| Ill. | Jun 19, 1907
delivered the opinion of the court:
By section 5 of chapter 33, Hurd’s Revised Statutes of 1905, it is provided: “If any court shall, before or after the commencement of any suit, be satisfied that the plaintiff is a poor person, and unable to prosecute his suit and pay the costs and expenses thereof, the court may, in its discretion, permit him to commence and prosecute his action, as a poor person; and thereupon such person shall have all the necessary writs, process and proceedings, as in other cases, without fees or charge. The court may assign to such person counsel, who, as well as all other officers of the court, shall perform their duties in such suit without any fees, charge or reward. If judgment be entered for the plaintiff, there shall be judgment for his costs, which costs shall be collected for the use of the said officers.”
The provision of the statute authorizing the superior court to make rules of practice for that court is found in section 69 of chapter 37, Hurd’s Revised Statutes of 1905, and is in these words: “The said courts may, from time to time, make all such rules for the orderly disposition of business before them as may be deemed expedient, consistent with law.”
An examination of sections 4, 5 and 6 of chapter 33, supra, is necessary to ascertain the legislative intent in reference to requiring security for- costs from parties plaintiff or complainant and in reference to allowing such parties to prosecute as poor persons. Upon consideration of these sections it at once appears that the rule of the superior court set out in the foregoing statement is not consistent with the law. The provision of the rule requiring that the person applying for leave shall enter into a written agreement that such person will pay all costs due to the clerk of the court out of money obtained through the suit or a compromise thereof; the provision requiring that the party asking the leave shall also file an agreement of his attorney that as an officer of the court he undertakes to see, and agrees, that the costs of the court shall be paid out of the first money recovered through litigation or obtained by any compromise; and the provision that if the applicant has not been known to his attorney for at least one year the application must be accompanied by an affidavit “of a reputable citizen of some standing,” to the effect that he believes such person “to be honest,” place upon the person seeking leave substantial burdens, in reference to matters other than those of procedure, not contemplated by and inconsistent with the statute. In no event can the court legally require that the application for leave to sue as a poor person should be accompanied by the agreements and the affidavit which are required by the rule and which have been hereinabove in this opinion particularly referred to. We are also of the opinion that it is unnecessary that either the applicant’s attorney or the court should be satisfied that the applicant is a pauper. Many persons who are not paupers may rightfully be permitted by the courts to commence and prosecute actions as poor persons. There are other meritorious objections to this rule, but we deem it unnecessary to discuss them. The rule is not subordinate to the statute, and is therefore invalid. Rozier v. Williams, 92 Ill. 187" date_filed="1879-06-15" court="Ill." case_name="Rozier v. Williams">92 Ill. 187.
It is said, however, that.the section of the statute relied upon by petitioner gave to respondent discretion in determining whether to grant or refuse the leave asked, and that for this reason mandamus will not lie to direct the court to act in a particular way. This contention disregards the legal effect of the petition. The only logical conclusion that can be deduced from that pleading is, we think, that the respondent refused to .act for the reason that no attempt had been made to comply with the rule, although the documents presented were of such character that petitioner was entitled to invoke the judgment of the court. It is not unlike a case where mandamus is brought against a judge of a nisi prius court to compel him to sign a bill of exceptions. Mandamus will there lie to require him to act but not to command him to act in any particular way. That is, he will not be directed how to decide the question pending before him but will be directed to determine it in some manner consistent with the law. (People v. Chytraus, 183 Ill. 190" date_filed="1899-12-18" court="Ill." case_name="People ex rel. Jones v. Chytraus">183 Ill. 190, and cases there cited.) The language just used is not to be regarded as an intimation that the court’s discretion, when exercised, is not reviewable.
The writ of mandamus will be awarded in accordance with the prayer of the petition.
ionrit awarded.