Train v. Boston Disinfecting Co.
| Decision Date | 12 May 1887 |
| Citation | 144 Mass. 523,11 N.E. 929 |
| Parties | TRAIN and others v. BOSTON DISINFECTING CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
R.D. Smith and C.A. Prince, for defendant.
The questions presented arise upon a demurrer to the answer; and the causes of demurrer, which are specifically set forth, and which are therefore open to the plaintiffs, are as follows First, "the answer does not show that the cost of such disinfecting was imposed upon the plaintiffs by any legal party or person competent to subject the plaintiffs or their goods to the charges in said answer referred to;" second, "nor does it show either that said rags were disinfected at the plaintiffs' request, or that the plaintiffs agreed to pay for such disinfecting."
Under the practice act (Pub.St. c. 167, § 11) it is necessary to assign specifically the causes for a demurrer, and a general allegation of insufficiency of the pleading is of no effect. Inhabitants of Washington v. Eames, 6 Allen, 417; Suffolk Bank v. Lowell Bank, 8 Allen, 355.
The authority of the board of health of the city of Boston to give the order for the disinfection of rags, and impose the cost of the same upon the plaintiff, is unquestionable. See Acts 1816, c. 44, §§ 2, 5, 6. By the city charter (St.1821, c. 110, § 17, and St.1854, c. 448, § 40) the power and authority of the board of health were vested in the city council, to be carried into execution by one or more health commissioners, in express terms. See Rev.City Charter (St.1854, c. 448, § 40;) Pub.St. c. 80, §§ 18, 20, 23, 27 64, 65, 67, 69, 106.
Having power to pass the regulations and order the cargo to be disinfected, the board had further power to cast the cost of the same upon the plaintiff. See Act 1816, c. 44, § 6, and Pub.St. c. 80, § 69. There can be no question that it was for the board itself to determine in what way the quarantine regulations should be carried out, or, in other words, how the cargo was to be purified or cleansed. Cooley, Const.Lim. (3d. Ed.) §§ 584, 585, and cases cited; City of Salem v Eastern R. Co., 98 Mass. 431. The board, therefore, having power to pass the regulation in question, it could enforce it and order the rags to be disinfected. This answers the first specification of causes of demurrer.
As to the second specification. It is absurd to argue that the power of the board of health is limited solely to disinfecting them themselves as commissioners. The work, of course, was to be done by parties other than the commissioners themselves. It is immaterial whether they should hire for the purpose an individual or a corporation as agent. Having the power to cause the rags to be disinfected, the board could disinfect or cause them to be disinfected without an agreement for payment by the owner. The statute gives the right to the board to take possession of them, and prescribes that the owner must pay for the expense of disinfecting them. The custody of the agent and possession of the agent was the custody and possession of the board of health. The power of the board of health under the statute of the commonwealth to impose the cost of disinfection is well settled. Morgan S.S. Co. v. Louisiana Board of Health, 118 U.S. 455, 6 S.Ct. 1114; Harrison v. Mayor, etc., 1 Gill, 264; Coe v. Schultz, 47 Barb. 64; Cooley, Const.Lim. § 584; License Cases, 5 How. 632.
Did the defendant have a lien? Admitting that the question of the right to retain the rags for the lien is properly raised by the demurrer, which is not admitted, we contend that a lien at common law is given whenever any work is done on a chattel under an agreement, express or implied, with the owner thereof, (Arnold v. Delano, 4 Cush. 33-38,) and with the agent or servant, (Overt. Liens, 46; Day v. Caton, 119 Mass. 513.) Defendant held these goods as the agent of the board of health, or as the employe of the board of health. In the former case, the terms of the statute imply a right to retain; in the latter case, the defendants have made a contract with one who is constituted by statute the agent of the owner. In view of the great expense to which the board of health, in protecting the public from disease, might be put in disinfecting the entire cargo of a large vessel, it is not a reasonable interpretation of the statute to suppose that they were not to have such security for the expenses of the same as were ordinarily given to a workman. That they should look merely to the owner, or the agent of the owner, of the cargo, personally, for the payment of the expenses, might result in great loss to the city. If the lien must rest upon a contract, we submit that the board of health had a right to contract with a third party for the disinfection; that a promise to pay therefor is implied by law; that a contract for such service implies a lien to secure the workman. In this is found a contract to support the lien, even as against the unwilling owner. Earle v. Coburn, 130 Mass. 596.
The agreement set forth in the answer gives the defendant a lien. As the plaintiff was bound by statute to pay the charges, a promise to pay that which he was bound to pay may be properly inferred. The defendant stood very much in the position of the plaintiff in the case of Tilson v. Town of Warwick Gas-Light Co., 4 Barn. & C. 962. Agreement to pay the charges to the defendant being properly implied, it follows, from the nature of the work done, that a lien upon the rags for the charges of disinfection existed. It is true that protests were entered in the two cases to the board of health in the first case, and to the board of health and to the defendant in the second case, against the disinfection of the rags under the quarantine circular. The effect of the protests, so far as it concerns the defendant's right, is only to be considered in the second case, where it was directly given to the defendant. The rags were received by the defendant while the agreement was in force, one of the considerations of which was a reduced rate for disinfection. The plaintiffs had no right to rescind the same. See Cort v. Railroad Co., 17 Q.B. 127; Earle v. Coburn, ubi supra.
Warren & Brandeis, for plaintiffs.
Assuming that the services rendered by defendant were of such a nature as would, under ordinary circumstances, give rise to a lien, yet defendant must, in order to justify the detention of the rags, show further, either--First, that the work was done at the request of the plaintiffs, upon their promise to pay for the same; or, second, that the work was done at the request of some person or body authorized by law to order the defendant to do it, at the expense of the plaintiffs; that it was in fact done in accordance with the orders of such person or body; and that such order would give the defendant a lien upon the rags for their charges. The allegations in defendant's answers fail to establish either alternative. The answers do not allege that the rags were "disinfected" at plaintiffs' request, or that plaintiffs promised to pay for the disinfection. As plaintiffs did not enter into any agreement, there was no occasion for them to protest against disinfection by the defendant; but, if any protest was necessary, the protest in the first case, as well as in the second, was sufficient; and, even if an agreement had been entered into by plaintiffs to have their rags disinfected, defendant's detention of the rags would have been unlawful; for the protests made before defendant entered upon the work would be a revocation of any authority to disinfect which such agreement could give. The revocation would give a right of action for breach of contract, but defendant could not, by disregarding it, enter upon the work of disinfection, and then claim a lien, either for the work itself, or for the damage resulting from plaintiffs' not allowing it to be done. See Lilley v. Barnsley, 2 Moody & R. 548. The answers do not show that the work was done at the request of any person or body authorized by law to order the defendant to do it at the expense of the plaintiffs, so as to give defendant a lien thereon for its charges. The disinfection of the rags by defendant does not appear to have been in accordance with the regulation of the board of health. The board of health had no power to order the rags to be disinfected by defendant at the plaintiffs' expense. The general powers of the board of health, so far as pertinent to this inquiry, are contained in Pub.St. c. 80, §§ 18, 20, 44, 45, 47, 80. These sections do not authorize the board of health to order, by a general regulation, the disinfection of all rags. The quarantine powers given to the board of health are, so far as pertinent to this inquiry, contained in Pub.St. c. 80, §§ 64, 65, 67, 69. None of these sections authorize the board of health to order the disinfection of all rags by some independent contractor in pursuance of a general regulation. Section 67 gave no such authority to order the disinfection. See Pub.St. c. 80, § 62; Gregory v. City of New York, 40 N.Y. 273.
The regulation is void, because it is unreasonable. Tugman v. Chicago, 78 Ill. 405; Austin v. Murray, 16 Pick. 124. Statutes delegating to a political body the power to make regulations have always been construed as conferring only the authority to enact reasonable regulations, and it is for the court to determine whether a regulation is reasonable or not. See Austin v. Murray, 16 Pick. 120; Com. v. Patch. 97 Mass. 221; Town of Lake View v. Letz, 44 Ill. 81; Weil v. Ricord, 24 N.J.Eq. 169; State v. Trenton, 36 N.J.Law, 283; Wreford v. People, 14 Mich. 41. It is certainly no more unreasonable to declare in advance that all cemeteries or tanneries are nuisances than to pronounce all foreign rags to be dangerous.
The regulation is void as trenching upon the...
To continue reading
Request your trial