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do, they directed the expense to be incurred. They then ask tha county judge for such contribution to aid the town as he thought proper; and they asked the county court to allow them only half they had expended up to this time. It evident that the town asked aid on strong: moral ground, and did not assert a legal demand.
Nevertheless, if such demand existed, it was not lost by what was. done. Section 2 of Chapter 86 of the General Statutes provides: "It shall be the duty of the county courts to provide for the support of the paupers of their respective counties." Section 1, Article XVI, of Chapter 28, confers jurisdiction on county courts to make provisions for the maintenance of the poor.
The act of April 28, 1880, amending the Act of March 16, 1878, establishing a board of health, provides for local boards of health, and declares that they "are empowered, and it shall be their duty to inaugurate and execute, and require the heads of families to execute, such sanitary regulations as the local board may consider expedient to prevent the outbreak and spread of cholera, smallpox, yellow fever, scarlet fever, diphtheria and other epidemic diseases; and to this end may bring the infected population under prompt and proper treatment during premonitory or other stages of diseases; and they are empowered to go upon and inspect any premises which they may believe are in an unclean or infections condition; and said boards are authorized to enforce the rules and regulations adopted by the State Board of Health." The local board is to be paid by the county court.
No provision is made as to the means by which the board may enforce the execution of sanitary regulations, or "bring the infected population under prompt and proper treatment." "It provides no fund to pay the expense involved in the discharge of the duty imposed, and it does not declare upon whose credit the board shall act.
Prior to this act it rested with county court, or county judge in vacation (General Statutes, Chapter 86, Section 10), to say what persons were paupers, and as such entitled to the public aid; and for matters of mere maintenance, that is still the law. However urgent may have been the personal need, whether for shelter, bread or medicine, the public charity came through these agents only, and no one else could create a debt against the county by giving them necessary help.
While the act in question does not create a new or additional duty in the county, it does create a new agent in regard to matters of general health, and makes its decision as to what ought to be done conclusive on the county, so far as to charge it with the expenses incurred in caring for the indigent, afflicted with any of the contagious or infectious diseases referred to by the statute. Any other interpretation! makes the board merely an advisory body, incapable of doing thosa things which the statute declares it has power to do and which its duty requires it to do.
it is in discharge of the ordinary social duty to care for the helpless, but it goes further. If the poor man is neglected he may starve or freeze, but the calamity is personal, and his grave hides it; but if, having an infectious disease, which poisons the air, he is left where he lies, the entire community is menaced. In such case the statute confers on the board the power to do what it may deem necessary to prevent the spread of the disease. It has no fund given it out of which to pay. It is the duty of the county to provide for the poor, and the board is the constituted agent to see that provision is made in such cases. On its order the town did what it required, and having, under the order of the proper agent, done what the law gave the agent power to have done, the county was properly held liable. The judgment is affirmed.
•Court of Appeals of Kentucky, January 27, 1898—H. P. Stephens County Judge, etc., Appellant, v. John R. Allen, Appellee. Appeal from Kenton Circuit Court.
Opinion of the Court by Judge Paynter.
The appellee, John R. Allen, was duly appointed and qualified as a member of the local board of health for the county of Kenton, and was chairman of the board. He served as a member of the board for two years, and for the services which he rendered he brought this action against the fiscal court of the county for the sum of $100, which amount was adjudged him.
Section 2055, Kentucky Statutes, among other things, provides that: "The local board shall receive such compensation for such services as the county court in which the local board is established, shall, in their discretion, determine."
The fiscal court refused to allow anything for his services. The Legislature intended that the members of the local board of health should be fairly compensated for the services they are required by law to render. The discretion of the fiscal court with reference to the compensation to which such board is entitled, is not an arbitrary one, but is a sound judicial discretion, and one that can be controlled. if the fiscal court has an arbitrary discretion in the matter, they could refuse to allow any compensation, however valuable and meritorious might be the services of the members of the local board of health
The city of Covington is situated in the county of Kenton, and being a city of over ten thousand inhabitants, it is the duty of the city council to appoint a board of health for the city. It does not appear in this record whether or not the council performed its duty in that re.spect, but we presume that it did; but whether it did or not is not important to determine in this case, because the appellee is seeking to recover from the county of Kenton compensation for his services rendered as a member of the local board of health for that county. It is insisted that under the system of government that obtains in the county of Kenton in respect to its county and fiscal affairs, that if the plaintiff was entitled to anything it should be paid proportionately by the county outside of the city of Covington, and by that part embraced in the corporate limits of the city of Covington, according to the taxable property in the respective territories.
We understand, as the court did below ,that the plaintiff does not seek in this action pay from the county for his services performed in the city. It is the fiscal court of the county which has charge of the fiscal affairs of the county, levies taxes, allows claims against the county, and makes appropriations to pay them; and the plaintiff properly sued the fiscal court for his services.
It is contended that as the appellee lived in the city of Covington he was not eligible to a position on the local board of health for the county. All that is necessary to say on this question is that no such issue was made by the pleadings; hence we do not consider the question as to whether or not he was eligible to hold the position as member of the local board of health.
The judgment is affirmed.
Bell County v. Blair. Filed May 11, 1899—Appeal from the Bell Circuit Court.
Opinion of the Court by the Judge White. The appellee, Blair, is a regular practicing physician and a member of the board of health of Bell county, having been duly appointed by the State Board of Health. In the year of 1898 there was an epidemic of smallpox in the city of Middlesboro, a city of the fourth class, situated in Bell county. By direction of the county board of health, and under the supervision of the State Board ,the appellee was employed to take charge of the pesthouse, or house of detention, and there to treat Indigent persons brought there. Appellee did this, and was engaged some time in February and March, 1898. He presented a claim to the fiscal court of Bell county for his service. That court refused to allow any sum to appellee, and he prosecuted an appeal by petition to the circuit court. In the circuit court a demurrer to the petition was overruled, and appellant answered, in which was pleaded that the epidemic was confined wholly within the city limits of Middlesboro, and also a denial of the services and the value as charged. The court sustained a demurrer to the answer, pleading as a defense that the epidemic was wholly in the city of Middlesboro, and a trial was had before a jury, who fixed the value of the services at $250, and for that sum judgment was rendered, and from that judgment this appeal is prosecuted.
There is no bill of exceptions in the record, and the only question presented is on the pleadings.
By the second paragraph of the answer, to which a demurrer was sustained, it was pleaded that all the cases of smallpox attended by appellee were in the city of Middlesboro, and also pleaded that, with the intention to charge appellant instead of the city, the board of health of the county (two of its members being citizens and taxpayers of the city) fraudulently acted with the intention to charge the county and relieve the city from the burden. The allegation is not in these terms, but can only mean this.
By Section 2059 of the Kentucky Statutes it is made the duty of every city of the State with over 2,500 inhabitants, to appoint a board of health, and these boards are given the same power and jurisdiction in their territory as have the county boards, and are burdened by the same duties and obligations; and by Section 2060 it is provided that each city, town or county shall pay its own board of health.
By Section 3490, Sub-section 6, cities of the fourth class are empowered to provide by ordinance for the regulation and prevention of contagious diseases, and all necessary powers given to provide for the city board of health provided by Section 2059.
We are of opinion that, construing these two provisions of the law, it is clearly the duty of the cities of the State of over 2,500 inhabitants to care for and maintain, through their own board of health, all cases of contagious disease, and of such other matters as come within the jurisdiction of the board of health.
The jurisdiction of the city boards of health, being equal in all cases to that of the county boards, must be held to be. so far as the territory of the city is concerned, exclusive of the county board, and the expenses of the city must be borne by the city and not by the county.
If, as alleged in the answer, all the cases of smallpox attended by appellee were in and of the city of Middlesboro, they come within the jurisdiction of the city board, and without the jurisdiction of the county board of Bell county, and for services rendered therefor appellant is Dot bound.
For the error in sustaining a demurrer to the second paragraph of the answer the judgment is reversed and cause remanded for further proceedings consistent herewith.
Court of Appeals of Kentucky. Filed January 5, 1900—Henderson County Board of Health, v. E. C. Ward, Judge, &c—Appeal from Henderson Circuit Court.
Opinion of the Court by Judge DuRelle.
This action was brought by the board of health of Henderson county against the county judge and others composing the fiscal court of the county for a mandatory injunction to compel appellees to turn over to appellant the control of the county pesthouse and the charge of certain smallpox patients therein, it being alleged that public safety required the change.
It appears that in May, 1899, there was an epidemic of smallpox in Henderson county, and upon the fiscal court undertaking to scale the salaries of the physicians and others employed by the board for the care of patients in the pesthouse, the members of the board and the physicians employed by them resigned their offices. The fiscal court thereupon appointed a committee of its members to take charge of the smallpox patients until such time as the vacancies in the board should be filled. The committee thereupon employed physicians, nurses and guards to care for the patients. The epidemic had by this time much abated, and in a few days the greater part of the patients had been discharged, as well as most of those held in custody under suspicion of being infected. The State Board of Health reappointed the county board, and its members sought to take charge of the pesthouse and patients, alleging that some of the patients had been prematurely discharged, and that public safety required the board to have control of the measures adopted for stamping out the epidemic. This being refused, this suit was brought, and the trial court dismissed the petition upon the ground that the pesthouse was the property of the county, in charge of the fiscal court, which had authority in case of necessity to employ physicians and take charge of patients suffering from epidemic diseases, and that a court of chancery could not compel the representatives of the county to surrender the custody of the county's property.
It is manifest that the propriety or the impropriety of the resignation of the members of the board cuts no figure in this proceeding. Upon their reappointment by the State Board they had the same rights —no more, no less—that they would have had had they been other individuals appointed to the places. The statute authorizing their appointment and defining their powers gives to the State Board and its appointees, the county boards, large, but necessary, powers in case of epidemic diseases. They are empowered, and it is their duty (sec. 2055, 'Ky. S.), "to inaugurate and execute and to require the heads of families and other persons to execute such sanitary regulations as the local board may consider expedient to prevent the outbreak and spread of