People Ex Rel. Attorney-General v. Wheeler

SMITH, C.

This is a suit, in the nature of

quo warranto,

to oust the defendant from the office described in the complaint as that of “county physician,” or, as otherwise described, “the office of hospital physician of Plumas County,” Judgment was entered for the defendant on demurrer to the complaint, and the plaintiff -appeals.

The defendant, who is a graduate in medicine, was appointed by the board of supervisors under subdivision 5 of section 25 of the County Government Act of 1897 (Stats. 1897, p. 458) to attend to the indigent sick and dependent poor of the county, and to the patients in the county hospital; and the ground of objection to his appointment is, that he is an alien, and therefore, under the provisions of section 841 of the Political Code, disqualified to hold office. The only question, therefore, in the case is whether the position to which the defendant was appointed is an office within the meaning of the term as used in the section of the Political Code cited.

This question, we think, must be answered in the negative. By the provisions of the act in question, the board of supervisors is authorized “to construct or lease, officer, and maintain hospitals and poorhouses, or otherwise in their discretion provide for the care and maintenance of the indigent sick and dependent poor of the county”; and it is provided that “the board . . . shall appoint some suitable person to take care of and maintain such hospitals and poorhouses, and shall also appoint some suitable graduate or graduates in medicine to attend to such indigent sick and dependent poor, and to the patients in such hospitals and poorhouses.”

Under these provisions of the law, it is within the power of the. board to employ, not one physician only (as provided in the corresponding provision of the County Government Act of 1883, cited by the attorney-general), but as many as the board in its discretion may deem necessary. Nor is the power of the board limited to the appointment of a physician or physicians with more or less permanent tenure. It includes also the power to employ physicians for temporary purposes,—as

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in case of epidemics,—or to care for sick persons outside the hospitals or poorhouses who cannot otherwise be cared for. It is clear, therefore,—as also from the subordinate nature of their duties, and other circumstances,—that the physicians employed must be regarded as merely the servants or employees of the board; to which, by the law, the general function of earing for the indigent sick is committed.