Harrison v. People

101 Ill. App. 224, 1902 Ill. App. LEXIS 596

• Court: Appellate Court of Illinois
• Decided: March 18, 1902
• Status: Published

Opinion

Hr. Justice Waterman

delivered the opinion of the court.

The ordinance upon which appellee relies is not that the mayor shall issue licenses, but that he is authorized so to do.

A peremptory writ of mandamus will not be issued unless the right to it be clear. The petition must show on its face a clear right to the writ demanded and its issue is a matter of discretion with the court. The People ex rel. v. Davis et al., 93 Ill. 133.

We are also of the opinion that the mayor has a discretion as to whether he will issue such licenses. As is said in Swift v. The People, 63 Ill. App. 453, as to the discretion of the court, the discretion of the mayor can not be arbitrary—governed by fancy, caprice or prejudice; it must be a sound discretion, guided by law, legal and regular. The mayor has not a discretion to refuse or issue licenses at his mere pleasure—grant to some under the very circumstances which he denies to others.

A bowling alley kept for hire is not a nuisance, per se, everywhere; yet it may be such, as may be a tannery, in some places.

Because the court will refuse to enjoin the keeping at a certain place of a bowling alley for profit, it does not follow that it will compel the public authorities to issue a license for one at the same place.

Courts do not seek to take upon themselves the regulation of the business, manners or pleasures of the community. They decide such cases as properly come before them and are not disposed to relieve executive officers of the duties or discretion by law imposed upon them.

Courts act and decide in relation to lawful rights. Being of the opinion that the answer of the mayor showed a valid reason for refusing to issue to the relator the license for which he asks, the judgment of the Circuit Court is reversed and the cause remanded.