| Ill. App. Ct. | Oct 14, 1904
delivered the opinion of the court.
This is a proceeding in mandamus instituted by plaintiffs in error, school directors of school district No. 22, in the county of Douglas, against defendant in error, treasurer of township No. 15, range No. 9 in said county, to compel him to credit to the account of school district No. 22, in pursuance to an order or warrant to him therefor by the school directors of district No. 54 in the same township, the sum of §78.53 of the taxes collected for the years 1899 and 1900 received by him and by him erroneously credited to the account of said school district No. 54. A demurrer to the petition interposed by defendant in error was sustained by the court and judgment entered in bar of the action and for costs against plaintiffs in error.
It is elementary that a writ of mandamus will not be issued unless the petitioner shows a clear right thereto. A party seeking to compel the performance of any act by mandamus must set forth- every material fact necessary to show that it is the plain duty of the party sought to be coerced to act in the premises.
The demurrer to the petition was properly sustained for two reasons, among others: first, the petition does not allege that school district No. 22 did not receive the full amount to which it was entitled of the taxes collected for the years 1899 and 1900 (Walser v. Board of Education, 160 Ill. 272" date_filed="1895-11-01" court="Ill." case_name="Walser v. Board of Education">160 Ill. 272); second, the petition does not allege that at the time the order or warrant was drawn by the directors of district No. 54, there was sufficient funds in the hands of defendant in error, as township treasurer, to pay the amount of the same. Hurd’s Stat. 1903, p. 1676, par. 148.
Plaintiffs in error, being school officers, are not liable for costs, and the judgment against them therefor, in this proceeding, was erroneous. Hurd’s Stat. 1903, p. 1702, par. 289.
• The judgment will be reversed as to so much thereof as adjudges costs against plaintiffs in error, and as to all else the judgment will be affirmed.
Affirmed in fart and reversed in fart.