The Mayor and Common Council of Michigan City v. Roberts and Another. It is not very material whether we consider the case on the motion to quash the writ, or on the motion for a new trial. The question in substance is the same. It is not questioned, nor can there be any doubt as to the jurisdiction and power of the circuit court to award the writ against a municipal corporation such as the appellants. It is expressly provided, that the writ 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. 2 G. & H. 322, sec. 739; Chapin v. Osborn, 29 Ind. 99. It is provided in the act relating to the incorporation of cities, that the common council shall have exclusive power over the streets, highways, alleys, and bridges, within such city, and may prescribe the height and manner of construction of all such bridges, and to lay out, survey, and open new streets and alleys, and straighten, widen, and otherwise alter those already laid out, and to make repairs thereto, and to construct crossings, &c. 3 Stat. Ind. 94, sec. 61. It is not alleged that the city council were applied to, to order the improvement and have the cost of it assessed against the property benefitted thereby, and that they refused to do so; but, on the contrary, it is shown by the written demand served on them that they were required to make the improvement without levying a special tax upon the property for that purpose. Neither is it alleged that the council refused to take the subject into consideration and decide upon the propriety or impropriety of doing the work. The mayor of the city testified that they had had the question before the council, and had come to the conclusion that it was not judicious to undertake, at that time, the opening of the streets in question. The point on which the case must turn, as we think, is, could the circuit court, by mandate, review the action of the city council, and compel them to cause the improvement to be made against their judgment as to its expediency? We have examined the authorities cited by the appellees The Mayor and Common Council of Michigan City v. Roberts and Another. in support of the affirmative of this proposition. Some of them relate to the rights of the adjoining lot owners in the streets. Some have reference to the liability of corporations for injuries resulting to persons or property from the streets being allowed to be out of repair. But none of them come up to the question in hand. The case of The Borough of Uniontown v. The Commonwealth, 34 Penn. St. 293, is nearest in point. But it does not appear by what law the officers of the borough were governed, or whether it was peremptory in its requirements, or left the matter in their discretion. To sustain the proceeding by mandate, the act which it is sought to enforce, in the language of our statute, must be one which the law specially enjoins. Can it be said that the law specially enjoins an act, of the expediency of which the individual, corporation, or tribunal must judge? Municipal corporations possess, to some extent, sovereign powers; and some of those powers are to pass ordinances, some judicial, and some ministerial. Brinkmeyer v. The City of Evansville, 29 Ind. 187; Stackhouse v. The City of Lafayette, 26 Ind. 17. In Wilson v. The Mayor, &c., of New York, 1 Denio, 595, it is said, on this subject, "The power of the defendants to make sewers and drains is clear, but it not their duty to make every sewer or drain which may be desired by individuals, or which a jury might even find to be necessary and proper. No imperative duty rests upon the defendants to open any new drain whatever. They have a discretion on the subject, and must necessarily decide when and where such work shall be made. If this were not so, this court by writ of mandate might compel the making of new sewers, drains, and vaults, the opening of new streets, and the paving of old ones; and the same power, when applied to the county, would require us to supervise the discretion of commissioners of highways, and in like manner coerce the opening of new roads, and the closing of old ones, not in conformity with the views of the local officers, but as we should judge best calculated to promote the public interests. This is stated by way of illustra tion; for a mandamus will not lie to control the discretion The Mayor and Common Council of Michigan City v. Roberts and Another. of any tribunal or officer, nor is such tribunal or officer answerable in any form of action, for the manner in which any duty of a judicial or discretionary nature shall have been performed. Granting therefore that a drain should have been made as the plaintiff claims, and even that the defendants wilfully, and in violation of their duty, refused to make one, of which, however, there is not a scintilla of proof, still no action lies for such neglect or violation of duty. As well might commissioners of highways be sued for refusing to lay out a new road on petition, or assessors for placing property at too high a valuation in the assessment roll. In these and innumerable other instances, the officer is to exercise his best judgment and discretion, and although he may be punished, if he act corruptly, he is under no circumstances responsible, civilly, for the execution of the trust reposed in him." The rule to be gathered from all the cases decided in the Supreme Court of the United States, governing mandamus to the officers of the government, seems to be this: It cannot issue in a case where discretion and judgment are to be exercised by the officer, nor to control him in the manner of conducting the general duties of his office; it can be granted only where the act required to be done is imposed by law, is merely ministerial, and the relator without any other adequate remedy. Moses Mandamus, 78. We are not referred to any decision of this court on this precise point. We think the question whether an improvement in the streets of a city shall or shall not be made, and paid for out of the general fund in the treasury of the city, is one with reference to which the judgment of the council cannot be reviewed and set aside by the courts on a proceeding by mandate. Whether such a work shall be undertaken or not, is a question depending upon many circumstances, as for instance the state of the treasury, the condition of other thoroughfares, the necessity and utility of the work itself, &c. If the public convenience or private rights require the work to be The I. P. & C. R. Company v. Bowers. done, and the council improperly refuse to do it, let the citizens place the powers of government in other hands. We think the proceeding cannot be maintained, and that the motion to quash the writ should have been sustained. Judgment reversed, and cause remanded, with instructions to the circuit court to sustain the motion to quash the writ. Costs to appellants. F. B. Niles, W. Niles, and M. K. Farrand, for appellants. F. A. Thornton and F. B. Belford, fcr appellees. THE I. P. AND C. R. COMPANY V. BOWERS. APPEAL from the Randolph Circuit Court. PETTIT, C. J.-Rule eighteenth of this court is as follows: "The assignment of errors shall contain the full names of the parties; and process, when necessary, shall issue accordingly." In the assignment of errors in this case, the names of the parties set out are, "The I. P. & C. R. Company, appellant, v. John Bowers, appellee." This is not a compliance with the rule above cited, and for that reason must be dismissed. Brookover v. Forst, 31 Ind. 255; and The State, ex rel. Childrs, v. Delano (ante, p. 52), decided at this term, and authorities there cited. The appeal is dismissed, at the costs of the appellant. F. A. Harrison, for appellant. T. M. Browne, for appellee. Smith v. Hazelton and Another. SMITH V. HAZELTON and Another. PARTNERSHIP.—Rights of Partners Between Themselves.—Shares of Stock.— Settlement upon Dissolution.—Pleading.-A., B., and C. became partners, under an agreement by which they were to contribute equally to the capital stock, which was to be a certain amount. A. and B. contributed their full shares, and C. contributed one-half of his share and was to contribute the other half in one year. The firm purchased real estate, machinery, and materials, and engaged in business. The partnership was dissolved before the expiration of one year by the death of A., and, by consent of all the parties in interest, B. closed up the business, after the expiration of one year from the commencement of the partnership. The partnership liabilities were all paid' out of the personal assets of the firm, without resort to said real estate. B.,. C., and the heir of A. sold said real estate, each separately selling one-third thereof and receiving for himself the consideration of the sale of such interest. In a suit by B. against C. and the admintstrator of the estate of A., to compel an accounting and settlement of the partnership affairs, and to obtain distribution, C. not having paid in more than his said one-half of his share of the capital stock; Held, that the complaint was not bad on demurrer for failing to set forth and account for the purchase-money received by the partners upon their several sales of said real estate, or because the plaintiff did not therein offer to account for the consideration of his sale of one-third of said land. Held, also, that C. was not entitled to share equally with his copartners in the profits or assets of the partnership without contributing his full share of the capital stock, and that, therefore, in such adjustment the balance of capital stock unpaid by him should be accounted against him. APPEAL from the Martin Circuit Court. BUSRIRK, J.-This is an action to compel an accounting as between partners after dissolution of the partnership. The facts alleged are, that on the 15th of February, 1867, the appellant, together with William F. Elston and William F. Hazelton, the appellee, entered into a written agreement of partnership, which stipulated, first, that they had associated to manufacture staves and heading for slack work; second, that the capital stock should be nine thousand dollars; third, that each of the partners should put in, as his share of the joint capital, three thousand dollars; fourth, that Hazelton should pay his share (three thousand dollars) VOL. XXXIV.-31 |