People Ex Rel. Chicago v. Glann

• Decision Date: 30 September 1873
• Citation: People Ex Rel. Chicago v. Glann, 70 Ill. 232, 1873 WL 8582 (Ill. 1873)
• Parties: THE PEOPLE ex rel. Chicago and Iowa Railroad Co.v.JAMES F. GLANN et al
• Court: Illinois Supreme Court

70 Ill. 232

1873 WL 8582 (Ill.)

THE PEOPLE ex rel. Chicago and Iowa Railroad Co.

v.JAMES F. GLANN et al

Supreme Court of Illinois.

September Term, 1873.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of De Kalb county; the Hon. THEODORE D. MURPHY, Judge, presiding.

This was a petition for a mandamus, filed by the Chicago and Iowa Railroad Company against James F. Glann, supervisor of Squaw Grove township, and others, to compel the issue and delivery of the bonds of the township, to the amount of $25,000, in pursuance of a vote of the people.The opinion of the court states the necessary facts of the case to a clear understanding of the opinion delivered.

The court sustained a special demurrer to the petition.

Mr. E. WALKER, and Mr. J. H. CARTWRIGHT, for the plaintiff in error.

Mr. R. L. DIVINE, for the defendants in error.

Mr. JUSTICE SCHOLFIELDdelivered the opinion of the Court:

By the 10th section of the acts relating to practice in courts of record, in force July 1st, 1872, in cases of mandamus, the petition takes the place of the alternative writ, becomes the foundation of all subsequent proceedings, and must, consequently, be governed by the same rules of pleading as are applicable to declarations in other cases at law.

It has been repeatedly said by this court, 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.People, etc. v. Forquer, Breese, 104;People v. Hatch,33 Ill. 9;People v. Mayor, etc.,51 Id. 28.The petition must show on its face a clear right to the relief demanded by the relator.He must distinctly set forth all the material facts on which he relies, so that the same may be admitted or traversed.Canal Trustees v. The People,12 Ill. 254.

It is a familiar principle of pleading, that when the consideration of the defendant's contract is executory, or his performance is to depend on some act to be done or forborne by the plaintiff, or on some other event, the plaintiff must aver the fulfillment of such condition precedent, or must show some excuse for the non-performance.1 Chitty's Plead.352.

The petition for the election, and notice thereof, in the case before us, show that the bonds to be issued in payment of the contemplated subscription, were upon the following express conditions: that said bonds are “not to be dated, issued or delivered until said company shall have located their said line of railroad to run within one-half mile of the center of said town, and shall have constructed their said road from the city of Aurora, in Kane county, into and through said town, and laid the track for the same with a ‘??’ rail, weighing not less than fifty (50) pounds to the yard, the same to be done on or before December 31, 1870;...