dissenting.
I am unable to yield my assent to the ultimate conclusion reached in this case.
In view of the position assumed by the learned counsel for appellant, that the ordinance of the village of Hyde Park, referred to in the majority opinion, requires only the consent of a “ majority of the property owners on both sides of every street upon which the premises on which the dram-shop is situated abut, and that this consent is necessary along the entire length of the block bounded by such streets,” that is, the consent of a majority of the property owners on Grand Boulevard between Fiftieth and Fifty-first streets, as well as on Fifty-first street, the conclusion reached by the majority is probably a correct one. I am, however, of opinion that this court is not bound by the construction placed upon the ordinance by the learned counsel of the mayor, or even by the mayor himself. The real question presented is whether the mayor was justified in refusing a saloon license to the relator. In fact, the first point in appellant’s brief is, “ The rule is inflexible that mandamus will not lie where the right sought to be enforced is doubtful. The relator must show a clear and an indubitable right to the writ.”
In People v. Village of Crotty, 93 Ill. 180-90, in which a petition for a mandamus was filed to compel the appellee to issue saloon licenses to relator which had been refused, the court, in holding that mandamus should have been denied, among other things say:
“It is no answer to what we have here said, that appellee issued licenses to others under the same circumstances that it refused them to appellant, nor is it material that it may have placed its refusal to issue them to appellant upon an improper ground. * * * And if appellee had no right to issue them, it was wholly immaterial upon what ground it placed its refusal.”
As early as the case of People v. Forquer, Beecher’s Breese, 104-9, it was held that the writ of mandamus would not be granted where the right of the relator thereto was doubtful. This case was re-affirmed in People v. Hatch, 33 Ill. 9, in a carefully considered and exhaustive opinion, in which it was said:
“The writ of mandamus is a high prerogative writ, to be awarded in the discretion of the court, and ought not to issue in any case unless the party applying for it shall show a clear legal right to have the thing sought by it done, and in the manner and by the person or body sought to be coerced, and must be effectual as a remedy, if enforced, and it must be in the power of the party, and his duty also, to do the act sought to be done. It is well settled, that, in a doubtful case, this writ should not be awarded. ’ It is never awarded unless the right of the relator is clear and undeniable, and the party sought to be coerced is bound to act.”
The authority of this case is re-affirmed in numerous casesunder varied facts'and circumstances by, among others, the following: People v. Salomon, 46 Ill. 415-9; People v. R. R. Co., 55 Ill. 95-110; Commissioners v. People, 66 Ill. 339; Ry. Co. v. County Clerk, 74 Ill. 27-31; People v. Lieb, 85 Ill. 484-90; People v. Town of Oldtown, 88 Ill. 202; People v. Village of Crotty, 93 Ill. 180-7; People v. Johnson, 100 Ill. 537-43; Board of Supervisors v. People, 110 Ill. 577; R. R. Co. v. Suffern, 129 Ill. 275-81; Ill. Watch C. Co. v. Pearson, 140 Ill. 423-34; People v. McConnell, 146 Ill. 532-7; Swift v. Klein, 163 Ill. 269-76.
In some of the cases cited the court considered questions of fact appearing either by the pleadings or the proofs, and held, under such facts, whether the case presented by the relator was doubtful or not, or whether, under the facts as determined, he bad a clear legal right to the writ. In others of the cases the court considered and construed laws and ordinances as to the particular case before it, and decided whether or not the case Avas doubtful or the legal rio-ht to the Avrit clear, and awarded or denied the writ. according as it determined, under the laws or ordinances, the case was doubtful or the right clear.
In the Johnson case, supra, which was mandamus to compel a county treasurer to pay a certain county order held by the relator, the court say, among other things:
“When, by reason of a complication of extraneous circumstances not specifically provided for by the statute, a well founded doubt arises, either as to the right of the applicant to receive the fund, or the duty of the officer to pay it out, mandamus is not the proper remedy. The right in such case being doubtful, the claimant must resort to some other appropriate remedy to determine it.”
In the Pearson case, supra, which was to compel the secretary of state to file a certificate of the vote of stockholders of a corporation in favor of a change of its name,, the court, after a careful consideration, both of the statutes- and facts bearing upon the question presented in, denying the writ, among other things said:
“ The writ is never granted in doubtful cases, nor unless the party asking it has a clear right. Such doubt exists in the case at bar, and the petitioner has not a clear right to the relief asked.”
In the Swift case, supra, in which the very ordinances here in question were construed by the court, though not on the point here raised, the court, among other things, said, in speaking of the right to the Avrit, it “ should never be awarded unless the party applying for it shoAvs a clear righ't to have the thing sought by it done, and by the person or body sought to be coerced. In doubtful cases it should not be granted;” and denied the Avrit, dismissing the petition because it failed to aver and the proof failed to •shoAV a clear compliance Avith the ordinances.
The folloAving cases recognize the general rule so well settled in this State, and in their facts and the questions presented tend to illustrate the manner in which the courts have applied it, viz: Regina v. Ray, 44 Up. Can. O. B. 17; Tyler v. Taylor, 29 Grat. 765; Ex parte Lynch, 16 S. Car. 32-9; State ex rel. Miers v. Appleby, 25 S. Car. 100; Port Royal Co. v. Hagood, 30 S. Car. 519-23; Draper v. Noteware, 7 Calif. 276; Hall v. Stewart, 23 Kas. 396; Townes v. Nichols, 73 Me. 515; Cook v. Treasurer, 50 Ver. 231; Larkin v. Harris, 36 Ia. 93-7; and State v. Auditor, 43 Ohio St. 311-20.
In the case of Regina v. Ray, supra, Avhere a mandamus Avas asked to compel the mayor of the town of "Whitby to issue a distress Avarrant on a conviction made by him, the Avrit Avas denied because the by-law and the conviction thereunder were subject to several grave objections, thereby rendering the right to the Avrit a doubtful one.
In the Draper case, supra, the Supreme Court of California, on a construction of a statute of that State, denied the writ of mandamus to compel a county auditor to draAv his Avarrant on the county treasurer in favor of the plaintiff for certain amounts, because under the statute of the state the right was not clear, the particular case presented not being within the terms of the statute, which required the county auditor to issue orders on the treasurer of the county.
In the Hagood case, supra, which was an application for mandamus against Hagood and others, members of the state board of agriculture, to compel the respondents to issue a license to relator to mine phosphate rock in the lands of the state, it was claimed, among other things, that a statute of the State which vested the board with discretion to grant or refuse such license, was void under the constitution of the State. The court held it was not the province of the board of agriculture to determine the constitutionality of laws defining their own powers, and the courts would not, in such a proceeding, determine the constitutionality of statutes affecting the rights of third persons, and denied the writ for the reason, among others, that it was not the board’s plain duty to issue the license when that was only made to appear by declaring an act of the legislature unconstitutional.
In the Hall case, supra, the Supreme Court of Kansas held that a mandamus should be denied which sought to compel the defendant, as clerk of the District Court of Greenwood County, to issue an execution on a certain judgment, which the court held was fairly open to at least two different constructions. The court say:
“ As the judgment is ambiguous, and as it is fairly open to the construction given to it by the clerk and the court below, the plaintiff is surely not entitled to a writ of mandamus to compel the clerk to issue an execution upon it.”
According to the construction given the judgment by the clerk, the plaintiff was not entitled to an execution, though under the construction claimed by the plaintiff the execution should have been issued.
In the Townes case, supra, which was an application to compel the directors of a mining company to require its officers to issue to petitioner a certificate of shares of stock of the company, the petition was denied because the court could not determine whether the petitioner’s claim was a just and legal one or not, and, among other things, say:
“ Mandamus is the right arm of the law. Its principal office is, not to inquire and investigate, but to command and execute. It is properly called into requisition in cases Avhere questions of law or equity can not properly and reasonably arise. Its very nature implies that the law, although plain and clear, fails to be enforced and needs its assistance.”
In the Larkin case, supra, the court considered the statutes as well as the facts in issue, and.held that the case wras not a doubtful one, and affirmed the judgment of the court below, denying the writ. The court, in speaking of the rule that mandamus will not lie where the case presented is doubtful, say:
“ The term doubtful right means some other doubt than that arising upon a mere construction of a judicial order, or a legal doubt as to the effect or meaning of a record.”
In the case of State v. Auditor, supra, which was mandamus to compel the auditor of Darke county to issue his warrant upon the treasury of that county in favor of the relator for a sum named, to pay for a site purchased by the county commissioners of him for a children’s home, the court considered the statutes and the proof in the case,,and held that under the law as applied to the facts in evidence, the legal right to the writ was clear and the case was not a doubtful one, though the court say, speaking of certain orders of the county commissioners bearing upon the case :
“ It is not enough that the auditor may honestly entertain doubts concerning the propriety of the original order or the effect of the order of rescission. The right to a writ of mandamus to enforce the performance of an official act by a public officer depends upon his legal duty, and not upon his doubts. If his duty is clear, its performance will not be excused by his doubts concerning it, however strong or honest they may be.”
The last two cases are the- only ones I have been able to find, in the time at my disposal, which in anyway indicate that the court will award a mandamus to compel the performance of an official act, when the legal right of the party seeking to enforce it does not clearly appear, or when the case presented is a doubtful one.
It will be noted, however, that in the last case the court held that the legal right was clear and the case not doubtful. The case does not conflict with the others noted.
I therefore think that the great weight of authority is that relief by mandamus should not be awarded in a case such as the one at bar, where I believe that the legal right of the party seeking it is not clear and his case upon the proof, as applied to the law, is a doubtful one. It is not enough that the officer should doubt his duty under the law or the facts presented. The court must construe the law and pass upon the facts and determine for itself whether the legal right is clear or the case a doubtful one.
I think relator was' clearly within all the provisions of the law entitling him to a license, except as to the matter of frontage consents. What were his rights in that regard?
Section 1 of the ordinance in question provides that his application “shall be signed by a majority of the property owners, according to frontage, on both sides of the street in the block upon which such dram-shop is to be kept, and shall also be signed by a majority of the bona fide householders and persons of firms living in or doing business on each side of the street in the block upon which such dram-shop shall have its main entrance.”
The ordinance plainly provides for two different and distinct classes of signers of the application: first, property owners on both sides of the street in the block upon which the dram-shop is to be kept, and, second, householders and: persons or firms living in of doing business on each side of the street in the block upon which such dram-shop shall have its main entrance. The latter class of signers, it is conceded, were presented to the mayor with the application, and that provision of the ordinance is clear and certain in its terms, being made so because the street is fixed as being the one upon which the dram-shop shall have its main entrance. The difficulty arises as to the other class of signers.
In Webster, as well as the Century dictionary, a block is defined as “ a square or portion of a city enclosed by streets, whether occupied by buildings or composed of vacant lots.” This definition is approved by the Supreme Court in Todd v. R. R. Co., 78 Ill. 530, and also by the Supreme Court of Kansas in the case of Ottawa v. Barney, 10 Kas. 270, but the cases are different from the one at bar.
In the Standard dictionary “block” is defined as “The distance along a street from one cross-street to another.”
It is true beyond doubt that these different meanings are commonly accepted, but the question is, what was the meaning as used in the ordinance. To say the least, it seems doubtful and uncertain what was there intended by the use of the word block. If the ordinance had said “ both sides of the street fronting that part of the block on which the saloon fronts,” there could be no doubt of the meaning as applied to this case, and the relator would have been clearly within the law as to frontage consents when he presented an application signed by a majority of the property owners on that street, to wit, Fifty-first street. If the word block was intended to mean, as is claimed by relator, the distance between two streets, still the meaning of the ordinance is uncertain and doubtful. It says, “ in the street in the block upop which such dram-shop is to be kept.” The block does not necessarily mean the distance on Fifty-first street between Grand Boulevard and Calumet Avenue; it may mean any other of the three sides of the block, as no particular side is clearly specified. Moreover, it is not clear what street is meant. The phrase, “ the street in the block,” is inaccurate, though it evidently means the street along a side of the block, or the street on which the block abuts. That street may as well be said to be on any other side of the block as on Fifty-first street. But it may be said that phrase is limited by the words, “ upon which such dram-shop is to be kept.” It may be replied, and not without much force, these words are intended to limit the block and not the street. If so, then “the street in the block” might well mean a street on either side of the block. If Webster's definition is the one intended, then in view of the uncertainty of the meaning of the phrase, “ the street in the block,” it might well be contended that the ordinance could not be certainly complied with without procuring the consent of a majority on both sides of each street on each side of the block. To this it may be claimed such a meaning is absurd; this ordinance has never been so construed, but has in the past been construed as the relator contends is the proper construction. The answer to which is, if such a construction is absurd, then the authors of the Century and Mr. Webster are ignorant of the meaning of a common English word. That the ordinance has been differently construed in the past and the construction claimed by relator has been given it, is immaterial, as held in the Grotty case, supra. The question is, was the mayor right in refusing relator a license, irrespective of the reasons he then had, or his counsel now urge, for such refusal ? Had the relator a clear legal right, with frontage consents on Fifty-first street only, or was his cause doubtful because he did not present frontage consents on all the streets around the block ? In view of the ambiguity of the ordinance, I am of opinion the mayor was right and that the case made by relator is doubtful; thát he has failed to show a clear legal right to a mandamus.