Ferrari v. Board of Health

24 Fla. 390

• Court: Supreme Court of Florida
• Decided: June 15, 1888
• Status: Published

Opinions

The Chief-Justice

delivered the opinion of the court:

Appellant gave a draft directed to E. W. Menifee, requesting him to pay to the order of F. G. Renshaw, at sight, $137.09, for value received. The draft was endorsed to appellee, and on refusal of Menifee to pay, this action was brought to recover the amount from appellant. His plea, on which the case turns, is this: “ That the said draft was given for fumigation and inspection done to the vessel, of which defendant was master, by the plaintiff, and for the sum of $85 for the discharging of ballast into the crib of the plaintiff, and that there was no consideration for the giving of said draft, for that the defendant was compelled, without his request or consent by the plaintiff, to permit his said vessel to undergo said inspection and. fumigation, and for that the quarantine ground or station, under the control of the plaintiff is limited by them in territorial extent; in the said ground or station there is no. other crib or place into which, under the laws of Florida,, ballast could be discharged: that the defendant was ordered by the plaintiff to go into said quarantine, and was. then ordered by the quarantine physician, under the rules of the plaintiff, a copy of which is hereto attached, marked ‘A,’ and made a part hereof, to discharge the said ballast in the said quarantine station before proceeding to the-city of Pensacola; that the said vessel was under charter to load at the city of Pensacola ; and under the said order: of the said physician, defendant had no option except to discharge his ballast at the said crib, or to proceed to sea.. without fulfilling his said charter, and therefore he discharged his said ballast at said crib, and upon the refusal of the said quarantine physician to allow the said vessel to-proceed to Pensacola, until defendant had given a draft to-his consignee for the sum demanded, he gave the draft upon, which this suit is brought.”

The replication is: “ That it is not true that said quarantine physician refused to allow the said vessel to proceed to Pensacola until the said defendant had given a draft to-his consignee for the sum demanded.”

To this appellant demurred, and the court having overruled the demurrer, judgment was given for appellee.

The question presented on the appeal, is whether the-plea contains matter, besides that traversed in the replication, sufficient to constitute a defense to the action. It is a plea of no consideration for the draft, in that the services for which the draft was given, were rendered without the-, request or consent of appellant, and accepted under compulsion, and he was also in effect under compulsion when he-gave the draft to pay for those services. This defence rests upon the well established rule of law, that a contract made under duress is thereby vitiated and may be resisted as invalid. If it is an obligation to pay money, it can not be enforced against objection by the obligor. Appellant claims the benefit of this rule, and is entitled to it, if no other rule intervenes in the case, unless the quarantine laws of the State, and the regulations made under them by the Board of Health of Escambia county,'put a face on the matter that renders the rule inapplicable.

The regulations of the board that are involved are the 13th, 14th and 15th. The 13th directs that the “ port inspector or quarantine physician shall visit and inspect every vessel entering the bay of Pensacola, and ascertain and report her sanitary condition,” and that “ the master or owner of any vessel so inspected, shall pay for such service a fee of five dollars.” The 14th provides that “ vessels in quarantine may be discharged at the crib therein by paying fifty cents per ton for so discharging.” The 15th provides that “ every vessel cleansed or fumigated at the quarantine station, shall pay for such cleansing and fumigating * * five cents per ton according to the registry of the vessel,” &c. It is claimed and admitted that if these charges are not authorized by statute directly, 'or through power given to the board by statute to make them, they are illegal. Wright vs. Chicago, 20 Ill., 252; Corporation of Columbia vs. Hunt, 5 Richardson, Law. R. (S. C.), 550; Mayor, &c., of Annapolis vs. Harwood, 32 Md., 471. Counsel for both parties argue this question of authority entirely upon the statute of 1885, Chap. 3603, being “ An act to provide for the appointment of Boards of Health in and for the several counties of the State of Florida, and define their powers.” There is nothing in this act expressly authorizing the charges complained of. But counsel for appellee finds authority for the board to make them in some of its general provisions. Tie refers to section 5, which declares that the board “ shall be a corporation with power * * to contract aud be contracted with, and to acquire and dispose of at pleasure, property, both real and personal, and to do every other act necessary to the proper exercise of such powers.” That such charges could be recovered if the board had a contract with the master or owner of the vessel for the service on which they are founded, will not be denied ; but in the absence of such contract, we think the power given in this section cannot be invoked to justify the charges. Reference is also made to Section 8, which provides that the board “ shall have full power to act in regard to all matters pertaining to quarantine, public health, vital statistics, and the abatement of nuisances,” &c; and to section 9, which provides that the board “ may at any time establish such quarantines as in their judgment is expedient for the public welfare, and provide such rules and regulations for the same as may be needful for the enforcement of such quarantine,” &e. The authority given by these two sections is general in terms, but can it be extended to include the right to demand a tax or other money exaction from those who are made to undergo quarantine? We know of no instance in which a person can be required by a State or auy of its subdivisions to pay money for public use unless there is express authority of law for it. An incorporated city or town can not impose a tax, if its charter does not in words warrant it, although it may be invested with general powers that can not be executed without money. Atialagous • to the general authority totheboard, in the sections quoted, is the authority given to cities and towns by the general incorporation act to “ pass all laws and ordinances which may be necessary for the preservation of the public health;” arid yet no one will pretend that this power can be of any efficacy if there had not been granted in the same act the additional power to raise money by taxes and licenses for “ carrying out the powers and duties granted and imposed ” by the act. This is in accordance with a fundamental rule of free governments, that no person shall be disturbed in the full use and enjoyment of his property except for public purposes, and then only by express provision of law. In the light of this rule it is apparent that the act in question does not in itself authorize the charges objected to in the plea.

But there is a wider view of the matter. We have had occasion recently in the case of O’Donovan vs. Wilkins (unreported) to consider questionsarising under the quarantine laws of the State, and as there are several acts in force on the subject, we held that they must be construed, as acts in •pari materia. As to this Kent says: “ Several acts in pari materia, and relating to the same subject, are to be taken together, and compared, in the construction of them, because they are considered as having one object in view, and as acting upon one system.” “ The rule applies though some of the statutes may have expired, or are not referred to in the other acts. The object of the rule is to ascertain and carry into effect the intention ; and it is to be inferred that-a code of statutes relating to one subject was governed by one spirit and policy, and was intended to be consistent and harmonious in its several parts and provisions.” 1 Kent, 463; 9 Barbour’s Sup. Ct. Repts., 161.

In applying this rule in the case of O’Donovan vs. Wilkins, it was said that “when the act of 1885, in its ninth section, says that a Board of Health created under it may at any time establish such quarantines as in their judgment are expedient, it means quarantines as authorized by the act of 1879.” Again it was said that “ the sixth section of the act of 1879 informs us what is meant by the act of 1885, when by its eighth section it gives power to appoint and suitably compensate a Port Inspector.” This, however, had more especial reference to the duties of the officer. The section of the act of 1879 which relates to his compensation is the seventeenth, wherein fees for the Inspector and for fumigation are fixed. It reads thus: “Every vessel undergoing inspection by the Port Inspector shall pay therefor to the Board of Health a fee not to exceed five dollars; and every vessel in quarantine which, in the opinion of the Port Physician, shall require and shall receive fumigation or other disinfection, shall pay therefor to the Board of Health a fee not exceeding five cents per ton and the costs of the disinfectants necessarily used.” But that section is amended by the act of 1883, which is as follows: “ That Section 17, of Chapter 3162, be and the same is hereby amended so as to read as follows: “ All the officers and employees in and about quarantine shall be paid, and the expenses of Quarantine Board, by the city or town establishing such quarantine. Every vessel undergoing inspection by the Port Inspector, and every vessel in quarantine which, in the opinion of the Port Physician, shall require and receive fumigation, or other disinfection, shall pay therefor to the Board of Health such fee or fees as may be prescribed by said Board of Health, and if the master of any ship, boat or vessel shall refuse to pay such fees the Board of Health may detain said vessel in quarantine until the same are paid, or may sue for aud recover the same from the owner of such ship or vessel.”

This being now a part of the act of 1879, instead of section 17, it is to be taken into consideration under the rule of construction laid down. Considering it as a part of the quarantine system, and that the several acts are to be con.strued together, and, in the language of Kent, “ considered as having one object, and as acting upon one system * * governed by one spirit and policy, and intended to be consistent and harmonious in its several parts,” it must be seen that this provision for the payment of employees and officers and of the expenses of quarantine is of force for the county boai’d created by the act of 1885 as well as tor the board of a city or town created by the previous act. There is a difference between the acts in the constitution of the boards, but the system of quarantine otherwise, that is, the work to -be done by the boards, must be the same, so far as regulated by statute, for the later as for the earlier hoards, unless expressly changed. The general powers of the act of 1885, therefore, must be construed as being aided by the more specific provisions oi the other acts.

In this view, while the act of 1885 does not specifically provide for quarantine fees and charges, we may look to the act of 1883 for authority to the board in that regard. That act requires that such fee or fees as may be prescribed by the board of health “ shall be paid by every vessel undergoing inspection by the Port Inspector, and by every vessel in quarantine requiring and receiving fumigation or other disinfection.” The board, in its 13th regulation, quoted above, provides a fee of five dollars for the Inspector. This, as a fee to be charged for inspection during quarantine, is legitimate. So, as to the charge provided for in the 14th regulation, fifty cents per ton for ballast discharged at the crib of the board (the tonnage relating, not to the vessel, but to ballast.) That is legitimate, if such discharge is for the purpose of disinfecting the vessel, but not otherwise. The act does not contemplate or authorize any charge, other than for inspection, unless the inspection re-suits in requiring fumigation or other disinfection. As to fumigation, the 15th regulation of the board provides for a charge of “ five cents per ton according to the registry of the vessel.” "While the board has full authority under the act to make a charge for fumigation, its said regulation cannot be sustained. It is a tonnage tax or a charge measured by tonnage of the vessel which is in violation of the Constitution'of the United States. See State Tonnage Cases, 12 Wall., 204; Peete vs. Morgan, 19 Ibid, 581; Cannon vs. New Orleans, 20 Ibid, 577; Inman Steamship Co. vs. Tinker, 94 U. S., 238.

It appears, therefore, that some parts of the consideration for the draft were valid ; and such charges, so far as-made for compulsory service, are authorized by law, in that the system of quarantine laws established by the statutes of the State is a rightful exercise of the police power for the protection of health, not forbidden by the Constitution of the United States. Morgan Steamship Co. vs. La. Board of Health, 118 U. S., 455.

We do not think the fact that under the act of 1885 the County Commissioners are empowered to raise a tax at the request of the board to defray the expenses of its operation,, is to be considered as excluding other and the usual modes of providing means for quarantine purposes. It is more likely that while applying to all counties it was intended to make provision for such of them as are not visited by commercial vessels, as also to aid in starting the system and to supplement any deficiency of means tor those that are visited by such vessels. Charges of the character complained of are common uuder all systems of quarantine for sea port towns. They are “ compensation for services rendered, as part of the quaranti e system of all c untries,” (118 U. S., supra,) which we cannot believe it was the intention of the Legislature to surrender; and, finding under the construction we have given the quarantine acts, that the board may make such charges, it seems reasonable to conclude that both resources were meant to be given.

Recurring to the pleadings, we have seen that a .most material allegation of the plea is eliminated, and we are now to consider the effect this charge will have in the decision of the case. The replication iu effect denies that the draft was given under compulsion, as alleged by the plea. The demurrer to the replication is an admission that there was not this compulsion. So, that though the consideration for the draft may have been invalid, yet under the pleadings it must be treated as given voluntarily. The situation, then, is this: Appellant accepted service of value from appellee, but because he was compelled to. We say ot value to him, for the reason that his vessel was under charter to Pensacola, and he could not go there until he had performed quarantine duty. Whether it was illegal to charge him for any service rendered in that duty by those conducting quarantine, is immaterial as to the value of the service which was necessary towards enabling him to proceed in the fulfillment of his charter contract. But having accepted the service as forced on him, he could have refused to pay for it on the basis ot the illegality of the charge. Irish ad of refusing he ratified his acceptance of the service by giving the draft on his consignee. The duress had ceased before it was given (the alleged duress in giving it being out of the case); and in that state of things the ratification imparted validity to the contract. 6 Wait’s Actions and Defences, 660. That it is capable of ratification, because “ not strictly void, but only voidable,” Ibid, 659. And further, where a contract is merely voidable, a bill or note to pay it is good. Daniel on Neg. Inst., 182.

It follows that the draft is relieved of the objection as to consideration, and that on the whole the demurrer was properly overruled.

The judgment is affirmed.