State ex rel. Attorney-General v. Jones, 16 Fla. 306

State ex rel. Attorney-General v. Jones

16 Fla. 306 | Fla. | 1878

Me. Justice Westcott

delivered the opinion of the court.

The demurrer to the information being overruled, the defendant, in response to the allegation that he has not served a regular apprenticeship of two years on some pilot-boat on the bar of Pensacola, “ pleads that he was employed upon and performed his duties for the term of two years *314on the pilot-boat Clarence Barkly, Ho. 4, receiving instructions from the pilots on board relative to the harbor, the bar, depth of water and courses, and the management of vessels ; that he was also employed upon the bar by Benjamin E. Stearns, a licensed pilot upon a licensed pilot-boat called the Ella for the term of two years, and also was employed upon the pilot-boat Lochiel, by Armstrong Baker, a licensed pilot upon the bar of Pensacola, for the term of eig’hteen months, and he was also employed by Henry Watts, a regular licensed pilot on said bar for the term of one year, making a term of service on said bar of Pensacola of six years and a half previous to his examination and license as pilot on said bar; that the services rendei’ed as aforesaid were those of an able seaman, with a view to perfect himself in the duties appertaining to the office of pilot.”

The Attorney-General, through “ Jones aud Mallory, attorneys,” now moves the court to strike out the plea, because the same is irrelevant, insufficient and not responsive to the Information, and for judgment of ouster.

The defendant here, while not alleging an “ apprenticeship,” in the words of the statute, does set up six and a half years previous service with licensed pilots on pilot-boats on the bar of Pensacola, and that during two years of this service he was receiving instructions from pilots relative to the harbor, depth of water, and courses, and the management of vessels, alleging, at the same time, that he was an able seaman, and that such service was with a view to perfect himself in the duties of a pilot.

In view of the conclusion we reach, we do not deem it necessary to consider whether this motion, looking to the precise character of the plea,'is the proper method to raise the question whether the facts therein set up constitute, a good defence to the action, or whether it is a plea so defective that it may be treated as confessing the usurpation, and for that reason a judgment of ouster may be awarded'. *315In the case of the State vs. Gleason, 12 Fla., 264, the plea .stricken out was but a repetition of pleas already determined insufficient, and it was apparent that there was no .sincerity in the defence. To this point, see also Rex vs. Phillips, Stra., 394; High’s Ex. Rem., 524. In addition to this, it will be seen by reference to the case of the State vs. Gleason, that a final judgment of ouster was not awarded upon the view of the court that the plea was insufficient, but upon a failure to file a good plea, after one pronounced immaterial and irrelevant had been stricken out. In other words, upon a default in pleading by which the usurpation •was confessed.

The statute controlling the question here raised is as follows :

“ That pilots on any of the bars of this State, in addition to the qualifications as pilots now required by law, shall hereafter be required to have served a regular apprentice.ship of two years on some pilot-boat, on any such bar.”

It is not denied by the State here that the defendant has ■ every qualification other than a two years’ regular apprenticeship as required by the statute, and the precise question presented by this motion is whether two years’ actual service on a pilot-boat on the bar of Pensacola as an able seaman, with a view to perfect himself in the duties of a pilot, receiving instructions from the pilots on board relative to the harbor, the bar, depth of water and courses, and the management of vessels, do not, within the meaning of the statute, constitute a “ regular apprenticeship.” It is not necessary that the defendant should plead in the language •of the law that he has served a regular apprenticeship. On the contrary, the proper method is to plead such facts as in his judgment constitute a regular apprenticeship, thus affording the opportunity of raising an issue either of law or fact upon the issue.

What is a regular apprenticeship within the meaning of *316this statute ? At common law, we do not find any system of apprenticeship recognized or established, through which the exclusive right to exercise any trade or profession was derived.-, There every man might use what lawful trade he pleased. 11 Co., 53. “ Without an act of parliament, no man may be restrained either from working in any lawful trade, or using divers mysteries or trades.” This matter was for years the subject of discussion in England ; the adversaries to such legislation maintaining; that such enactments tended to establish monopolies, and that all such restrictions were pernicious to trade—the advocates of the-system maintaining that the want of such enactments led tounskillfulness in trades, which was equally, if not more detrimental to the. public than monopolists of this character. The advocates of.the system prevailed in the contest, and there was an enactment covering the subject, making apprenticeship obligatory. (5th Eliz., Ch. 4, §31.) In 1814, under the provisions of the act of 54 Geo. 3, Ch. 96, apprenticeship ceased to be obligatory. The construction of the-early acts by the courts defined apprenticeship, and these rulings are eminently suggestive. The statute of 5th Eliz-.,. Ch. 4, §31, enacted: “ That it should not be lawful to any person or persons, other than such as then did lawfully use or exercise any art, mystery or manual occupation, to set up, occupy, use or exercise any craft, mystery or occupation, then used or occupied within the' realm of England or Wales, except he should have been brought up therein seven years-at the least as an apprentice; nor to set any person on work in such mystery, art or occupation, being not a workman at that day, except he should have been apprenticed as aforesaid, or else being served as an apprentice as aforesaid, became a journeyman, or hired by the year, upon pain that every person willingly offending, or doing the contrary, shall forfeit and lose for every default forty shillings for every month.”

*317Of this statute Blackstone remarks that “ the resolutions -of the courts have in general rather confined than extended the restriction, and that following the trade seven years without any effectual prosecution, either as a master or a servant, is sufficient without an actual apprenticeship,” citing as authority for this commentary Lord Raym., 79. Wallon, qui tam, vs. Holton, Tr. 33, Geo. II. (by all the judges.)

The same view is announced in the other cases covering the -question. Holt, C. J., in Froth’s case, (1 Salk., 67,) held that service as an apprentice beyond sea seven years excused from the penalties of this statute; that it was not necessary that the party should be bound.

In the case of Regina vs. Maddox, (2 Salk., 613,) the court held that “ upon indictments on the statute of 5 Eliz., in evidence we allow following the trade for seven years to be sufficient without any binding, this being a hard law.” 2 Wils., 168 ; 1 Bl., 233 ; Show., 242 2 Keb., 400; 12 Mod., 401; 10 Mod., 70.

The undoubted result of the English cases is, that within the meaning of the statute of 5 Elizabeth an apprenticeship is established “ if the defendant can in any manner prove the following of the trade for seven years, and that this will be sufficient without any binding.” Buller’s Nisi Prius, 193.

This question of qualification for trades, involving skill and practice, we do not find has been the subject of like legislation in the United States. In this country the doctrine of the common law prevails. Here, as a general rule, every man may use whatever lawful trade he pleases. It is, left to the community in which he resides to determine by his practice the extent of his knowledge and skill, and to extend their patronage according to their individual wants and judgment.

In this State there is no general statute regulating the ■ subject of apprenticeship for trades. The statute of 1828-di-*318rects judges of probate to bind out as apprentices poor orphans, and the statutes of 1866, (Chaps. 1471 and 1557, laws,)' authorize an apprenticeship of minors by their parents or guardians. These also authorize the apprenticeship of the-children of paupers or vagrants and abandoned children. The purpose of this legislation, however, is simply to provide-a means of support and partial education of such children. From such apprenticeship no exclusive rights as to the trade-followed. It is an internal police arrangement looking to the employment and education of the indigent minor population of the State. It does not relate to adults. An apprenticeship is required as a qualification only in cases where the employment is connected with quasi public functions oi ■ public franchises, as in the present case. This statute does-not in express terms require a binding. The purpose of thelaAV is to secure knowledge, capacity, and skill in pilots.. This is accomplished by regular, faithful, and active service-under a competent pilot, as well without a binding as with it. In view of the fact that our legislation on the subject of apprenticeship is restricted to minors, a construction of this-statute which would strictly confine the apprenticeship there-required as a qualification to such apprenticeships as are provided for by statute, would disqualify an adult from acquiring the position of a pilot. It would likewise have the-effect of restricting the common law rights of the parent., with the assent of the child, to apprentice the child to a-pilot without the intervention of a judicial officer, for this is the only authority which, under the statute, has power to-bind out. We cannot hold that the Legislature required such an apprenticeship as this. When we leave the statute-we must look to the accepted definition of the word apprentice at the common law, under the decisions controlling the subject. We find that under these decisions, in a matter affecting materially the whole trade and commerce of England, the courts have held that a service in the trade or a follow*319ing of the occupation for the time required is an apprenticeship, and that a binding is not necessary.

Our conclusion is, the statute not expressly requiring a binding, that such service as is set up in this plea is sufficient, and that the requirement of a regular apprenticeship is complied with by proof of regular service and employment of such character as is stated in this plea under a competent instructor in the particular business.

The motion is denied.