p. 546Defendant demurred to the complaint and the demurrer was overruled. Defendant then answered, and plaintiffs recovered judgment, and defendant appealed.
The other facts are stated in the opinion of the Court.
F. E. Spencer, for Appellant.
The complaint is bad in not stating that the persons treated were indigent, and residents of the county, and the Court should have sustained the demurrer. (Supervisor Act, 5th clause, Wood’s Dig. Art. 3,319; Act to provide for the indigent sick, lb. Art. 3,279.)The Supervisors cannot create a debt or liability on the part of the county for any purpose except as provided by law. (Foster v. Coleman, 10 Cal. 278 .) Every fact which, if controverted, the plaintiff will be compelled to prove in order to maintain the action must be stated. (Jerome v. Stebbins, 14 Cal. 458 ; Green v. Palmer, 15 Ib. 415 ; Practice Act, Sec. 66.) The complaint is verified. (Green v. Covillaud, 10 Cal. 322 .) A county is not bound to support persons who are not paupers. (Alton v. Madison, 21 Ill. 115 .)J. M. Williams, and S. O, Houghton, for Respondents.
The Boards of Supervisors have general power under the statute to provide for the preservation of the public health. They are the agents constituted by law to take care of the health of the indigent, “ to take care of and provide for the indigent sick of the county, to do and perform all such other acts and things as may be strictly necessary to the full discharge of the powers and jurisdiction conferred on the Board.” (Wood’s Digest, Art. 3,319.) It was the duty then of the Board of Supervisors to take care of these small pox patients, and to take measures to arrest the progress of the disease and prevent, its spreading over the county. In employing the respondents as physicians for that purpose they only performed a duty imposed on them by law, and created a liability on the
p. 547part of the county to pay for those services what they were reasonably worth, as no price was stipulated.By the Court,
The demurrer to the complaint should have been sustained upon the ground that it does not state facts suEcient to constitute a cause of action. The power of “ The Board of Directors of the County Infirmary of Santa Clara County ” to provide for the care and medical treatment of sick persons, is limited to such as are indigent and are also residents of the county. A contract providing for the care and treatment of sick persons not indigent, or if indigent not residents of the county, would be void for the want of power in the Board to make it. A county is not liable generally for the care "and treatment of sick persons, and therefore when it is sought to make it liable it must appear from.the complaint that the care and treatment was bestowed upon the class of persons described in the twentieth section of the Act concerning County Infirmaries for the relief of the indigent sick. (Laws I860, p. 217.) No recovery can be had in such an action except upon proof, if the facts are controverted, that the persons so treated are indigent and are residents of the county, and it is a familiar rule of pleading that every fact which, if controverted, the plaintiff would be compelled to prove in order to sustain his action, must be alleged in his complaint. (Jerome v. Stebbins, 14 Cal. 457 ; Green v. Palmer, 15 Cal. 411 .)
This error alone makes it necessary to reverse the judgment." But as there is another point which is, in our judgment, fatal to the plaintiffs’ cause of action, and which no amendment of the complaint can obviate, we deem it advisable to pass upon it now, in order that the parties may be spared further and useless litigation.
We are of the opinion that the services sued for in this action are covered by the contract between the plaintiffs and the Board of Directors of the County Infirmary of the 3d of
p. 548January, 1862, set out at length in the defendant’s answer. In that contract the plaintiffs “ covenant and agree to attend the County Infirmary and County Jail of said county as physicians and surgeons, and as physicians and surgeons to prescribe for and attend all the inmates of said Infirmary and Jail who may be subjects of medical and surgical treatment, and perform all surgical operations upon any and all of the inmates of said Infirmary and Jail who may require the same.” Under this agreement the plaintiffs were bound to attend and treat “ all inmates of the County Infirmary,” whether afflicted with contagious diseases or not. What, then, is the “ County Infirmary?” Is it one building, or may it be more, and-if more, must they' all be adjacent, or may they be distant from each other, and yet altogether constitute the “ County Infirmary1?” That the “ County Infirmary ” is not necessarily limited to one building is apparent from the eleventh section of the Act under which it was- created and established, which provides that “ when necessary, it shall be the duty of the Board of Directors to provide a suitable building or buildings for the
separate accommodation of the indigent laboring under contagious disease.” Obviously buildings so provided are as much a part of the “ County Infirmary ” as any building previously provided for the -accommodation of those who are not laboring under coritagious disease; and the inmates of the former buildings are in every sense as much inmates of the “ County Infirmary” as are the inmates of the latter. This contract must be read by the light of the statute by which it was authorized to be made. Thus read, it is clear that the services sued for in this action are covered by the contract in question, and if, as alleged in the answer, the plaintiffs have been paid the price stipulated therein, they have no cause of action.
Judgment reversed and cause remanded.
Mr. Justice Rhodes, being disqualified, did not sit in this cause. ,