Harrison v. Mayor of Baltimore , 1 Gill 264 ( 1843 )

Dorsey, J.,

delivered the opinion of this court.

By the act of the General Assembly of Maryland, incorporating the Mayor and City Council of Baltimore, it is enacted, “that the corporation aforesaid shall have full power and authority to enact and pass all laws and ordinances necessary to preserve the health of the city, prevent and remove nuisances; to prevent the introduction of contagious diseases within the city, and within three miles of the same.” The transfer of this salutary and essential power is given in terms as explicit and comprehensive as could have been used for such a purpose. To accomplish, within the specified territorial limits, the objects enumerated, the corporate authorities were clothed with all the legislative powers which the General Assembly could have exerted. Of the degree of necessity for such municipal legislation, the Mayor and City Council of Baltimore were the exclusive judges. To their sound discretion was committed the selection of the means, and manner (contributory to the end) of exercising the powers, which they might deem requisite to the accomplishment of the objects of which they were made the guardians. “To prevent the introduction of contagious diseases within the city, and within three miles of the same,” they might impose heavy penalties on the captain, owner or consignee of any ship or other vessel entering the port of Baltimore, on board of which the small pox or other contagious disease might prevail; or they might seek the accomplishment of their object by causing the vessel and all persons on board to be taken possession of and controlled until their purification and disinfection were effected, and impose on the captain, owner or consignee the payment or re-im’bursement of all the expenses incurred by such proceedings; or they might adopt at the same time both the suggested remedies, if for the successful and faithful execution of their powers, they deemed it necessary to do so.

With this view of their powers, let us see what laws or ordinances have been passed by the Mayor and City Council of Baltimore in relation to the case now before us. By No. 12 of the revised ordinances, page 47, they have provided for the appointment of a “health officer,” and prescribed his duties and powers; and by the sixth section thereof, it is enacted, “that the health officer or his assistant shall visit all vessels that may come to at the quarantine ground, as directed in the fifth section of this ordinance, as soon as practicable, in daylight, after the knowledge of such fact shall have been, by any means, obtained by him; and said officer is hereby authorised and directed to send all persons afflicted with the small pox or varioloid disease, who may be found on board such vessel, to the small pox hospital, until a receptacle for small pox patients be provided at the Lazaratto; to take or direct such measures in regard to the officers, crew and passengers, as in his opinion may be necessary to disinfect them and to prevent their propagating the disease.” And by the seventh section of the ordinance, it is enacted, “that the expenses which may be incurred in the disinfecting and purifying of such vessels, persons, baggage or other articles from the infection of small pox, as provided for in the sixth section of this ordinance, shall be done at the proper costs and charges of the commander, captain, owner or consignee of the vessel infected; and such part thereof as it may be necessary for the health officer to incur in the first instance, shall be charged to the commander, captain, owner or consignee, or either of them, in the discretion of the health officer, and collected by him, but if it cannot be so collected, the amount which he shall have necessarily expended, for the purpose aforesaid, shall be refunded or repaid by the register of the city, with the approbation of the mayor.”

With this outline of the powers and duties of the Mayor and City Council of Baltimore and the health officer, we now proceed to examine the several prayers and instructions given and refused by the court to the jury, which by the bills of exceptions taken in the cause are brought up to be reviewed in this court.

In granting the plaintiff’s first prayer in the first bill of exceptions, and overruling the defendant’s objection thereto, we think the county court committed no error. Of all the facts submitted in that prayer to the finding of the jury, there had been testimony offered, legally sufficient, to have warranted such finding. And if those facts were found, the plaintiff’s right to recover to the extent claimed by his prayer, followed as the natural and legal consequence.

We think the court below were also right in granting the plaintiff’s second prayer and overruling the objection made to it by the defendant. The Mayor and City Council of Baltimore had the power, as they have done, to visit the penalty for the introduction of a contagious disorder within the limits prescribed by the Act of Assembly, on the owner, the captain, or consignee of the vessel. Of the charterer of the vessel, they are not presumed to have had knowledge. And if they had, what has he to do with a contagious disorder prevailing amongst the crew? And even conceding he were responsible therefor, could the salutary power, vested in the corporation in this respect, be effectuated, by making him only answerable, who, perhaps never was and never would be within the reach of the process of our judicial tribunals, and might be a resident, if any settled residence he had, of the most remote portion of the commercial world.

We concur with the county court in the propriety of its rejection of the appellant’s two prayers in his second bill of exceptions. The first part of the first prayer having been granted. Whether the court were right or wrong in doing so on this appeal, it is unnecessary for us to inquire. But the second part of that prayer, and which was refused by the court, was, that the recovery of the plaintiffs “must be limited to the amount of expenses absolutely necessary to preserve the health of the city, or to prevent the introduction of small pox.” By granting this instruction the rights of the plaintiffs would have been unreasonably and illegally restricted. It limited the right of recovery, not only to expenses, incurred in the soundest exercise of economical discretion, and of the greatest professional skill and judgment, by the health officer, but it deprived them of the right of recovery thereof, if the jury, judging perhaps from results and circumstances, occuring after the authority of the health officer had been thus exerted, should be ot opinion, that the expenses incurred, had not been “absolutely necessary to preserve the health of the city, or to prevent the introduction of small pox.” The right of the plaintiffs to recover is dependant on no such occurrences, is confined to no such restrictions. If the health officer, in causing these expenses to be incurred, acted bona fide within the limits of a sound discretion, and with reasonable skill and judgment, in this discharge of his official duties, the reasonable expenses thus incurred must be paid by the defendant. But we think the court below erred in instructing the jury according to their qualification of the defendant’s first prayer. The portion of the prayer which was retained by the county court and given to the jury, was, that “if the jury find the expenses incurred and claimed in this action, were not necessary to preserve the health of the city of Baltimore, and were not necessary to prevent the introduction of small pox into the said city, by or through the instrumentality of the Ellen Brooks, the persons, baggage, or articles on board of her, then the plaintiff cannot recover.” With this part of the instruction the defendant surely had no reason to be dissatisfied. It submits, exclusively to the finding of the jury, the question as to the necessity of the expenditures made. Of that necessity they were created the sole judges. But to this instruction the court appended the following modification, viz: “and the recovery must be limited to such amount of expenses as in the opinion of the health officer was necessary to disinfect the vessel, cargo and passengers, of the said disease, and to prevent their propagating the same.” Uniting that portion of the prayer granted, with the court’s modification thereof, we must confess we are much at a loss how to reconcile them, or to discover what was the instruction which the court designed to give to the jury. Viewing them separately, the meaning of each is obvious enough, but their consistency is not so apparent. By the modification, the jury were told that the plaintiffs’ recovery must be limited to such “amount of expenses as in the opinion of the health officer was necessary to disinfect the vessel, cargo and passengers of the said disease, and to prevent their propagating the same.” Thus making the opinion of the health officer the sole ground upon which the verdict of the jury must be formed; and, in effect, withdrawing from their consideration the expenses which had actually been incurred and the question previously submitted to them, as to the necessity, in point of fact, for incurring those-expenditures. And, in truth, instructing the jury to find a verdict for such amount of expenses as in the opinion of the health officer was necessary, although the jury might believe that the health officer, in forming his opinion, had acted mala ■fide, had given countenance to the grossest extravagance, and exorbitance of charges, and had shewn himself destitute of all professional skill and judgment, and wholly incompetent to make the estimates requisite to the formation of a correct opinion upon the subject. And it is a peculiarity in this instruction, that in that part of it granted at the instance of appellant, it denies to the health officer all right to decide on the necessity of the expenditures to preserve the health of the city, (a necessity of which it may be presumed he was peculiarly competent to determine,) and submitted the determination of that necessity exclusively to the jury; yet in the ascertainment of the amount to be recovered, they were denied the exercise of all discretion and judgment, and were confined “to such amount of expenses as in the opinion of the health officer was necessary to disinfect the vessel, cargo and passengers of the said disease, and to prevent their propagating the same.” Notwithstanding it did not appear that he had any particular knowledge of the great portion of those expenses, or that they were incurred under his supervision or management, but on the contrary, that they occurred after he had ceased officially to have any agency in relation to them, and when the patients, or persons infected, were under the care and management oí the physicians and nurses of the small pox hospital; of whom there is no ground for presuming that the health officer was one. Of the amount and necessity of the expenses that accrued at the small pox hospital, (which form the great bulk of the amount in controversy,) the physicians and nurses thereof possessing actual knowledge, were more competent than the health officer to give opinions and testimony as to the necessity thereof, for the purpose for which such expenditures were authorised. The county court therefore erred in its opinion which excluded such testimony from the consideration of the jury.

The second prayer appears to us to have been properly rejected by the court, because it called for an instruction to the jury, that no expenses could be recovered, which were not “incurred in disinfecting and purifying the Ellen Brooks, the persons, baggage and articles on board of her at the time of her arrival at the port of Baltimore.” Whereas, the ordinance not only authorises the health officer “to take or direct such measures in regard to the officers, crew and passengers, as in his opinion may be necessary to disinfect them;” but also “to prevent their propagating the disease.” For aught that we can know, one-half the expenses incurred, might have arisen, not from the measures taken by order of the health officer to disinfect or purify the officers, crew and passengers, but “to prevent their propagating the disease.” The qualification given by the court to the second prayer in this exception, is almost ' identical with the modification made of the first prayer, and is erroneous for the same reasons.

We concur with the county court in the rejection of the appellant’s third prayer, that under the ordinance “the health officer had no power to send to the small pox hospital any but those persons who, when sent, were affected with the small pox or varioloid disease, and that no expense incurred from the sending of any other persons, can be recovered in this action.” The disposition to be made of persons afflicted with the small pox or varioloid disease is not left to the discretion of the health officer. The ordinance peremptorily directs them to be sent to the small pox hospital. But the discharge of this ministerial service is not the only duty imposed on the health officer, by the ordinance, in respect to the persons on board such vessel. He is further required “to take or direct such measues in regard to the officers, crew and passengers, as in his opinion may be necessary to disinfect them, and to prevent their propagating the disease.” If then, in pursuing such measures, the health' officer, acting with reasonable skill and judgment, and with a sound and honest discretion, had sent others of the crew and passengers, than those afflicted with the small pox, to the small pox hospital, we can see no sufficient objection to its being done, or to the recovery of all reasonable expenses incurred in their disinfection and purification, or during their necessary detention for the prevention of their propagation of the small pox.

The county court, we think, was obviously right in rejecting the appellant’s fourth and fifth prayers in his third bill of exceptions.

The rejection of the appellant’s sixth prayer we also approve of. For although there are parts of this prayer which, if standing alone, the county court would have granted without the slightest hesitancy, yet they are coupled with other matters, so obviously wrong and inadmissible, that acting on the prayer as an entirety, it was properly refused by the court.

The seventh prayer was properly refused by the court below, for reasons assigned by this court in the previous part of its opinion.

The eighth prayer was rightly rejected, because it called on the court to leave to the finding of the jury certain conditions and qualifications, on which the appellant assumed to act as consignee of the vessel, of which no testimony had been offered.

No proof having been offered, which was legally sufficient to have warranted the jury in finding the fact, that the appellant was the ship’s husband, and not the consignee of the vessel, his ninth prayer could not be otherwise than rejected.

The tenth prayer, for reasons stated in previous parts of this opinion, was correctly rejected by the court.

The rejection of the eleventh prayer also meets our approbation, because, although the expenses incurred for fresh provisions may not have been necessary in the sense in which those terms are used in the ordinance, yet, according to the testimony of the health officer, they may have been necessary to prevent the propagation of the disease.

We concur with the county court in its rejection of the twelfth prayer. By it the court were requested to instruct the jury, “that there can be no recovery in this action, for any expense incurred on account of any passenger, not afflicted at the time of incurring such expense, with the small pox or varioloid disease, unless the jury find that such expense was necessary to prevent such passenger from being infected with the small pox.” This prayer the court clearly could not have granted consistently with the ordinance, as it would have excluded all allowances for expenses incurred for the disinfection, purification, and necessary detention of the passengers, to prevent the propagation of the contagious disease,

We concur with the county court in granting the plaintiffs’ prayers in the appellant’s first bill of exceptions, and in its rejection of all his prayers in the third bill of exceptions; and we also concur in its rejection of the appellant’s two prayers in the second bill of exceptions, but we dissent from the modified instruction given by the court to the jury under the first prayer, and also from its qualified instruction given under the second prayer, and therefore reverse its judgment.

judgment reversed and procedendo awarded.