The Board of Commissioners of Jay County v. Fertich

• Decision Date: 02 April 1897
• Docket Number: 1,984
• Citation: 46 N.E. 699,18 Ind.App. 1
• Parties: THE BOARD OF COMMISSIONERS OF JAY COUNTY v. FERTICH
• Court: Indiana Appellate Court

46 N.E. 699

18 Ind.App. 1

THE BOARD OF COMMISSIONERS OF JAY COUNTY v. FERTICH

No. 1,984

Court of Appeals of Indiana

April 2, 1897

Rehearing denied June 3, 1897.

From the Jay Circuit Court.

Reversed.

C Corwin and J. M. Smith, for appellant.

J. J M. LaFollette and O. H. Adair, for appellee.

OPINION

BLACK, J.

A claim of the appellee, in the form of an account, presented to the appellant, was in part allowed and in part disallowed by the board. The claimant appealed to the court below. There, the claimant filed a second paragraph of complaint. A demurrer for want of sufficient facts was sustained as to the first paragraph, and overruled as to the second.

Issues were formed which were tried by the court. A finding of facts with conclusion of law thereon was rendered and filed by the court, the appellant excepting to the conclusion of law.

The appellant's motion for a venire de novo having been overruled, judgment was rendered for the appellee for the sum of $ 547.88. A motion for a new trial was made by the appellant, which was overruled.

The appellant has assigned in this court that the court below erred, first, in overruling the demurrer to the second paragraph of appellee's complaint; second, in the court's conclusion of law on the finding; third, in overruling the motion for a venire de novo; fourth in overruling the motion for a new trial.

In the second paragraph of complaint it was alleged, in substance, that on the 16th of October, 1893, the family of George Maitlen, of and within Jay county, was afflicted with smallpox; that the board of county commissioners of said county, acting in their capacity as commissioners of the county and ex officio as members of the board of health, for the purpose of quarantining said family and preventing the spread of said disease within said county, and for the better protection of the health of the citizens of said county against the spread of said infection, ordered and directed that the appellee should take charge of said family for said commissioners as such members of the county board of health, and furnish said family with medicine, medical attendance and attention, and furnish them nurses and pay for their services, and do any and all things necessary to successfully quarantine said family and prevent the spread of said disease, and protect, doctor, and treat the members of said family who were or who might be afflicted with said disease, and convert the house into a pest house, and furnish and provide it with all things necessary to properly protect the public from said contagious disease, and in accordance with the order and advice of said board and at their command; that it was necessary for appellee to procure a stove for said pest house, and he did so, for which he paid $ 3.50; that he was compelled to keep said board informed as to the condition of said family and the spread of said disease, and he did so; that he was compelled to engage nurses and help to quarantine said family, and it was necessary to obtain the services of the secretary of the State Board of Health, and to use the telephone therefor, for which he paid $ 4.50, and $ 12.50 livery hire; that to prevent the spread of said disease he was compelled, under the direction and advice of said board, to employ one Mrs. Blake for the period of thirteen days, and did so, for which services he paid her $ 60.00; that he was compelled to expend, and did expend, in the prevention of the spread of said disease, for medicine and drugs, which he used under the direction of said board, for said family, $ 36.53; and for the purpose of disinfecting said house and said family, and for the prevention of the spread of said disease, under the direction and advice of said board, he was compelled to obtain, and did obtain, certain wearing apparel for the members of said family, to take the place of clothing destroyed under the direction of said board, for hosiery and shirts $ 4.50; three suits of men's clothing at $ 10.00 per suit; two suits of ladies' wear, $ 5.00; also three wire cots and freight $ 4.75; hotel bill, car fare and livery hire, hunting nurses, $ 15.00; also, thirty-eight days' work and professional services in quarantining said disease, and the protection of the public against its infection and the treatment of said family, $ 20.00 per day, $ 760.00; a bill of particulars being filed with the complaint as an exhibit, and made part of the claim; that appellee did and performed all of said services, and procured all of said items and articles, and contracted and incurred all of said expenses, under the direction and orders of said board, and at its instance and request, and by the orders and under the direction of the State Board of Health of this State. Wherefore, etc. A bill of particulars filed with the complaint showed the items and charges mentioned in the complaint, amounting to $ 932.03.

Counties are involuntary political or civil divisions of the State created by general laws to aid in the administration of the State government. The powers of the board of county commissioners are limited, being created and defined by statute. For an act done by such board not within the scope of its statutory powers, the county is not liable. Board, etc., v. Allman, 142 Ind. 573, 42 N.E. 206; State, ex rel., etc., v. Hart, 144 Ind. 107, 43 N.E. 7; Board, etc., v. Hemphill, 14 Ind.App. 219, 42 N.E. 760.

The board cannot do any act which is not either expressly or impliedly authorized by statute. Gavin v. Board, etc., 104 Ind. 201, 3 N.E. 846; Board, etc., v. Barnes, 123 Ind. 403, 24 N.E. 137.

Where the mode of exercising a power by the board is prescribed by statute, that mode must be pursued. Platter v. Board, etc., 103 Ind. 360, 2 N.E. 544.

The board has power, at its meetings, to allow all accounts chargeable against the county, not otherwise provided for (section 7830, Burns' R. S. 1894, 5745, Horner's R. S. 1896); but such power is given to enable the board to pay just claims against the county. Board, etc., v. Allman, supra; Gemmill v. Arthur, 125 Ind. 258, 25 N.E. 283.

All persons who deal with the board must recognize the limits of its powers, and are bound to take notice that it cannot bind the county by any action not within its statutory authority. Woodruff v. Board, etc., 10 Ind.App. 179.

Various provisions are contained in the statutes whereby county boards are authorized to render aid to the poor, including the employment of physicians to attend upon the poor. The claim under consideration cannot be referred to any of these provisions; for it is not shown that Mr. Maitlen, whose family was attended by the appellee, was in indigent circumstances.

We are referred, on behalf of the appellee to the statute relating to boards of health, particular reference being made to sections 6718, 6719, Burns' R. S. 1894 (4993, 4994, Horner's R. S. 1896), whereby it is provided that the board of commissioners of each county shall constitute a board of health, ex officio, for the county, "whose duty it shall be to protect the public health, by removal of causes of diseases, when known, and in all cases to take prompt action to arrest the spread of contagious diseases, to abate and remove nuisances dangerous to the public health, and perform such other duties as may, from time to time be required of them by the State Board of Health, pertaining to the health of the people;" also, to promulgate and enforce all rules and regulations of the State Board of Health, in their respective counties, which may be issued from time to time, for the preservation of the public health, and for the prevention of epidemic and contagious diseases.

Can it be said that these statutory provisions expressly, or by proper implication make allowable against the county the account for medical services rendered and for medicines furnished by the appellee in the treatment of the family of Mr. Maitlen for smallpox, under the circumstances shown by the complaint?

Effect can be given to these statutory provisions without attributing to them such operation, and, construing them in contemplation of the purposes of the entire statute in which they are found, the obvious intent of the legislature may be accomplished without so far extending the effect of these provisions.

The purpose of the statute is not to furnish, free of expense, medical treatment and medicines to individual persons afflicted with disease of any character (though under other statutes such aid may be given to the poor), but it is to protect the public health, the health of the people at large, by preventive measures.

It is made the duty of the county board of health to seek to accomplish such purpose by the removal of causes of diseases, by arresting the spread of contagious diseases by abating and removing nuisances dangerous...