No. 140.
Mr. Fish
to Mr. Avery.
Washington, January 15, 1875.
Sir: The Department has received Mr. Williams’s No. 69, forwarding the correspondence and facts in reference to the suspension of D. J. Haliday, one of the licensed pilots at New-chwang, by the harbor-master; the reversal of the decision by Mr. Knight, the consul of the United States; and the reference of the questions involved to Mr. Williams, and his action thereon.
It appears from the general regulations and rules governing pilotage in the port of New-chwang that pilots are appointed after a competitive examination by a board, upon appointment by which licenses are issued by the commissioners of customs, which may be renewed on the payment of a fee.
It is provided by regulation 7, section 2, that “if guilty of any misconduct for which consular punishment has been inflicted, or if proved to have committed any offense against revenue laws, the individual [Page 249] concerned may be suspended or dismissed by the harbor-master, subject to an appeal to his consul. If a foreigner, the appeal to be lodged within three days.”
And by regulation 4, section 2, it is provided that the board may refuse to admit to examination any one whose license has been withdrawn.
Upon the 16th of September Haliday was sentenced to be imprisoned for a fortnight by the consul, and to pay a heavy fine, for an assault on a native woman. Having served this sentence, and being discharged, he applied for his license, in the possession of the harbor-master, who thereupon suspended him. On an appeal to the consul the suspension was reversed, the consul deciding that, while this sentence, together with other offenses, were much to his discredit as a man, it was the duty of the harbor-master to act only when the pilot had been guilty, as a pilot, of some breach of duty, and that the sentence in this case was no ground for suspension. The consul further decided that the pilots license should be held by him provisionally until the end of the season, its renewal to depend on the decision of the United States minister, in which the harbor-master assented, and the matter was transmitted to Mr. Williams for decision. Mr. Williams thereupon, in disposing of the question, states that no appeal is provided for to the minister by the pilot regulations, but proceeds, nevertheless, to review the case, (as he states, as a referee or arbitrator;) and, while fully admitting that the action of thee consul was final, decides, nevertheless, that the reversal of the harbor-master’s suspension of the pilot was erroneous, and while permitting the pilot to act temporarily, further decides that he was properly suspended by the harbor-master, who may refuse to renew his license in the spring.
It would therefore appear that the chargé d’affaires of the United Stat is has assumed jurisdiction of the case, and virtually reversed the decision of the consul, and has further-proceeded to pass upon the propriety of a renewal of the license in the coming spring, which under the pilot regulations is confided to another body.
It is the opinion of the Department that if Mr. Williams had no other authority to dispose of the case than the reference to him by Mr. Knight, acquiesced in by the harbor-master, he was not authorized to entertain the matter, particularly as the consent of the pilot, the interested party, was in no way requested.
It would therefore seem, so far as the Department is advised, that the reversal of the decision of the harbor-master of itself restored the pilot, and that a renewal of his license in the spring was a matter to be passed on in the usual manner, when he should make his application by the commissioner of customs or the board of commissioners.
Upon the merits of the case, so disposed of, it was enough perhaps to say that if Mr. Knight, in laying down his rule that the misconduct of a pilot, to entitle him to be suspended or removed, must affect him as a pilot, as distinguished from a member of the community, went so far as to say that a pilot could not be removed under the regulation for some heinous crime, commtited while off duty, and in no way connected with his profession, the Department does not agree with such construction. Burglary, murder, and other heinous crime, no matter where or how com nitted, if punishment had been inflicted therefor by the consul, would seem to give to the harbor-master the right to pass on the question of a suspension or removal, and it would further seem from the reading of tl ie regulation, and from the facts as now presented, that the infliction of consular punishment gave the harbor-master the right to entertain [Page 250] the question of a dismissal, subject to an appeal to the consul in case the pilot desired it. The question of the proper exercise of this discretion was to be reviewed by the consul.
The Department does not propose to further review the decision of the consul. In its opinion Haliday should be remitted to the usual source in his application for a license at the expiration of the present one.
I am, &c.,