delivered the opinion of the court.
A petition for mandamus must show on its face a clear right to the relief asked. It must distinctly set forth all the material facts relied upon,, so that the same may be admitted or traversed. People ex rel. v. Glann, 70 Ill. 234; Canal Trustees v. People, 12 Ill. 254.
It is said in C. & A. R. R. Co. v. Suffern, 129 Ill. 281:
“ Two rules in regard to the issuance of a writ of mandamus are well settled : first, the party applying for it must show a clear legal right to have the thing done which is asked for; second, it must be the clear legal duty of the party sought to be coerced to do the thing he is called upon to do.”
To the same effect is Lawrence E. McGann v. The People, etc., ex rel. Coffeen, 194 Ill. 526.
Tested by these rules, the petition is clearly insufficient. It does not aver that petitioner, upon his appointment on December 22, 1900, took the oath of office which he avers in his petition, when appointed in January, 1900, he was in law required to take.
It does not aver that when the petitioner applied to the county judge for a warrant for $100 that that amount, under the statute, was due petitioner.
The averment is, that it has been the practice and custom of the county judge to audit the accounts of the commissioners and chief clerk on or before the fifth day of each month, for the month next preceding.
For all that appears in the petition, this may have been the custom, and yet it may not be the duty of the judge, under the statute, to audit and issue a warrant monthly. 3STor does the statute direct that the salary of the chief clerk shall be paid monthly. The only provision in the statute is, that the said chief clerk shall be paid “ a salary of $1,200 per annum ” and that “ it shall be the duty of the governing authority of such counties and cities to make provision for the prompt payment of such salaries' and expenses.” Hurd’s Stat., Sec. 281, p. 833.
The statute imposed no duty upon the county judge to audit a monthly account for salary any more than it does to audit it weekly or quarterly.
An averment that the salary of the petitioner, under the statute, was then due, and that it was the duty of the judge therefore to audit the amount and issue the warrant, was a necessary averment.
The petition asked also for a writ compelling the treasurer to pay a warrant, which it shows was never issued. As there is no averment in the petition that the treasurer refused to pay the warrant for $50 which the judge did issue, it can not be ground for mandamus against him, that he has not paid a warrant which the judge refused to issue.
The petition failing to show a breach of duty on the part of the county judge to audit and issue a warrant, and failing to show any refusal of the county treasurer to pay an issued warrant, the demurrer was properly sustained.
This being so, the other questions sought to be raised are not before us for consideration.
Judgment affirmed.