133 Minn. 160 | Minn. | 1916
The defendants, composing the town board of the town of Lake Fremont, Martin county, demurred to the petition of plaintiffs and the alternative writ of mandamus issued thereon, on the ground that the facts stated in the petition and writ did not constitute a cause of action. The court overruled the demurrer, and certified that the questions presented were important and doubtful.
Appellants assert that the petition and writ should have been directed against the town and not against the individuals of the town board. Section 8266, G. S. 1913, provides: “The writ of mandamus may be issued to any inferior tribunal^ corporation,- board, or person to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust or station.” Section 2525, G. S. 1913, reads: “The town board of each town shall have general care and supervision of all town roads therein, and such care and supervision of county roads therein as is prescribed by the provisions of this act, and shall procure machinery, implements, tools, stone, gravel and other material for the construction and repair thereof.” It is thus seen that the law places upon the persons
It is said that if defendants may be sued as officers, their duties in respect to repairs of roads involve the exercise of discretion, and, as to discretionary duties, mandamus does not lie. While courts do not undertake to control the manner in which official acts of a discretionary nature are to be performed, still mandamus will lie to set discretion in motion. If therefore the petition and writ show that there is a refusal to exercise any discretion whatever, or if it is made to appear that the discretion has been exercised in a clearly arbitrary and capricious manner the lower court-should be sustained in its ruling.
But there is also’the well-settled rule that mandamus is an extraordinary remedy to be granted only in case the petition shows a clear right thereto. Have plaintiffs so done in this case ? In State v. City Council of Brainerd, 121 Minn. 182, 141 N. W. 97, 46 L.R.A.(N.S.) 9, there was quoted with approval this rule from State v. Anderson, 100 Wis. 523, 76 N. W. 482, 42 L.R.A. 239: “Before the petitioner for a writ of mandamus is entitled thereto, he must show more than that there is a public wrong specially injurious to him. He must show that such wrong consists of some failure of official duty clearly imposed by law, and that there is no
Applying the foregoing principles, do the petition and writ state a case against defendants? Therein it is charged that in round numbers $1,000 had been expended upon the roads during 1915, and there was in the middle of October $2,000 in the treasury of the town available for road purposes. Then it is alleged that the time for working roads and placing them in proper condition for travel during 1915 is far spent, "and the time is short for additional work to be done on the roads of said township, the same being in a bad and impassable condition in the following places, to wit: a strip of road lying along the north line of section 8,” then fol
In addition to the duties imposed by section 2525, supra, we have these provisions found in sections 2491, 2492, and 2493, Gf. S. 1913. “The town through which any county road may pass shall maintain and keep it in repair under the rules and regulations of the highway commission * * * All town roads shall be located, constructed, repaired and maintained by town boards, provided that the county boards may aid in the construction, repair and maintenance of such roads. The town board may appropriate money from the town road and bridge fund to aid in the construction or improvement of any road within the town which has been designated as a state road * * • * the town board of any town may appropriate and expend such reasonable sums as it may deem proper to assist in the improvement and maintenance of roads lying beyond its boundaries and leading into it, and of bridges thereon, whether they are within or without the county in which it is situated.”
We note that it is not stated whether the eight strips of road referred to are cartways, town roads, county roads or state highways; indeed,,only inferentially are they to be considered parts of public roads. Although it is stated these roads “have remained and still remain in practically an impassable condition * * * and that through the negligence, indifference and carelessness of the said town board, said roads have so re-
The writ issued October 16, 1915, and was made returnable December 3, 1915. • This makes it almost a moot case. Little could be done by the present defendants between October 16 and the hearing, and it is certain that in this climate nothing at all could have been accomplished by them, prior to the expiration of their term of office, had a peremptory writ issued on the return day. In this aspect it may be of importance that the action is not-brought against either the town or the town board but against the individuals whose tenure of office is limited.
The cases relied on by plaintiffs are not in point or are based upon statutes widely different from ours. In State v. Board of R. & R. Com. Mobile Co. 180 Ala. 489, 61 South. 368, the board erroneously concluded that certain territory did not come within its jurisdiction and therefore no discretion at all was exercised in the matter. The writ was held proper. In State v. Kamman, 151 Ind. 407, 51 N. E. 483, failure to repair had existed for over a year, and the statutes of Indiana are exceedingly specific and drastic in respect to the duty of the road supervisor to make road repairs, but they are also liberal in respect to his right to obtain the necessary funds. People v. City of Bloomington, 63 Ill. 207, was a case where mandamus was held to be the proper remedy to compel the officers whose duty it was to prohibit obstructions in public streets to remove the same in a specified street. It meets with no difficulty to coerce by writ of mandamus the performance by an official of such specific duty as the removal of an obstruction in a public highway when such duty is by law placed upon him.
Our conclusion is that the demurrer was well taken. Order reversed.
On June 23, 1916, the following opinion was filed:
In the petition for rehearing great stress is laid upon the proposition that “an applicant for mandamus must, plead his facts with the same certainty, neither more nor less, than is required in ordinary actions at law.” We attempted to make clear that while the town board is charged with the care of public roads the" duty is one involving judgment and dis
The petition for a rehearing is denied.