This action was brought by appellant to compel, by writ of mandamus, appellee Obertate, a road supervisor, to repair a part of a certain highway in his road district, and appellee Kamman, trustee of said township, to sue said Obertate for the statutory penalty for his failure to keep said highway in repair. An alternative writ was issued, and appellees each moved to quash the same, and also filed a demurrer for want of facts, to the petition for the alternative writ. The motions to quash the alternative writ and the demurrers to the petition were sustained by the court.
The errors assigned call in question said rulings of the court below. If, under the statutes, it rests in the discretion of road supervisors whether they keep the highways in the road districts in repair, it is concluded that the demurrers and motions of appellees were properly sustained. Section 6818, Burns’ R. S. 1894 (5068, Horner’s R. S. 1897), provides, among other things, that the road supervisors “Shall carry into effect all orders of the trustee of the township in
These sections of the statute plainly impose upon ■a road supervisor the duty to keep the highways in his district in good repair, and he is authorized to call out the hands of the district to complete the repairing if the labor and tax are insufficient therefor.
In Borough of Uniontown v. Com., supra, it was held that as the borough was of common right bound to keep its streets in repair, it could be compelled tó do so by mandamus. In Larkin v. Harris, supra, and in Patterson v. Vail, supra, it was held that, as it was the duty of a road supervisor to remove all obstructions from a highway, and keep the same in repair, mandamus was the proper remedy to compel him to perform this duty.
Appellees insist that if they failed to keep the highway in repair, as alleged, they were liable to a fine of not less than $5 nor more than $100 each, under the provisions of section 2148, Burns’ R. S. 1894 (2061, Horner’s R. S. 1897), and that this constituted an adequate legal remedy, and therefore mandamus would.
It is next insisted by appellees that it is not averred that the adjacent landowner had, not removed the alleged obstruction to the highway, as it was his duty to do under the statute. It is alleged in the petition and alternative writ: “Which part of said road * * * is in an almost impassable condition by reason of its being washed into gulleys, and the deposit of driftwood, stones and other debris thereon, by heavy rains, and has so remained for more than twelve months last past.” It is clear from this allegation that the highway was in the condition alleged when the action was commenced, and had been in that condition for more than twelve months before. Even if the alleged gulleys were not an obstruction of the highway within the
Appellees cite Mayor, etc., v. Roberts, 34 Ind. 471, as holding the contrary; but that case is not in point here, as it only holds that whether an improvement shall or shall not be made, and paid for out of the general fund in the treasury of the city, is a matter in which the judgment of the city council cannot be reviewed by the courts in a proceeding by mandamus, for the reason that courts cannot review the discretion of such bodies by mandate. Section 6838 (5088), supra, provides that the township trustee shall bring suit within three days after receiving notice of the failure of the supervisor to use due diligence to keep the highways of his district in repair. The allegation that the said highway has been in the condition alleged, and on that account almost impassable for more than one year, was sufficient to show that the supervisor'had failed to use “due diligence in keeping the highways of his district in good repair.” This statute is peremptory and no discretion is left to the trustee. Mandamus will, therefore, lie to compel the performance of such duty. It is suggested in State v. Yant, supra, on p. 127, that such a remedy might be proper.
The assignment of errors presents no question as to