
    NECESSARIES FURNISHED TO A QUARANTINED FAMILY.
    [Circuit Court of Franklin County.]
    Aaron Meily v. The City of Columbus, Ohio.
    Decided, March, 1905.
    
      Municipal Corporations — Necessaries Furnished to Quarantined Family — Contract for, not in Writing — Later Act Controls Charter Law —Special Provision Controls a General Provision.
    
    A petition which pleads an oral contract with a board of health for the furnishing of necessaries to a family quarantined on account of small-pox is go'oid under Section 2128, et seq., against a general demurrer.
    Dustin, J.; Wilson, J., and Sullivan, J., concur.
   Plaintiff recovered a judgment before a magistrate for $33 and costs against the city of Columbus, on an account for necessaries furnished a family resident in the city during the time said family was quarantined for small-pox, in January, 1903, pursuant to an alleged oral contract with the board of health of said city. The city'appealed the case to the- common pleas court where a demurrer was sustained to the petition. Plaintiff not desiring to amend, submitted to a judgment against him for costs, and brought this proceeding to reverse the judgment of the common pleas court, alleging error in sustaining said demurrer.

The demurrer was evidently sustained upon the theory that the- contract, to be valid, should be in writing, pursuant to the requirement of Section 63 of the Charter Law of the city passed March 7, 1893, and found in 90 O. L., p. 147, to-wit:

“All contracts shall be in writing, signed and executed in the 'name of the city by the head of the appropriate department and approved by the board of public works by a yea and nay vote before they are binding upon the city.”

But, later (May 7, 1902), the Legislature enacted a general law regulating boards of health, and prescribing their duties (95 O. L., 421), of which Section 2128 provides in part as followsi:

“When a house or other place is quarantined on account of a contagious disease, it shall be the duty of the board of health having jurisdiction to provide for all persons confined in such house or place, food', fuel, and all other necessaries of life, including medical attendance and nurses when necessary, the expenses so incurred, except those for disinfection, quarantine or other measures strictly for the protection of the public, when properly certified by the president and clerk of the board of health, * * * shall be paid by the person or persons quarantined when able to make such payment, and when not, by the city,” etc.

By Section 2138 of the same act it is made the duty of the city council, in case of threatened epidemic, if funds are. not otherwise available, to borrow money to- meet the expenses of the board of health and “upon application and certificate from the board of health, to pass the necessary appropriation ordinances to pay the expenses so incurred and certified.”

It is averred that the necessaries were furnished pursuant to contract, that the account has been certified by the president and clerk of the board of health, that the quarantined family are not able to pay and that deoqjand has been made of the city.

This, we think, makes a good petition, as against a general demurrer.

The latter act, so far as there -may be any conflict between it and the charter law, governs. It would govern also because it is a special provision as against a general one; and because a contrary construction would defeat the whole purpose of the act.

O. H. Hosier, for plaintiff.

James H. Butler and David T. Keating, for defendant.

If dealers were required to wait for a written contract and the passage of an ordinance appropriating the money before furnishing supplies under such circumstances with any assurance of payment, the quarantined family might die of starvation or of cold.

If food and fuel were not forthcoming as needed, the family would be justified in breaking the quarantine in order to solicit or earn a living, thus spreading infection throughout the city.

The very emergencies of the case demand prompt and effective action upon the part of the board of health, without awaiting the slow processes of the law required in other matters.

The judgment of the common pleas court will therefore be reversed and the cause remanded with instructions to overrule the demurrer to the petition.  