delivered the opinion of the court:
Article 5 of the “Act to provide for the incorporation of cities and villages,” prescribes the time and manner of holding elections for city and village officers, and section 11 of that article is as follows : “The person having the ■highest number of votes for any office shall be declared elected. In case of a tie in the election of any city or village officer, it shall be determined by lot, in the presence of the city council or board of trustees, in such manner as they shall direct, which candidate or candidates shall hold the office.” (1 Starr & Cur. Stat. 462.) The petition in this case is brought by the relator to compel the performance on the part of the defendants, composing the city council of the city of Delavan, of the duty prescribed by this statute.
The first question presented by the special demurrer is, whether the pleading on the part of the defendants is a sufficient answer, both in form and substance, to the case made by the petition. In determining this question it may be useful to advert for a moment to some of the rules governing pleadings in cases of this character. Under our practice the petition in mandamus takes the place of the alternative writ, and the plea or answer takes the place of the return thereto. (Chicago and Alton Railroad Co. v. Suffern, 129 Ill. 274; Highway Comrs. v. Gibson, 7 Ill. App. 231.) A mandamus, proceeding is an action at law, and it is therefore governed by the same rules of pleading that are applicable to other actions, at law. (Rev. Stat. chap. 87, sec. 1; id. chap. 110, sec. 11; Dement v. Rokker, 126 Ill. 174.) The party applying for the writ must, by his petition, show a clear legal right to have the thing asked for done, and that it is the clear legal duty of the party sought to be coerced to do the thing he is called upon to do, and by the answer every material allegation contained in the petition must, if it be intended to contradict them, be traversed. Such of the material allegations of the petition as are not denied or traversed by the defendants’ pleading are, in contemplation of law, admitted by the defendants to be true. Chicago and Alton Railroad Co. v. Suffern, supra.
In view of these rules, it is clear that the answer fails to properly put in issue many of the material allegations of the petition. The defendants answer that they neither admit nor deny them, but call upon the relator for proof. This is a mode of pleading unknown to the common law, and when called in question, as it is here, by special demurrer, must be held to be wholly defective and insufficient. If any effect at all is to be given to it, it must be that of an admission of the truth of all the allegations of the petition sought to be answered in that way. It is an elementary rule of pleading at law, that whatever is not traversed or denied is, by implication, admitted. This rule, as we have already seen, is applicable to a defendant’s answer in cases of mandamus, and it is also a general rule applicable to all common law pleadings. In Gould on Pleadings it is laid down as follows : “Bach party tacitly admits all such traversable allegations on the opposite side as he does not traverse, for, as each party is allowed to deny in some form all material facts alleged against him, the omission by either party to traverse any such fact alleged by his adversary is justly considered an admission of it.” (Gould’s PL 141.) It is difficult to see how the defendants in this case; after expressly declining to deny the various allegations above referred to, can take any benefit from their declination to admit their truth. The admission of their truth follows, as a legal conclusion, from the defendants’ failure to traverse them, and such conclusion is not obviated by a protestation on the part of the defendants that their truth is not admitted.
Without going into a more complete analysis of the answer, it is sufficient to say, that in addition to the many portions of it in which, by refusing to admit or deny the petition, there is, in legal effect, a refusal to answer at all, some of the allegations of the answer are evasive, some involve negatives pregnant, and some state mere conclusions of law, and it is therefore impossible, as against a special demurrer pointing out these defects in pleading, to hold the answer sufficient.
Counsel for the defendants admit, at least tacitly, that their answer is defective, but they insist that the demurrer should be carried back and sustained to the petition. It is a general rule of pleading that a demurrer, at whatever stage it is interposed, reaches back in its effect through the whole record, and attaches ultimately to the first substantial defect in the pleadings, on whichsoever side it may have occurred, defects in substance not being aided by the adverse party’s mere pleading over, as formal defects are. (Gould’s Pl. 441; 1 Chitty’s Pl. 668.) A demurrer may be carried back to the declaration, where that pleading is so defective that judgment upon it would be arrested. (McFadden v. Fortier, 20 Ill. 509.) The rule would seem to be, that the defect in a declaration to which the demurrer will be carried back must be one for which the judgment should be arrested, and not otherwise.
The petition doubtless might 'have set out certain matters more in detail, but we are disposed to hold that it is good in substance, and that the demurrer, therefore, ought not to be carried back. Among the defects insisted upon are its failure to set out with greater particularity the mode in which notice of the election was given, and also the facts in relation to the relator’s eligibility as a candidate for the office of alderman. The fact that notice of the election was given, and that the relator was eligible to be elected to and hold the office, were both alleged in general terms, and we are inclined to hold that, as against a motion in arrest of judgment, such allegations are sufficient.
It is urged that the petition is faulty in failing to allege the eligibility of Davidson to be a candidate for the office of alderman. This, we think, was unnecessary. The relator’s legal right to have the tie determined, and to be admitted to the office if it should be determined in his favor, cannot depend upon the eligibility of the opposing candidate. With that question the relator, in seeking to have the tie determined, had nothing whatever to do. It is true the city council is constituted, by law, the judge of the election and qualifications of its own members, and that Davidson, if not eligible, would, presumably, have been refused his seat even if the tie were determined in his favor. But that fact had no bearing upon the relator’s right to have the tie determined, so that, if determined in his favor, he might be admitted to his seat in the council. Moreover, the council, in canvassing the returns of the election, declaring the election of the candidates who have received a majority of the votes, and in determining the tie where one is found to exist, was not exercising its power to judge of the election and qualifications of its members. It was performing the functions of a canvassing board, and nothing more. Mor was the council then vested with power to determine the election and qualifications of the aider-men chosen at that election. Judgment upon those questions was committed to the new city council, in which the aldermen then elected were entitled to seats, and the out-going council, composed in part of those whose terms of office were about to expire, had nothing to do with those questions. It was the statutory duty of the council then in existence to canvass the returns, declare who was elected upon the face of the returns, and in case of a tie to provide for its determination by lot. It was doubtless incumbent upon the relator to allege his own qualifications for the office, for the purpose of showing a clear right to compel the action of the council in the premises; but he was not called upon to make any showing as to the qualifications of the opposing candidate.
The petition alleges a demand by the relator upon the city council to proceed to have the tie determined by lot, and a refusal by the council. The answer denies that any such demand was made. If it be assumed that this part of the answer may stand while the residue of it is subject to the special demurrer, (a matter which we need not decide,) the question arises whether the allegation of a demand is material and essential to the relator’s right to a peremptory mandamus, for if it is, so long as the allegation of a demand is traversed the relator can not have his writ without proof of his allegation in that respect.
The petition is brought, not merely for the assertion of a private right, but for the assertion of a right and to compel the performance of a duty in which the public has an interest. Under these circumstances it is not essential that previous demand should be made upon the city council to perform its statutory duty. This is settled by the case of People v. Board of Education, 127 Ill. 613, and the authorities there cited.
'We see no ground for carrying the demurrer back to the petition, and it must be sustained to the answer. The duty sought to be enforced is mandatory, and not discretionary, and upon the present record it is the right of the relator that its performance be enforced. According to the uniform practice in this court in original suits, upon the decision of an issue, either of law or fact, final judgment must be pronounced. That judgment in this case must be, that a peremptory writ of mandamus be awarded in accordance with the prayer of the petition.
Peremptory mandamus awarded.