People ex rel. Harless v. Yates, 40 Ill. 126 (1863)

Nov. 1863 · Illinois Supreme Court

40 Ill. 126

The People ex rel. Harless v. Richard Yates, Governor, and Francis A. Hoffman, Lieutenant-Governor of the State of Illinois.

(November Term, 1863.)

1. Mandamus—will not lie against the governor.. The writ of mandamus will not lie against the governor of this State, to compel him to deposit in the office of the secretary of State, a bill which was passed by the general assembly, and placed in the hands of the governor for his consideration, and which, it is alleged, has not been returned to the proper house within the time limited by the Constitution, with his objections.

3. Same—when, prayed against several—must issue against all or none. When an alternative writ of mandamus is prayed against two persons, it must properly be allowable against both, or the writ cannot issue at all.

This was a petition for an alternative writ of mandamus. The petition alleged, that, “ a bill for an act to incorporate the Wabash Railway company” having passed the general assembly, and been certified by the proper officers of the senate and house of representatives, was presented to the governor for his consideration as provided in section twenty-one of article four of the Constitution ; that more than ten days (Sundays excepted) have elapsed since the same was so presented to him, and yet he has not returned the bill, with his objections, to the senate, the house in which it originated, nor has such return been prevented by an adjournment of the general assembly.

That the bill was improperly placed by the governor in the hands of the lieutenant-governor, who still retains it in his possession.

The petition prays that an alternative writ may be issued to the governor and lieutenant-governor, commanding them to return the writ with the causes why they fail and neglect to deposit the act to incorporate the Wabash Railway company in the office of the secretary of State.

Mr. M. W. Fuller,

on the part of the relator: “ Whenever there is a fair doubt, either upon matter of fact, or matter of law, the court will make the rule absolute in order that it may be properly discussed on the return. Tapping on Mandamus, 303-4.

It cannot be objected that the writ will not lie against the governor. The filing of a bill in the office of the secretary of State is a ministerial act, and as such may be ordered by mandamus to be done. People ex rel. Lamphier et al. v. Hatch, 19 Ill. 283.

Per Curiam :

The case of The People ex rel. Billings v. Bissell, Governor, 19 Ill. 229, is decisive of this motion. A writ of mandamus will not lie against the governor for the purpose indicated in the petition.

And the petition being against two, as it cannot be sustained as to one of them, it must necessarily be denied as to both.

Motion denied.

Note by the Reporter.—Oral argument is not permitted upon a motion for an alternative writ of mandamus, it being governed, like other motions, by the twenty-third rule (to be found in this vol.); but upon the return of the alternative writ, oral argument is allowed, as in other cases..