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Pauper Disease dangerous to Public Health Removal to State

Hospital Expenses of Transportation. The State Board of Charity is authorized by R. L., c. 85, $ 14, to direct

the local authorities to remove to the State Hospital a State pauper found within the limits of their jurisdiction who is afflicted with the disease of leprosy; and in case such removal is ordered, the expense of transportation must in the first instance be borne by the town, which is entitled to subsequent reimbursement from the Commonwealth“ for the excess over thirty miles by the usual route, at a rate not exceeding three cents a mile,” in accordance with the provisions of R. L., c. 85, $ 9.

MAY 10, 1904. J. F. LEWIS, M.D., Superintendent, State Adult Poor.

DEAR Sir :- You request my opinion upon the following questions relating to the removal to the State Hospital of an unsettled pauper now resident in the town of Harwich, and stated to be infected with a disease which is diagnosed as leprosy.

1. Has the State Board of Charity any authority, under the statutes, to order his removal from the town of Harwich ?

2. If the above interrogatory is answered in the affirmative, and the State Board of Charity orders the removal by the authorities of the town of Harwich, should the expenses of such removal be borne by the Commonwealth ?

It is my opinion that the State Board of Charity has authority to order the removal of such pauper to the State Hospital.

R. L., c. 85, § 14, provides :

No city or town officer shall send to the state hospital any person who is infected with smallpox or other disease dangerous to the public health, or, except as provided in section ten, any other sick person whose health would be endangered by removal; but all such persons who are liable to be maintained by the commonwealth shall be supported during their sickness by the city or town in which they are taken sick, and notice of such sickness shall be given in writing to the state board of charity, which may examine the case and, if found expedient, order the removal of the patient; but such notice in the case of sick persons whose health would be endangered by such removal shall be signed by the overseers of the poor or by a person appointed by them by special vote, who shall certify, after personal examination, that in their or his opinion such removal at the time of his application for aid would endanger his health. A city or town officer who knowingly violates the provisions of this section shall be punished by a fine of not less than fifty nor more than one hundred dollars.

The natural interpretation of this statute is, that “ all such persons who are liable to be maintained by the commonwealth” includes " any person who is infected with smallpox or other any other

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disease dangerous to the public health as well as sick person whose health would be endangered by removal." Moreover, the language of the requirement that " such notice in • the case of sick persons whose health would be endangered by such removal shall be signed by the overseers of the poor . . who shall certify . . . tbat .. such removal ... would endanger his health,” implies an intent of the Legislature that notice be required in the case of both classes of persons; and if the provision as to notice so applies, the provision as to ordering removals is also applicable.

Such seems to be the meaning of the section as it stands, and whatever may be the effect of Acts of 1902, c. 213, § 1, providing that “notice shall be given to the state board of health in accordance with the provisions of section fifty-two of chapter seventyfive of the Revised Laws,” which section is as follows:

If the board of health of a city or town has had notice of a case of smallpox, diphtheria, scarlet fever or of any other disease dangerous to the public health therein, it shall within twenty-four hours thereafter give notice thereof to the state board of health stating the name and the location of the patient so afflicted, and the secretary thereof shall forthwith transmit a copy of such notice to the state board of charity,

on the requirement of notice, it certainly does not repeal or revise the provision conferring authority to remove a pauper. Nor do the statutes providing for the care of persons infected with diseases dangerous to the public health (see R. L., c. 75, $S 35 to 58, inclusive ; Acts of 1902, c. 206) contain anything inconsistent with this view of the law.

It is my opinion, in reply to your second inquiry, that the town must bear the expense in the first place, and that the Commonwealth must reimburse such town for the expense of transportation, for the excess over thirty miles by the usual route.

R. L., c. 85, § 9, provides :

Cities and towns may, at their own expense, send to the state hospital, to be maintained at the public charge, all paupers who may fall into distress therein, and who have no settlement within the commonwealth. The city or town shall be reimbursed by the commonwealth, upon bills approved by the state board of charity, for the expense of transportation of each state pauper thus sent, for the excess over thirty miles by the usual route, at a rate not exceeding three cents a mile.

It appears from this statute that the town or city sending a State pauper to the State Hospital is entitled to be reimbursed for a part of the expense incurred. Payment for transportation expenses was authorized in Acts of 1852, c. 275, § 8, in the original statute establishing State almshouses. The first provision for payment applied to all paupers sent to such institutions, and no exception to the operation of the statute authorizing removals was made in the case either of persons whose health would be endangered or of those who were infected with dangerous diseases. Later statutes, beginning in 1855, made these exceptions. See Acts of 1855, C. 445, § 2; Acts of 1865, c. 162; P. S., C. 86, § 25; Acts of 1885, c. 211; R. L., c. 85, § 14 ; Acts of 1887, c. 440; R. L., c. 85, § 10; Acts of 1903, c. 213. In Acts of 1865, c. 162, and succeeding acts, including R. L., c. 85, $ 14, authority is given to the Board of Charity, in either one of these exceptional cases, to

examine the case, and, if found expedient, order the removal of the patient.” It is to be noted that the removal is to be “ ordered,” not made, by the Board, which leads to the conclusion that an order of the Board of Charity merely puts the case, otherwise within the exception, on the same footing as a case not within the exception. This being true, the provision for reimbursement under R. L., c. 85, $ 9, applies to a case in which the Board of Charity has ordered the removal. Additional ground for this interpretation appears in the fact that no greater reason appears why a town should bear the expense of transportation of a pauper within the special classes than of one who is not, and that it may fairly be assumed that the statutes regarding the exceptional cases were passed for the protection of the health of pauper and public, rather than with any idea of changing the burden of the expense of transportation. Very truly yours,

HERBERT PARKER, Attorney-General.

Statute of Limitations --- Assessment of Compensation for Dis

placement of Tide Water. The statute of limitations does not run against the Commonwealth in the

matter of the assessment and collection of the tax imposed under R. L., C. 96, § 23, upon the displacement of tide water.

May 11, 1904. Hon. WOODWARD EMERY, Chairman, Board of Harbor and Land Com

missioners. DEAR SIR: - The Harbor and Land Commissioners ask the opinion of the Attorney-General whether the statute of limitations will run against the Commonwealth in the assessment and collection of a tax for tide-water displacement under R. L., c. 96, § 23.

The statute is as follows :

SECTION 23. The amount of tide water which is displaced by any structure below high water mark, or by any filling of flats, shall be ascertained by the board, which shall require the persons who cause such displacement to make compensation therefor by excavating, under its direction, between high and low water mark in some part of the same harbor a basin for a quantity of water equal to that displaced; or by paying in lieu of such excavation an amount assessed by said board, not exceeding thirty-seven and one-half cents per cubic yard of water displaced; or by improving the harbor in any other manner satisfactory to the board; and the money shall be paid into the treasury of the commonwealth, and be reserved as a compensation fund for such harbor. The income thereof may be used under the direction of the board for the improvement of the harbor. An assessment for tide water which has been displaced may be recovered in an action of contract in the name of the treasurer and receiver general.

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R. L., c. 202, § 2:

The following actions shall, except as otherwise provided, be commenced only within six years next after the cause of action accrues :

First, Actions of contract founded upon contracts or liabilities, express or implied.

Section 17:

The limitations of the preceding sections of this chapter . . . shall apply to actions brought by the commonwealth or for its benefit.

When does the Commonwealth’s right of action to collect an assessment for a displacement of tide water accrue? Before the assessment of the Harbor and Land Commissioners the Treasurer has no legal means of ascertaining the amount of the Commonwealth’s claim and cannot sustain an action. His right, therefore, accrues at the date of the assessment. He must bring suit to collect the assessment within six years after it was levied.

No cause of action accrues to the Commonwealth until the Board of Harbor and Land Commissioners has made the assessment. Is the Board required to assess within six years after the displacement of tide water? The statute does not in terms limit the time.

The situation is somewhat similar to the case of an obligation which becomes fixed only upon the making of a demand. The doctrine has been stated by many courts that a person who is entitled to a payment after a demand which he may make when he chooses is bound to make demand within a reasonable time in order to preserve his rights as against the statute of limitations. In Shaw v. Silloway, 145 Mass. 503, it was said that this question had not been considered in Massachusetts.

In Campbell v. Whoriskey, 170 Mass. 63, the court said :

It has sometimes been held, or seemingly assumed, that, even if many years are permitted to elapse without a demand, the statute will not begin to run until the demand is made. . . . Under this doctrine, carried to its extreme limit, a liability to a suit upon a claim might continue for an indefinitely long time. The extreme doctrine in the other direction is that the “cause of action accrues for the purpose of setting the statute in motion as soon as the creditor by his own act, and in spite of the debtor, can make the demand payable.”... In some of the cases it is held that a demand must be made within a reasonable time, and that a reasonable time will not in any event extend beyond the statute period for bringing such an action. . . . In Codman v. Rogers, 10 Pick. 112, 120, Mr. Justice Wilde said: “A demand must be made within a reasonable time; otherwise the claim is considered stale, and no relief will be granted in a court of equity. What is to be considered a reasonable time for this purpose does not appear to be settled by any precise rule. It must depend on circumstances. If no cause for delay can be shown, it would seem reasonable to require the demand to be made within the time limited by the statute for bringing the action. There is the same reason for hastening the demand that there is for hastening the commencement of the action; and in both cases the same presumptions arise from delay." Although he was merely stating the doctrine of laches in a suit in equity, his language has been quoted and referred to in several of the cases above cited as stating the true principle applicable to actions at law....

We are of opinion that the true principle is that the time when the demand must be made depends upon the construction to be put upon the contract in each case, If the contract requires a demand without language referring to the time when the demand is to be made, it is as if the words " within a reasonable time" were found in it. What is a reasonable time is a question of law, to be determined in reference to the nature of the contract and the probable intention of the parties as indicated by it. Where there is nothing to indicate an expectation that a demand is to be made quickly, or that there is to be delay in making it, we are of opinion that the time limited for bringing such an action after the cause of action accrues should ordinarily be treated as the time within which a demand must be made. See Jameson v. Jameson, 72 Mo. 610. Such a rule seems fairly to apply the principles and analogies of the statute of limitations to the contract of the parties, and it is in accordance with the weight of authority in this Commonwealth and elsewhere.

Tbis doctrine of the Massachusetts court applies the principle of the statute of limitations by analogy to a case not included in the statute. It is an extension of the equitable doctrine of laches to a situation arising at common law. The question is whether this principle should be applied against the Commonwealth so that the Treasurer's action, brought to recover an assessment, must

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