Sch. Trustees Twp. 14 N. v. People Ex Rel. Japhet A. Ball.

• Court: Illinois Supreme Court
• Writing for the Court: BREESE
• Citation: Sch. Trustees Twp. 14 N. v. People Ex Rel. Japhet A. Ball., 71 Ill. 559, 1874 WL 8722 (Ill. 1874)
• Decision Date: 31 January 1874
• Parties: SCHOOL TRUSTEES TOWNSHIP 14 N., R. 5 W.v.THE PEOPLE ex rel. Japhet A. Ball.

71 Ill. 559

1874 WL 8722 (Ill.)

SCHOOL TRUSTEES TOWNSHIP 14 N., R. 5 W.

v.THE PEOPLE ex rel. Japhet A. Ball.

Supreme Court of Illinois.

January Term, 1874.

APPEAL from the Circuit Court of Sangamon county; the Hon. CHARLES S. ZANE, Judge, presiding.

Messrs. STUART, EDWARDS & BROWN, for the appellants.

Messrs. MCCLERNAND & KEYES, for the appellees.

Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:

This was an application for a mandamus, to compel certain trustees of schools to form a new school district, under section 33 of the School Law of 1872. Sess. Laws, 700. The trustees, by their counsel, demurred to the petition. The court overruled the demurrer, and directed the writ to issue, from which judgment the trustees appeal. Appellants make the point that a mandamus will not lie in such a case as this, on the ground the relator does not show any interest separate and distinct from that of the general public. This objection, appellees insist, is removed by the decision in The County of Pike v. The State, 11 Ill. 202, where it was held, if this remedy is resorted to for the enforcement of a private right only, the relator must show his interest, but where it is asked to enforce a public right, or to compel the performance of a public duty, the people are regarded as the real party, and the relator need not show that he has any special legal interest in the result. It is enough that he is interested, as a citizen, in having the laws executed and the right in question enforced. But we think, notwithstanding this ruling, the petitioner should show he is in a position, by residence in the school district proposed to be made, before he can be allowed this writ. This he does not show. He merely alleges in his petition that he has been a resident and qualified voter in the township and district more than thirty years, non constat that he is a resident in the proposed new district. The case shows petitioner is prosecuting a matter in which he has a direct personal interest, and should, therefore, contain the proper allegation to bring himself favorably before the court--to give him a status in court. The People, etc. v. Supervisors of Vermilion County, 47 Ill. 256.

It is claimed, by appellants, this proceeding is not brought within the third clause of the thirty-third section of the School Law of 1872. What is that clause? “ Third. Upon petition of all the voters in any territory containing not less than five families, representing that they are not properly...