82 Ill. App. 85 | Ill. App. Ct. | 1899
delivered the opinion of the court.
It is evident from the facts alleged in the petition that there was a disagreement between the sanitary district and appellees as to the amount due to appellees, the sanitary district claiming that there was no interest due to appellees on account of deferred payments, and appellees claiming the contrary. Hence the order of March 2, 1898, is not an absolute order to pay to appellees the sum of $15,000, but a conditional order, the condition being that appellees “ shall have filed with the district the proper receipts therefor and release in full of the district,” etc. This was clearly an offer of compromise, which appellees refused to accept, and, in lieu thereof, offered by their letter of March 14,1898, to give a .receipt waiving and releasing all demands arising out of the contract, except for interest on delayed payments. The sanitary district, on receiving this letter, while still claiming that appellees were not entitled to any interest on deferred payments, passed the order of March 16, 1898, that the $15,000 should be paid to appellees only upon their filing with the clerk a receipt waiving and releasing all claims and demands arising out of the contract, excepting only demands for interest on account of delayed payments as to said $15,000. This was also a conditional order, made by way of compromise, and not accepted by appellees. Ho absolute, unconditional order has been passed by the board of trustees of the sanitary district for the payment to appellees of the amount involved. The clerk of the sanitary district is a mere ministerial officer, subject to the order of the board of trusteeshe can only act in pursuance of the order of the board, and it is too plain to require argument that had he paid appellees without requiring them to execute a receipt and release to the district, as provided by the board of trustees, he would have violated his duty. Mandamus does not lie to compel an officer to violate his duty. People ex rel. v. Klokke, 92 Ill. 134.
The judgment impliedly admits that the clerk could not have legally paid appellees under the orders set forth in the petition, except on condition that appellees would execute a receipt and release as prescribed by the board of trustees, because the judgment assumes to command the sanitary district to order the clerk to pay $15,000 to appellees and accept the receipt offered by them. “Weare of opinion that the court exceeded its jurisdiction in commanding the sanitary district to make any order or direction in the premises. The sanitary district is a municipal corporation; the board of trustees are the corporate authorities of the district. The act under which they are organized provides : “ Said board of trustees shall have full power to pass necessary ordinances, rules and regulations for the proper management and conduct of the business of said board of trustees and of said corporation, and for carrying into effect the objects for which such sanitary district is formed.” The powers conferred clearly include the power of settling with contractors. In the present case the board has determined, with probably more intimate knowledge of the subject-matter than the court possesses, that rather than leave any question of interest open, except the interest on $15,000, which it does not admit, it will leave appellees to their legal remedy, and we do not think the court can compel the contrary. We think the matter is one resting in the discretion of the board, and that the exercise of this discretion can not be controlled by the court. Kelly v. Chicago, 62 Ill. 279; People ex rel., etc., v. McCormick, 106 Ib. 184; People ex rel., etc., v. Kent, 160 Ib. 655; Board of Com’rs v. The People, etc., 78 Ill. App. 586.
It is well settled that when it is the clear legal duty of municipal authorities, vested with discretion in the premises to act, they may be compelled by mandamus to act, but not to act in any particular way. People ex rel., etc., v. McCormick, supra; People ex rel., etc., v. Dental Examiners, 110 Ill. 180; 14 Am. & Eng. Ency., p. 183, Sec. 9.
In the present case the court commands the sanitary district to pass an order directing the clerk to pay to appellees $15,000, upon their signing a receipt for that amount. This, is equivalent to the court, and not the board, making the order, and we do not understand that the court may lawfully thus force specific action by the board. It is also an admission that the orders heretofore made by the board do not constitute sufficient ground for the writ of mandamus, because if they did, no further order would be necessary. The right to the writ must be clear; in a doubtful case it will be refused. People, etc., v. Johnson, 100 Ill. 537.
The demurrer should have been sustained. The judg ment will be reversed.
