(concurring). I concur in the affirmance of the judgment, but I cannot accede to the grounds upon which it is placed. I understand the grounds of decision expressed in the opinion of Mr. Justice Dodge are, in substance, that mandamus will not be granted in this case for the reasons (1) that the duty imposed on the engineer of the city is not a statutory one; and (2) the duty sought to be enforced, though assumed to be an absolute one, is a contractual obligation, and the courts will not exercise their power by the extraordinary writ of mandamus to compel performance of an obligation arising out of contract I am of opinion that this extraordinary power of the court should be exercised to enforce contract obligations wherein this remedy *588is appropriate and when there is no adequate and efficient remedy, either at law or in equity, to prevent failure of justice. As to whether or not the duty imposed and sought to be enforced is a statutory duty, it seems to me that under the portion of sec. 925 — 94 quoted by the court the duty is one imposed by law.- The city has no power or authority to make such payments except as it is granted by this statute. The contract with plaintiff does not create such a duty, but is the medium by which the engineer is designated by the board of public works and the plaintiff to exercise the power authorized by this statute. The duty thus imposed, under which the board of public works or an officer designated by it “may, from time to time, at their discretion,” grant estimates of the amount and the value of work done, is a discretionary one. Since it is a discretionary duty mandamus will not lie, because this remedy is never employed to enforce duties resting in discretion. The judgment should therefore be affirmed.
TtMXirr, T.. I concur in the .foregoing.