Secretary's Report. he shall refuse, he incurs a forfeiture of not less than five dollars nor more than fifty dollars, and the board may cause the removal of the filth and recover the expenses incurred. The forfeiture provided in this section would probably be recoverable under section 3295, which provides that every action for the recovery of a forfeiture, unless otherwise specially provided, shall be brought in the name of the state of Wisconsin. Just what course is to be taken to recover the expense incurred by the removal of the nuisance or filth, is not altogether clear, but in my judgment the board of health may sue for and recover this expense in the name of the board. There is no direct provision to this effect, but in the absence of any such provision, it seems to me that the clause in section 1414, "and may recover all expenses incurred thereby from said owner or occupant," must refer to the board of health, and the manner of collecting the same must be by action against the party. I find no provision that makes such expenses a charge upon the property concerned or which authorizes the levying of a tax in order to collect the same. The question which occurred to me before writing you my previous letter in relation to the recovering of this expense, was whether the action should be brought in the name of the board or in the name of the municipality, as I then had in mind that the municipality was first charged with the expense, but I notice upon a careful reading of section 1421 that it is only the expenses which are not otherwise chargeable that are to be paid by the town, village or city. The expenses incurred in the removal of filth are chargeable to the party upon whose premises it has been found, and who has been ordered to remove it, hence I cannot see that the municipality would have to pay, or would have any right to collect the same. In reaching this conclusion I have not overlooked section 4, chapter 167, laws of 1883, which provides that all expenses incurred in carrying out the provisions of this act shall be paid by the municipality. That chapter, however, does not pnrport to be an amendment of chapter 57, Revised Statutes, but provides a more complete method for the organization of the board and the appointment of a health officer and defining his duties, and in this connection I might add that section 2 of chapter 167, laws of 1883, clearly gives the board of health power to establish the salary or compensation to be paid to the health officer, and it seems to me that section 4 of that act clearly makes that expense, as well as any incidental expenses incurred under section 2, in the taking of measures for the prevention and control of diseases, payable by the town, village or city, and I see no other alternative for the municipality than to audit and pay such expenses upon their proper presentation to the board or council. I think what I have said, in a measure, at least, answers your inquiry Secretary's Report. relative to the power of these boards to order or compel the making of public improvements for the benefit of the public health; for instance, the draining of swamps, which would be likely to produce that result. You will notice that the power given by section 1412, to be exercised by the board of health, is to be enforced by the penalty provided by section 4608, and that the power given under section 1414 is to be enforced by the forfeiture provided by that section, and collected in an action by the state. In the one case, the penalty prescribed is for the violation of a regulation made by the board of health, and in the other case, the forfeiture is incurred, and the expense of the removal of the filth may be collected where the nuisance or source of filth is found upon private property. This being the only method pointed out for the board of health to enforce any regulation or order it may make, it would seem reasonably clear that it was not authorized to enter upon any extensive public work, and charge the municipality with the cost thereof. I do not suppose there is any essential difference between "rules and regulations" and "ordinances," but, generally speaking, we use the term ordinance as a law enacted by a municipality, with a penalty prescribed for its violation. As has been suggested above, the penalty having been already prescribed by law for the violation of a regulation of the board of health, it does not seem to me the proper thing for the board of health to provide other penalties, either greater or less, than that provided by law. Your question, in relation to whether members of boards of health must take the oath of office, noted. Section 28 of article 4 of the constitution of the state provides, that all officers, executive and judicial, except such inferior officers as may be by law exempted, shall take the oath of office. It is probable that the courts would construe that section to include only state officers, as they have already construed section 26 of article 4 to apply only to officers who draw their salary from the state. Undoubtedly it would be the safer course to take the oath, but I do not think that it (i.e., omission to take an oath of office) would be held fatal where the board had organized by electing proper officers, and appointing health officers, as provided in section 1 of chapter 167, laws of 1883. I have no doubt that where a board had elected those officers, it would be held to be a board de facto, and its regulations enforced by the courts. In regard to the appointment of a board of health in cities where the charter has already provided for such a board and regulating the appointment and powers of the same, it would seem clear that under the provision as it existed in section 1, chapter 167, laws of 1883, that the general law would not apply. The proviso in that section is that it shall not apply to any town, Secretary's Report. village or city, which, by its act of incorporation, shall have provided for the appointment of boards of health and health officers. The proviso contained in section 1, of chapter 291, laws of 1887, is not so definite, but reads that it shall not apply to any town, village or city in which a health board is organized and a health officer is appointed under the provisions of a special charter. It may be that this phraseology was changed for the very purpose of making the general law applicable where the city had not acted upon or carried out the provisions of its charter upon this subject, but I scarcely think that is the intention. It would no doubt be just as easy to compel a city to appoint such officers under the provisions of their charter as to compel them to appoint them under the general law. It is very doubtful what the court might hold upon this proviso, as contained in chapter 291, but I am inclined to the view that it would say that in the construction of laws it would be presumed that the board of health had been organized and a health officer appointed in cities where the charter so provided. Owing to a lack of time I have not given this subject perhaps, as comprehensive study as I ought in order to answer all of your questions, but in case there is anything which I have not covered, or which after further consideration you think should be examined further by this office, you are cordially invited to make such further inquiries as you deem advisable. Yours very truly, L. K. LUSE, It must be admitted that the work of both health boards and health officers is often performed under circumstances of great difficulty and subject to many embarrassmeuts. Diphtheria or some other form of contagious disease may appear in a household, the head and all the members of which are ignorant of its real nature and of the requirements of the law concerning it. The services of a physician who would recognize and report the disease seem to them unnecessary and it may be that the true character of the disease goes unrecognized entirely, or until pointed out by some better informed neighbor. Even with a knowledge of the character of the disease and of the law concerning it, the fact of its existence may be concealed lest the Health Officer should institute temporary quarantine, and thus prevent the rest of the family from going about their usual occupa Secretary's Report. tions, and by their means the contagion is often spread abroad in the community. Or it may be, as happened in one instance that came to the notice of this office recently, that an ignorant and obstinate man is suffered to go about at his pleasure when there are cases of contagious disease in his family, because his neighbors are unwilling to get his ill-will by having compulsory measures enforced and make a sort of tacit compromise with him and their own consciences, by virtue of which he is allowed to go to neighboring places and carry disease thither, on condition that he shall pay no visits to his immediate neighbors at home. Again, a city charter has been so drawn that the Board of Health is a merely ornamental appendage to the city government, having no power except as the common council may pass ordinances granting authority. The common council fails entirely to give the charter provisions effect, and the Board of Health stands comparatively powerless even in the presence of epidemic disease that might be promptly and easily controlled. Yet again there are cases in which the enforcement of quarantine measures means real hardship, perhaps, even suffering for the family primarily concerned while the community in which they live is made up of households very nearly in the same circumstances, so that the added burden imposed by the support of a quarantined family would be felt to some extent by all. It must, however, be said that such cases are rare in any part of Wisconsin, and that the towns are few in number where it would be a serious hardship, where, indeed, it would not be true economy to assume the support of a family for the limited time necessary to insure the general safety in the event of contagious disease. In countries like our own, where the necessaries of life are easily obtained, and where the general sentiment of the people, both public and private, is so decidedly unfavorable to Secretary's Report. pauperism, it certainly would seem better and wiser to assume a burden such as that just referred to for a reasonable time, than to run the risk attendant on permitting persons by whose means dangerous contagious disease may be spread throughout the community to go abroad at their own pleasure and to mingle freely with others. Still, the difficulties of sanitary administration must be admitted, and it is much to the credit of our local Boards of Health that they have been met with as much of success as they have been in a large majority of instances. One of the perplexities that have arisen has come from the confusion that seems to exist in some minds respecting the functions of the Health Board and those relating to the town charities. The following letter will illustrate this confusion very well. "I have a matter of considerable importance to which I wish to call your attention and concerning which I would like to have your advice. During an epidemic of Scarlet Fever I authorized the quarantining of all families in which that disease then existed, and in consequence of this authorization, two families were quarantined, one of them being that of a man with six children, all of whom had the disease, some severely and some lightly, the man himself and his wife having also some symptoms of it, such as a sore throat lasting some three or four days, etc. "For the first ten days or so, I did not consider it necessary to furnish nurses to assist in taking care of the family. After that time I made some effort to get a nurse, and reported the needs of the family to the other members of the Board, and they made some effort, but nothing more was done, and no nurse was procured until May 15, almost one month after restrictions were established. On May 5, this man, who is quite poor, it must be said, applied to the town or village corporation for assistance in supporting his |