompson, is clearlyinadmissible.. It would not be to give effect to what appears to be the intent of the legislature, but to give effect to what appears 110t to have .been its intent. The legislature certainly proposed to exempt coasters trading between this and adjacent Pacific ports of the Uhited States. How then can the court impose the tax? But the intent to subject foreign vessels and American vessels engaged in foreign trade to the charge is equally clear. The intent to discriminate between coasters is also manifest. This last intent fails, by reason of its illegality, and all coasters'are· exempt. " : But 1 perceive no difficulty in holding, as the court is bound to do, unless the objections are insuperable, that the invalidity of the provis'ions with respect to coasters does not annul the whole statute, and render invalid its provisions with regard to other classes of vessels,-provis.io11S against which, if they stood alone, no legal.or constitutional objections could be raised, and which express and carry into effect the manifest intent ofthe Exceptions overruled.
WANN V. COE.
369
WANN
v. COE and another.
(Circuit Oourt, 1.
n.
Oolorado. June 21, 1887.)
The fact that a needy borrower of a large sum of money ($51,000, for example) is compelled by his necessities to agree to pay a high rate of interest, (16t per cent., for instance,) and to submit t·o other hard exactions. affords no reason for the interference of a court of equity, especially where the security consists chiefly of stock on a western ranch, which must be marketed and sold before the loan can be repaid. MOR'rGAGE-WHAT Is-ACCOUNTING.
FRO:&! HARD BARGAIN.
2.
Plaintiif, to secure the loan of $51,000, conveyed his ranch, and the stock thereon, to defendants, it being agreed that defendants should manage the property, and reimburse themselves from sales. Held, that the status of defendants was that of mortgagees in possession, bound to exercise reasonable care and diligence in preserving the property, and in disposing of it for the benefltof all concerned; that if defendants unnecessarily removed s,tock to a distant and inhospitable region, where it was abandoned to the rigors of winter, defendants were chargeable for the consequent loss; that charges to $60,000, for transporting and marketing cattle sold for $70,000, were, primajacie, so large as to challenge the closest scrutiny; that plaintiff was not bound to be content with charges in gross, in the accounts rendered by defendants, but was entitled to be furnished with explicit and itemized statements of expenditute; that certain charges, on their face extraordinary, shQuld be investigated; and that the case was a proper one for reference to a master to state a. true account between the parties, in accordance with the principles above suggested. A mortgagor, in order to get possession of the mortgaged property from the mortgagee in possession, and to save it from probable loss from mismanagement and abandonment, the mortgagee's management and accounts being such as to afford proper subjects for investigation at the hands of a court, agreed with the mortgagee on a certain sum as the balance due. Held, that he did not preclude himself from invoking the aid of a court of equity to compel a true account from the mortgagee. A payment made under such agreement should be treated merely as an item to be credited to the mortgagor.
8.
SAME-SETTLEMENT-EFFECT.
In Equity. WellB, McNeal & Taylor and R. E. Foot, for complainant. A. J. Poppliton and John L. Webster, for defendants. HALLETT, J. In the month of November, 1879, plaintiff owned a ranch in Nevada called "King's River," and a large number of cattle on the ranch. The title to this property was held by A. Stevenson & Son, of California, as security for a considerable sum of money due from plaintiff to them, of which the amount was not then known, but was afterwards settled and adjusted at $51,000. With a view to pay his indebtedness to Stevenson & Son, plaintiff applied to defendants at their place of business in Omaha, Nebraska, for a loan sufficient in amount for that purpose. Negotiations followed. resulting, as complainant claims, in an agreement in writing on the part of defendants to loan the money at 10 per cent. interest. Two thousttnd beeves from the King's River ranch were to be sold in eastern markets, and the proceeds applied in tion of the loan. Defendants deny that any agreement was made con-
