People ex rel. Maxwell v. Ruby , 59 Ill. App. 653 ( 1895 )

Me. Presiding- Justice Scofield

delivered the opinion of the Court.

Plaintiff in error filed a petition for mandamus to compel defendants in error to proceed with the assessment of damages on a certificate from the three supervisors before whom a proceeding fr/r the altering or re-locating of a public highway was pending on appeal.

The petition fails to show that the certificate required to be filed with the justice of the peace was so filed within ten days from the date of the meeting at which it was decided to grant the prayer of the petition for laying out the road.

It has been held by this court that the filing of such certificate with the justice within ten days is a condition precedent to the taking of land for a public highway, and that a failure to so file such certificate divests the commissioners of jurisdiction. Trainer et al. v. Lawrence, 36 Ill. App. 90. If the commissioners, having failed to comply with the requirements of Sec. 41, should proceed to alter or re-locate the road, their action would be illegal.

The proceedings before supervisors on appeal, with reference to the assessment of damages, are governed by the same law applicable to the action of the commissioners. Sec. 60 of the Eoad and Bridge Act, Hurd’s Statutes.

In a case where the supervisors have lost jurisdiction and their proceedings would be quashed on certiorari, a court will not, by mandamus, compel the justice to proceed to have the damages assessed. In such a case it is immaterial on what ground the justice of the peace refuses to proceed. It is not the office of the writ of mandamus to compel the doing of an act which is illegal, or must be undone immediately thereafter. “ In every case, to entitle the relator to relief, it must appear that the defendant is under a legal obligation to do and perform the act required of him and every material fact necessary to show such legal duty must be averred in the petition.” The People v. Madison County, 125 Ill. 334, and authorities there cited.

The court properly sustained the demurrer to the petition.

The judgment is affirmed.