24 Fla. 390 | Fla. | 1888
Lead Opinion
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,
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-
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
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
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
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-
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
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
The judgment is affirmed.
Dissenting Opinion
delivered the following dissenting opinion:
Upon the views announced in Ex-parte O’Donovan, Supra, 24 Fla., 281; 4 So. Reporter, 789, a County Board of Health has authority to collect fees lor inspection and fumigation and disinfection. (Chapter 3443, Act 1883.) This power is not supplanted by the provision of section 6, of the act of 1885, (Chapter 3603,) authorizing the County Commissioners to assess and levy, at the request of the Board of Health, an annual tax, not exceeding two mills on the dollar, “ to enable ” the Board of Health “ to defray the expenses of its operation such provision is about the same in effect and purpose as to a county board as the one of Chapter 3443, that “all the officers and employees in and about quarantine shall be paid, and the expenses of the quarantine board, by the city or town establishing such quarantine,” is as to a town board.
The fee for cleansing or fumigation, as fixed by the 15th rule of the Board of Health, is “five cents per ton and if, upon the authorities cited in the opinion of the court in this case, and as held in such opinion, it is a tonnage tax, and in violation of section 3, of Article I, Constitution of the United States, which provides that “ no State shall, without the consent of Congress, lay any duty of tonnage,” the fee for such services should be prescribed in a' different form or measure. There seems to me to be ground in the case of Morgan vs. Louisiana, 118 U. S., 455, for doubting its being such a “ duty ” or “ tax ” not suggested by the
My understanding of the 14th rule, set out in the opinion of the majority of the court, is that the charge authorized by it, as an independent charge for the use of the “ crib,’ and not as a part of the fumigation or disinfection or cleansing service performed by the board, and for which the fumigation fee is a compensation under rule 15 and chapter 3443, of the acts of 1883. The plea does not show that it was part of a fumigation service or charge in the case before us. It is true that it may be usually necessary to take out a vessel’s ballast to fumigate, disinfect or cleanse her effectually. The crib charge is not for the service by the board of taking it out for such purpose. It is a separate charge by -the board for the privilege of the vessel’s discharging her ballast in the crib. Neither the statute of 1883, nor that of 1885, nor that of 1879, authorize the Board of Health to keep a crib and charge the vessel for its use as a mere place for depositing its ballast, as rule 14 proposes to do. If they are auchorizcd to keep a crib for this purpose, it should be maintained by means of the tax authorized by section 6 of the act of 1885. This charge is, under the rule and statute, as I understand them, illegal.
These boards of health have no right to make or collect a charge which the law of their being does not authorize them to impose. It is shown by the pleading that the service of fumigating and the use of the crib were in, invitum in so far as the vessel was concerned, and being both thisl- and illegal as I am clear that charge for use of the crib was, I think that, at least to the extent of such illegality,, the judgment is erroneous.