# Compagnie Francaise De Navigation A Vapeur v. State Board Of Health Louisiana

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## Dissenting Opinion

    Billings Brown
United States Supreme Court
186 U.S. 380
COMPAGNIE FRANCAISE DE NAVIGATION A VAPEUR, Plff. in Err., v. STATE BOARD OF HEALTH, LOUISIANA, et al.
Argued: October 29, 30, 1900. --- Decided: June 2, 1902
This action was commenced in the state court against the board of health of the state of Louisiana and three persons who were members of said board, and whom it was sought to hold individually responsible for damages alleged to have been suffered from the enforcement of a resolution adopted by the board upon the theory that the resolution referred to was ultra vires, and hence the members of the board who voted for it were personally liable for any damages occasioned by the enforcement of the resolution. The board was thus described in the petition:
'That the defendant the state board of health was a body created by act No. 192 of the general assembly of the state of Louisiana of the year 1898, with power to sue and be sued, domiciled in this city (the city of New Orleans), and composed of seven members, whose duty it was, by the provisions of said act, to protect and preserve the public health by preparing and promulgating a sanitary code for the state of Louisiana, by providing for the general sanitation of the state, and with authority to regulate infectious and contagious diseases and to prescribe a maritime and land quarantine against places infected with such diseases.'
It was asserted that the plaintiff, a corporation created by and existing under the laws of the Republic of France and a citizen of said Republic, on or about September 2, 1898, caused its steamship Britannia to be cleared from the ports of Marseilles, France, and Palermo, Italy, for New Orleans with a cargo of merchandise and with about 408 passengers, some of whom were citizens of the United States returning home, and others who were seeking homes in the United States, and who intended to settle in the state of Louisiana or adjoining states, and that all the passengers referred to at the time of their sailing were free from infectious or contagious diseases. It was further averred that on September 29, 1898, the vessel arrived at the quarantine station some distance below the city of New Orleans, was there regularly inspected, and was found, both as to the passengers and cargo, to be free from any infectious or contagious disease, and accordingly was given a clean bill of health, whereby the ship became entitled to proceed to New Orleans and land her passengers and discharge her cargo. This, however, it was asserted she was not permitted to do, because, on the date last mentioned, at a meeting held by the board of health, the following resolution was adopted:
'Resolved, That hereafter in the case of any town, city, or parish of Louisiana being declared in quarantine, no body or bodies of people, immigrants, soldiers, or others shall be allowed to enter said town, city, or parish so long as said quarantine shall exist, and that the president of the board shall enforce this resolution.'
It was charged that in order to enforce this resolution the president of the board of health, who was one of the individual defendants, instructed the quarantine officer to detain the Britannia at the quarantine station, and the president of the board addressed to the agent of the steamship the following communication explanatory of the detention of the vessel:
'Referring to the detention of the SS. Britannia at the Mississippi river quarantine station, with 408 Italian immigrants on board, I have to inform you that under the provisions of the new state board of health law, § 8, of which I inclose a marked copy, this board has adopted a resolution forbidding the landing of any body of people in any town, city, or parish in quarantine. Under this resolution the immigrants now on board the Britannia cannot be landed in any of the following parishes of Louisiana, namely: Orleans, St. Bernard, Jefferson (right bank), St. Tammany, Plaquemines, St. Charles, or St. John. You will therefore govern yourselves accordingly.'
The president of the board of health, it was alleged, moreover notified that agent of the ship that if an attempt was made to land the passengers at any place contiguous to New Orleans, such place not being in quarantine, a quarantine against such place would be declared, and thus the landing be prevented.
It was averred that while the resolution of the board of health purported on its face to be general in its operation, in truth it was passed with the sole object of preventing the landing of the passengers from the Britannia, and this was demonstrated because no attempt was made by the board of health to enforce the provisions of the resolution against immigrants from Italy coming into the United States via the port of New York and thence reaching New Orleans by rail, and that after the promulgation of said resolution 'more than 200 such persons varying in groups of 30 to 100 in number, have from time to time been permitted to enter said city.' It was averred that the action of the board was not authorized by the state law, and if it was, such law was void because repugnant to the provision of the Constitution of the United States conferring upon Congress power 'to regulate commerce with foreign nations, and among the several states and with the Indian tribes.' Averring that damage had been already entailed to the extent of $2,500, for which not only the board, but its members who voted for the resolution, were liable, and reserving the right to claim such future damage as might be entailed by the further enforcement of the resolution, the petition asked for an injunction restraining the enforcement of the resolution in question, and prayed judgment against the board and the members named for $2,500 in solido.
The court declined to allow a preliminary restraining order, and upon a hearing on a rule to show cause, the injunction was refused. The order of the board of health, which was complained of, continued, therefore, to be enforced against the ship. Subsequently the plaintiff filed a supplemental and amended petition. It was reiterated that the immigrant passengers on board the Britannia were free from disease when they shipped and at the time of their arrival, and, in addition, it was alleged that the steamer with the immigrants on board had sailed from her port of departure 'prior to the declaration by said board of health of the existence of any infectious disease in the city of New Orleans.' It was alleged that, in consequence of the insistence of the board of health and its members, in enforcing the illegal order refusing to allow the landing of the immigrant passengers, the steamer had been obliged to proceed to Pensacola, Florida, where they were landed, and then the steamer returned to New Orleans for the purpose of discharging cargo. The damage resulting was averred to be $8,500, besides the $2,500 previously claimed, and a judgment for this amount, in addition to the previous sum, was also asked in solido against the board and the members thereof, who were individually made defendants. It was, moreover, averred that the action of the board was 'in violation of the laws of the United States, and the rules and regulations made in pursuance thereof, relating to quarantine and immigration from foreign countries into ports of the United States, and especially acts of Congress approved February 15, 1893, and acts of Congress of March the 3d, 1893, August the 3d, 1882, and June the 26th, 1884, and the rules and regulations made in pursuance thereof, and of the treaties now existing between the United States, on the one part, and the Kingdom of Italy and the Republic of France on the other part.'
The defendants filed a peremptory exception of no cause of action, which was sustained by the trial court, and the suit was therefore dismissed. On appeal to the supreme court of the state of Louisiana the judgment of the trial court was affirmed. 51 La. Ann. 645, 25 So. 591.
Messrs. W. B. Spencer and W. W. Howe for plaintiff in error.
Mr. F. C. Zacharie for defendants in error.
Mr. Justice White, after making the foregoing statement, delivered the opinion of the court:

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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