People v. Soucy

Green, P. J. Much space of the printed arguments on behalf of both appellant and appellee is devoted to discussing the question: Is the judgment of the City Court of East St. Louis, mentioned in the petition, a valid judgment? It is not necessary to a decision of this case to determine this question. If it be conceded said judgment is valid, yet if it also appéars by the record no case was made by appellant entitling him to the peremptory writ prayed for, it was properly denied by the court below. A peremptory writ of mandamus being an order requiring prompt and exact compliance with its terms, and the consequence of disobeying it being to place the defendant in contempt and make him liable to severe penalties, courts uniformly require that the petition, upon its face, shall show a clear right to have the defendant compelled to do the act which the petitioner prays he shall be ordered to perform. In Lavalle v. Soucy, 96 Ill. 467, the petition averred Soucy was elected Supervisor, qualified as such, and at the time of his election and prior thereto, Lavalle had held that office, and as such officer so had possession and control of all the books, papers and moneys of said commons; that notwithstanding the expiration of his term and the fact that he was no longer entitled to the possession of such books, papers and moneys, Lavalle refused and still refuses to deliver the same to the possession and custody of the petitioner. It was also alleged that petitioner demanded in writing of Lavalle the possession of such books, papers and moneys, and that Lavalle refused to comply. A demurrer to this petition was overruled in the Circuit Court, and in reversing the order and judgment there rendered the Supreme Court say: “The petition is wholly insufficient ; a writ of mandamus will be awarded only in a ease where the party applying for it shows a clear right to have the defendant do the thing which he is sought to be compelled by mandamus to do; the petition must show upon its face a clear right to the relief demanded, and every material fact on which the petitioner relies must be distinctly set forth;” and it is further said : “In this case there is no direct allegation there were any books, papers or moneys belonging to the said commons.” Humorous decisions of our Supreme Court prior to and succeeding the case cited above, announce and hold the same rule, that the petition for mandamus should set forth and show on its face a clear right to the writ. Tested by this rule, the petition in this case is manifestly defective. It does not aver the material fact that it was the duty of defendant, or that he had the lawful right or authority to apply funds in his hands as Supervisor to pay said judgment, nor was any proof offered under the clause of said stipulation that any facts not disclosed' by the petition may be proved by evidence to be introduced upon the hearing without further pleading; hence, if that clause was inserted to enable petitioner to heal any infirmity in tlio petition or supply a defect on the face of it by proof of a material fact not averred, the purpose was defeated by the failure to introduce such proof. Counsel for appellant refer us to section 8 of the Act of 1874, Laws of 1874, p. 67, to show that by said section defendant was made custodian of the funds and the disbursing officer of said village. On examination, such does not appear to be the case, but by said section he is made custodian of money derived from leasing or selling the commons of the village of Oakokia, and it does not appear he has the power, or that it is his duty to act as a disbursing officer. We desire further to say, that, while we deem it unnecessary to pass on the question of the validity of the judgment rendered by the City Court of East St. Louis, we do not wish to be understood as holding that the village of Caliokia could not give that court jurisdiction of it as a party to a suit, by appearing by its duly authorized attorney in that court, filing a plea and proceeding to trial; and counsel for appellee has favored us with no reference to authorities sustaining such a view. We think the court bolow properly dismissed the petition in this case, and rendered judgment for costs against the relator. Its judgment is affirmed. Judgment affirmed.