Opinion of the court by
Gillette, J.:
In the consideration of this case it is hard to lose sight of the equities appearing in the record in favor of the plaintiff. That the plaintiff has performed services for the public for which he ought to be paid, and for which he must ultimately be paid, appears conclusively upon the face of the record. But this equity and this right in favor of the plaintiff is not the controlling influence in this case, and was not in the court below. It will be observed from the statement of facts in the case that the claim of the plaintiff against the county of Custer was not considered by the court below, nor was it considered by the board of county commissioners. An examination of the judgment of the court below shows that the court dismissed the appeal, “for the reason that the claim upon which said appeal was taken was not properly, regularly and legally presented to the board of county commissioners as required by law,” and this leads us to an inquiry as to what informalities are presented in the proceeding which would justify the dismissal of the appeal.
This cause of action arises under 'the provisions of chap. 8 of the general statutes of 1893, creating a board of health, and regulating the practice of medicine. By the provisions of this statute a board of health may be created for each county of the territory, consisting of the county superintendent of instruction, who shall be president and two other persons, one of whom shall be learned in medicine, and one
other person, who shall be Tice president of the board. The two other persons above referred to are appointed by the territorial board of health. It is made the duty of the county superintendent of health to keep a record of all the proceedings of the board, and of his official acts, and make monthly reports to the territorial superintendent of public health, of the proceedings of the county board of health, and of his official acts; and whenever danger to the health of persons or of domestic animals is threatened, to immediately report the same to the territorial superintendent of public health. It is further made the duty of tire county board of health to convene at the county seat upon five day’s notice of the superintendent, within thirty days of their appointment, and thereafter as often as once in every three months. Power is conferred upon the county boards of health, subject to the supervisory control of the territorial board and the territorial superintendent, to make and enforce any and all needful rules and regulations for the prevention and cure, and to prevent the spread of any contagious, infectious or malarial diseases among persons and domestic animals, and to establish quarantine, and to isolate any persons affected with .contagious or infectious diseases. The expense actually and necessarily incurred by the county board of health in discharging these duties, must be audited by said board and certified to the county commissioners of the county, and paid for in the same way as other expenses are paid, and power is conferred upon the county superintendent of health, subject to the approval of the county board, and the supervisory control of the territorial board and superintendent, to establish quarantine and isolate persons afflicted with contagious and infectious disease, to isolate, kill or remove any animals afflicted with such disease, to remove any decaying or putrid body, or other sub
stance that may endanger the health of persons or domestic animals, and to condemn and cause to be destroyed any impure or diseased article of food offered for sale, and in case of immediate danger to the health, the superintendent may act upon his own judgment without consultation with other members of the county board, but in such case is required to report his action to the county board and to the superintendent of public health of the territory.
The pay of the county superintendent of health is limited to three dollars a day for every day in which he may be actually and necessarily engaged, and five cents 'per mile for ■ every mile actually and necessarily traveled, and such other sums as he may necessarily pay or become liable for in carrying out and performing the various duties imposed upon him as such superintendent; all accounts for services, mileage and other expenses, must be audited by the county board of health, and certified to the county commissioners of the county to be paid as other county expenses are paid.
It .will be observed from the above requirements that the legislature in adopting provisions for the care and protection of the public health, has been equally careful in guarding the public rights against an extortionate expenditure of the public funds, and in each case have made the requirements governing the action of county boards equally mandatory. Assuming that the requirements of the statute touching the duties of superintendents and boards of health have in this instance been fully complied with, we stop to consider for the purpose of this case the manner in which, as shown by the record, the expenses of the county board of Custer county have been brought forward for settlement and payment by the board of county commissioners.
The bill here presented is that'of the county superintendent of health, and with reference to it the statute provides that .it shall be audited by the county board of health and certified to the commissioners of the county, and paid as other expenses are paid. Was this account audited by the county board of health is a question that might possibly have been tried and determined by the board of county commissioners upon the proof that was tendered as shown in the petition of. plaintiff, if the taking of proof in this manner could be held to be a compliance with the requirements of the statute. Such proof was refused by the board of county commissioners, and by the action of the court in dismissing the appeal, was refused by the court. In the opinion of this «court such proof was properly rejected. The statute provides that the account of the county superintendent of health, '“shall .be audited by the county board of health and by it certified to the board of county commissioners." The word audit as here used has a technical meaning, which is to examine, to pass upon and to adjust. To audit implies a hearing, and upon the hearing to adjust, or to allow, or to reject, or otherwise decide according to the nature of the claim.
(Attorney General v.
Grant, 21st Pac. 693.)
From this definition of the word audit it would appear from the language of the statute that it was the duty of the county board of health to pass upon and allow or reject or modify and adjust this claim, and afterwards to certify it to the board of county commissioners for payment as other •claims against the county are paid.
It is certain that under these provisions of the statute the board of county commissioners did not have original jurisdiction to hear and determine the question of the countjr's
liability upon this account, and we think the county commissioners and district court were right in the conclusion and refusal to hear testimony touching the question as to whether or not the account had been audited by the county board of health. By sec.
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Opinion of the court by
Gillette, J.:
In the consideration of this case it is hard to lose sight of the equities appearing in the record in favor of the plaintiff. That the plaintiff has performed services for the public for which he ought to be paid, and for which he must ultimately be paid, appears conclusively upon the face of the record. But this equity and this right in favor of the plaintiff is not the controlling influence in this case, and was not in the court below. It will be observed from the statement of facts in the case that the claim of the plaintiff against the county of Custer was not considered by the court below, nor was it considered by the board of county commissioners. An examination of the judgment of the court below shows that the court dismissed the appeal, “for the reason that the claim upon which said appeal was taken was not properly, regularly and legally presented to the board of county commissioners as required by law,” and this leads us to an inquiry as to what informalities are presented in the proceeding which would justify the dismissal of the appeal.
This cause of action arises under 'the provisions of chap. 8 of the general statutes of 1893, creating a board of health, and regulating the practice of medicine. By the provisions of this statute a board of health may be created for each county of the territory, consisting of the county superintendent of instruction, who shall be president and two other persons, one of whom shall be learned in medicine, and one
other person, who shall be Tice president of the board. The two other persons above referred to are appointed by the territorial board of health. It is made the duty of the county superintendent of health to keep a record of all the proceedings of the board, and of his official acts, and make monthly reports to the territorial superintendent of public health, of the proceedings of the county board of health, and of his official acts; and whenever danger to the health of persons or of domestic animals is threatened, to immediately report the same to the territorial superintendent of public health. It is further made the duty of tire county board of health to convene at the county seat upon five day’s notice of the superintendent, within thirty days of their appointment, and thereafter as often as once in every three months. Power is conferred upon the county boards of health, subject to the supervisory control of the territorial board and the territorial superintendent, to make and enforce any and all needful rules and regulations for the prevention and cure, and to prevent the spread of any contagious, infectious or malarial diseases among persons and domestic animals, and to establish quarantine, and to isolate any persons affected with .contagious or infectious diseases. The expense actually and necessarily incurred by the county board of health in discharging these duties, must be audited by said board and certified to the county commissioners of the county, and paid for in the same way as other expenses are paid, and power is conferred upon the county superintendent of health, subject to the approval of the county board, and the supervisory control of the territorial board and superintendent, to establish quarantine and isolate persons afflicted with contagious and infectious disease, to isolate, kill or remove any animals afflicted with such disease, to remove any decaying or putrid body, or other sub
stance that may endanger the health of persons or domestic animals, and to condemn and cause to be destroyed any impure or diseased article of food offered for sale, and in case of immediate danger to the health, the superintendent may act upon his own judgment without consultation with other members of the county board, but in such case is required to report his action to the county board and to the superintendent of public health of the territory.
The pay of the county superintendent of health is limited to three dollars a day for every day in which he may be actually and necessarily engaged, and five cents 'per mile for ■ every mile actually and necessarily traveled, and such other sums as he may necessarily pay or become liable for in carrying out and performing the various duties imposed upon him as such superintendent; all accounts for services, mileage and other expenses, must be audited by the county board of health, and certified to the county commissioners of the county to be paid as other county expenses are paid.
It .will be observed from the above requirements that the legislature in adopting provisions for the care and protection of the public health, has been equally careful in guarding the public rights against an extortionate expenditure of the public funds, and in each case have made the requirements governing the action of county boards equally mandatory. Assuming that the requirements of the statute touching the duties of superintendents and boards of health have in this instance been fully complied with, we stop to consider for the purpose of this case the manner in which, as shown by the record, the expenses of the county board of Custer county have been brought forward for settlement and payment by the board of county commissioners.
The bill here presented is that'of the county superintendent of health, and with reference to it the statute provides that .it shall be audited by the county board of health and certified to the commissioners of the county, and paid as other expenses are paid. Was this account audited by the county board of health is a question that might possibly have been tried and determined by the board of county commissioners upon the proof that was tendered as shown in the petition of. plaintiff, if the taking of proof in this manner could be held to be a compliance with the requirements of the statute. Such proof was refused by the board of county commissioners, and by the action of the court in dismissing the appeal, was refused by the court. In the opinion of this «court such proof was properly rejected. The statute provides that the account of the county superintendent of health, '“shall .be audited by the county board of health and by it certified to the board of county commissioners." The word audit as here used has a technical meaning, which is to examine, to pass upon and to adjust. To audit implies a hearing, and upon the hearing to adjust, or to allow, or to reject, or otherwise decide according to the nature of the claim.
(Attorney General v.
Grant, 21st Pac. 693.)
From this definition of the word audit it would appear from the language of the statute that it was the duty of the county board of health to pass upon and allow or reject or modify and adjust this claim, and afterwards to certify it to the board of county commissioners for payment as other •claims against the county are paid.
It is certain that under these provisions of the statute the board of county commissioners did not have original jurisdiction to hear and determine the question of the countjr's
liability upon this account, and we think the county commissioners and district court were right in the conclusion and refusal to hear testimony touching the question as to whether or not the account had been audited by the county board of health. By sec. 8 of the statute above referred to, it is provided that a record shall be kept of all the proceedings of the board, by the superintendent. The auditing and allowing of this account is a part of the proceedings of the board of health, and if said account had been audited by the board as it was proposed to be shown by the parol testimony, such proceedings might and should have been shown by the record kept in compliance with the statute, and as required by the statute. It follows that it was not error on the part of the county commissioners or of the district court to refuse to hear oral testimony upon a proposition that should be established by a record which the law requires to be kept. How then may an account of this character get before the board of county commissioners? The statute is not open to construction upon this subject. Such an account must be audited by the board of health and certified to the county commissioners: that is, the account as audited must be so certified, and from this we conclude that the board of county commissioners can only act upon the account which has been audited by the board of health, and by it certified to the commissioners, showing that.it is their audited account. Such certificate should therefore show that it was an account which had been audited and adjusted by the board of health of the county, and by said board certified to the board of county commissioners as an audited account.
An examination of the record in this case with reference to the presentation of this account to the board of county com
missioners shows that it fell far short of this 'requirement, as it there appears that the plaintiff filed in the office of the county clerk his claim against the county for $477.00 with the following certificate:.
“I certify that the aboye account is true, reasonable and just, and that the services rendered and expenses incurred were necessary to the health and safety of Custer county.
R. H. COOKE,'
Vice president board of health, and acting county superintendent.
Allowed.”
This is not the certificate required by the law. It is not the certificate of the board of health.
It appears from the affidavit of plaintiff that the word, “Allowed” following the certificate was written there by G-. T. Dulaney who omitted to sign his initials or name thereafter. As to who Dulaney is, the record is silent, except that there is a fair inference that he was, a member of the board. Had his initials been added, the record certificate would still be far short of a compliance with the statute, because it does not show that the board of health, as such, ever had anything to do with the claim. The county commissioners might, perhaps, more properly in this instance have returned the claim to the board of health for its action and proper certification as required by law. It is certain that the board of county commissioners had no jurisdiction to determine the right of the plaintiff against the county upon this account as presented, and the district court upon appeal could not acquire a jurisdiction over the subject-matter that the board of county commissioners did not have, and could not therefore review the action of the commissioners rejecting the same.
For this reason the appeal was properly dismissed without error on the part of the court. The order of the court below dismissing the appeal is therefore affirmed.
Irwin, J., who presided in the court below, not sitting; Burford, C. J., and Pancoast, J., absent; all the other Justices concurring.