93 Ill. 180 | Ill. | 1879
delivered the opinion of the Court:
Prior to the act of 1874, entitled “An act to revise the law in relation mandamus,” it was settled by a uniform current of decisions of this State and other States where the common law system obtains, that mandamus would not lie whenever the right was either doubtful, or where there was some other adequate remedy at law. So far as the latter branch of the rule is concerned, the act in question had the effect of placing mandamus in this State upon the same footing with other remedies at law. It was inadvertently said in Ryan, Admr. eta. v. Duncan et al. 88 Ill. 144, that the petitioner must show that'he has no other adequate remedy. The remark was made without reference to the present statute, which has changed the rule in that respect, as we have just stated. It is now held that mandamus will lie in all cases ivhere it affords an appropriate remedy for the enforcement of a legal right, without regard to whether there may be some other adequate remedy or not. But the rule is still inflexible that the action will not lie where the right is doubtful. In The People ex rel. Richberg v. The Trustees of Schools, 86 Ill. 613, it was said: “ The principle is, the party praying the writ must show a clear right to it.”
In The County of St. Clair v. The People ex rel. Keller, 85 Ill. 396, it was said: “ The rule is well and uniformly established, that a relator must show a clear right before relief will be granted by the court in a proceeding of this character. Again, in The People ex rel. v. Lieb, 85 Ill. 484, it is laid down that the writ is not grantable as of absolute right in all cases; and that it is never granted unless the right of the relator is clear and undeniable.” To the same effect is the case of The People ex rel. Foos v. Highway Commissioners, 88 Ill. 142. Indeed there is nothing better settled in the whole domain of the law than that the relator, in a mandamus proceeding, must show a clear and indubitable right to the writ, otherwise it will not be granted. Has the appellant brought himself within the rule here laid down ?
It is a fundamental principle in the law of mandamus, that the act sought to be enforced must not only be lawful and proper in itself, but it must also be one that t-he defendant may properly do. The defendant here is a municipal corporation, and can therefore properly do only such acts as the law enables it to. Not only so, being a mere creature of the law, it can exercise the powers conferred upon it only in the manner prescribed by law. It must, therefore, not' only appear that the legislature has conferred upon appellee power to grant the licenses in question, but appellant must also show that there was, prior to the application for them, such an exercise of the power by appellee as enabled it lawfully and properly to issue them. It appears from the petition, and it is conceded, that appellee is a village incorporated under the general incorporation law. Subdivision 46 of section 62 of that act contains a grant of power to the city council in cities, and the president and board of trustees in villages, “to license, regulate, and prohibit the selling or giving away of any intoxicating, malt, vinous, mixed or fermented liquor, the license not to extend beyond the municipal year in which it shall be granted, and to determine the amount to be paid for such license, * * * provided that in granting licenses such corporate authorities shall comply with whatever general law of the State may be in force relative to the granting of licenses.”
By section 5 of chap. 43, entitled “ Dram Shops,” it is, among other things, provided, “No person shall be licensed to keep a dram-shop, or to sell any intoxicating liquors, by any county board or the authorities of any city, town or village, unless he shall first give bond in the penal sum of $3000, payable to the People of the State of Illinois, with at least two good and sufficient sureties, freeholders of the county in which the license is to be granted, to be approved by the officer who may be authorized to issue the license, conditioned that he will pay to all persons all damages that they may sustain, either in person or property, or means of support, by reason of the person so obtaining a license selling or giving away intoxicating liquors,” etc.
It is clear, from the first of the above cited provisions of the statute, that the legislature has given appellee the power to license, regulate and prohibit the sale of intoxicating liquors. But the mere grant of this power by the legislature would not of itself authorize the village authorities to issue a license. This power to license, regulate and prohibit is a dormant one, and affords no authority to issue licenses until called into life and put in operation by appropriate legislation by the municipal authorities. Without the adoption of a general ordinance on the subject, authorizing the issuing of licenses, and specifying who shall issue them, the length of time they shall run, the amount to be paid by the applicant, the time and manner of payment, etc., the village authorities are powerless to issue license to any one. What we have said with reference to licensing and regulating the sale of intoxicating liquors, is equally applicable to the licensing of pool tables. Ho ordinance had been passed by the village authorities declaring the manner in which the power to license such tables should be exercised, and until that was done the grant of power by the State was dormant and inoperative. It will hardly be seriously claimed that the two resolutions passed by the village authorities, and above cited, can be regarded as ordinances authorizing the issuing of licenses. They simply fix the amount to be paid and the time of payment.
It may be, if these resolutions had been followed by an ordinance authorizing the clerk, president or other officer of the village to issue licenses to applicants upon furnishing the required bond as provided for by the statute, to be approved by the party authorized to issue the license, it would have been sufficient legislation to have given effect to the power granted and would have authorized appellee to issue the required licenses. But the petition fails to show the existence of any such ordinance, and failing in this it does not appear that the duty of issuing them was cast upon any one, or that appellee could rightfully or properly have issued them when the application was made.
The 5th section of the Dram-shop act, above cited, requires that the bond to be given by the applicant shall be approved by the municipal officer who is authorized to issue the licenses. Now, until the village authorities had, by ordinance, authorized the president of the board, clerk or other municipal officer to issue licenses,, it is manifest that there could be no person in existence answering the description of the one required by the statute to approve the bond, and the village authorities would certainly have no right to issue a license without taking the requisite bond.
But even if there had been a proper officer to accept and approve the bond, the petition wholly fails to show that appellant presented or tendered such a bond as is required by the 5th section of the act above cited.
The charge in the petition is, that appellant “ in conformity with the laws of said State now and then in force, etc., presented to said clerk a bond in the penal sum of $3000, payable to the People of the State of Illinois, with two good and sufficient sureties, freeholders of said county,” etc. Now all this may be true and still the bond tendered may have been wholly insufficient.
The pleader should have either set out the bond in hcec verba, or should have shown by distinct and specific averments that the bond was a compliance with the requirements of the law.
. No one, we presume, would contend for a moment that it would be sufficient to allege generally that appellant tendered a good bond as required by law. And yet, if it is necessary to aver any of the contents of the bond so that the court can see whether it is in conformity with the law, it is certainly necessary to aver all that ate material. To aver generally that the bond was in conformity with the statute, does not present any issue of fact that could be tried. It is an allegation of a mere conclusion of law, and such a mode of pleading is not permissible. The legislature has specified, with great particularity, the conditions to be inserted in a bond .of this character, and yet we can not tell, from the petition before us, whether the bond tendered contained a single condition that the act requires. The petition was clearly defective in this respect.
It is no answer to what we have here said, that appellee issued licenses to others under the same circumstances that it refused them to appellant, nor is it material that it may have placed its refusal to issue them to appellant upon an improper ground. The fact that appellee may have improperly issued licenses to others by reason of a want of authority to do so, could afford no possible reason why it should is^ue them to appellant. And if appellee had no right to issue them, it was wholly immaterial upon what ground it placed its refusal.
It follows, from what we have said, that appellant failed to show, by his petition, a right to the relief sought, and the circuit court should therefore have sustained the demurrer to the petition and not to the answer.
The Appellate Court properly reversed the judgment of the circuit court, and the judgment of the Appellate Court must therefore be affirmed and the writ denied.
Judgment affirmed.
