People Ex Rel. A. G. Damron v. Mccormick
| Decision Date | 29 March 1883 |
| Citation | 106 Ill. 184,1883 WL 10199 |
| Parties | THE PEOPLE ex rel. A. G. Damron, State's Attorneyv.T. J. MCCORMICK et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
This was a petition for a mandamus, filed in this court, the contents, object and purpose of which fully appear in the opinion of the court.
Mr. A. G. DAMRON, State's Attorney, pro se:
As I understand the present practice, the petition takes the place of the alternative writ, and the answer that of the return. Wood on Mandamus, 43; People v. Glann, 70 Ill. 233. If the return is insufficient, the relator may demur or move to quash. Moses on Mandamus, 214; High on Extraordinary Remedies, sec. 460.
A special demurrer is not necessary in any instance. Wood on Mandamus, 46.
If the demurrer is overruled, the relator is at liberty to plead to or traverse any of the material facts alleged in the return. High on Extraordinary Remedies, secs. 496, 497.
Messrs. MORRIS & BOYER, Mr. WILLIAM A. SPANN, and Mr. JAMES M. GREGG, for the respondents:
The demurrer filed by the relator should be carried back and sustained to the first defective pleading. Wood on Mandamus, 37.
The petition is defective, because, first, the relator, as State's attorney, had the power to sue on the official bond of respondent without any direction of the county board. (Rev. Stat. 1874, chap. 14, sec. 5, par. 1.) Second, it was a matter within the discretion of the board to grant or refuse an order directing a suit when applied for, and being a discretionary matter, a mandamus can not be awarded. People ex rel. v. Chicago and Alton R. R. Co. 55 Ill. 95; County of St. Clair v. People, 85 Id. 396.
The action of the board in auditing the claim for extra clerk hire, and in approving the reports in which such credits were asked, was of a judicial character, and not subject to be reviewed by this court in this proceeding. Wood on Mandamus, 20.
The object of the writ is to put the inferior tribunal in motion,--to compel it to act,--and not to review its action. The county board has acted in this matter,--a matter expressly committed to it by law. An appeal lies from its action in allowing claims against the county. Mr. CHIEF JUSTICE SCOTT delivered the opinion of the Court:
This is an original proceeding in this court, and the petition is for a writ of mandamus. The suit is brought in the name of the People of the State of Illinois, on the relation of Almus G. Damron, who represents himself to be “the State's attorney, and also a citizen and tax-payer, of Johnson county,” against T. J. McCormick, W. T. Davis and L. F. Walker, county commissioners of Johnson county, and Francis M. Jones, county clerk of the same county. It is alleged in the petition that the respondent (Jones) was elected county clerk of Johnson county at the general election in November, 1877, and thereafter entered upon the discharge of the duties of such office, and continued to hold such office up to the first Monday of December, 1882, being for a period of five years, and that prior to his election the county board had fixed the salary of the county clerk at $1000 per annum, and the allowance for clerk hire at $240 per annum. It is then alleged that such clerk, after deducting his salary and the sum allowed for clerk hire, had still in his hands a certain sum received by him as fees earned in his office, and also that the county board had made him certain allowances for extra clerk hire, and for making the tax books, as required by statute they should be made, and that such allowances had been paid to him, either by fees in his hands or out of other funds in the county treasury, and that such allowances were made without authority of law, and therefore it is unlawful for respondent to have or retain the sums of money so paid to him. The prayer of the petition is for a writ of mandamus to compel the county commissioners of such...
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