Hazen v. Strong

Hutchinson, J. after, stating the case, pronounced the opinion of the Court. Several points have been urged in argument, the most of them, however, depend chiefly upon the view the Court may entertain upon the main subject of the controversy. The parties having agreed upon joining an issue of fact to the court, the facts found by the court, and appearing of record, are to be treated as if found by the jury in an issue tried by them. Both parties claiming judgment upon this finding, it is necessary to ascertain the importance of the facts found, in connection with those acknowledged by the pleadings. The plaintiff, in his replication, assumes the position, that the town could not legally raise a tax for the object specified in the defendant’s plea, and makes those averments of the defendant’s knowledge and participation in the object, and assessment of the tax, which the plaintifl intends shall render his rate-bill and warrant no justification. The rejoinder, instead of demurring, affirms a new fact about tho certificate upon his rate-bill, signed by the selectmen, and traverses those facts relied upon in the replication, intending, no doubt, to maintain, as is attempted in argument, the position that the rate-bill and warrant were a good protection to the defendant who acted under the same, whether thetas were legal or not. The court found for the plaintiff the facts, that the tax was raised to pay the expense of inoculating for the kine pox, and that tho defendant was present at the meeting ; and found for the defendant the fact, that the defendant did not vote for said tax. This is going off in a tangent from the main point in controversy, which rests on that part of the plea not answered by the replication. The principal point/in the case is, have the town a, right in just such a case as is set forth in the defendant’s plea, to raise a tax by vote, as they have attempted to do ? The plaintiff objects that the selectmen have a right to take measures to prevent file spreading of the small pox, only when it is actually among'the inhabitants : also, that the town can legally be put to [432] ■no expense, but for those who are unable to pay for themselves» While there devolves upon the selectmen a care of the prudential affairs of the town, and their proceedings frequently, and almost uniformly, are attended with expense to the town, which must be collected of the inhabitants in the form of taxes; while so many cases arise, requiring nice distinctions to be observed, in these duties of the selectmen, as also in the cases of necessary and incidental charges, where the towns act in public meetings, wo should not be inclined to decide against such a tax, and especially, against a collector collecting such a tax, but in a clear case. When the legislature made it the duty of the selectmen in each town, in which there should be any person infected with the small pox, to take the most prudent measures to prevent the spreading of the disease, they may not have thought of the particular measure of inoculating for the kind pox. They may not have known that to be a prudent or efficacious measure. But when» ever it is found to be evidently such, the provisions of the statute are broad enough to include it. These prudent measures to prevent the spread of the disease, are to be taken at the expense of the town, and not of individuals. There may be trouble and expense to individuals, but the selectmen cannot compel them to pay any expense of their proceedings. These must be paid by the town. Now, experience fully evinces the eminent utility of the kine pox in saving expense, as well as placing a safeguard around each individual, to protect life and health, while all attend to their usual vocations, instead of being eonfined with a loathsome disease, or becoming nurses to those who are thus confined. We are, therefore, disposed to support the selectmen, and the town, in this measure to prevent the spreading of the disease, when circumstances render any measures necessary. But, it is said in argument, that there is no pretence that any person in North Hero was infected with the small pox, when Hoct. Fancher was employed to inoculate for the kine pox.— Upon this point, the statute must receive such a construction, if such it will bear, as will best remedy the evil provided against. — ■ Should it be confined to the letter, in every possible case, there would be some instances in which it would be no seasonable remedy. The only person known to be infected in town may have got out of town before the selectmen had convened to adopt any measures for prevention. The result may be that very many, or that none at all, took the infection before the infected person got out of town. In such a case, it would not do to let the legality of a tax, to'defray the expense of preventive measures, depend upon this uncertain result; for preventive measures ought to be adopt433 cd while it must be uncertain, whether any of the persons exposed took the disease. So, an infected person may be lodged in another township. The disorder proves to be the small pox. Persons in this town may be exposed as'badlyasif the infected person were in the same town with them. In such a case the selectmen should fear the danger and adopt measures to prevent the spread of the disease. While the statute is particular in many of its provisions, this provision is more general. The expression is, “ and in all such cases it shall be the duty of the selectmen, as aforesaid, to take the most prudent measures,” &c. This must mean all such cases as are attended with actual danger from a person actually infected among them, or so near them as not to be without danger. The allegations in this plea in bar are in substance, “ that the inhabitants of said North Hero were (on said day) greatly exposed to the spreading of the small pox in said town, and greatly exposed to be infected by said disease, by reason of persons passing through said town, and residing in the neighborhood of said inhabitants, who were infected with said disease.” Should we consider the word inhabitants, which next precedes the relative, who, to be its antecedent, in grammatical construction, it would make a direct averment, that the exposedness to the disease was from inhabitants who were infected with it. If we go further back, and take the word persons for the antecedent to the relative, the sense will be, that persons, who are infected, were passing through said town and residing in the neighborhood of its inhabitants, by which they were exposed to the disease. This must not be construed as of a possible state of things at some future time, but as describing the actual state?of things at that time. If, then, the inhabitants of said town were then exposed to the infection, by reason that some of said inhabitants were infected, or, that persons infected were passing through said town, or, were residing in the neighborhood of the inhabitants of said town, in either case it becomes the duty of the selectmen to take the most prudent measures to prevent the spreading of the disease. The plaintiff’s counsel have relied upon a decision of this Court in his favor, made in this action several years since. There was such a decision reversing the judgement of the county court. That set the case open for another trial ; and leave was given to alter the pleadings; and they are so altered as to make a new case not tobe governed by the former decision. As we find a full defence Jin that part of the defendant’s plea, which is not answered by the replication,the facts brought upon the record by the [434] replication of the plaintiff and finding of the court, are unimportant toa decision. The Court are at liberty to render judgement upon the whole record, and finding a good defence in the plea, which has received no answer in the replication, the judgement of the county court must be reversed, and judgement rendered for the defendant to recover his cost. Smalley & Adams, for plaintiff. Charles Adams, for defendant. Judgement reversed.