¶1 On Rehearing.
¶2 [En Banc. August 15, 1946.]
¶3 Upon a rehearing En Banc, a majority of the court adheres to the Departmental opinion heretofore filed herein.
¶4 (dissenting) — I am of the opinion there was no ground for injunctive relief in this case, and that the effect of the decree entered was to tell the commissioners how they should perform a duty involving the exercise of discretion. I therefore dissent.
¶5 (dissenting) — I dissent. The judgment should be reversed and the cause remanded with instructions to dismiss. The opinion in this case announces a rule which is not supported by the authorities. This court now enunciates the rule that the court may review the discretion which has by law been vested exclusively in a municipal corporation, and therefore mandamus will lie to compel performance of acts or duties which necessarily call for the exercise of discretion on the part of the officer or board at whose hands their performance is required. Our opinions are consistent solely in their inconsistency. We delight in promulgating rules, but, seemingly, delight more in breaking them.