Spearman v. Texarkana

• Decision Date: 13 January 1894
• Citation: 24 S.W. 883,58 Ark. 348
• Parties: SPEARMAN v. TEXARKANA
• Court: Arkansas Supreme Court

24 S.W. 883

58 Ark. 348

SPEARMAN v. TEXARKANA

Supreme Court of Arkansas

January 13, 1894

Appeal from Miller Circuit Court, RUFUAS D. HEARN, Judge.

Judgment reversed and cause remanded.

Scott & Jones for appellant.

Appellant was not an officer of the city. He was a physician selected by the board of health to perform certain services, and was entitled to recover for his services. 26 P. 674; 45 Ill. 397; 32 Wis. 124; 2 Brock. 103; 29 Oh. St. 349. See also 50 Ark 81; 30 Vt. 285; 1 Dill. Mun. Corp. (4th ed.) sec. 230, note 3.

W. H Arnold and John N. Cook for appellee.

1. No fee was provided by law, and none can be recovered. 25 Ark 235; 32 id. 45.

2. Being a member of the board of health, it was against public policy for appellant to make a contract with the board. 25 Wis. 551; 1 Dill. Mun. Corp. sec. 444, 458; Greenhood on Public Policy, 297, 305; 11 Mich. 222; 60 Ga. 221; 72 Ind. 42; 79 id. 42; 75 id. 156; 22 N.Y. 332; 37 id. 317; 10 Am. Rep. 5.

3. The law expressly provides that the board shall receive no pay. Mansf. Dig. sec. 486.

OPINION

MANSFIELD, J.

By an ordinance duly passed, the city of Texarkana established a board of health, to be composed of the mayor, the city attorney, three aldermen and one physician of the city. The board was invested with all the usual and necessary powers to effect the purpose of its organization, which was declared to be the protection of the city against "contagious, malignant and infectious diseases ;" and the ordinance provides that all expenses incurred by the board shall be certified to the city council by the president and secretary for allowance and payment, as other claims against the city.

The appellant, a practicing physician of the city, and not one of its officers, was elected as the medical member of the board, and, while serving as such, was directed by the board to make personal examination of a case of diphtheria said to exist in the city, and the alleged existence of which had caused the closing of the public schools. He examined the case in person, and made a report upon it to the board. There was no express agreement for this service, and before rendering it the appellant did not inform the board that he would expect a compensation. Several months after the service was rendered, he brought this action in a justice's court to recover for it the sum of fifty dollars. The case was taken by appeal to the circuit court, where a trial by jury resulted in a judgment for the city.

The only ground on which a recovery by the plaintiff was resisted is indicated by an instruction given to the jury at the defendant's request, and which was that if they found "that the plaintiff was a member of the board of health * * * when he was requested by said board to perform the services charged in the account sued on, and that he was a member of said board when he performed said services," their finding should be against him. This instruction was objected to by the plaintiff, who requested the court to charge that the verdict should be for the plaintiff if the jury found that the board had authority to employ a physician to render for the city a service similar to that charged for, and that the plaintiff performed the services sued for, under the board's employment and by its direction. The latter request was refused; and these rulings of the court upon the two instructions mentioned are the grounds relied upon to reverse the judgment.

It is of no importance to decide whether the membership of the plaintiff on the board of health made him an officer of the city, or whether he is precluded from recovering for his services on the board by the fact that the ordinance establishing it makes no provision for compensating its members. The service on which his claim is based was not performed as a member of the board, and was not a duty incumbent upon the board, or either of its members. It was independent of, and not incidental to, any such duty, and if the city council itself had employed him to perform the service, the city would clearly have been liable on the contract. Mechem's Public Officers, sec. 863; Evans v. Trenton, 24 N.J.L. 764; McBride v. Grand Rapids, 47 Mich. 236; S C. 49 Mich. 239. But, as a member of the board, he was the agent of the city to act for it, in conjunction with the other members, in taking such measures, by contract or otherwise, as it was competent and necessary to adopt in accomplishing the objects of the board; and while he stood in that relation to the city, the law, as a means of securing fidelity to his trust, and to guard against any temptation to serve his own interest to the prejudice of his principal's, disabled him from making any binding contract with the board. Mechem's Agency, secs. 713, 455, n. 3. Such a contract by an agent in his own behalf, with reference to the subject-matter of the agency, is not, however, absolutely void, but only voidable, Story, Agency, sec. 211, note 1. As stated by the Supreme Court of Wisconsin, there is "a distinction between contracts which are held to be against public...