People ex rel. Payson v. Kay , 1910 Ill. App. LEXIS 644 ( 1910 )

Mr. Justice Thompson

delivered the opinion of the court.

The writ of error was not sued out in this case until August, 1909, several months after the election in reference to which it was sought by the petition to compel the defendants in error as officers of the city to vote with the aldermen who aré relators. It was conceded by plaintiff in error in oral argument in this court that an election was held on April 20, 1909, and that none of the parties to this suit, either relators or defendants in error, at the time the writ of error was sued out, were officers of the city; they are all out of office. Without the admission, the petition alleges that they were all elected in April, 1907, and the statute makes their term of office two years, so that their term of office expired with the holding of the election in April, 1909. The prayer of the petition only relates to the election to be held on April 20, 1909. That period has passed. No mandamus can now issue to call that election in any particular manner. It is well settled that a peremptory writ of mandamus will not be awarded when the right sought to be enforced is an abstract right, the enforcement of which by some change of circumstances since the commencement of the suit can be of no substantial or practical benefit to the petitioner. The question sought to be litigated by this writ of error, which is a new suit (Singer & Talcott Stone Co. v. Hutchinson, 176 Ill. 48; Helbig v. Citizens Ins. Co., 234 Ill. 257; International Bank v. Jenkins, 107 Ill. 291; Clowry v. Holmes, 238 Ill. 577), has now become a mere academic question or question of law, the decision of which would be fruitless and unavailing to petitioners, and might embarrass the trial of some proper action brought to test the legality of the election of February 23, 1909. A peremptory writ of mandamus is never awarded to settle mere abstract rights, unaccompanied by practical or substantial benefits. North v. Trustees, etc., 137 Ill. 296; Cristman v. Peck, 90 Ill. 150; Grormley v. Day, 114 Ill. 185; People ex rel. v. Olsen, County Clerk, 215 Ill. 620; People ex rel. v. Rose, 81 Ill. App. 387; Zuccone v. Halverson, 92 Ill. App. 661; Board of Education v. Bolton, 85 Ill. App. 92.

It is not necessary to discuss the question whether the relators can in this proceeding try the validity of the election of February 23, 1909, since the prosecution of this writ of error cannot be of any practical benefit to the relators. The writ of error is dismissed.

Writ dismissed.