State ex rel. Cutter v. Kamman

• Decision Date: 02 November 1898
• Docket Number: 18,522
• Citation: 51 N.E. 483,151 Ind. 407
• Parties: State, ex rel. Cutter, v. Kamman, Trustee, et al
• Court: Indiana Supreme Court

51 N.E. 483

151 Ind. 407

State, ex rel. Cutter, v. Kamman, Trustee, et al

No. 18,522

Supreme Court of Indiana

November 2, 1898

From the Ohio Circuit Court.

Reversed.

J. B Coles and G. B. Hall, for appellant.

Rodman L. Davis and John L. Davis, for appellees.

OPINION

Monks, J.

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 which the road district is situated, touching the highways and bridges therein and keep the same in good repair." Section 6828, Burns' R. S. 1894 (5077, Horner's R. S. 1897), provides that "Such supervisor, within ten days after the receipt of any money which he is not required to pay over to the township trustee, shall proceed to employ laborers to repair the highways in his district, but shall not pay more to such laborers than is customary in his district for similar purposes, and such supervisor shall attend such repairs, but in no case shall such supervisor neglect to repair such highways, and if such labor and tax, or labor where no tax has been assessed, shall be insufficient therefor, he shall call out the hands in his district to complete such repairing; and if any person so called out shall refuse to work, he shall be liable to pay the commutation money therefor, and it shall be the duty of the supervisor to bring suit for the same as provided in this act." Section 6838, Burns' R. S. 1894 (5088, Horner's R. S. 1897), provides, that "in case such supervisor shall fail to use due diligence in keeping the highways of his district in good repair, under the regulations herein prescribed, * * for every such offense he shall forfeit the sum of ten dollars, to be recovered before any justice of the county, in the name of the township, by the trustee of such township, and all sums so recovered shall be for the benefit of the district for which such supervisor was elected or appointed, and such trustee shall bring suit within three days after receiving any information of any such forfeiture."

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. If a highway is out of repair, the statutes require that he place the same in good repair. The plan and manner of making the repairs, and the material used in making the same may rest in his discretion; but his duty to put the same in good repair is a public duty, and is imperative, and not discretionary. Under such circumstances, if the law furnishes no other adequate remedy, mandamus will lie; and any person having an interest in the matter can, as relator, maintain the action. Henderson v. State, ex rel., 53 Ind. 60, 63, and cases cited; Holliday v. Henderson, 67 Ind. 103; Hamilton v. State, ex rel., 3 Ind. 452; Wampler v. State, ex rel., 148 Ind. 557, 563, 564, 47 N.E. 1068; Manor, Auditor, v. State, 149 Ind. 310, 313, 49 N.E. 160, and cases cited; Larkin v. Harris, 36 Iowa 93; Patterson v. Vail, 43 Iowa 142; People v. City of Bloomington, 63 Ill. 207; Hammar v. City of Covington, 3 Metc. (Ky.) 494; People v. Thompson, 32 Hun 93; Borough of Uniontown v. Com., 34 Pa. 293; 14 Am & Eng. Ency. of Law, 166, 167; 7 Lawsons Rights, Remedy & Prac., section 4031; Dane v. Derby, 54 Me. 95, 89 Am. Dec. 733.

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 to 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 not lie. The fact that a party is liable to indictment and punishment, or to a penalty or forfeiture, which may be recovered in a civil action for his failure or refusal to perform a duty imposed by law, does not constitute any objection to the granting of the writ, for the reason that such proceedings cannot compel the performance of official duty, and therefore such remedies are not adequate. People v. Mayor, etc., 10 Wend. 395, 398, and cases cited; California, etc., R. R. Co. v. Central Pacific R. R. Co., 47 Cal. 528, 531; Babcock v. Goodrich, 47 Cal. 488, 508; Fremont v. Crippen, 10 Cal. 211, 70 Am. Dec. 711; State v. Holliday, 8 N.J.L. 205; In re Trenton Water Power Co., 20 N.J.L. 659, 660; State v. Wright, 10 Nev. 167; State v. North Eastern R. R. Co., 9 Richardson Law 247, 67 Am. Dec. 551; LaGrange v. State Treasurer, 24 Mich. 468; People v. State Treasurer, 23 Mich. 499; Tawas, etc., R. R. Co. v. Iosco, Circuit Judge, 44 Mich. 479, 7 N.W. 65; 14 Am. & Eng. Ency. of Law, 102, 103, and cases cited in note 4, p. 103. So far as State v. Yant, 134 Ind. 121, ...