157 Ind. 96 | Ind. | 1901
Petition by the State on the relation of Henry Fadley, commissioner of drainage of Henry county, Indiana, for a writ of mandamus to compel the board of commissioners and certain township trustees, appellees herein, to remove iron bridges which had been constructed over Blue river, a water course in said county. The defendants recovered judgment on their separate demurrers to the petition. From this judgment the relator appeals, and his sole contention is that under the facts alleged in the petition he is entitled to be awarded a writ of mandamus against appellees for the purpose above mentioned.
The following facts, among others, are averred in the petition: In September, 1899, certain resident freeholders of Henry county, Indiana, petitioned the circuit court of that county to establish a public ditch under and in pursu
The question presented is: Are the facts as stated in the petition sufficient to authorize the court, at the instance of the relator, to coerce by mandate the board of commissioners, or any of said township trustees, to remove, at the expense of the public, the bridges in dispute, in order to enable the contractor to proceed in the construction of the ditch as established by the court under the statute mentioned.
Section 1182 Bums 1894, §1168 Homer 1897, which is a part of the civil code pertaining to writs of mandate, provides: “Writs of mandate may be issued to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, or a duty resulting from an office, trust, or station.” We are not aware of any statute which, under the circumstances in this case, either expressly or impliedly makes it the official duty of
The statute by the authority of which the drain in question was ordered to be constructed fixes the duty and declares the powers of the commissioner of drainage, and it must he apparent that the relator as such commissioner is not shown, under the law when applied to the facts in this case, to possess such authority as will permit him to maintain this action. After giving the required notice, the drainage commissioner is by the statute authorized to let the construction of the ditch to the lowest and best bidder. §5626 Burns 1894. In this case, however, for some reason, it appears it was stipulated in the contract that the contractor should he relieved of the expenses and duty of removing these bridges. But conceding, without deciding, that the relator had the authority to embrace such a stipulation in the contract, he certainly by so doing could not cast the burden or duty upon appellees, or either of them, of removing the bridges at the expense of the public. The mere fact that the highways of which the bridges were essential parts may have been assessed with benefits in the drainage proceedings would not mate it the duty of appellees, or any of them, to remove these bridges. If their removal became necessary in order to
The petition does not state a cause of action against appellees, or either of them, therefore the demurrer of each was properly sustained.
Judgment affirmed.