The weekly mountain Democrat. [volume] (Placerville, El Dorado County, Calif.) 1861-1862, 1862-01-25

OPINION or JUICE JOHNsoN. Judge johnson,
Of the County Court, on Thursday, sustained
the demurrer Of Defendants to Plaintiff
complaint, in the cause of Clayton vs.. the City
Of Placerville, taken up on appeal from Justice
Stouts Court, where Plaintiff had obtained
judgment. Plaintiff asked leave to amend his
complaint, which was allowed, and the further
hearing of the cause was set for February list.
As matter Of interest To our readers generally,
and for the especial benefit Of our City Fathers,
we give Judge Johnson very lucid opinion in
full His argument is to the point and concu-
sive, aud leaves not a shadow Of doubt us to
the correctness Of his Ilonor's ruling:
II f. CldytoA rs. tie NdgOr and CornmOn
COUhca n tie CHy IF PLicerctVe.- In this case,
the Defendants insist that the mpaint, though
admitted to be true, does not state facts sutli-
cient To constitute a cause of action" II hence
becomes necessary that | should decide the
question presented as Ia the legal suiticiency Of
the complaint. Designating its verbiage, |
will condeuse its mulrral allegations: The
Plaintiff is II practising physician, who on the
9Th day Of July last had "a hospital without the
corporate limits Of the City. At that time, the
Defendants were, and still are, Municipal
Corporation. Within the corporate limits of
the City, one Schroeder was, at that time, sick
of the small pnX, aud in that stage Of the dis
ease in which il is peculiarly contagious. The
CITY then had no lntrmary, aud the smallpox
was raging within its limits. SchrOder could
nut have the attention which his condition re.
quired. Thomas Ii Wade, acting as the Mayor
aud agent of the City, employed the Plaintiff to
board and lodge said Schroeder, and to give
him such care aud medical treatment as he
needed Wade sent Schroeder to the Plaintiff
hospital. Schroeder continued sick, from the
9TH of July Ia the ll!h at August, period If
Ihirty-fn days, during which time, Plaintiff
boarded him, lodged him, furnished him IL
nurse, and gave him the necessary medical at
tenti0n. On the llth of August, Schruder was
discharged, cured. during all this time, the
facts stated we're well known to the Defendants.
The Defendants afterwards promised to tar
the Plaintiff Tor the services rendered 10 Schro-
der subsequently IL this. they, in regular
session, reinse6Nn pay him. The services rcu-
dered were w"rth Nv" hundred dollars.
In the foregoing statement, ! have purposely
excluded some ALLEGATIONS, which regarded as
EXPRESSING mere matters OF opinion or conclu.
slunS If Law.
1t NAV be well To ask ourselves, in the out.
sci, " hat are the duties at the CITY, in regard
~ -, nick TWy~~s@ ~&LlN lis corporate limits
I" determine this question, We must refer to
the Act Of Incorporation. As applicable to the
question Presented, that Act EMPLOYS the words
following:
1.-The Common Council shall have power"
- tn establish Board Of Health, Ia prevent
the introduction and spread of diseases To e..
iablsh City lnhrn'ary, aud provide for tie
ImdigeHl"
Every power granted implies duty. dn-
". therefore, has been uuppsed upon The Cyn.
mon Counvn, III regard ln tGe health Ut'thc
Guy. But that duiv is not an UnEcr0ftrt one.
For lis ne" cAcICl>p. uo SUIT can be brought
against the CIV. On the CONTRARY, the duty
Imposed upon III" Common Council is merely
d'~crtt"""d,H. They ate tie snle judges As To
how the discretion conhded TO them shall be
exercised.
Ia my opinion, the Common Council, under
the pnwer TO prevent the introduction hHd
spread Of diseases, may cnicr into contracts
Ia cause p,is"n> sick with contagious diseases
iu be conveyed Ia s''In- point beyond the cor
p"rAtt Limits Of the CIV.
Whether or not the removal of Schroeder 10
ibt bsiSrrai, WAS benefit Ia the city, ] cannot
determine. That would depend, very much,
upon the circumstances aud manner vi the
removal. But that is quesliuu which il is not
material 10 determine.
Wade, and not CLAYTON, had Schroeder re-
moved bcv"nd the c"rr"rate limits Of the City,
Tue removal was an affair i'll which Clayton
had no agehcv.
Wade, Mayor, had no power to make the
contract claimed Ia have been made with
Clayton II Is, however, claimed that the Conn.
ell ratified his acts. Whether or not their rati.
nraii"ncan nnpart VALIDITY t. the previous acts
of Itr>"n claiming Ia act as their agent,
must depend upon question of I"r'AI'"ttD".
The Council have NJ power "a pay the cX-
I,cu>c If taking care IT all the ~i,h It the Guy.
Ia the language "i the Statute. they have
power " tD yr,''.h F'r tie ,a'is.'+f: but have