People ex rel. Olson v. Sweitzer

185 Ill. App. 282, 1914 Ill. App. LEXIS 1050

• Court: Appellate Court of Illinois
• Decided: March 9, 1914
• Docket: Gen. No. 18,852; Gen. No. 18,853; Gen. No. 18,854
• Status: Published

Opinion

Mr. Presiding Justice Baker

delivered the opinion of the court.

‘ ‘ The writ of mandamus lies to do what ought to be done, not to undo what oug’ht not to have been done.” Merrill on Mandamus, sec. 42; Sweet v. Conley, 20 R. I. 381; W. C. T. Co. v. Marshall, 49 Tenn. 121; People ex rel. Seeberger v. Rose, 164 Ill. App. 159.

In Ex parte Nash, 19 Q. B. 92, 69 E. C. L. 92, Lord Campbell said: “The writ of mandamus is most beneficial ; but we must keep its operation within bounds, and not grant it at the fancy of all mankind. We grant it when that has not been done which a statute orders to be done; but not for the purpose of undoing what has been done. We may on application for a mandamus entertain the question whether a corporation, not having affixed its seal, is bound to do so; but not the question whether, when they have affixed it, they have been right in doing so.”

Here the county clerk had acted in a matter committed by law solely to him before the petition was filed. He had indorsed on each petition the time it was filed and prepared and published a list stating the order in which petitions for nominations on the republican ticket for State’s Attorney had been filed, and the writ did not lie to compel him to undo what he had done.

We think that the demurrers to the petition should have been sustained, and the judgment will therefore be reversed, but as a mandamus would now be unavailing, the cause will not be remanded.

In each case the order will be that the judgment be reversed.

Reversed.