The opinion
GILBERT, Circuit Judge
(dissenting). The question involved in this case depends wholly upon the construction of sections 4401 and .4414 of the Revised Statutes. In those two sections is to be found the full measure of congressional legislation on the subject of pilotage, and the full extent of the federal delimitation of state power. Section 4361, which appears under a different title, and which subjects registered vessels engaged in the coasting trade to the same regulations, provisions, penalties, forfeitures, and duties as are imposed on licensed vessels in the coasting trade, has no reference whatever to pilotage regulations. This is made plain by referring to the original act of February 18, 1793 ( 1 Stat. 313 , c. 8, § 20), in which it specifically appears that the regulations, provisions, duties, etc., so referred to, concern only the carriage of goods and mote particularly distilled liquors, and the duty of masters to make manifests thereof. No new meaning was given to that statute by carrying its provisions into the *736 Revised Statutes as section 4361'. “It will not be inferred that the Legislature, in revising and consolidating the laws, intended to change their policy, unless such intention be clearly expressed” (United States v. Ryder, 110 U. S. 729 , 4 Sup. Ct. 196, 28 L. Ed. 308 ), and “upon a revision of statutes, a different interpretation is not to be given to them without some substantial change of phraseology” (McDonald v. Hovey, 110 U. S. 619 , 4 Sup. Ct. 142, 28 L. Ed. 269 ). And it is an established canon of construction that, in finding the meaning of a statute in the revision, the courts are permitted to refer to the original statute from which the section was taken to ascertain from its language and context to what class of cases the provision was intended to apply. The Conqueror, 166 U. S. 122 , 17 Sup. Ct. 510, 41 L. Ed. 937 .
. It is to be borne in mind that, while federal authority over pilotage is par’amoimt to that of the state, the state power does not act by authority delegated by Congress, and the question is, not what has Congress authorized the states to do, but what has Congress taken from the states by its own regulation of pilotage? In Gibbons v. Odgen, 9 Wheat. 207 , 6 L. Ed. 23 , it was said:
“Although Congress cannot enable a state to legislate, Congress may adopt the provisions of a state on any subject. When the government of the Union was brought into existence, it found a system for the regulations of its pilots in full force in every state. The act which has been mentioned (Act Aug. 7, 1789, c. 9, § 4, 1 Stat. 54 , re-enacted in section 4235, Rev. St.) adopts this system and gives it the same validity as if its provisions had been specially made by Congress. * * * The act unquestionably manifests an intention to leave this subject entirely to the states until Congress should think proper to interpose.”
In Cooley v. Board of Wardens of Philadelphia, 12 How. 299, 319 , 13 L. Ed. 996 , the court said:
“The act of 1789 contains a clear and authoritative declaration by the First Congress that the nature of this subject is such that, until Congress should find it necessary to exert its powers, it should be left to the legislation of the states; that it is local, and not national; that it is likely to be the best provided for, not by one system or plan of regulations, but by as many as the legislative discretion of the several states should deem applicable to the local peeularities of the ports within their limits.”
Approaching the question in issue with these principles in mind, it seems clear to me that section 4401 places under the protection of federal licensed pilots, except when on the high seas, all coastwise steam vessels, “not sailing under register,” and that while section 4444 recognizes the power of the state to regulate pilotage, when entering or leaving its ports, of .all vessels other than “coastwise steam vessels,” the coastwise steam vessels so excluded from state legislation are those and those only which are placed under federal regulation under section 4401, namely, coastwise steam vessels, “not sailing under register.” Section 4401 is the only federal statute placing vessels under the control of federal pilots while entering or leaving ports, and section 4444, being part of the same statute, is to be construed with it. Both these sections originally appeared as a single section in the act of 1871, entitled “An act for the better protection of life, etc.” Act Feb. 28,1871, c. 100, § 51, 16 Stat. 455 . The field of legislation which Congress might have covered by pilotage regulations comprised three *737 classes of vessels: First, licensed and enrolled vessels engaged in the coasting trade; second, registered vessels engaged partly in coasting trade and partly in foreign commerce; and, third, registered vessels engaged wholly in foreign trade. Congress saw fit to regulate vessels of the first class only, and has never made any specific provision for vessels of the other two classes. It has left them to state regulation.
This was the view taken by Judge Rowell in 1880, in Joslyn v. Nickerson (C. C.) 1 Fed. 133 , when he said, referring to Act July 25, 1866, c. 234, § 9, 14 Stat. 228 :
“This statute has been modified, and the employment of such a pilot is now compulsory only upon coasting steam vessels not sailing under a register. Rev. St. § 4401.” , :
And the learned judge cited Murray v. Clark, 4 Daly, 468 , affirmed in 58 N. Y. 684 , a case in which the meaning of sections 4401 and 4444 was discussed at length, and in which it was held that the slate might impose a pilotage charge on registered vessels which are also engaged in the coasting trade, and that the rules and regulations established by the United States refer only to coastwise steamgoiug vessels, not sailing under register. In Bigley v. New York P. R. S. S. Co. (D. C.) 105 Fed. 74 , Judge Brown said that the effect of sections 4401 and 4444 was—
“to exempt all steam vessels sailing under a license and employed ;in the coastwise trade from the pilotage laws of the states, while other vessels remained subject to the state laws.”
This seems to be the view which was taken in Spraigue v. Thompson, 118 U. S. 90 , 6 Sup. Ct. 988, 30 L. Ed. 115 ; and the later cases of Huus v. New York, etc., S. S. Co., 182 U. S. 395 , 21 Sup. Ct. 827, 45 L. Ed. 1146 , and Olsen v. Smith, 195 U. S. 332 , 25 Sup. Ct. 52, 49 L. Ed. 224 , are not in conflict with it.