State ex rel. Blue v. Waldo

• Decision Date: 01 May 1928
• Parties: THE STATE OF MISSOURI AT THE RELATION OF A. B. BLUE, RELATOR, v. E. E. WALDO, CITY PHYSICIAN AND HEALTH OFFICER OF THE CITY OF HANNIBAL, MISSOURI, RESPONDENT. [*]
• Court: Missouri Court of Appeals

5 S.W.2d 653

222 Mo.App. 396

THE STATE OF MISSOURI AT THE RELATION OF A. B. BLUE, RELATOR, v. E. E. WALDO, CITY PHYSICIAN AND HEALTH OFFICER OF THE CITY OF HANNIBAL, MISSOURI, RESPONDENT. ^[*]

Court of Appeals of Missouri, St. Louis

May 1, 1928

ALTERNATIVE WRIT QUASHED. PEREMPTORY WRIT DENIED.

ALTERNATIVE WRIT QUASHED. PEREMPTORY WRIT DENIED.

Plowman & Schofield, E. W. Nelson and Lewis O'Connor for relator.

Harrison White for respondent and The City of Hannibal.

Ben Ely, Jr., Prosecuting Attorney, for the Marion County Health Unit.

SUTTON C. Daues, P. J., and Becker and Nipper, JJ., concur.

OPINION

Mandamus. Original Proceeding.

SUTTON C.

This is a proceeding by mandamus originally instituted in this court. Upon the filing of relator's petition, the alternative writ of this court issued. Respondent's return thereto was duly filed. To the return relator filed a demurrer. The cause has been submitted here on the conceded facts as shown by the alternative writ, the return, and the exhibits filed.

Relator owns and operates a large dairy farm in Marion county, outside the limits of the city of Hannibal, and has hitherto sold large quantities of milk and milk products, produced on said farm, to customers in said city, and by this proceeding he seeks to compel respondent to inspect, test, and grade the milk and milk products, produced on his said farm and offered for sale or distribution in said city, and to issue to him such permit for the sale and distribution of his said milk and milk products as such inspection, testing, and grading will warrant. Respondent is city physician of said city of Hannibal, and relator claims that respondent is also ex officio health officer of said city, and that, as such health officer, it is his duty to inspect, test, and grade the milk and milk products produced on said dairy farm and offered for sale or distribution in said city, and to issue to relator such permit for the sale and distribution of his said milk and milk products as such inspection, testing, and grading will warrant. Respondent admits that he is city physician of said city of Hannibal, but denies that he is ex officio health officer of said city, and says that Dr. E. M. Lucke is the health officer, whose duty it is to inspect, test, and grade milk and milk products offered for sale or distribution in said city, and to issue permits for the sale and distribution of milk and milk products in said city. It is conceded on all sides that the duty of inspecting, testing, and grading, and the issuing of permits, is devolved on the health officer of the city, so that the real question involved in controversy here is: Who is the health officer, Dr. E. M. Lucke or respondent?

It is not disputed that Dr. Lucke has for two years performed all the functions of health officer of the city under elections by the city council, and that during that time the respondent has performed the functions of city physician only. Relator contends that the office of health officer does not exist as a de jure office independent of the office of city physician, and that, therefore, Dr. Lucke is not and cannot be health officer either de jure or de facto. Respondent contends that the office of health officer exists independent of the office of city physician, and that Dr. Lucke is health officer of the city de facto et de jure. He also contends that if Dr. Lucke is not health officer de jure, he is at least health officer de facto, so that in any event title to office is involved, which may not be determined in a proceeding by mandamus. In view of these contentions, we will consider the pertinent ordinances of the city, along with the facts as disclosed by the alternative writ, the return thereto, and the exhibits filed.

Section 1 of article 1 of ordinance No. 1, entitled, "An Ordinance Relating to Officers," enacted in 1924, provides as follows:

"Every person elected or appointed to any office under the city government, shall be a citizen of the United States, over the age of twenty-one years, and shall have resided in the city at least two years next preceding his election or appointment."

Section 7 of said article provides for the election by the city council of officers of the city annually as follows:

"Clerk, who shall also be Auditor and Purchasing Agent; Collector; Street Commissioner; Engineer who shall also be Sewer Commissioner; Physician; Assessor; Chief of Fire Department who shall also be Building Inspector; Humane Officer who shall also be Overseer of the Poor; and Inspector of Weights and Measures who shall also be Sanitary Policeman and Market Master."

Article 1 of ordinance No. 28, entitled "An Ordinance Concerning the Health Department and Board of Health," enacted in January, 1925, provides as follows:

. . . .

"Sec. 2. The board of health of the city of Hannibal shall consist of the city physician, city clerk, and three members of the city council, who shall be appointed annually by the mayor, and confirmed by the city council at the first meeting in June in each year, or as soon thereafter as may be, and any vacancies in said board may be filled at any regular meeting of the city council.

"Sec. 3. The city physician shall be president of said board of health, and health officer and the city clerk shall be the secretary thereof; the marshal shall attend all their meetings, serve all notices required by them, and make due returns thereof, and shall report to them all matters pertaining to the public health, which in his opinion, require their attention. . . .

"Sec. 5. The board of health shall have supervision of the general sanitary condition of the city, shall have the power, either personally or by officers delegated by them, to examine and inspect all cellars, sewers, privies, gutters, alleys, pools or stagnant water, and all other places which are, or are likely to become prejudicial to the public health, and shall have the power to give orders, to the person owning or in possession of the premises on which said conditions may exist, to abate the same within a specified time, or take such action in relation thereto, as, in their opinion public health may require."

Article 2 of said ordinance No. 28 provides as follows:

"Section 1. It shall be the duty of the city physician, who shall be a licensed and practicing physician, to report to the board of health all nuisances or other causes which in his opinion are likely to be detrimental to the general health of the city, and upon being informed of the existence or introduction of any contagious or infectious disease within the city, to inquire immediately into the facts and proceed at once to take such action in relation thereto as may be required and to report the same to the board of health.

"Sec. 2. The city physician shall be the health officer of the city and shall attend the meetings of the board of health and act as a member thereof, and report to that body all matters which he may deem important and give such information as the said board may desire in relation to the sanitary condition of the city, and see that all orders of the said board are enforced and obeyed.

"Sec. 3. The city physician shall attend and minister to such indigent persons as he may be directed by the mayor, board of health, or humane officer and overseer of the poor, and to visit and administer to prisoners sick in the city workhouse, or calaboose, and shall perform all other duties required of him by law or by the mayor or board of health, or council, without extra compensation; he shall at all times keep on hand a sufficient supply of vaccine matter, and see that all persons, so far as he may have it in the power, are properly vaccinated.

"Sec. 4. The health officer shall have general control of the health department, and all officers and employees connected therewith, under the supervision of the board of health; he shall have general supervision of all matters pertaining to public health in the city of Hannibal, enforce all ordinances, rules and regulations pertaining thereto, and shall be held responsible for the conduct and faithful discharge of the duties of all employees in the health department. The health officer as executive of the health department, shall personally see that all infected houses are properly fumigated, and shall at all times be under the supervision and direction of the board of health, in the performance of his official duties.

"Sec. 5. It shall be his duty to make either chemical or bacteriological examination of all specimens of food, water, sputum, urine, blood or other specimens as may be directed by the board of health.

"Sec. 6. He shall keep a correct record of all particles submitted to him for analysis or examination and report the result of conditions found to the board of health in writing. In event of prosecutions in court, he shall present and testify as to results found in any given case."

Section 4 of article 3 of said ordinance No. 28, provides as follows:

"No person having any of the diseases mentioned in section 1 of this article or any other infectious disease and any one attending on the same, except the physician, shall knowingly, wilfully or carelessly expose others before he or she or they procure a certificate from the city physician that the term of infection has passed; nor shall any person put out or remove from the premises occupied or owned by him, an infected person, before the term of infection has passed. No person who is under quarantine, by order of the city physician or board of health, shall leave such place of quarantine or isolation until released therefrom by the city physician."

Section 2 of article 8 of said ordinance No. 28 provides that the sanitary policeman shall be vested with power...