Quigg v. Monroe County

— 125 — The following opinion was filed November 5, 1907: Keewiit, J. 1. It is urged by counsel for appellant that the appeal should be dismissed for the reasons (1) that the account presented to the county board was not returned to the circuit court on appeal; and (2) that, even if the account presented had been lost or destroyed, it was not a sufficient statement of account under sec. 677, Stats. (1898). On the appeal in the circuit court a motion was made to dismiss the apjjeal for want of jurisdiction. No objection was made that the account returned was not the original, and therefore nothing is before us on the subject except the record. True, on the account returned is marked the word “copy.” We are not prepared to say that the copy might not be sufficient under some circumstances where the original had been properly filed and was lost or destroyed. Miller v. Crawford Co. 106 Wis. 210, 82 N. W. 175. The court below found that the respondent duly filed his claim in writing with the county clerk of Monroe county, properly signed and verified. The county clerk made due return to the circuit court on appeal and certified, as required by sec. 684, Stats. (1898), “that the foregoing is a true statement of the proceedings of the county board in the case of Dr. C. D. Quigg, appealed from, and that the notice of appeal, bond, and other papers are all the papers in my possession relating to such appeal.” Among the papers returned appears an account which is set out in the statement of facts, and, the appeal and certificate being in due form, we cannot disregard the return and say that the original account filed was not returned or that the account here upon the appeal is not proper. When an account is returned and in the record over a proper certificate of the county clerk on an appeal from the determination of the county board, and especially where the- point was not raised below, we cannot say that the account filed with — 126 — tbe county board is not properly here. We think the account in the record must be regarded for all purposes of the appeal as the original account filed. It is further contended that the account appearing in the record is not in compliance with sec. 677, Stats. (1898), and therefore the county board was without jurisdiction to act on the claim. Sec. 676, Stats. (1898), provides that no action shall be brought or maintained against a county upon any account, demand, or cause of action when the only relief demandahle is a judgment for money; and sec. 677 provides, in effect, that any persons having a claim against a county shall make a statement thereof in writing setting out the nature of the claim and all facts upon which it is founded, and, if the claim be an account, the items thereof separately, the nature of each, and the time expended in the performance of any services charged for when no specific fees are allowed therefor by law, and, where the claim is for mileage, the statement must specify dates and places so as to show between what points the travel was had and for what purpose. It seems quite clear that by this legislation a difference between an account and a demand was contemplated, and that the legislature intended that only accounts or claims in the nature of accounts should be itemized, and that a claim for a fee of a physician for performance of a post-mortem examination under sec. 4870, Stats. (1898), is not an account required to be itemized by sec. 677. This we think is quite apparent from the nature of the services to be performed by the physician. Originally he was allowed a fee as a witness, but by amendment to the statute, which is embodied in sec. 4870, he is to receive, instead of witness fees, such reasonable compensation as may be allowed by the county hoard of supervisors, not less than $5 for each examination. As will be seen from an examination of the claim set out in the statement of facts, the services performed are quite specifically detailed, and as much so as could well be expected even if — 127 — claimant were required to make a statement in tbe form of an accpunt. We think this claim sufficiently complied with the statute to give the county board jurisdiction. The cases relied upon by counsel for appellant are where the claims were accounts consisting of a long list of items. Hence it was necessary under the statute that the items be stated separately, the nature of each, and the time expended in the performance of the services charged for. But every claim or demand is not an account, though every account is a claim. Stringham v. Winnebago Co. 24 Wis. 594; Grimm v. Jefferson Co. 62 Wis. 572, 22 N. W. 857. The object of the legislature in the provisions with reference to accounts was plainly to bring before the county board such information as would enable it to examine intelligently and eliminate improper charges and thus detect abuses in the allowance of claims. Northern T. Co. v. Snyder, 113 Wis. 516, 89 N. W. 460. 2. It is further claimed by appellant that the court erred in overruling the decision of the county board as to the amount due respondent Sec. 4870, Stats. (1898), provides : “Such physicians and surgeons so subpoenaed shall, instead of witness' fees, receive such reasonable compensation as may be allowed by the county board of supervisors, provided that such additional compensation shall not be less than five dollars for each examination.” It is claimed that this section vests in the county board power to fix the fee subject only to the limitation of $5. The question presented under this head involves the construction of this statute. It seems the legislature had in mind that the physicians and surgeons so subpoenaed should be paid reasonable compensation for their services in lieu of witness fees, which under the former statute they received. True, the legislature provided that such reasonable compensation shall be allowed by the county board. But did the legislature — 128 — mean, tbat the county board might fix the compensation 'for the services at an unreasonable amount and such allowance be not subject to review? If so-, then the phrase “such reasonable compensation” is surplusage and without effect in the statute. We cannot think that the legislature had any such purpose in mind, but, on the contrary, intended what the ordinary meaning of the words import, namely, that tire physicians and surgeons performing such services should receive reasonable compensation for their services. Nor can we see any sound reason for a different construction. To require the performance of such services for such compensation as the county board might allow, though one half or one third what such services were reasonably worth, would seem to be out of harmony with the letter and spirit of the statute. Dane Co. v. Smith, 13 Wis. 585. Moreover, see. 683, Stats. (1898), providing for an appeal to the circuit court from the disallowance in whole or in part of any claim by the county board, seems clearly to cover the case before us. If so, then no reason is perceived why a person appealing in such a case should not be entitled to a review the same as in any other appeal from the decision of the county board. We think the appeal provided for brings the whole matter before the circuit court for review and determination unhampered by the determination of the county board. Under the Iowa statute, quite similar to our own, the supreme court of that state held that a physician making a post-mortem examination by direction of the coroner was entitled to reasonable compensation for his services, and, if the allowance made by the board was not reasonable, the physician might maintain an action to recover reasonable compensation for his services against the county. Moser v. Boone Co. 91 Iowa, 359, 59 N. W. 39. And in Stone v. Marion Co. 78 Iowa, 14, 42 N. W. 570, it was held that a statute providing for the employment of ,an attorney to- assist the district attorney, and that such assistant employed shall be allowed a reasonable — 129 — compensation for bis services -to be fixed by tbe board of supervisors, does not render tbe decision of tbe county board final as to tbe amount to be allowed, but, if an unreasonably small sum be fixed, proper compensation may be recovered by action against tbe county. Tbe court below found tbe amount allowed unreasonable, and tbe finding is well supported by tbe evidence. In fact no evidence was offered to tbe contrary. 3. Error is assigned because tbe court allowed interest on tbe claim. Tbe item of interest complained of is very small, being, as we believe, only a fraction of a dollar, and perhaps might be classed within tbe rule of Be minimis non curat lex. But in any event we do not think tbe appellant can complain of it here, since no objection was made on this ground below, and, besides, tbe respondent offers to remit it. Under such circumstances tbe judgment should not be disturbed on that ground. No claim is made by respondent that this interest item was properly allowed, so we have not considered whether it was or not. We assume it was not, since no claim to tbe contrary is made by respondent and be offers to remit it. 4. Error is assigned on tbe findings and evidence on tbe following grounds: (1) That it does not appear a lawful inquest was held; (2) that it does not appear the plaintiff was subpoenaed as a witness; (8) that it does not appear tbe physician was a competent physician. Tbe court below found that on the 21st day of November, 1905, tbe plaintiff, at tbe request of the assistant district attorney and by order of E. Bartels, justice of tbe peace, before whom an inquest upon the body of one James Decorah was being held, was subpoenaed and ordered to perform a 'post-mortem examination on tbe body of said Decorah, and that in accordance with such order tbe plaintiff performed tbe operation. It appears from tbe findings that an inquest was being held when such post-mortem examination was performed by the plaintiff, — 130 — and, in the absence of objection or showing to the contrary, it must be presumed that the inquest was being lawfully held. It also appears from the findings that the plaintiff was subpoenaed and ordered to perform the post-mortem. The statute (sec. 4870) imposes upon the justice the duty to subpoena one or more competent physicians or surgeons, and having subpoenaed the respondent to perform the operation, and there being no objection to the competency of such physician in the lower court, it must be presumed here that respondent was competent. Rider v. Ashland Co. 87 Wis. 160, 58 N. W. 236. We must therefore hold upon the record here that a lawful inquest was being held and that the respondent was a competent physician and duly subpoenaed. It follows that the judgment below must be affirmed. By the Gourt. — The judgment of the court below is affirmed. Siebeckeb, J., dissents. A motion for a rehearing was denied January 8, 1908.'