
    Circuit Court for Multnomah County, At Chambers.
    August 26, 1868.
    CHANCY BALL v. J. H. LAPPIUS, City Marshal.
    'Mandamh. — Mandamus lies to compel an officer to perform an act -which, the law specially enjoins as a duly resulting from his office.
    Idem. — An ordimxnee passed in 1862, directing the city marshal of the city of Portland “to procure at the cost of the city” “ " •' * “a «mail-pox hospital, tho selection to he subject to the approval of the committee on health and police,” does not impose such an official duty on tho present city marshal as will be enfox-cod by xnandanxns.
    Idem. — Mandamus is proper oixly where a party has a legal right, and there is no other appropriate legal resnody.
    Idem — -The right must be certain, and clearly made out by the facts of tho ease.
    Discretion. — The granting or refusal of the writ is discretionary.
    Petition for writ of mandamus.
    Tus petition alleges that one Adam, “ a small-pox patient”, is, and for six days has boon, lying and being in a tenement building immediately adjoining the place of business of the petitioner in the city of Portland; that tho locality is thickly populated with men, women and children, and there is great danger oí said disease spreading among the "people. That the business oí the petitioner, and business generally in the vicinity has been suspended by reason of the presence of said disease.
    The petition cites a city ordinance passed in 1862, which ordains: 1st. “That the city marshal be, and he is hereby, required to procure, at the cost of the city, a suitable building at or near the outskirts of the city, for the purpose of a small-pox hospital, the selection to be subject to the approval of the committee on health and police.”
    2d. “That tho said marshal be, and he is hereby, further required to have removed, without delay, to said hospital any and all small-pox patients that may hereafter occur in this city.”
    A third section requires the marshal to procure medical and other attendance. The petition charges that the defendant is marshal of the city, and that, being requested, he refused to remove the patient.
   Upton, J.

filed the following opinion:

The writ of mandamus lies to compel an officer to perform an act which the law specially enjoins as a duty resulting from an office trust or station.'

• It may require the officer to proceed to the discharge of any of his functions, although such discharge involves an exercise of discretion and judgment, and a choice between different modes of proceeding; yet “it shall not control judicial discretion.” And it is safe to go further, and say it shall not control discretion, judicial or otherwise, which the law assigns to an officer. (Judges of Oneida v. People, 18 Wend. 97.) In such case the office of the writ is to compel the officer to act. The mode of acting is still to be determined by him in whom the law has lodged the discretionary power.

In determining on the necessity and propriety of the writ, it must be observed:

1st. Mandamus is proper only where a party has a legal right, and there is no other legal remedy. (Ex parte Nelson, 1 Cow. 423; 2 Hill, 45.)

2d. The right must be certain, and clearly made out by the facts of the case. (People v. Supervisors Chenango, 1 Kern. 563.)

3d. The granting or refusing of the writ is discretionary.

Van Rensselaer v. Sheriff of Albany, 1 Cow. 512.)

If it were established clearly that the law enjoined upon the defendant a positive duty to remove every small-pox patient to some known hospital now in existence, the case would present no difficulty. A writ would necessarily be issued upon refusal to perform the act enjoined. Andif it was certain that the law 'enjoined upon him the duty, and gave him the power, to provide a hospital; upon refusal he might be compelled by mandamus.

It is not alleged in the petition that there is a hospital, and, consequently, it must be assumed that there is not. This leads us to consider whether the marshal has power, and whether it is by law enjoined on him as a duty, to provide a hospital.

Tlie construction of the ordinance is open to doubt. It is not clear from its language, whether it intended more than to require of tlie marshal in office in 1882, to procure a building. And I think it not a lair interpretation of the language to hold that that marshal from time to time, and each successive marshal, is empowered by it to provide a new hospital, as often as the one provided sliall be destroyed, or as often as from any cause tlie city shall lack one.

Aside from this question, the marshal's selection is made “subject to the approval of the committee on health and police.” The marshal, then, is nob-empowered, on. Ms own motion and according to Ms own judgment, to procure a hospital.- Hi£ selection is subject to the approval or disapproval of another power. The city charter clothes the city council with power “ to make regulations to prevent the introduction of contagious diseases into tlie city, .and to remove persons affected with such diseases therefrom to srátal>le hospítala.”

The ordinance shows that it was not the intention of the council to divest themselves of control of this subject; but, on tlie contrary, the selection is subject to the approval of one of their committees, which is, in reality, holding it still mude]’ the control of tlie council, the committee being a constituent part of that body. It is true the council can not delegate their power to a committee, but if the committee approve, and so report to the council, the express or tacit assent of the council to the approval being had, it will be treated as the action of the council.

If, then, the marshal should make all possible effort, he has no power even to procure a hospital independently of the council.

I think it extremely doubtful whether the petition shows either that the marshal has tlie power, or that it is a duty enjoined on him by law to procure a hospital.

Generally a court does not take judicial notice of facts not shown by the record. But, as this class of applications has ever been considered addressed to the discretion of tlie court, and as it is in the first instance ex parte, I think it not unreasonable to revert to facts that are within theknowledge of the court,'and may be ascertained by examining its records and files in other cases. It is shown by those records, that shortly after the passage of this ordinance, a former marshal procured a hospital building, in pursuance of the provisions of the ordinance, which was used for hospital purposes by the' city, and which has since been destroyed; and that the council refused to approve certain of the marshal’s proceedings in that matter.

It is not certain, if the marshal should attempt to select another building, that the council would approve his act; and yet the petition ask$ that the marshal be compelled to select a building and remove the patient to it, on his own responsibility. The petition does not propose that he should simply select a building and report the selection to the council. In fact, that course would evidently be too dilatory to meet the wants of the petitioner. A mandamus should not be granted where it would be'unavailable. (People v. Supervisors of Green, 12 Barb. 217; 18 How. Pr. 305; 11 Id. 89.)

The subject of contagious dispases has by law been confided to the discretion and judgment of the city council, and a mandamus should not be granted to control that discretion. It should not be resorted to in this connection, unless it is clearly shown that there is an eyident neglect of duty or violation of law.

The writ must be denied.  