Page:Federal Reporter, 1st Series, Volume 10.djvu/694

682 FEDEBAIi BBFOBIEB. �most be passed in conformity to the constitutional provision; but if not, although relating to the same subject, it is without its scope and operation. It is not, then, considered an amendment of any prior act, althougb it may change or repeal it by implication. • �Admitting, however, that the act of 1870 is invalid, still this excep- tion must be allowed. The act of 1865, under which the libellant claims bal! pilotage, was certainly passed in contravention of said section 22 of the constitution of the state. By section 1 of the act of October 21, 1864, (Com. Or, Laws 1864, p. 841, § 22,) the fees for pilotage between Astoria and the sea were specially prescribed, while "the fees of pilotson the river above Astoria" were to be "iixed" by the pilot commissioners. The act of ] 865 professes to be amend- atory of this act, and correctly refers to its title. The act of 1864 was itself amendatory of the act of October 17, 1860. It only con- tained two sections, and the attempt to amend it by the act of 1865 consisted in adding section 3 thereto, giving half pilotage to river pilots, as above stated. If the act of 1864 contained no provision on the subject of river pilotage in conflict with this added section, the amendment would be valid under any construction of the consti- tution. But the subject of pilotage above Astoria was already fully provided for in the first section of the act of 1864, to which this sec- tion 3 of the actof 1865 professes to be an amendment. The latter, so far as it goes, is in direct conflict with the former, in that it takes the subject of half pilotage on the rivers out of the control of the commissioners, and prescribes an absolute raie on the subject. It purports to amend the prior act by adding a section thereto — by the addition of new matter, and not a change of the old ; but it is in fact an attempt to amend — change — section 1 of said act without specially repealing and re-enacting it as amended. �It follows that the libellant cannot recover in this case, because, either the act of 1865, giving the right to recover half pilotage, was void from its inception, as being passed contrary to the constitution, or the act of 1870 is valld, and repealed by implication so much of the act of 1865 as allowed half pilotage for an offer and refusai of services. �The impropriety of taxing vessels navigating the river in tow with the expense of pilotage in addition to towage is so apparent that the act of 1865, which was the first one that ever undertook to make pilotage compulsory on the rivers, was soon repealed, or attempted to be. ��� �