Fath v. Koeppel

• Decision Date: 09 October 1888
• Citation: 39 N.W. 539,72 Wis. 289
• Parties: FATH v. KOEPPEL.
• Court: Wisconsin Supreme Court

72 Wis. 289

39 N.W. 539

FATH

v.KOEPPEL.

Supreme Court of Wisconsin.

October 9, 1888.

Appeal from Milwaukee superior court.

Eugene S. Elliott, for appellant.

John C. Ludwig, for respondent.

ORTON, J.

The material allegations of the complaint are: (1) The plaintiff is a dealer in fruits and fish in the city of Milwaukee. (2) The defendant was and is the duly-appointed meat inspector of said city, and it was his duty to carefully inspect all fish offered for sale in the markets of said city, and to destroy all such fish as are unwholesome and unsuitable to be eaten by man. (3) While he was so acting as meat inspector he was and is an unfit and unsuitable person, and wholly incompetent to inspect fish, and to judge whether they are fit to be eaten, and he well knew his unfitness for that position, and to inspect fish and to judge whether they are fit to be eaten. (4) While he was so acting he so negligently, ignorantly, and carelessly performed his duties as such inspector that he did, without any reason or cause, destroy and make unfit for sale a large quantity of good and fresh fish, offered for sale by the plaintiff at a public market in said city. By reason of the premises, the plaintiff suffered damages. A general demurrer to the complaint was overruled, and the defendant appealed.

The complaint does not state a cause of action against the defendant as meat or fish inspector of the city of Milwaukee, and the demurrer should have been sustained. The plaintiff, at least, is bound by the allegations of his complaint; and we must take it for granted that there is such an office as fish inspector, and that the defendant was such an officer, with the duties and authority to inspect fish, and judge whether they are fit to be eaten, and to destroy such as are unwholesome, as alleged in the complaint. To sustain the complaint the learned counsel of the respondent cites section 6 of chapter 470 of the Laws of 1885, an amendment to the charter of said city, to show that the defendant had no authority to judge whether or not any meat or fish, etc., is dangerous to health, and whether the same shall be destroyed or buried, and that such duties and authority are conferred only upon the commissioner of health of said city, and that said commissioner had no authority to delegate such judicial or discretionary power to the defendant, or to any one. This may be so, but the complaint presents no such case. The defendant is made the person to inspect the fish, and to judge whether they are fit to be eaten, and to destroy them if unfit; and, if the contention now is that he was not so acting as fish inspector, he eliminates from his complaint every allegation that would give the defendant any power to either condemn or destroy the plaintiff's fish, or to injure him in any way. The argument of the learned counsel would make the defendant a mere nominal inspector, and of course inspection alone could not injure any one. He admits away his case when he cites the provision of the charter which creates the office, with such judicial or discretionary power as to inspect, judge of their quality, condemn, and destroy fish offered for sale in market, and admits that such power is so judicial and discretionary that it cannot be delegated to another; for...