Preble v. City of Bangor , 64 Me. 115 ( 1874 )

Walton, J.

The right to maintain this suit depends upon the construction of the eighth section of the ordinance of the city of Bangor relating to the election, duties and compensation of the city physician. The seventh section provides for an annual salary to be determined by the city council. Then follows this section:

“Section 8. In cases of small-pox or other infectious disease, the city physician shall receive such compensation in addition to his annual salary as the city council may deem just and proper.”

The plaintiff claims that this section refers only to cases of smallpox and other infections diseases among the paupers of the city; that for attendance upon other cases he is not bound to accept such compensation as the city council may choose to vote him.

We think the fair construction of the section is that in all cases of small-pox or other infectious disease attended to for the city, the city physician shall receive such compensation in addition to his annual salary, as the city council may deem just and proper.

Such is the fair import of the language used, and no reason is perceived why it should receive a different construction.

It does not seem to us probable that the city would retain and exercise the right of fixing the compensation for attendance upon one class of persons and leave the city physician to fix his own price for attendance upon another class, both classes being alike chargeable to the city and both afflicted with the same disease.

The duty of the city to take charge of a person sick with the small-pox or other infectious disease, is the same whether such person is a pauper or not; the object being to guard against the spread of the disease. It may not be obligatory upon the city physician to attend such person, but if he does attend we think lie must accept such compensation as the city council chooses to vote him. Such, we think, is the true construction of the city ordinance under consideration. Exceptions sustained.

Appleton, C. J., Cutting, Dickerson and Peters, JJ., concurred. Barrows and Danforth, JJ., did not concur.