People ex rel. Breckenridge v. Brooks

Citations

• 57 Ill. 142

Syllabus

<p>1. Writ of mandamus—how to issue. The clerk of the circuit court has no power to issue a writ of mandamus without an order of the court. The power to award the writ is in the court and not in the clerk, and it is only granted on good cause shown, and such time for the return is fixed by the court as may be reasonable and just.</p> <p>2. Same—certainty. The writ must be certain, and clearly show on its face, that it is the duty of the defendant to perform the act sought to be enforced. The mandatory clause should, like the body of the writ, expressly state the duty required.</p> <p>3. Where the petition for the call of an election to subscribe for a specified amount of stock in a railroad company, on several express conditions, and where the alternative writ required the town supervisor to call an election to vote, not as petitioned for, but whether the town would subscribe stock or donate to the railway, without stating amount or conditions, and where the peremptory writ misrecited the petition for the call of the election, but commanded the supervisor “to call an election of the legal voters of the town under the laws of this State: ” Held, that the peremptory writ was erroneous, as it was too uncertain, in not following the petition for the call of an election.</p> <p>4. Constitution. Even if the relator was entitled to the writ when it was awarded by the circuit court, still, the new constitution having been since adopted, it could not now be executed, and should not therefore issue.</p>