foreclosure of the chattel mortgage by the defendant Winans, and a sale of the property mortgaged in such order as would protect complainant in his purchase if the other property should be sufficient for the satisfaction of the Winans lien. But no such foreclosure could be had until the mortgage debt was due; and this, as has been seen, was not the case.

The circuit judge ordered the bill dismissed. He had, we think, no alternative, and the decree must be affirmed with costs.

The other Justices concurred.

EZRA A. ENGLE V. HIRAM L. CHIPMAN.

Services in aid of prosecuting attorney.

In an action against a prosecuting attorney for legal services rendered
by plaintiff as his assistant, proof that defendant promised to tell
the supervisors that the bill was right, and ought to be paid, is no
evidence of a recognition of personal liability, or of the actual ren-
dering of the services.

A general delegation of his powers by a prosecuting attorney is against
public policy, and is illegal; and it can furnish no basis which a
court will recognize for any action by the person to whom the
powers were delegated for personal compensation for his services.
A prosecuting attorney is vested with a personal discretion as a minister
of justice and not as a mere legal attorney, and he must act impar-
tially, as well in refraining from prosecuting as in prosecuting. He
must guard the real interests of public justice in behalf of all con-
cerned, and he must not become entangled with private interests or
grievances in any way connected with charges of crime.

A prosecuting attorney may, perhaps, employ assistants in ways not in-
volving his official discretion or responsibility, but this discretion
can only be delegated on special grounds, where an assistant has
been provided for by law.

Error to Huron. (Wixson, J.) October 4.-October 17.

ASSUMPSIT.

Plaintiff brings error.

Affirmed.

Engle & Engle for appellant.

Chipman & Bope and William T. Mitchell for appellee.

CAMPBELL, J. Engle sued Chipman for legal services claimed to have been rendered as agent of Chipman in matters relating to his duty as prosecuting attorney of Huron county. His claim was in substance that having declined to act in certain cases specified, without general authority, this authority was given him, and he acted accordingly. His bill of particulars contained ten items of services in criminal proceedings. He testified that he showed his bill to Chipman, who, after examining it, told him to file it with the board of supervisors, and if they raised any question about allowing the bill he would tell the board the bill was right,— that plaintiff had rendered the services and should have his pay. This was denied by defendant.

The jury found a small verdict in plaintiff's favor, but rejected most of his claim. We do not think it necessary to go at length into the questions presented by plaintiff, because, as pointed out by counsel for defense, the record does not show any case made out at all. We find nothing to show that any services were rendered, nor thei value if rendered. The fact, if true, that defendant promised to make certain representations to the supervisors is no evi dence of any recognition of personal liability, and no evidence of the actual rendering of the services. And in the absence of any further showing-inasmuch as it devolves upon plaintiff to show error-we can see nothing to base objections upon.

But we are also of opinion that if the agency created was such as plaintiff claims it to have been, it was illegal. No doubt a prosecuting attorney may employ assistants in various ways not involving his official discretion or responsibility, and this is all that defendant admits he ever did. But the law has very carefully guarded the criminal interests of the State from any interested or unauthorized intermeddling. The prosecuting attorney is a very responsible officer, selected by the people and vested with personal discretion

intrusted to him as a minister of justice, and not as a mere legal attorney. He is disqualified from becoming in any way entangled with private interests or grievances in any way connected with charges of crime. He is expected to be impartial in abstaining from prosecuting as well as in prosecuting, and to guard the real interests of public justice in favor of all concerned. This discretion is official and personal, and our laws have only allowed its delegation on special grounds, where an assistant has been provided for by carefully guarded legislation. It is directly contrary to public policy to allow any general delegation of a prosecutor's powers, and the courts cannot recognize any such arrangement as forming a basis for personal compensation. For all these reasons we must decline to disturb the verdict.

The judgment must be affirmed with costs.

The other Justices concurred.

ANNA RAE V. THE MAYOR AND ALDERMEN OF THE CITY OF

FLINT.

Public health-Nursing.

The charter of Flint requires the common council to take measures for the preservation of the public health. Act 145 of 1879 makes the council the board of health where no other board is appointed. Held, that a nurse employed by the council to care for small-pox patients was entitled to compensation from the city, even where the patient was of sufficient ability to pay for the service himself; and Comp. L., § 1706, making the cost of services rendered to such persons an individual liability, does not exempt the city from the im mediate liability, if, indeed, it applies at all in cases of public emergency.

The obligation and the power of a city council to act as a board of health and prevent the spread of contagion is not lessened by their omission to create a separate board of health, and their power is a police power, and is commensurate with their duty.

Error to Genesee. (Newton, J.) Oct. 5.-Oct. 17.

ASSUMPSIT.

Defendant brings error.

Long & Gold for appellant.

Affirmed.

Howard & Thayer for appellee, cited as a similar case indicating that the city was primarily liable, City of Clinton v. County of Clinton (Ia.) 16 N. W. Rep. 87.

GRAVES, C. J. The plaintiff acted for many weeks as a nurse of small-pox patients in the city of Flint. The service was onerous, responsible and dangerous. She charged the city for it, and called for payment which was refused. She sued and obtained a verdict. The jury found, on satisfactory evidence, that her employment was by authority of the common council and that she rendered the service on the faith of that employment.

The only question open to discussion is whether the procurement of her assistance was within the power of the council. If it was, the city is liable and the judgment is regular.

In the course of the argument several statutes have been referred to. The citations need not be repeated. The power is not left to implication. The law is express. In the first place, the charter requires the common council to adopt measures for the preservation of the public health, and specifies as one of those measures the institution of a board of health. Act 372 of 1867 sec. 19. In the next place it is provided by a general act that in any city where no board of health is actually organized, the duties, powers and functions shall belong to the mayor and aldermen. Pub. Acts 1879, Act 145, amending the general law. The city of Flint did not see fit to create a board of health as a distinct agency, but elected the policy authorized by the statute of 1879. The whole duty and the whole anthority remain, therefore, in the common council. No part of either was transferred. The duty to guard the public health and prevent the spread of contagion was imperative,

and the power of the cominon council was commensurate with the duty. Neither the power nor the obligation could be lessened by the failure to designate a sub-agency.

An objection is raised that the persons cared for were of sufficient ability to defray all the expense, and that the plaintiff should be required to obtain her compensation from them, and a provision in the general statute is cited. Comp. L. § 1706.

It is not admitted that this provision is operative in the city of Flint. But if it is, it will not sustain the point for which it is cited. In providing that what is done shall be at the charge of individuals, it is not intended to exempt the public from immediate liability. It would be impossible under such a regulation to effectuate the general object. Individuals would not be willing to provide necessaries and serve as nurses and assistants, at the instance of the public, if compelled to collect their pay of the patients or their relatives. The public is first and immediately responsible, and the intent of the statute is to enable the public to obtain reimbursement from those who ought to sustain the

expense.

The plaintiff hired herself to the city. She trusted the city and no one else. The occasion was a public one. It was an emergency to which the duty and authority of the common council attached under the power of police, and the right and duty to act depended in no manner on the pecuniary ability of the persons who were sick or infected. The great object was to stay the contagion, and the proper and humane care of the individuals was a righteous incident. The question is not affected by any of the other provisions. We are satisfied that the council was fully authorized to employ the plaintiff, and that the city is liable.

The judgment should be affirmed with costs.

The other Justices concurred.