For tables of Southern Cases in State Reports, see the colored pages at the end of the index, at the back of this volume. These take the place of all the similar tables sent with the preceding volumes.

THE

Southern Reporter.

VOLUME V.

FERRARI V. BOARD OF HEALTH.

(Supreme Court of Florida. October 9, 1888.)

1. HEALTH-QUARANTINE CHARGES AGAINST VESSELS-AUTHORITY OF COUNTY BOARD. The quarantine act of 1885, taken by itself alone, does not, by virtue of the general powers it confers on county boards of health, authorize charges to be made against a vessel for quarantine purposes.

2. SAME.

The county boards of health, under the act of 1885, construing that act in connection with the quarantine acts of 1879 and 1883, are authorized to make charges against a vessel for quarantine services, if under the authority given by the latter act they have made proper provision therefor.

3. SAME AMOUNT OF CHARGE-TONNAGE.

A reasonable charge, according to tonnage, of the material for the use of a crib erected by the board for receiving ballast, is proper where the discharge of the ballast is for the purpose of disinfection, but it is not proper to base any charge on the tonnage of the vessel.

4. STATUTES-CONSTRUCTION-SEVERAL ACTS IN PARI MATERIA.

Where several acts are in pari materia, being on the same subject, and having in view one object, they should be construed together as one system, although containing no reference to each other.

5. CONTRACTS-VALIDITY-DURESS-RATIFICATION.

A contract made under duress cannot be enforced, but, if bad only for that cause, it is voidable; and, if ratified after the duress has ceased, it becomes valid and enforceable.

RANEY, J., dissenting.

(Syllabus by the Court.)

Appeal from circuit court, Escambia county; JAMES F. MCCLELLAN, Judge. Action by the board of health of Escambia county against G. Ferrari for quarantine services. Judgment for the plaintiff, and defendant appeals. Blount & Blount, for appellant. J. C. Avery, for appellee.

MAXWELL, C. J. 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 indorsed 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 the said draft; for that the defendant was compelled, without his request or conv.5so.nos.1-3-1

sent, 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 defense 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 cannot 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 thirteenth, fourteenth, and fifteenth. The thirteenth 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 fourteenth provides that “vessels in quarantine may be discharged at the crib therein by paying fifty cents per ton for so discharging." The fifteenth 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," etc. 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 v. Chicago, 20 Ill. 252; Corporation v. Hunt, 5 Rich. Law, 550; Mayor, etc., v. Harwood, 32 Md. 471. Counsel for both parties argue this question of authority entirely upon the statute of 1885, c. 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. He refers to section 5, which declares that the board "shall be a corporation, with power * * * to contract and 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

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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," etc.; 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 quarantines," etc. 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 any of its subdivisions, to pay money for public use, unless there is express authority of law for it. An incorporated city or town cannot impose a tax if its charter does not in words warrant it, although it may be invested with general powers that cannot be executed without money. Analogous to the general authority to the board 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;" and 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 v. Wilkins, 24 Fla. 4 South. Rep. 789, to consider questions arising 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, Comm. 463; President, etc., v. People, 9 Barb. 161. In applying this rule in the case of O'Donovan v. 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 tive cents per ton, and the cost 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,