People ex rel. Dix v. City of Chicago

McAllister, J. It is the settled law of the Supreme Court of this State, that the writ of mandamus is only to be awarded in a case where the party applying for it shall show a clear right to have the thing sought by it done, and by the person or body sought to be coerced; that the petition must show on its face a clear right to the relief demanded by the relator, who must distinctly set forth all the material facts on which he relies, so that the same may be admitted or traversed. The People ex rel. v. Glann, 70 Ill. 232; The People ex rel. v. Davis, 93 Ill. 133. The court exercises a discretion in granting or refusing the writ, and if the right be doubtful it will be refused. Lavalle v. Soucy, 96 Ill. 467. “ A writ of mandamus will be granted against municipal corporations and their officers whenever they refuse or unreasonably neglect to perform any duty clearly enjoined upon them by charter or statute or law, and there is no specific legal remedy adequate to enforce the right of the public or the specific legal right of the relator.” Dill. Municipal Corp. (1st Ed.) Sec. 665. It is not claimed by counsel for appellants that they were entitled to the writ of mandamus on the ground that the statute or charter under which the city was organized imposed upon it the duty of keeping the streets in a reasonably safe condition, and that Kush Street, at the place in question, was not, as respected the sidewalk, in such condition, by reason of the rise therein of from nine to twelve inches, but in argument they base the right to such writ ujion the provisions of an ordinance. The short answer to that contention is, that no ordinance of the city of Chicago is set out in the petition as in force at the time when the sidewalks, or either of them, in question, were made. There is no such thing known to the laws of this State as the “ Municipal Code of Chicago ” mentioned in the petition, and of which the courts can take judicial notice. Hence the a1 leged ordinance, like any other matter of fact, should have been set out 'in the petition, if any rights were to be based upon it. Dill., Sec. 346; Trustees v. Lefler, 23 Ill. 90; Harker v. Mayor, 17 Wend. 199. The rules of pleading applicable to such a case must necessarily be analogous to those which obtain in cases where rights are predicated upon a private statute. It was indispensable that the time when, the place where, and the body by whom the alleged ordinance was passed, with a recital of so much of the ordinance as was material, should have been stated and embodied in the petition in some manner that would admit of a proper traverse by the opposite party. Gould on Pl., 3d Ed., Chap. 3, Sec. 16; 9 Bac. Abr. Statute L., p. 261. The petition fails to show when either sidewalk was made. It may have been more than twenty years before the petition was filed. It also fails to show of what material or how they were made. The petition was clearly insufficient, and the judgment should be affirmed. Judgment affirmed.