Buckstaff v. City of Oshkosh

66 N.W. 707, 92 Wis. 520, 1896 Wisc. LEXIS 314

Opinion

Maeshalu, J.

Looking at the complaint in the most favorable light for appellant, it was made and the action brought by him, in his official capacity as health officer of the town of Algoma, to restrain the defendant from maintaining therein a public nuisance, detrimental to the health of people generally, and particularly of the people of such town. We are unable to see any ground whatever for the claim that plaintiff has legal. capacity to maintain this action. He is the mere agent or executive officer of the board of health, and in no sense the proper party plaintiff to prosecute a suit on behalf either of - the board of health or the inhabitants of the town.

Our attention is called to Winthrop v. Farrar, 11 Allen, 398, in support of the complaint; but there the action was. an the name of the town, not of the board of health or health officer. So, in Taunton v. Taylor, 116 Mass. 254, also cited in support of the complaint, there was a board of health, similar to boards of health in towns under the system in this state. Such board, under its power to prevent nuisances, made an order prohibiting the carrying on of an offensive vocation, and, upon violation of such order, an action in 'equity was brought to restrain the exercise of the prohibited trade, but in the name of the municipal corporation. Power was conferred on the board, by law, to enter the order prohibiting the carrying on of the objectionable business, and to take all necessary means to enforce such order. It was held that its action in that regard was in behalf of all the inhabitants of the municipality, and that the action was properly maintainable in its name. The example of that «ase furnishes ample authority, if any is needed, against the oontention of appellant; but see, also, Quincy v. Kennard, 151 Mass. 563; Comm. v. Parks, 155 Mass. 531.

We conclude that there is no power, express or implied, under sec. 2, ch. 167, Laws of 1883,¹ upon which plaintiff mainly relies, authorizing the health officer to take such measures for the prevention, suppression, and control of the ■diseases mentioned in such chapter, or under any provision ■of such chapter, or otherwise, for the maintenance of this uction, either in his own name or in the name of the board •of health. If maintainable at all on behalf of the inhabitants of the town, then it is the proper party plaintiff, as the town of Algoma. Sec. 773, R. S.; Pine Valley v. Unity, 40 Wis. 682. But, whether the action lies, or if so, whether it •can be instituted without authority conferred by tbe electors, we need not, and do not undertake to, decide.

By the Qowrt.— The order of the county court sustaining the demurrer to the complaint is affirmed.

Footnotes

1

Sec. 2, ch. 167, Laws of 1883, provides, among other things, that “it ■shall be the duty of such health officer at all times promptly to take ¡such measures for the prevention, suppression and control of the diseases herein named as may in his judgment be needful and proper, subject to the approval of the board of which he is a member.” — Kep.