Gould v. Keller , 36 S.D. 253 ( 1915 )

WHITING, J.

Plaintiff, a resident of Sioux Falls, sought a writ of mandamus to compel respondent, the health officer of said city, to remove a smallpox patient from relator’s home “to the pesthouse or city hospital, or some other safe and proper place.” The circuit court refused the writ, and relator appealed.

An ordinance of said city provided, among other things, as follows:

“Sec, 45. (Visitation of Sick — Infectious Disease.) It shall be the further duty of the health officer to visit and examine all sick persons who shall be reported to him as being sick or supposed to be sick with any infectious or pestilential disease, and 'cause all such infected persons to be removed -to the pesthouse or •city hospital, or some other safe and proper place. * * *

“Sec. 50. (Grounds and Buildings.) -The board of health, by and with the approval of’ the city council, may select, purchase, lease and establish such site, place or places for a pesthouse, or hospital, and may erect from time to time such buildings upon such sites or places, and keep the same in repair, as in the judgment of the said board' shall be necessary.”

The smallpox patient was an employe in the 'home of relator. The respondent received proper notice from relator, and visited the patient, but, instead of removing her from relator’s house, he quarantined such house. It appears that the city of Sioux Falls had no city hospital or pesthouse, and that it had not provided any other “safe and proper place” for the care of persons suffering from “infectious or pestilential disease.” Respondent alleged that he was powerless to doi more than he had done in this .case.

The trial court was clearly right in refusing the writ prayed for. It is not shown that there was any ordinance under which the respondent was provided with, or given the power to obtain, the means or funds necessary to provide a suitable place and the necessary equipment for the care of the patient in question. It is not shown that respondent as such officer 'had been provided with such means from any source. Sioux Falls is a city under commission. Nlo officer of such city can expend any of its funds unless the “appropriation ordinance” for the-current year provides a fund for the purpose for which the expense is sought to be made. Section 116, e. 119, Daws 1913. There is no showing that the said city had, by an “appropriation ordinance,” provided any fund upon which warrants could have been drawn to provide any place for the care of this smallpox patient. Certainly no officer should be compelled to perform any duty involving the expenditure of funds, where no funds have 'been provided with which to> meet such expenditure. How could respondent comply with -the writ pra5red for? He could not compel the commissioners of said city to provide a place, and he could not be compelled to provide a place at his own expense. We agree fully with the following.

“I-t does not necessarily follow, 'because a person has a clear legal right'which can only be effective by the act of another, that it is the clear duty of the latter to perform such act at the particular time and in the particular manner such person may demand it. It is fundamental that both conditions must exist, the right and the duty to act, before the extraordinary remedy can be successfully invoked. * * * Where the doing of the official act in question requires the expenditure of money, performance cannot be coerced by mandamus, in absence of a showing that money is presently available, applicable to do the particular matter.” State v. Waggenson, 140 Wis. 265, 122 N. W. 726, 133 Am. St. Rep. 1075; Miller et al., County Com’rs. v. State ex rel. Welch, 42 Kan. 327, 22 Pac. 326; 26 Cyc. 435.

The order appealed from is affirmed.