
    Board of Trustees of Mifflin Township v. The State, ex rel. Tucker.
    (Decided September 24, 1930.)
    
      Messrs. Kalbfleisch & Will, for plaintiffs in error.
    
      Messrs. Reed & Beach, for defendant in error.
   Lemert, J.

This is an action in mandamus to compel the hoard of Trustees of Mifflin township, Rich-land county, Ohio, to appropriate money for the purpose of making, and to make, necessary repairs to a certain footbridge across the Rocky Fork of the Mohican river in said Mifflin township, so that the children of the relator, David Tucker, can attend the public school in the district of which relator is a resident. To such petition plaintiffs in error demurred, on the ground that the facts stated in the petition did not constitute a cause of action, which demurrer was overruled and excepted to by plaintiffs in error.

The plaintiffs in error then filed an answer setting forth as a first defense that the footbridge was privately owned, and not used in any way for public purposes, and, further, that the bridge was not constructed by them, or their predecessors in office, and that no funds had ever been appropriated by them or their predecessors to construct, rebuild, or repair said bridge; and, by way of a second defense, they say that, by virtue of the provisions of Section 7562-1 of the General Code, it was purely discretionary with plaintiffs in error to repair, construct, or rebuild said footbridge, and that, after consideration, they had found it unnecessary to repair, construct or rebuild said bridge; and, further answering, they say that the court of common pleas has no jurisdiction over the subject-matter of the action.

The court of common pleas, after a hearing upon the issues, found for the relator, that he was entitled to a peremptory writ of mandamus, that the surveyor of Eichland county, Ohio, ascertain what repairs it might be necessary to make so as to put said footbridge in a safe condition for travel, and that, after ascertaining, the board of trustees proceed without delay to make said repairs to said footbridge.

Plaintiffs in error filed a motion for a new trial, which motion was overruled, and a petition in error was filed in this court setting up three grounds of error, to wit:

First. Said court erred in overruling the demurrer of the plaintiffs in error to the petition of the defendant in error on the ground that the petition failed to state facts sufficient to constitute a cause of action against said plaintiffs in error.

Second. Said court erred in the overruling of the motion of plaintiffs in error made at the close of the defendant in error’s testimony for a directed verdict in favor of plaintiff in error.

Third. That the court erred in rendering judgment or decree for the defendant in error, and that said judgment or decree is not sustained by sufficient evidence, and is contrary to law.

The record before us discloses that the defendant in error, the relator, David Tucker, is a resident of Mifflin township, Richland county, Ohio, and the owner of a tract of land located in said township, and in a school district of said township, county, and state aforesaid. He is the father of two children of school age who attend school in said school district, and he resides with his family, including said two children of school age, on said tract of land. Abutting his property is a creek known as the Rocky Pork creek, a tributary of the Mohican river. Some forty years ago the relator’s father, John Tucker, was the owner of said tract of land, and for his convenience at that time he constructed over said Rocky Pork creek a footbridge. Prom the time of said bridge construction until the present time said bridge has been rebuilt and repaired by the relator or his father, John Tucker, with the assistance of their neighbors. At no time was said bridge rebuilt, constructed, or repaired by plaintiffs in error or their predecessors in office.

The relator contends that it is necessary for his children to cross said bridge to attend school; that said children have no other means of access to said school; and, further, that said footbridge is in need of repairs, and that, under the provisions of Section 7562-1 of the General Code of Ohio, it is mandatory that the board of trustees of Mifflin township, Rich-land county, Ohio, repair said footbridge.

In referring to Section 7562-1 of the G-eneral Code, we note that said section provides that the trustees of any township are authorized and empowered to construct, rebuild, and repair footbridges across the rivers and streams in their township when they may deem it necessary so to do in order to provide convenient means of access to the public schools in their said township by the pupils residing in the school district wherein a public schoolhouse is located, but that in no case shall the cost of aforesaid construction, rebuilding, or repair of any said footbridge exr ceed the sum of $1,000.

Plaintiffs in error contend that it is entirely within the discretion of the board of township trustees to repair, rebuild, and construct said footbridge when they may deem it necessary so to do in order to provide convenient means of access to the public schools of their township.

This is an action in mandamus. It has been held to be the law that the writ may issue to command the “performance of an act which the law specially enjoins as a duty resulting from an office, trust or station,” and that it may not issue to compel the performance of an act not so enjoined. Selby, Aud., v. Stale, ex rel. Smiley, 63 Ohio St., 541, 59 N. E., 218.

And it is. now accepted as a thoroughly well-settled rule that a peremptory writ of mandamus will not in any case be granted, unless the right of the relator thereto be clear, and the act, performance of which is desired, be one of absolute obligation on the part of the person or officer sought to be coerced, and before such legal right to have the special act desired done by a particular person or officer sought to be coerced will be enforced a plain dereliction of duty must be established against such person or officer. State, ex rel. Gallinger, v. Smith, Aud., 71 Ohio St., 13, 38, 72 N. E., 300. Or, in other words, it has been repeatedly held that mandamus will not issue to compel the performance of an act not so enjoined.

A careful examination of the record in this case discloses that the trustees viewed this footbridge, and from such view, after consideration, determined that it was unnecessary to repair the bridge. It has been held that a lawful discretion vested in an individual, officer, board, or corporation, cannot be destroyed or limited by a writ of mandamus.

Mandamus lies only where there is a plain dereliction of duty; but never to control duty. A case that is parallel with the case at bar, entitled State, ex rel., v. Commissioners, 49 Ohio St., 301, 30 N. E., 785, which is followed in the case of State, ex rel., v. Commissioners, 54 Ohio St., 652, 47 N. E., 1117, is the same case recognized in State, ex rel., v. Makemson et al., Commrs., 83 Ohio St., 457, 458, 94 N. E., 1116.

The case in 49 Ohio State was an action in mandamus to compel the county commissioners to repair a certain road bridge, and the court in its opinion, at page 305, (30 N. E., 785, 786), pertinently says:

“A bridge may be necessary, but whether it should be constructed, or repaired, * * * cannot be determined by a court in opposition to the views of a board of commissioners, familiar not only with the resources, but with the wants of each and every part of the county. The expediency of building or repairing a bridge, however necessary, is an administrative and not a judicial question. ’ ’

The contention is made on behalf of the defendant in error that the statute just quoted is mandatory, and that, when it is made to appear that it is necessary either to build or repair a footbridge over the streams in a township, so that children of school age can attend the public school in said township, the board of trustees in the township shall build or repair the footbridge so that the children of school age can attend the public schools.

The record in this case discloses that within three-quarters. of a mile from where it is proposed to repair this footbridge there is a bridge whereon school children and others can pass in safety over the stream in question and attend the public school on the other side of the river. If by such means of travel the distance is so far as to make it come within the statutory distance for pupils to be transported to the school in the district wherein relator lives, then relator has his remedy under the statute providing for transportation of pupils to school.

So that an examination of the record in this case disclosing the fact that the footbridge in question is upon the private property of relator, neither end of which connects with any public highway, we are of the opinion and. belief that the board of township trustees has no right whatever to use public money or to levy a tax upon the taxable property of the district or township to provide for the construction, building, or repair of any such footbridge.

Therefore, now to consider the grounds of error claimed in this case, we find and hold that the court below erred in overruling the motion of the plaintiffs in error, made at the close of defendant in error’s testimony, for a directed verdict in their favor, and that the court below erred in rendering judgment or decree for the defendant in error; and we further find that said judgment and decree is not sustained by sufficient evidence, and is contrary to law.

Therefore the finding and judgment of the court below will be reversed. And, coming now to the further consideration of this case, final judgment is rendered herein in favor of plaintiffs in error and against defendant in error.

Judgment reversed cmd judgment for plaintiffs in error.

Sherick, J., and Roberts, J., of the Seventh Appellate District, concur.  