Gormley v. Day

Citations

• 114 Ill. 185
• 28 N.E. 693

Syllabus

<p>1. Mandamus—whether it will he awarded—where the ground of action has ceased to exist. A court will not award a peremptory writ of mandamus when the right sought to be enforced is or has become a mere abstract right, the enforcement of which, by reason of some change of circumstances since the commencement of the suit, can be of no substantial or practical benefit to the petitioner.</p> <p>2. So where an ordinance of a village vacating a street was repealed before it went into effect, but after the filing of a petition for a madamus to compel the village clerk to post copies of the same or give the relator copies thereof, the court will not award the writ, as to do so would subserve no beneficial purpose.</p> <p>3. Same—whether action is premature. Where a village clerk, by the charter of the village, is given thirty days after the passage of all ordinances within which to post up copies thereof, a proceeding by mandamus, commenced before the expiration of that time, to compel him to post an ordinance, must fail, the clerk not being in default when the suit was brought.</p> <p>4. Same—of the petition. And in such case, if the relator desires to rely on a standing resolution of the village council requiring the clerk to post notices and ordinances within five days after their passage, unless otherwise directed, he should set it up in his petition, and by proper averments negative the fact of his having been otherwise directed. A party can not make one case by his pleading and a different one by his proof, and recover.</p> <p>5. Ordinance—when it vests rights—right to repeal. Where a village charter provides that ordinances shall not take effect until ten days after three copies thereof shall have been posted by the clerk, and that such posting shall be within thirty days after their adoption, no rights can be acquired under an ordinance vacating certain streets until such posting has taken place, and until ten days thereafter; and until this takes place, the ordin