66 Ky. 144 | Ky. Ct. App. | 1867
delivered the opinion oe the court:
The appellants, as partners in the practice of medicine, filed a petition in the circuit court for a mandamus requiring the justices of the county court of Larue to levy a county tax to pay the amount of a medical bill for attending a poor free woman of color, who was confined with small-pox.
The petition alleges that one of the petitioners, at the request of the county judge, ratified and indorsed by the said justices, attended constantly and exclusively to the diseased woman, who was so isolated as to require his services as both physician and nurse; that the court of claims allowed the account for those services, and made a levy to pay one hundred and fifty dollars thereof, but refused to levy for the residue, referring the petitioners for payment of one hundred and ten dollars and eighty-four cents to an insufficient “ negro fund.”
The circuit court having dismissed the petition on demurrer, the case is now before us for revision.
The indebtedness being thus acknowledged, and the resulting duty to make a levy to pay it being, as hitherto adjudged by this court, merely ministerial, we have no doubt of the jurisdiction of the circuit court to compel the levy by mandamus. Nor do we doubt the legal authority of the county judge and justices to employ medical aid for the relief of their constituency from such a
The circuit court ought, therefore, to have overruled the demurrer, and issued a mandamus, unless the appellees had, by answer, controverted the material allegations and shown cause sufficient for withholding the writ, which is the appropriate and only adequate remedy in such a case.
Wherefore, the judgment is reversed, and the cause remanded for further proceedings consistent with the foregoing opinion, and with instructions also, if the levy for the one hundi’ed and fifty dollars shall have been suspended, to require it, too, to be made.
