distance at which the pilot boat is from the vessel signaled is a material element in the transaction. And first, it ought not to be so far away as to leave any room for dispute as to whether the signal was made or seen; and second, a vessel ought not to be compelled to wait for a pilot from a boat that signals her a great way off, when in all probability she can get one sooner and nearer in shore if she is allowed to proceed on her way. And what distance is suitable and convenient for both the party making and receiving the signal, is a matter committed by the pilot act to the judgment of the commissioners. It is urged that a halfmile is a very short limit, and that it might well be a mile or two. But the commissioners are probably better judges of this matter than counsel; and if it is thought they have erred in this respect, they must be asked to correct it. It is not in the power of the court to disregard or modify their action thereabout.

As to whether the offer of the libelant was made within a half-mile of the Ullock, the testimony of the two crews is widely divergent. The reason given by the master of the Ullock for declining the offer is evidently not ingenuous, and ought to have some effect upon his general credibility. He says that he preferred to take a pilot from the schooner because he knew the charges were less than those of the tug pilots; and at the same time, as a reason for not taking this cheaper one when it was offered him, he says that he did not want to take a pilot so far from the bar and thereby incur the additional expense of "distance" or "off-shore" pilotage. But he knew very well that there is no such thing as "distance or "off-shore" pilotage at the mouth of the Columbia river; and that the charge for piloting a vessel in and over the bar is all one, whether the pilot boards her at the outermost buoy or at any distance beyond.

He had run his reckoning for the Columbia river, and been unable to take an observation for some days on account of the fog, and would naturally be glad to avail himself of the services of the first pilot that offered, unless there was some special and cogent reason to the contrary. It is certain that the reason assigned was not the true one. And probably the fact is that the master really desired to take a pilot from the tug, so as to facilitate a deal for towage, which is a much weightier matter than the cost of pilotage.

But I doubt, even on the evidence of the libelant and others of the crew of the schooner, if she was ever within a half-mile of the Ullock on that occasion, before the pilot of the tug boarded her. The burden of proof in this respect is on the libelant; and he can not prevail unless it appears from the evidence that his offer was made to the Ullock within. the legal distance. The strongest statement which the libelant is willing to make on this point is, that he was within from one to three quarters of a mile of the Ullock; and this being taken, as it should be, most strongly against himself, amounts to no more than that he was within three quarters of a mile of said vessel.

But there is another point made in the case by the claimant, upon which I think the decision must be against the libelant. By the act of March 2, 1837, 5 Stat. 153, R. S., sec. 4236, it is provided, that "the master of any vessel coming in or going out of any port situate upon waters which are the boundary between two states may employ any pilot duly licensed or authorized by the laws of either of the states bounded on such waters, to pilot the vessel to or from such port."

This act was passed, as is well known, on account of the conflicting

legislation and the strife between New York and New Jersey and their pilots for the pilotage of vessels entering the Hudson river and bound to New York or other ports thereon.

It may be admitted that the Columbia river is not a boundary between two "states" in the sense in which the word is used in the constitution, but it is the boundary between one such state and an organized territory of the United States. The case is within the mischief intended to be remedied by the act of 1837. The subject is wholly within the power of congress, and it may apply the rule contained in the act to the case of a water forming the boundary between a state and territory, as well as between two states of this Union. The territory of Washington is an organized political body-a state in the general and unqualified sense of the word-with power to legislate on all rightful subjects of legislation, except as otherwise provided in its constitution, one of which is pilots and pilotage on the Columbia-river bar: The Panama, 1 Deady, 31.

True, this power is derived, for the time being, from congress. But the power of a state of the Union to legislate on this subject only exists until congress sees proper to exercise it. There being no constitutional limitation upon the power of congress in this respect, and it having the same right to regulate the taking of a pilot on a water that forms the boundary between a state and territory as it has between two states proper, I think the word "state" in the act of 1837 ought to be construed to include any organized body politic or community, within the territorial jurisdiction of the United States, having the power to legislate on the subject of pilots and pilotage on a water forming a boundary between itself and a state of this Union.

In the case of The Panama, 1 Deady, 33, in speaking of this act in 1861, I said: "Whether the word 'state,' as used in this act, should be construed so as to include a territory, is a question not free from doubt. This case is within the mischief intended to be remedied by the act, and it seems to me might be held to come within its spirit and purview, without any violation of principle. I do not think it comes within the reasoning or considerations that controlled the court in Hepburn v. Ellzey, 2 Cranch, 445, in which it was held that under the judiciary act, giving the national courts jurisdiction of controversies between citizens of different states, a citizen of the District of Columbia could not sue in such courts as a citizen of a state, because such district was not a member of the Union."

The ruling in Hepburn v. Ellzey, supra, was afterwards applied in New Orleans v. Winter, 1 Wheat. 91, to the case of a territory, when it was said that although the district and the territory are both statespolitical societies-in the larger and primary sense of the word, neither of them is such in the sense in which the term is used in the constitution, in the grant of judicial power to the national government on account of the citizenship or residence of the parties to a controversy, when it is understood to comprehend only "members of the American confederacy." In Barney v. Baltimore, 6 Wall. 287, these rulings were followed without question, upon the principle of stare decisis.

In Watson v. Brooks, 8 Saw. 321, it was said, even of this construction: "It is very doubtful if this ruling would now be made if the question was one of first impression; and it is to be hoped it may yet be reviewed and overthrown. By it, and upon a narrow and technical construction of the word 'state,' unsupported by any argument worthy of the able

and distinguished judge who announced the opinion of the court, the large and growing population of American citizens resident in the District of Columbia and the eight territories of the United States are deprived of the privilege accorded to all other American citizens, as well as aliens, of going into the national courts when obliged to assert or defend their legal rights away from home."

But the special reason for this narrow construction of the word "state" does not apply in this case. Congress had the power to extend the act of 1837 over a water constituting the boundary between the state of Oregon and the territory of Washington. The language actually used in the act may reasonably be construed so as to accomplish this object; and the case is within the mischief intended to be remedied thereby.

The master of the Ullock being then entitled, upon this construction of the law, to take a pilot from either Oregon or Washington, without reference to which made the first offer of his services, the libelant is not entitled to recover as for an offer and refusal of pilot services, even though such offer was duly made.

There must be a decree dismissing the libel, and for costs to the claimant.

SUPREME COURT OF IDAHO.

RUPERT V. BOARD OF COUNTY COMMISSIONERS OF ALTURAS COUNTY.

Filed September 11, 1882.

AN APPEAL FROM AN ORDER OF THE BOARD OF COUNTY COMMISSIONERS declaring the result of an election for a county seat may be taken to the district court of said county, and when so taken, the action is commenced when the notice of appeal is filed with the clerk of the board of county commissioners.

THE BOARD OF COUNTY COMMISSIONERS IS NOT A COURT, it has no judicial functions or power, and can not be vested therewith.

MATTERS DECIDED BY THE DISTRICT COURT ON APPEAL FROM THE ORDERS OF THE BOARD OF COUNTY COMMISSIONERS can only be brought to the supreme court for review by writ of error.

MOTION to dismiss an appeal from the district court for Alturas county. The opinion states the facts.

J. Brumback, for the appellant

R. Z. Johnson and Huston & Gray, for the respondent.

MORGAN, C. J. In the matter of the motion to dismiss the appeal taken by the board of county commissioners of Alturas county, Idaho territory, from the judgment of the district court of the second judicial district in and for the said county of Alturas, entered in the records of said court on the third day of November, 1881.

It appears from the record in this cause that pursuant to law an election was held in Alturas county for the relocation of the county seat thereof, on the twelfth day of September, A. D. 1881. That on the twenty-second day of September, A. D. 1881, the said board of county commissioners canvassed the votes cast at said election, and duly entered the result thereof in their records on said last-mentioned date. That on the first day of October, A. D. 1881, one Joseph A. Rupert, of said county, took an appeal from the order of said board declaring the

result of said canvass to the district court in and for said county. That after hearing said cause final judgment was entered therein as stated, on the third day of November, 1881. From said judgment the said board. of county commissioners attempt to take an appeal to this court under and by virtue of 11 Sess. Laws, secs. 641, 642. The question is, Can this cause be brought to this court by this method?

At common law appeals of this character are unknown: See Powell's Appellate Proceedings, 104, sec. 6; Wiscart v. Dechy, 3 Dall. 321; Curtis' Com., sec. 185.

The right to appeal, therefore, and the method of perfecting it, is wholly dependent upon the statutes in force in this territory: See also United States v. Gilson et al., 1 Idaho, 364. Section 1869 of the organic act of this territory states that "writs of error, bills of exception, and appeals shall be allowed in all cases, from the final decisions of the district courts to the supreme courts of all the territories respectively, under such regulations as may be prescribed by law; that is, such regulations as may be prescribed by the laws of the territory. Section 642, 11 Sess. Laws, distinctly and clearly sets forth what class of cases may be brought to this court by appeal, as follows: An appeal may be taken to the supreme court from a district court: 1. From a final judgment in an action or special proceeding, commenced in the court in which the same is rendered; 2. From a judgment rendered on an appeal from an inferior. court; 3. From an order granting or refusing to grant a new trial; and from various other orders mentioned in said third clause.

Clearly, it is not the duty of this court to give the words of a statute any other meaning than is expressed by their legal signification. It is not the duty of this court, nor has it the authority, to give a statute any ⚫ broader scope than that intended by the legislature.

Does this case come within the first clause of said section? Was this an action or special proceeding commenced in the district court? By a virtue of section 28, page 690, revised laws of Idaho, it became the duty of the said board of county commissioners to canvass the votes cast at said election and declare the result, which they did. From the order declaring this result the first clause of section 25, county commissioners' law, Rev. Laws Idaho, 529, gives the right of appeal to the district court. Section 26 gives the method of appeal. Section 28 directs the clerk of the board of county commissioners as to his duties upon receiving the notice of appeal and undertaking. Section 27 authorizes and directs the district court to hear the case anew, and empowers said court to affirm, reverse, annul, or modify the order of the board.

The appeal of the respondent in this court was taken from the order of the board in accordance with the sections above set forth, and the cause was heard in the district court on said appeal. We think it must be held that said action was commenced when the notice of appeal was filed with the clerk of the board of county commissioners; that the order of the board of county commissioners is a constituent and necessary part of this cause and the foundation of the action.

All the proceedings until the appeal was perfected were had before the board of county commissioners, or with the clerk of said board. The notice of appeal is filed with the clerk of the board, and the undertaking, where one is required, is placed on file with him, and he is charged with the duty of approving or disapproving the sureties on the undertaking. Section 28 then directs the clerk of the board of county com

missioners to make out and certify to the district court a transcript of the order appealed from, the notice of appeal, the undertaking, and any account, bill, etc. Up to the time of placing this transcript on file in the office of the clerk of the district court, said court is utterly ignorant that such proceedings were being had before the board of county commissioners; that any such order had ever been made by said board, or that appeal had been taken therefrom.

An appeal from the order of the board of commissioners necessitates such an order by the board as a priority to the appeal and the foundation thereof. In an action or special proceeding commenced in the district court, it will be found that the papers which commence the action are always first placed on file in said district court with the clerk thereof, and are never an appeal from a judgment, order, or decision of any other court, tribunal, or board whatever.

The ordinary and legal signification of the word "appeal" indicates that there has been an order, judgment, or decision by some inferior board or tribunal. We think it must be held that this cause or proceeding was commenced before the board of county commissioners, and therefore does not come under the first clause of section 642. The second clause of said section allows appeals from the judgments rendered by inferior courts.

A court is a body in the government to which the public administration of justice is delegated. The one common and essential feature in all courts is a judge or judges having some sort of judicial functions, power, or authority: Bouvier's Law Dict. 373 et seq.

Section 1907, revised laws of the United States, specifies in what bodies or persons judicial power is vested in the territories, namely, in a supreme court, district courts, probate courts, and in justices of the peace. Boards of county commissioners are not among the number, and have no judicial functions or power, and can not be vested therewith; therefore they are not courts.

This cause is clearly not within the third clause of section 642. Parties deeming themselves aggrieved by the judgment of the district court are not without a complete remedy. Writs of error, aided by bills of exceptions, have for six centuries, under the common law, furnished a complete and perfect means of bringing causes from an inferior court to the appellate court for review, and for the correction of errors, if any there be. All the virtues of this ancient and complete remedy are at the service of the people of this territory.

We think this appeal, not being allowed by the statute, should be dismissed.

And it is dismissed.

PRICKETT and BUCK, JJ., concurred.

No. 9-2