The record-union., 1896-03-02

anu IN such manner as it should judge
best, cannot be delegated to others, =
and if a discretionary power cannot be
delegated, certainly a power that de-
wolves duty that is made mandatory
cannot be delegated. But if the Board
Of Health has full power over all mat
ters pertaining to the public health of
the city, it may direct its Secretary to
employ persons to carry into effect its
orders. just as a Street Commissioner
! may carry out the order of the Board
of Trustees to clean the streets, by en-
ploying laborers to do the work.
But it is contended by counsel for de-
fendant that as the Board of Trustees
had abolished the Office of Sanitary and
Building Inspector (Which he claims it
had the power to do, under the provi-
sions of Section 215 of the charter,
which provides that mo office shall be
| created, in addition to those provided
by the charter, unless by ordinance reg
ularly adopted by the Board of Trus-
| tees by not less than seven affirmative
votes. Whenever, in the judgment or
the Board of Trustees, no necessity ex-
lists for the continuation of any office
created or provided for by this char
| ter, said board, by an ordinance for that
purpose, adopted by not less than seven
affirmative votes, may discontinue such
office') the Board of Health have no
power or authority to employ the plain
tiff in the capacity in which he rendered
his services.
He also contends that the Board of
| Trustees has the exclusive power to APP
propriate and to direct how and where
the funds of the city shall be applied.
and that that exclusive power is vested
| in it by the provisions of Section 2lo
and by the general provisions of the
charter as is indicated by its general
scope and tenor.
The health departments in nearly ALL
! if not all, municipal charters seem TO
| have been regarded as of paramount
| Importance, and because of the expos
ure of cities to contagious and lnfec-
tious diseases, it is and for ages has peen
the policy of the trainers of city cnar-
/ ters to vest in Boards of Health mucn
power and discretion; and the charter
OF the city of Sacramento, as does that
/ of all well-governed cities, very wisely
provides that the Board of Health
shall be composed of none other than
regularly licensed physicians.
| And for the reason that the health OF
/ the public is of paramount importance,
and because it would be unwise and un-
safe to place the matter OF its protec-
| ton and promotion in the hands OF un-
skilled persons, it is very clear that
| from reading that part of the charter
providing for establishing the Board of
Health, and defining it's powers and
duties, separately, and independently
of the other provisions of the charter,
that it was the intention OF the Legls-
lature to vest absolute power in that
board in all matters pertaining to the
public health, and the contention here
has only arisen out of an apparent con-
fict between the provisions of the
charter defining and prescribing the
powers and duties of the Board of Trus-
tees and of the Board of Health.
Counsel for defendant invokes the
doctrine of ''exprusio unius est exclusio
alterius," and contends that, because
Section 1S1 of the charter only author
ICES the Board of Health to elect a SAM
tary and Building Inspector, its powers
to elect or appoint is limited to the pro-
visions of that section, and that no other
or further power can be inferred from
the other provisions of the charter.
This would be so if other provisions
of the charter did not extend the power
given by that section, or if the other
provisions of the charter only went to
the extent of creating the Board of
Health. But Section I'll of the charter
is in the following language, to wit
Said Board of Health shall have super
vision of all matters appertaining to the
sanitary condition of the city and pub
lie institutions thereof, and full powers
are hereby given to said board over all
questions of foul or defective drainage,
and of the disinfection and sanitary
cleaning of streets, alleys, cellars, cess
pools, sewers or nuisances of any de-
scription, and of low places within the
city limits calculated to receive and re-
tain unhealthy deposits.
And Section 173 provides that
"AIl expenses necessarily incurred by
the Board of Health in carrying out the
provisions of the law and this charter
shall be provided for by the Board of
Trustees, who are hereby authorized
and directed to make an appropriation
therefor out of the general fund" etc.
But it is contended that the word
expenses" as used in this section, only
means such incidental expenses as the
Board of Health may be required to In
eur, such as carriage hire for transport
ing its members to such places as it
might be necessary for them to go in
the discharge Of their duties.
This would be an unreasonable limita-
tion of the meaning Of word Expenses,
as used in that section. Webster de-
fines the word expense" to mean THE
act of expending, laying out or consum-
ing by using, disbursement, outlay, con-
sumption; that which is expended, laid
out or consumed; cost. outlay, charge,
as the expenses Of war
1t cannot be contended that the term
ssexpenses of war" means only the
salaries or outlay of the officers of the
army. and 1t would be just as unreason-
able to so hold as it would be to hold
that the word expense" as used in Sec
ton 173, only means such personal ex-
penses as the members of the Board of
Health might incur in the discharge of
their duties.
Counsel for defendant has invoked an
additional and correct rule for the con-
struction of statutes, but he makes a
misapplication of it in this case. That
rule is. that statute must be so con-
strued. if possible, as to give sense and
meaning to every part; that courts
should be guided by the intention of the
legislation. which they have always
taken according to the necessity of the
matter. and according to that which is
consonant to reason and sound discre-
ton. and in addition to which our Su-
nrerne Court has said that the reason
and intention of the law-giver will con-
troll the strict letter of the law in in
terpreting the same, when to adhere