City of Boston v. Capen , 61 Mass. 116 ( 1851 )

Bigelow, J.

The view which the court have taken of this case renders it unnecessary to consider several of the quesRons discussed in argument by the counsel. It is admitted that the bond, on which the plaintiffs claim to recover, was required of the defendants, and given by them, under the second section of the statute of 1837, c. 238, relating to alien passengers; by which it is provided that, “ if, on examination, by the boarding officer, of any vessel, there shall be found among the passengers any lunatic, idiot, maimed, aged or infirm persons, incompetent, in the opinion of the officer so examining, to maintain themselves, or who have been paupers in any other country, no such alien passenger shall be permitted to land, until the owner, master, consignee or agent of such vessel shall have given to the city or town a bond in the sum of one thousand dollars, with good and sufficient surety, that no such lunatic or indigent passenger shall become a city, town or state charge, within ten years from the date of said bond.”

The first question which presents itself under this section of the statute is, for what classes of passengers is the boarding officer authorized to require a bond. It seems to be quite clear, that they are comprehended under two descriptions. First, for all those who, on examination, in the opinion of the boarding officer, are incompetent to maintain themselves by reason of their being lunatics, idiots, maimed, aged or infirm. Secondly, for thosé who have been paupers in a foreign land; that is, for those who have been a public charge in another country; and not merely destitute persons, who, on their arrival here, have no visible means of support; the word “ paupers” being used in this connection in its legal, technical sense. For these two descriptions of passengers, and for these only, can a bond be required. All others are included in the third section of the act, and are made liable to the payment of the capitation tax or head money therein provided. Under the second section, therefore, it is not sufficient that, in the opinion of the boarding officer, some of the passengers are poor and destitute, and so likely to become chargeable to the city, town or state; but he must be satisfied that- they come within the two descriptions of persons above named, before he is authorized to require a bond from the master or agent of the vessel, And there was an obvious reason for thus restricting the classes of passengers to which this provision was applicable. It is only those who, by reason of some permanent disability, are unable to maintain themselves, or who had actually been a public charge in another country, that might become a heavy and long continued charge to the city, town or state, in this country; and for these the statute requires a bond to be given, with a penalty sufficient in amount to guard against loss. But the tax of two dollars on each passenger was undoubtedly deemed by the legislature a sufficient provision to indémnify the public against any charges which might be incurred for the relief or support of those who were not permanently disabled, and who had never been paupers prior to their arrival here.

The next question material to be considered relates to the bond which the officer was authorized to require under the second section. It was urged at the argument, that the meaning of the statute was, that the bond, in all cases, was to be for one thousand dollars only, without regard to the number of passengers on board of a vessel for whom a bond could properly be required. But this does not seem to be a reasonable construction. The language of the statute is, “ No such passenger ” shall be permitted to land, unless a bond shall be given that “ no such passenger ” shall become a public charge; clearly indicating, that a bond was to be given for each passenger in the sum of one thousand dollars. Besides ; it cannot be supposed that the statute was intended to operate so unequally. For the effect of the construction contended for would be, that the owner or consignee, having one passenger on board of a vessel coming within the terms of the second section of the act, would be required to give a bond in the same sum as one whose vessel had on board one hundred passengers of the same description. Such a construction, too, would in many cases defeat the main purpose for which the statute was intended; because it is manifest, that a bond in the sum of one thousand dollars would very often be a security wholly disproportionate to the liability of the city, town or state, to relieve and support any const derable number of persons for so long a period as ten years.

The statute, therefore, authorizes the boarding officer to require a bond in the sum of one thousand dollars for each passenger coming within the description of persons named in said second section. He cannot take a bond in a less sum; he ought not to require one in a larger sum. Now, by reference to the bond on which the plaintiffs rely, it will be seen that it does not conform to the statute in several material particulars. In the first place, it is a bond in the sum of sixty five thousand dollars, by which the obligors are bound in that sum to “ indemnify and save harmless the city and also the commonwealth from all manner of charge and expense which may arise from said passengers, each and every of them, for and during the term of ten years.” The effect of this is to make the parties liable to pay any sum within the penalty, however large, for each passenger, instead of restricting the liability to one thousand dollars. In the second place, it does not appear by the recital in the bond, that the boarding officer made any examination of the passengers, as he is required to do by the statute, to ascertain whether any of them came within the description of persons for whom he had a right to exact a bond; but it is set out in the bond only, that, in the opinion of the overseers of the poor of the city of Boston, certain persons were liable to become chargeable for their support to the commonwealth ; a statement wholly immaterial and irrelevant. And, lastly, it does not appear by the bond, that there were any passengers on board of said vessel, who came within the provisions of said section, and for whom the boarding officer had a right to require bonds. The result is, therefore, that the bond does not conform to the statute, nor does it show that the boarding officer had any right to require a bond of the master or owner of the vessel.

On referring to the testimony of Monroe, the agent and examining officer, and the only witness who testified at the trial, it is not shown that, on examination, he actually found any passengers on board said vessel, for whom he could legally require bonds. All he says on this point is, that, on examining the passengers, he informed the master of the vessel that there was a certain number for which two dollars must be paid, and that for the residue, being paupers, a bond must be given. He does not say, that, on examination, he found any lunatic, idiot, maimed, aged or infirm persons, incompetent, in his opinion, to maintain themselves, nor that any of them had been paupers in a foreign country. The statute, as has been before said, did not authorize him to require a bond for those who were then poor and destitute, without means of support; but only for those who had been paupers in another country. We. cannot infer from his testimony, that any such were on board the vessel. For aught, therefore, that appears by the bond or the evidence in the case, the boarding officer had no right to require the bond to be given. It was, then, a bond exacted by a public officer, purporting to act in the discharge of his duty, but having in fact no legal authority to require it. It stands, in other words, as a bond given to one who had no lawful authority to take it, and comes within that class of cases in which it has been held that a bond, taken by a public officer when he had no authority to require it, is illegal and void. United States v. Tingey, 5 Peters, 115, 129; Purple v. Purple, 5 Pick. 226; Thompson v. Lockwood, 15 Johns. 256.

It was suggested at the argument, that it appeared by the evidence that the bond in this case was voluntarily given by the defendants, and was not required of them under the provisions of the statute; because the boarding officer, by an arrangement with the master, permitted the passengers to land before the bond was delivered to the plaintiffs. But we think this is not a proper inference from the facts reported. The arrangement for landing the passengers was made after the officer had informed the master the bond must be given, and after he had agreed to comply with the requisition. It cannot be pretended that the passengers would have been permitted to land, if this arrangement had not been made. We think that the landing of the passengers and giving the bond are to be regarded as parts of one and the same transaction ; and that the mere fact that the former took place before the latter, does not authorize the inference that the bond was given voluntarily, and was not exacted under legal compulsion.

There is no doubt of the soundness of the general principle of law contended for by the learned city solicitor, that a bond given in pursuance of a statute, though not strictly conformable to it, and containing conditions other and more onerous than those authorized by statute, may be good at common law, and to a certain extent binding on the parties; but it will be found that, in all the cases cited, in which this doctrine is recognized, the obligee was lawfully empowered to require a bond, and the obligor was lawfully bound to give one. But in the case at bar, the officer bad no right to require a bond, and the obligors were not legally bound to give one.

Upon the question whether, if it had appeared by the evidence in the case that there were passengers on board the vessel coming within the terms of the second section of the act of 1837, c. 238, this bond would then have been valid and binding on the parties, the court do not deem it necessary to express an opinion; but it may be doubtful whether any evidence would be competent to contradict or control the recital in the bond, describing the class of passengers for which the bond was taken. See Cutler v. Dickinson, 8 Pick. 386.

Plaintiff nonsuit.