Case 44 — Action by U. L. Taylor Against Adair County for Services as a Member of the Board of Health of Said County.—

January 4.

#### Taylor v. Adair County.

APPEAL FROM ADAIR CIRCUIT COURT — H. G. BAKER, CIRCUIT JUDGE.

Judgment for Defendant. Plaintiff Appeals.

Reversed.

Health — County Boards — Delegation oe Powers — Health Officers — Compensation—Actions—Pleading.

It. In an action against a county for services rendered by a member of the board of health as health officer, an answer denying, upon knowledge or information, that plaintiff had been appointed health officer, or had been appointed a member of the board of health, is good.

2. Pees allowed to certain officers as compensation in lieu of salaries are subject to the provision of Constitution, section 161, forbidding the compensation of county or municipal officers to be changed during their terms of office.

3. Under Kentucky Statutes, 1903, section 2060, providing that physicians appointed as health officers for cities and counties shall receive a reasonable compensation, to be allowed by the city council or fiscal court, the fiscal court can not fix in advance a salary for a county health officer, so as to preclude him from recovering adequate compensation for services rendered in pursuance of law, and under direction of the board of health, in stamping out and preventing the spread of contagious diseases.

4. Under Kentucky Statutes, 1903, sections 2055, 2057, providing *375for the appointment, and enumerating the duties, of county boards of health, such a board must act as a board on each case or epidemic arising within its county, and can not delegate its duties to a single health officer, and by so doing create in such officer any right that did not previously exist.

W. W. JONES and J. F. MONTGOMERY, attorneys fob appellant.

Our contention is that the fiscal court can not fix the salary or compensation of a health officer of the county in advance of the service rendered, but under Kentucky Statutes, section 2060, he is entitled to have a reasonable compensation for his services to be allowed after the service has been rendered.

AUTHORITIES CITED.

Constitution, secs. 161 and 235; Kentucky Stat., secs. 934, 1072 and 2060; Stevens v. Allen, 19 R., 1707; Henry County v. Dixon, 23 R., 1204; Hudgins v. Carter County, 24 R., 1930; City v. Rennech, 105 Ky., 779; City v. Thompson, 24 R., 384 and 1998.

James Garnett, Jb., attorney for appellee.

1. The health officer can not hold the county liable for any services’, except such as he may render under the express direction of the “Board of Health.”

2. Where the compensation of a health officer was on October 1, 1900, fixed by the fiscal court at $40 per annum, as a reasonable compensation, for the services to be rendered annually in the future, of which such officer had notice at the time he accepted the office and rendered the service charged for in 1892 he is bound by the order. Ky. Stat., secs. 2055-6, 2060; Ky. Stat., chap. 63; Thomas v. Edmonson County, 8 R., 265; Boyd v. Bethel, 10 R., 471; Ky. Mut. Sec. Fund v. Logan, Admr., 90 Ky., 368; Williams v. Gordon, 11 Bush, 696; Civ. Code, subsec. 7 of sec. 113; Wing, &c. v. Dugin, 13 Bush, 586; S'tevens v. Allen, 19 R., 1707; Constitution, see. 161; Gity of Louisville v. Wilson, 99 Ky., 60i3, 604.

Opinion op the court by

JUDGE O’REAR

'Reversing.

Appellant alleges in his petition against appellee that he, as a member of the county board of health of Adair county, *376was appointed health officer by that board, and 'that while so acting he rendered services to the county in one year in inspecting localities and persons thought to be affected with contagious diseases, and treated quite) a number affected with smallpox, and some who_had scarlet fever. He presented a bill amounting to $245 for1 the services, which the fiscal court refused to allow or pay. The answer denied, upon knowledge or information, that appellant had been appointed health officer, or had been appointed a member of the board of health. This was a sufficient denial, because these boards are not required by statute to keep records of their proceedings. Bardstown v. Nelson County, 78 S. W., 851, 25 Ky. Law Rep., 1900. Therefore these acts-, though official, are not presumed to be known of every one. It -also denied that he rendered the services charged for, or that they were worth the sums charged. In addition, the defense was that prior to the time when appellant claims to have been appointed health officer, and to have rendered the services sued for, the fiscal court of Adair county had, by an order of court, fixed the salary of the health officer at $40 per annum, and that appellant accepted the appointment and rendered the services with knowledge of that fact, -and had for a time acquiesced in it by accepting payments based on that allowance. A demurrer having been overruled to the last-named plea, appellant declined to plead further, and his petition was dismissed. Hence this appeal.

The county’s position is that, as • the salary or compensation of appellant was fixed before his term of office began, it could not be either increased or diminished during his term. Constitution, section 161. The statute (section 2060, Kentucky Statutes, 1903) reads: “Physicians appointed as health officers for cities, towns and counties shall receive reasonable compensation for their services, to be allowed by *377the councils, trustees, or county [fiscal] courts of the cities, towns or counties, and to he paid as other city/ town or county officers are paid, and such officers may be removed at any time by the local boards appointing them. . . .” County judges and" treasurers are to be paid annual salaries, to be fixed at reasonable amounts by the fiscal courts. Sections 934,'1072, Kentucky Statutes, 1903. The fees allowed to pertain officers as compensation in lieu of salaries are subject to the same constitutional limitation. Bright v. Stone, Auditor, 43 S. W., 207, 20 Ky. Law Rep., 817. But here it is not known what services may be rendered. They are of a nature that may vary considerably in value and extent in different years. Some years no services may be rendered. Again, an epidemic of smallpox or yellow fever might take all the health officer’s time for a great part of a year. For that reason, it seems that the Legislature has not seen proper to require a salary to be fixed and paid to such officer, but that for such services a si he may render he shall be paid reasonable compensation. That' can not be determined in advance, if for no other reason, because their nature and extent are impossible to be known before the emergency happens, calling for them. If it is intended to fix in advance the pay for such services, a reasonable schedule of rates might be adopted. A salary of $40 which should cover all possible services that may be required of the health officer in a year, while in some instances it might be enough, or even too much, yet in others it would be manifestly and grossly inadequate. The result must be, if it be allowed, to deter qualified physicians from accepting such appointments. In this way fiscal courts might overthrow the legislative provision in its practical application, by which it was intended that the treatment of these deadly contagions might be controlled or stamped out by the employment of skilled and com*378petent physicians. The action of the fiscal court in attempting to so fix a salary in advance was not binding, under the circumstances shown, upon the health officer. For it was his duty to do what the law required of him, under direction of the board of health, in stamping out and preventing the spread of contagious diseases; and he has the right to claim adequate pay for his services, which the fiscal court must allow, if the services were in fact rendered as required by the law.

We are of the opinion, however, that, while the demurrer should have been sustained to that defense, yet it should have been carried back to the petition in this case. The petition alleges that the county board of health, when appointing appellant health officer, gave him general authority and direction to look after epidemics of contagious and infectious diseases appearing in the county, and to make all necessary inspections and visitations called for by the situations that might arise. We are of opinion that the county board of health had not the power to delegate its duties in such matters, and that it could not, by an attempt to do so, create any right in the health officer that did not already exist. The powers given to these boards are extraordinary seemingly justified by the most serious exigency affecting the public health. More than one person is required by statute to be appointed upon the board. The Legislature was evidently unwilling to leave to one person the determination of such important and drastic measures as are given to the county boards. In the judgment and fidelity of a greater number acting together is the greatest security against abuse of extraordinary power. It is to the county board of health, not to the health officer, their creature and executive, that is committed the duty of examining into those nuisances and conditions of filth and infection that tend to spread the con*379tagious diseases!, to establish quarantines, and to bring the population of an infected or suspected community into prescribed treatment and disinfection. This power is given by the statute to the board, and it must act as a board on each ease or epidemic as it arises; determining the necessities of each situation from the facts then existing. Sections1 2055, 2057, Kentucky Statutes, 1903. The petition shows on its face that this was not done in Adair county, but that appellant, acting alone, under the deputation of the county board, undertook to determine all such matters, and for his services in so doing the bill sued on is in large part made up. For other services — waiting upon smallpox patients — he charges the county. There is nothing to show that the patients were not fully able and willing to pay for the services rendered them!, nothing whatever to show that they were indigent persons, nothing to show that any of them were treated in the county pesthouse or other place where they were confined by order of the board of health, and nothing to show that they were treated by direction of tiie county board of health. Hudgins v. Carter Co., 115 Ky., 133, 72 S. W., 730, 24 Ky. Law Rep., 1980. For some of these charges there may be a right to recover. The circuit court should allow the petition to be amended, if it can be, so as to state a cause of action.

Judgment reversed and cause remanded for further proceedings consistent herewith.