
    JUDICIAL DUTIES OF TOWNSHIP TRUSTEES.
    Common Pleas Court of Montgomery County.
    A. C. McNelly v. Clay Township et al.
    
    Decided, 1910.
    
      Bitches — Determination by Township Trustees as to Character of Work Done by a Contractor a Judicial Act — Discretion of Trustees — :Injunction — Section 6606.
    
    1. The action of township trustees in passing upon the acceptability of work done by a contractor in the relocation of a ditch is judicial in its nature, and not ministerial.
    2. In the absence of a showing of fraud and bad faith or irreparable injury, a court of equity will not interfere by injunction to restrain or control trustees in such action.
    
      J. W. Kreitzer, for plaintiff.
    
      B. B. Nevin and E. G. Denlinger, contra.
    
      
       Affirmed by the Circuit Court without opinion.
    
   Snediker, J.

This case is before the court on its merits for the allowance of a permanent injunction.

One of the principal questions for our consideration in the case is whether the act of the township trustees in passing upon the acceptibility of the work on the ditch in question is in its nature judicial or ministerial.

The necessity for the re-location of the ditch, was first called to the attention of the trustees by the filing of the petition of A. C. McNelly and others. This was done under favor of Section 4514 of the Revised.Statutes (Section 6606, General Code). The proceedings of the trustees on the petition, and their finding that such re-location was necessary and advisable and should be ordered, was undoubtedly judicial, involving as it did a submission to them of a thing requiring the exercise of judgment and discretion, so much so that their decision is declared by law to be appealable to the probate court, which may retry the question, as provided by Sections 4533 to 4539. This finding of the trustees was not appealed from, and after certain proceedings required and defined by law and agreed to by all the parties interested were had, the work of constructing the ditch was sold to the defendant, Jesse Landis, who went forward with it as soon as he came into possession of the necessary materials.

From, that time on the work continued, with some interruptions!the. duty devolving upon the trustees of passing upon it. This they were bound and privileged to do for two reasons:

First. Because as public officers representing the township the law places upon them the obligation to see that all public work coming within their jurisdiction is faithfully completed and to their satisfaction. With reference to this particular work the statute is specific in that regard.

Second. They were so bound to pass upon the work because of the provisions found in the specifications and contract for the work, that it should be “to the satisfaction of the trustees.”

The contractor therefore had the right to demand their approval or disapproval, and was bound by it alone on final submission of his work either as a whole or in part. Their determination as to the completeness and satisfactory performance of the work involved on the part of the trustees the exercise not only of knowledge, but of both judgment and discretion.

The evidence in this case shows how different minds differ as to what is proper and necessary in this class of work, and gives ample room for the use of both judgment and discretion. It became necessary for them to use knowledge acquired' by experience in like work; judgment in applying such information to the work before them, and discretion in determining the fact as to whether the work was performed substantially in such manner as to carry out the objects of the construction — promotion of the public health, convenience and welfare — and in accord with the specifications.

Beiing public work they as officers, and not any individual, must determine these questions, within the authority given them.

To say that this is merely a ministerial act would be to hold that there is to be no exercise of judgment or discretion on their part, and thus make it impossible for them to do the very thing required Of them. '

“A ministerial duty is one which involves simply the following of instructions.” Rapalje & Lawrence Law Dictionary.

“A ministerial act may be defined to be one which a person performs in a given state of facts in a prescribed manner’ in obedience to the mandate of legal authority without regard to the exercise of his own judgment upon the propriety of the .act being done.” 66 O. S., 618; 17 Ind., 169.

“A duty is ministerial when the law exacting its discharge prescribes the time, mode and occasion of its performance with such certainty that nothing remains for judgment or discretion. Official action the result of certain specific duties arising from fixed and designated facts is a ministerial act.” 100 Ala., 42.

On the other hand, “A judicial duty involves the exercise of judgment and discretion.” Rapalje & Lawrence Law Dictionary; 112 Cal., 603.

“An. official duty involving the determination of facts is a judicial one.” 36 Miscel. (N. Y.), 258.

‘ ‘ When an act to be done by virtue of public authority requires the exercise of judgment and discretion, it is a judicial act.” 22 Barb., 137, 140.

“A purely ministerial duty is one to which nothing is left to discretion. Where the officer is clothed with discretionary powers and is required to act upon his own judgment, the act is a judicial one.” 73 N. Y. Supp., 306-307.

Discretion is defined in 18 Wendell, at page 99, as follows:

“It means, when applied to public functionaries, a power or right conferred upon them by law, of .acting officially in certain circumstances, according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others.”

The authorities are numerous which follow the above definitions. These are simply selected as sufficient for the purpose.

In view of the law under which the trustees are acting and of the duties imposed upon them, our opinion is that their act in passing upon this work is in its nature judicial.

This being true, the next question which presents itself is, as to whether the trustees can be controlled in the exercise of this .function.

High, in his work on Injunctions, says at Section 1311:

"It is important to observe that courts of equity do not interfere by injunction for the purpose of controlling the action of public officers constituting inferior quasi judicial tribunals, such as boards of supervisors, commissioners of highways, and the like, on matters pertaining to their jurisdiction. * * * A court of equity will not interfere with the exercise of their discretion, unless a strong ease of fraud or irreparable injury is shown. And where they have exercised their discretion and made their decision in good faith, and without any intent of injuring or oppressing private persons, an injunction will not be allowed against their action.”

In the 34 Penn. State, page 384, the court in speaking of the acts of road commissioners, which were there called in question, say:

‘ ‘ The road commissioners are intrusted with the jurisdiction of such matters, and are to decide both upon the need of such work, and upon the mode of doing it; and we are not clear that we ought, in any ease, to control them by injunction, where they have authority to act.”

At Section 990 in Mechem on Public Officers, the author says:

‘ ‘ In determining the cases in- which a public officer may be restrained by injunction, it may first be noticed that the writ will not be granted to restrain a public officer from acting where he is proceeding by the authority and in pursuance of the law regulating his powers and duties, unless such law be unconstitutional or otherwise invalid. What a valid law authorizes the officer to do, the courts will not undertake to prevent, even though it be alleged that the officer is actuated by unworthy motives. ’ ’
.Section 991.. "So it is well settled that where the law invests public officers with discretionary or quasi judicial powers in reference to matters within their jurisdiction, courts of equity will not interfere by injunction to restrain, control or review' the ex-er'cise of the powers so conferred.” - . . - - • .

At Section 945:

“Where the law imposes upon a public officer the right and duty to exercise judgment or discretion in respect to any matter submitted to him or in reference to which he is called upon to act, it is, of course, his judgment or discretion that is to be exercised, and not that of any other officer or court. Courts, therefore, will not attempt by mandamus to compel the officer vested with such discretion to exercise it in any particular way, or to come to any particular decision, or to revise or alter his judgment when he has once exercised it. ”
22 Cye., page 879: “Where public officials are intrusted with discretionary power in certain matters, their exercise of such discretion will not be controlled by injunction in the absence of any showing that their action is fraudulent or in bad faith. ’ ’

These authorities make it clear that the plaintiff must show either bad faith and fraud or irreparable injury to move the court in this case.

Irreparable injury he does not claim in his petition, nor has he proven it.

With respect to fraud and bad faith, his allegations are ‘ ‘ that he believes and has reason to believe that they (the township trustees) are in some way interested with the defendant Landis in the construction of the ditch.”

There was a total absence of proof bearing out this charge. Nor is it necessary to say that taking all the testimony together were such conditions proven as would warrant a fair inference of its truth.

That there is an honest difference of opinion as to the character and efficiency of the work up to this time is apparent from an examination of the testimony of the different witnesses, both lay and expert. We do not understand that under the state of facts it is our duty to decide which is the correct view. It would be idle to discuss and determine what has been done or should be done on the ditch, if we may not enforce our views, which it seems is true.

The trustees were present during the taking of all the testimony and ought to be able, therefore, to better exercise the discretion which the law gives them in the matter, and which we ought not and can not take from them, and which they should treat as a public trust faithfully to be performed.

Another claim of the plaintiff is for damages by reason of the manner in which the ditch has been constructed.

Following the authorities found in the brief of defendants we can not say that plaintiff has a cause of action against the township. So far as the trustees are concerned the conditions do not warrant a recovery against them.

Section 4550 provides for action against the trustees for damages arising from a' failure to perform any duty imposed upon them by chapter 2, title 6, but we do not understand plaintiff’s claim to be of the character intended by this section. Even if it were so, original jurisdiction is in the justice of the peace.

As to the contractor, he sustains no contract relation with the plaintiff, and as the agent of the township he ought not to be charged as for a tort when obeying 'the instructions of the trustees as to the proper method of completing his contract.

However, whatever damages plaintiff has so far sustained were not proven to be of any great amount, and may be said to be incidental to work of this character.

We are of the opinion that the prayer of the plaintiff’s petition should be denied, which is accordingly done.  