Commissioners of Highways of Oswego v. People ex rel. Walker

Citations

• 99 Ill. 587
• 1881 Ill. LEXIS 214

Syllabus

<p>1. Certiorari — at common law — effect of its pendency as a stay of proceedings. A common law certiorari stays all proceedings in the inferior tribunal from the time of the service of the writ, unless the judgment or order has been begun to be executed.</p> <p>2. Mandamus — whether it will lie — discretionary. Courts exercise a discretion in awarding the writ of mandamus, and will not compel an officer to do an act Avlien there is no clear duty on his part to perform it.</p> <p>3. Same — pending certiorari to review the proceeding out of which the supposed duty must arise. A final order laying out a road was made by three supervisors on an appeal from an order of commissioners of highways determining not to lay out the road. Thereupon the damages from the laying out and opening of the road Avere assessed by a jury, before a justice of the peace. Subsequently, a judge of the circuit court awarded the common law writ of certiorari, to bring in review before the circuit court all these proceedings concerning the proposed road, and the writ was duly issued and served.</p> <p>Pending the certiorari proceeding, it was sought to compel, by mandamus, the highway commissioners to levy and certify a tax to pay the damages so assessed for opening the road, and to open the road. It was held, that all proceedings under the assessment of damages, or the order laying out the road, were stayed by the service of the writ of certiorari, so there Was no clear duty on the part of the highway commissioners, pending the certiorari proceeding, to do the act sought to be coerced. It was, therefore, a very proper exercise of a sound discretion to deny the writ of mandamus.</p>