Martin v. Fond du Lac County

127 Wis. 586 | Wis. | 1906

Marshall, J.

As w© understand it, counsel for appellant grounds tbe validity of ber claim on principles of natural justice. Those principles are very broad, but of themselves are hardly sufficient' to create a liability against a county. There can be no such liability of a contractual nature other than such as is expressly authorized by statute, and incurred in the maimer provided therein, or by an ostensible, though void, transaction happening in good faith as to the municipal officers, or agents, and private party participating therein, whereby the money of the latter is acquired and actually used for legitimate purposes of the former, as in Thompson v. Elton, 109 Wis. 589, 85 N. W. 425, and Rice v. Ashland Co. 114 Wis. 130, 89 N. W. 908, and similar cases. Manifestly they do not apply, even remotely, to the facts here, unless the county was obligated by law, or had authority, to perform the service rendered in taking care of the sick person, supposed to have given rise to the plaintiff’s claim.

There is no common-law liability of counties to care for the poor, or to conserve the public welfare by preventing the spread of contagious or other diseases, or caring for those afflicted therewith. Counties have no power whatever, as indicated, except as derived from the written law. Frederich v. Douglas Co. 96 Wis. 411, 71 N. W. 798. There is no statute imposing the duty on counties primarily or otherwise to take charge of and care for persons because of their being afflicted with smallpox. The statute (sec. 1416, Stats. 1898) clearly imposes that duty on the particular subdivision of the county wherein the necessity arises, whether in the particular instance the person is a resident thereof or is a pauper or a stranger.

Counsel for appellant places some reliance on the secondary, in some cases, and in others primary, liability of counties to care for nonresident paupers under sec. 1512 of the Statutes. Eespondent’s poor agent, it seems, supposed such statute governed, in taking charge of the matter upon notice being served. Manifestly, however, the case does not in any aspect fall therein. The situation was in all respects such as is expressly provided for by said sec. 1416. The material part is this: “When any person . . . shall be infected . . . with the smallpox . . . the proper board of health may immediately cause him to be removed to a separate house, if it can be done without danger to his health,” and otherwise “shall make provision for him in the house where he may be; and . . . take such other measures as they may deem necessary for the safety of the inhabitants; and in either case they shall provide for him nurses and necessaries,” etc. There is not a suggestion therein of any other public liability than that of the particular municipality where the necessity arises for action in the matter. The term “proper board of health” plainly restricts the liability as stated because there is no statute providing for county boards of health. That is conclusive of this appeal.

By the Court. — The judgment is affirmed.