"We agree that while mandamus will not lie to direct the manner in which the discretion is to be exercised, it is available to compel the performance of an action which requires the exercise of discretion or even to compel the exercise of discretion itself.”
How later courts described this case
- "We agree that while mandamus will not lie to direct the manner in which the discretion is to be exercised, it is available to compel the performance of an action which requires the exercise of discretion or even to compel the exercise of discretion itself.”
- “[i]n other words, we told everybody to start over and do it right”
Written by the judges who cited it.
The opinion
MR. JUSTICE MORAN, also dissenting:
In addition to joining the dissents of Mr. Justice Underwood and Mr. Justice Ryan, I submit the following reasons as to why mandamus is an inappropriate remedy in this case.
Article VI, section 4, of the Illinois Constitution of 1970 empowers this court to exercise original jurisdiction in cases relating to mandamus. The traditional use of the writ of mandamus has been to compel the officer to whom it is addressed to perform a ministerial duty which he has failed to perform. (People ex rel. Atchison, Topeka & Santa Fe Ry. Co. v. Clark (1957), 12 Ill. 2d 515, 519 ; People ex rel. Jacobi v. Nelson (1931), 346n Ill. 247, 251.) However, the performance of such duty cannot involve the exercise of discretion or judgment. (People ex rel. Ward v. Salter (1963), 28 Ill. 2d 612, 615-16 ; People ex rel. Dolan v. Dusher (1952), 411 Ill. 535, 538 .) Where the performance of an official duty or act involves the exercise of judgment or discretion, the officer’s action is not subject to control by mandamus. Chicago & North Western Transportation Co. v. Matoesian (June 26, 1981), No. 54217; South Chicago Community Hospital v. Industrial Com. (1969), 44 Ill. 2d 119, 122 ; People ex rel. Iasello v. McKinlay (1951), 409 Ill. 120, 124 .
Also, an original action for a writ of mandamus in this court will not lie where it appears that an unresolved question of fact is involved. In such action only issues of law are to be considered. Touhy v. State Board of Elections (1975), 62 Ill. 2d 303, 312 ; People ex rel Ward v. Moran (1973), 54 Ill. 2d 552, 557 ; People ex rel. Jones v. Robinson (1951), 409 Ill. 553, 555 ; Monroe v. Collins (1946), 393 Ill. 553, 557 ; 73 Ill. 2d 512 .
In the instant case, discretion on the part of the Governor and unresolved questions of fact are present.
Section 6(b) of article IV of the Illinois Constitution confers upon the Governor the ministerial duty of convening the Senate “to elect from its membership a President of the Senate as presiding officer.” The Governor performed this constitutional duty on January 15, 1981. In performance of this duty, it became necessary for him to make certain parliamentary rulings, since no established rules governing the number of votes necessary to elect a President had been previously established by members of the Senate. By his parliamentary rulings the Governor was performing discretionary acts, not a ministerial function. Consequently, the plurality’s conclusion that mandamus is appropriate is clearly erroneous.
The plurality concedes that mandamus will not lie to direct the manner in which the discretion is to be exercised, but, relying on People ex rel. Chesapeake & Ohio Ry. Co. v. Donovan (1964), 30 Ill. 2d 178, 180 , argues that “it is available to compel the performance of an action which requires the exercise of discretion or even to compel the exercise of discretion itself.” (85 Ill. 2d at 416.) That case, however, supports denial of the writ in the situation that confronts us. In Donovan, a circuit court judge denied a motion to dismiss a complaint, holding that the doctrine of forum non conveniens, upon which the motion was based, was inapplicable. This court, after concluding that the judge applied a clearly erroneous rule of law, awarded a writ of mandamus requiring the judge to exercise his discretion in light of the applicable legal standards. In that case, however, the court did not tell the judge how to exercise his discretion. Rather, it simply ordered the judge to exercise his discretion in accordance with a clearly enunciated rule of law. ( 30 Ill. 2d 178 , 180-81.) Here, the mandamus is issued to direct the manner in which the discretion is to be exercised, the very circumstance in which the plurality acknowledged mandamus will not lie. 85 Ill. 2d at 416.
It is important to note that Donovan, in holding that mandamus is available to compel the exercise of discretion, relied upon People ex rel. Atchison, Topeka & Santa Fe Ry. Co. v. Clark (1957), 12 III. 2d 515. That case involved a factual pattern similar to Donovan. The trial judge denied a motion to dismiss the case, holding the doctrine of forum non conveniens inapplicable. Movants sought a writ of mandamus, arguing that the judge failed to exercise his discretion. This court, after engaging in detailed analysis of exercise versus nonexercise of discretion, concluded that mandamus was inappropriate, even if discretion were not exercised in accordance with the correct rule of law. (See Chicago & North Western Transportation Co. v. Matoesian (1981), 85 Ill. 2d 404 ; St. Louis-San Francisco Ry. Co. v. Gitchoff (1977), 68 Ill. 2d 38, 47 (Dooley, J., concurring).) The court, in Clark, stated:
“Where the performance of an official duty or act involves the exercise of judgment or discretion, the officer’s action is not subject to review or control by mandamus. [Citation.] Although mandamus will lie to compel the performance of a judicial duty where such duty is ministerial and the right is clear, this court has repeatedly held that the writ will not lie to direct or modify the exercise of judicial discretion by a judge. [Citations.] ***
*** Where an officer, in the exercise of a discretionary power, has considered and determined what his course of action is to be, he has exercised his discretion, and his action is not subject to review or control by mandamus. ” 12 Ill. 2d 515 , 520-21.
Clearly, under Clark and the other cases cited, mandamus is inappropriate in the instant case inasmuch as the Governor was called upon to make a ruling, an exercise of discretion. Certainly, it cannot be said that he failed to exercise a clearly delineated duty. Further, like the situation in Clark, petitioners ask not that this court order the Governor to act, but that it mandate that he act in a particular way (i.e., to preside over the Senate’s election of a President and to require that such election be by a majority of the total elected membership). This, in itself, indicates that it is the action of the Governor in the exercise of his discretion to which petitioners object, not his refusal to convene the Senate to elect from its membership a President. See People ex rel. Atchison, Topeka & Santa Fe Ry. Co. v. Clark (1957), 12 Ill. 2d 515, 522 .
Further, as can be seen from the plurality opinion and the dissent of Mr. Justice Ryan, an unresolved question of fact arose with regard to the number of Senators present on the floor at the time of the disputed roll call. Were there 29, 30 or 31 Senators present at the time of the roll call electing Senator Shapiro President of the Senate? The transcript of proceedings does not reveal the answer. The plurality concludes that, because only 29 Senators voted for Senator Shapiro and there were no votes for Senator Rock, only 29 Senators were present. While the transcript discloses that Senator Savickas was noted as being on the floor during the call it is silent as to the whereabouts of Senator Rock. In short, the petitioners are asking this court to surmise, presume or conjecture a basic factual setting. As earlier stated, mandamus is not the vehicle to accomplish such desired result.
Having determined that mandamus is not the appropriate remedy in this case, I believe the right of Senator Shapiro to hold the office of President of the Senate must be contested in a quo warranto proceeding. The object of a writ of quo warranto “is, to call in question the defendant’s title to the office or franchise claimed and exercised by him, because of some alleged defect therein, as for instance *** that the election itself was void or irregular.” (People ex rel. Koerner v. Ridgley (1859), 21 Ill. 65, 66-67 .) Early case law in Illinois firmly established that mandamus is not the proper method of contesting the election of any person to an office which he has assumed. (People ex rel. Seegers v. Dunlap (1910), 248 Ill. 154, 156 ; Snowball v. People (1893), 147 Ill. 260, 266 ; People ex rel. Ewing v. Forquer (1825), 1 Ill. 104 , 111.) The writ of quo warranto, then, is clearly the only appropriate mode to challenge the right of an official to hold the office claimed. It is aimed at preventing a continued exercise of authority unlawfully asserted rather than to correct acts performed under that authority. (Johnson v. Manhattan Ry. Co. (1933), 289 U.S. 479, 502 , 77 L. Ed. 1331, 1347 , 53 S. Ct. 721, 729-30 .) These principles have been codified in “An Act in relation to practice and procedure in cases of Quo Warranto” (Ill. Rev. Stat. 1979, ch. 112, par. 9 et seq.). Section 1 of the Act specifies:
“A proceeding in quo warranto may be brought in case: (a) Any person shall usurp, intrude into, or unlawfully hold or execute any office *** created by authority of this State.”
In the present case, the focus of the challenge is the right of Senator Shapiro to hold office. The underlying foundation of that challenge is the allegation that the election conducted by the Governor was void in that it contravened the mandate of the Constitution that such officer be elected from the membership of the Senate. If such election is found to be void, the claim of title to the office will be defeated. The case before us is definitely one which requires use of a proceeding in quo warranto.
The constitutional grant of original jurisdiction to this court is expressly limited to cases relating to revenue, mandamus, prohibition or habeas corpus. (Ill. Const. 1970, art. 6, sec. 4.) We are without original jurisdiction to hear this cause. The present controversy is one that may be brought only by a writ of quo warranto in the circuit court. I, therefore, believe that allowing the motion for leave to file a petition for a writ of mandamus was improvidently granted, and the writ of mandamus should be denied.
UNDERWOOD and RYAN, JJ., join in this dissent.