115 Ky. 133 | Ky. Ct. App. | 1903
Opinion op the court by
Reversing.
The appellant filed his petition in the Carter circuit court against the appellee, alleging that he was a regular practicing physician, residing in Carter county, and was duly authorized to practice medicine under the laws of this State. That about .the 5th day of June, 1900, the State Board of Health of Kentucky appointed three persons, naming them, as the local board of health for the county, of Carter, and that the last-named board, at a meeting held on or about the 5th day of June, 1900, selected and appoint ed the appellant as health officer for Carter county, and that he at once accepted and entered upon the discharge of his duties as such, and continued to act as such health officer from that date until the filing of his action. That between October, 1900, and the 15th day of October, 1901, there pre vailed in Carter county an epidemic of smallpox, which kept him constantly employed in looking after the same for at least 275 days of that time, and required him toi make about 675 visits, vaccinate over 600 people, make 963
“The defendant, Carter counity, comes and demurs specially to the plaintiff’s petition: 1st. Because the amount sued on is not the same as the amount presented to and passed on by the Carter fiscal court. 2d. Because the Carter fiscal court has had no opportunity to pass on and allow or disallow the claim as set out in plaintiff’s petition. 3rd. Because at the regular January term, 1902, of the Carter fiscal count the plaintiff presented his claim for $4,550 for allowance and the said court then and there allowed plaintiff the sum of $700 for his services between October, 1900, and October 15, 1901. 4th. Because the $700 allowed by the Carter fiscal court at its January term, 1902, is in effect a judgment against Carter county on the claim filed by plain-' tiff in the Carter fiscal court of $4,550, and is now binding on said county, and whs allowed to plaintiff as a reason*137 able compensation for Ms sendees as health officer of Garter county from October, 1900, until the 15th day of October, 1901. 5th. Because plaintiff’s petition against Carter county is not an appeal from any judgment or order of the Carter fiscal court. 6th. Because the Carter circuit court has no jurisdiction to vacate or modify an order of judgment of the Carter fiscal court except on appeal taken to said count.”
The court sustained the demurrer on the fifth and sixth grounds named, and dismissed the petition, and the case is here on appeal.
By section 2060, Kentucky Statutes, physicians appointed as health officers for cities, towns, and counties shall receive reasonable compensation for their services, to be allowed by the councils, trustees, or county courts of the cities, towns, and counties, and to be paid as other town or county officers are paid. The appellant alleges in his petition that, as health officer, he performed the services named and presented his claim to the fiscal court, and the court failed to allow him anything thereon. The law as heretofore construed by this court required, him to first present his claim to that court for an allowance, and, if not allowed, or if the allowance was unsatisfactory, then the claimant had either of two remedies — first, to appeal from the action of the fiscal court; second, to bring his action.
In the case of Washington County Court v. Thompson, 13 Bush, 239, which was a case where a claim was presented to the court of claims for allowance, and the court refused to allow it, and the claimant appealed from the order disallowing the claim, the county sought to dismiss his appeal, claiming he had no right to appeal, but should have brought his action, and referred to the case of Garrard County v. McKee, 11 Bush, 234. The court, in the
In the case of Weis v. Lawrence County, 13 Ky. Law Rep., 975, was Where the claimant, after the county court refused to allow his claim, resorted to his- action. The case
The appellant can not claim in this action anything more than $4,550, the amount of the claim alleged to have been presented to the fiscal court for allowance, as in the opinion of this court the presentation of the claim to the fiscal court for its allowance is a prerequisite to any action; also he can not recover against the county for services and medicine rendered and furnished to persons who were able to pay for same. He can only recover for his services and medicine rendered and furnished to indigent persons (see Thomas v. Edmonson County, 8 Ky. Law Rep., 265), and for services and general supervision rendered by him which was necessary or reasonably necessary to quarantine and keep the smallpox under control and prevent the spread of the disease, and for attention to those quarantined.
For these reasons the case is reversed, and the cause remanded for further proceédings consistent herewith.