The record-union., 1896-03-02
THE City MUST PAY HERR.
4 Crushing Rebuke to the City Board of
Trustees.
That Body Cannot Dictate to the Board
of Health in Certain
Matters.

Such is the unanimous decision of the
three Superior Judges Of this county,
sitting in bank in Judge Hinkson's
court.
For a year past the City Board of
Health has been severely handicapped,
and it's authority belittled by the Board
of Trustees, who have stubbornly re-
sisted the action of the Health Board in
appointing a Sanitary Inspector to see
that all nuisances were abated, by re-
fusing to pay the salary of such official.
The Trustees have usurped the right to
dictate to the Board of Health in this
matter, but they have been brought up
with such jerk by the Superior Court
that henceforth they will probably have
a better understanding of the true limit
of their power over coordinate branches
of the city government.
The decision referred to was rendered
on Saturday by Superior Judge Hink-
son, and is concurred in by Judges Cat
lin and Johnson, who sat with him dur
ing its reading. 1t declares that the city
must pay the deferred salary of Sani-
tary Inspector G. w. Herr, who was ap-
pointed to his position by the City
Board of Health and it tells the Trus-
tees very plainly why they must pay
Herr's salary and wherein they have
grievously erred in the position taken
by them.
WHAT THE COURT SAYS.
This action comes into this court on
appeal from a judgment Of the Justices
Court of Sacramento Township, rem
dered on the 31st day of October, 1893,
in favor of the plaintiff and against the
defendant for the sum of SIT OS debt,
the amount sued for, and alleged in the
complaint to be owing and due to the
plaintiff from the defendant 'for twen-
ty-one days services of the plaintiff,
rendered for the defendant in making
inspection Of streets, alleys, cellars,
cesspools, sewers and drainage in the
city of Sacramento, abating nuisances
and inspecting same, and investigating
low places calculated to receive and re-
tain unhealthy deposits, and performing
other services of inspection and investi-
cation, and the labor necessary thereto,
all for the health of the city of Sacra-
mento, under the direction and employ
ment of the Board Of Health of the City
Of Sacramento in the month of May,
1895"
The case was tried before Judge Hink-
son, and as there is no issue as to the
facts of the services having been rem
dered, nor as to their value, and as the
necessity for mourning the expense was
clearly established on the trial by the
plaintiff and was not controverted by
any evidence offered by the defendant,
and the sole question being as to the
power of the Board of Health to create
the liability against the city, at his re-
ToI iniv
in the rendition of the judgment.
The plaintiff was elected Sanitary
and Building Inspector under the pro-
visions of Section 1S1 of the City
Charter, and thereafter, under the au-
thority claimed to be vested in it. the
Board of Trustees passed an order, or
enacted an. ordinance, abolishing the Of
flee and transferring the duties there
tofore devolved upon the Sanitary and
Building Inspector to another officer of
the city government, after which, and
on the Sth day of May, 1895, the Board
of Health passed the following resolu-
ton, to wit:
Resolved, That the Secretary of the
board be hereby directed to employ a
competent person at a salary Of one
hundred dollars per month to make
inspections, abate nuisances and per-
form all necessary work in this con-
nection under the Supervision of the
Health Officer
And at a meeting of the board held
on the 18th day of June, 1895, the Sec
retary reported that he had appointed
G. W. Herr (who is the plaintif0 to act
as Sanitary Inspector" in accordance
with the foregoing resolution.
It was under this employment that
the plaintiff rendered the services for
which the action was brought.
Section ia of the charter provides
that 1.-The Board of Health, within two
weeks from the time of it's organization,
shall elect a City Physician, who shall
also act as Health Officer and Secretary
of the Board of Health" and that 'he
shall be licensed physician" and also
that "he shall hold his Office during the
pleasure of the Board of Health, and
must see that the laws and ordinances
of the city in relation to the public
health and the regulations and orders
of the Board of Health are properly en-
forced"
And Section 1S1 provides that the
Board of Health, within two weeks
from the time of its organization, shall
''elect a Sanitary and Building Inspec
tor. Said Inspector shall be
clothed with the powers of a police Off
Ger, receive his orders from the Health
Officer and hold his office during the
pleasure of the. Board of Health. His
duty shall be to inspect and examine
all nuisances, privies, vaults, cesspools.
buildings and low places within the city
limits, with a view to the enforcement
of all Of the laws and regulations relat-
ing to sanitary matters, and to cause
the arrest of and vigorously prosecute
all persons violating any of said laws
and regulations
The appointment of the plaintiff by
the Secretary of the Board of Health
did not and could not constitute an
election of Sanitary and Building
Inspector because Section 1S1 of the
charter requires the Board of Health
to elect that officer, and such power
cannot be delegated.
At Section SO, volume /. of Dillon on
municipal corporations, that author
says: THE principle is a plain one, that
the public powers or trusts deyoIved by
law or a charter upon a council or gov
erning body, to be exercised by it when