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tee employed physicians, nurses, guards, and attendants, and dismissed the persons who had been employed by the county board. On the 17th day of May following, the State Board of Health re-appointed all the former members of the county board, and directed them to resume charge of the epidemic and pest house in Henderson county.
On the 23d day of May thereafter the re-appointed county Doard gave the presiding judge of the county court written notice of their purpose to take immediate charge and control of the county pest house and at the same time notified Dr. Smith, the physician who nad been employed by the committee of the fiscal court, to vacate and turn over the pest house and patients therein to appellant, Walker, who had been re-appointed. This Dr. Smith refused to do, and the fiscal court also refused to permit persons appointed by the county board to take charge of the pest house. Thereupon the county board brought a suit against the fiscal court in the Henderson Circuit Court, and prayed for a mandatory injunction requiring the fiscal court to surrender the control of the pest house and the charge of the smallpox patients to them, it being alleged that public safety required the change. During the pendency of this suit, appellant by direction of the county board remained at the pest house from the 23d day of May to the 14th day of June, 1899, when he was withdrawn by the county board. The circuit court refused to grant the relief prayed by the county board and the case was appealed to this court. And the judgment of the circuit court was reversed, this court holding, in an opinion reported in the 21 Rep., 1194, that the County Board of Health was entitled to the injunction sought, and had authority to take charge of the pest house and those suffering from the epidemic. Thereupon, appellant presented his claim to the fiscal court and asked that he be allowed compensation for his services under the contract made with the county board, at the rate of $15.00 par day for thirty and a half days. The fiscal court scaled this claim to $10.00 per day and refused to make appropriation for any greater sum. He also demanded that they should pay him for his services under the second employment by the county board from the 23d day of May, 1889, until the 14th day of June, a period of twenty-one days, at the rate of $15.00. The fiscal court refused to pay anything to appellant for his services under his last employment. Thereupon he prayed an appeal to the Henderson Circuit Court from the order of the fiscal court disallowing the balance of his claim, which aggregated $467.50. By agreement of the parties the case was submitted to be tried by the circuit judge without the intervention of a jury, and he dismissed appellant's petition, anu from that judgment this appeal is prosecuted.
It is insisted for the appellee that the fiscal courts are charged by law with the duty of determining what compensation shall be allowed to employes of the county board, and that the agreement of the county board, to pay appellant $15.00 per day tor his services under his first employment was ultra vires; that when the county board resigned their oflices and the fiscal court took charge of the pest house and employed a competent physician to treat and care for the patients afflicted wita the disease, that the county board were not authorized to discharge him and re-appoint appellant; and that appellant rendered no services under his last employment.
Upon their re-appointment by the State Board, the county board had authority to resume charge of the epidemic, and to employ physicians for the treatment of patients confined in the pest house; this necessarily involved the power and right to discharge those who had been employed by the fiscal court during the interregnum; (and it was the duty of the fiscal court to make fair and reasonable compensation to the persons so employed, whether they approved their employment or not. The power to determine what physicians, nurses, guards, and attendants are necessary, is left to the discretion of the Board of Health; but the power to fix the compensation of the persons so employed, like the compensation of the members of tne county board themselves, is vested in the fiscal court of the county. But neither the county board nor the fiscal court have arbitrary power in the discharge of their respective duties. The county board could not employ persons grossly in excess of tne number required. Neither can the fiscal court refuse to make compensation to persons whom the county board in the exercise of an ordinary discretion thought necessary under the emergency to employ. As appellant was regularly employed by the county board to render the services sued for, he is entitled to be paid by the fiscal court the fair and reasonable value of such services, and the fact that the physician appointed by the fiscal court refused to surrender charge of the pest house to appellant by direction of the fiscal court, or to permit him to take charge, is no sufficient reason for refusing to pay him, as the county board had undoubtedly the right to appoint and to continue his employment as long as services were needed in the treatment of the diseased. It is not denied that he abandoned all his business and stayed during all tne period of his appointment at the pest house, and was at all times able, ready and willing to discharge the duties for which he had been employed.
For reason indicated the judgment is reversed and the cause remanded, with instruction to enter a judgment for appellant for t-e fair value of his services during the time of his employment.