Edwardsville spectator. [volume] (Edwardsville, Ill.) 1819-1826, 1826-01-21

maue oy &c Lieutenant Governor; anu
he also steafs that at this time he 7uas
the acting Governor of the state. The
return con radicts this fact, and states
that ColesVas then in the exercise OF the
duties of To office Of Governor. II this
return had aeen demurred to, or an issue
been made upon the affidavit or return,
as made, how would the Court have pro-
cceded There is no statute Of this state
regulating the mode Of proceedings up
on mandamus, What course could
then nave been pursued!
Here is an evident embarrassment OF
much consideration, and would seem to
require Legislative interposition as to the
mode OF proceeding, as has been provided
in other states. The statutes OF Great Bril-
tain are thought not to be in force here,
respecting such proceedings. II the
Court had been compelled to decide on
all the facts set ont in the affidavit and in
the return, to witch ought they to give
credit, or which should they reject But
there are still other difficulties. A de-
cision might affect the acts of the Lieut..
Governor, while exercising the duties of
/ Governor, if be has not exercised the
Executive duties by virtue of the provi-
sions OF the constitution and are those
acts TO be Effected and their validity de-
termined il this collateral way? This
brings me to the consideration OF the Sc
cond poln, II he has perfect legal
right, and that right has been violated,
do our laws afford him remedy by man.
oamus, and is this Court bound TO award
it," II the right had been established as
perfect legal right, and it has been vio-
lated, our laws must afford remedy.
| But in the case of mandamus, there
are cases where this may have been
shewn, yet the Court will no grant the
writ.
1t is certainly sound legal principle,
that eases may arise where The Court
viii bot grant mandamus, when the
granting thereof will, in collateral
manner, decide questions OF importance
between persons who are not parties to
the proceedings, and have had no notice
and opportunity to interpose their de-
ience, or where it will be attended with
manifold hardships and difficulties. And
it has been further decided in the Court
OF Kings Bench that the Courts are not
bound to grant wrlts OF maDdamus in all
cases where it uay seem proper; but
may exercise discretionary power, as
well in granting as refusing, as where
the end of ii is merely private right:
see 4th vol. Bacon's Abrldg. 10. Courts
will not grant mandsmus to person to
do any act where it is doubtful whether
he ought 10 do it. The real question
then is, on this part OF the case, that al
though it were certain that the party APP
plying had legal right to the commits
sion, and that right has been violated,
and The Law would afford him remedy !:
and which remedy is conceded to be a
mandam us, whether it is not such case
as would De attended with manifest diff
culties AMI grea, hardship, but also in
volve, in a collateral manner, the right
of third p,rties, who have no opportunity
of defending their interests. 1t certain
ly weuid and am moreover satisfied
that there are insuperabe difficulties,
which could not be remedied, arising
out of the facts set forth in the affidavit
and return which could moi be properly
disposed Il, as there is no mode provided
by the laws OF this state by which this
Court cold ascertain the real facts in
the case; and | very much doubt whe-
ther the Court would be authorized to
prescribe one itself which mus, COM
PRISE the empannelling OF jury.
| Upon The whole case, and from the
best consideration l have been enabled to
| bestow upon it, during the limited time
offered Tor making up an opinion, have
Gene to The following conclusions: That
the applicant had not perfect legal
right to the commission, on the ground
that it was an original vacancy, and could
not be filled in the recess by the Govern
or, by an appointment to expire a, the
end of the next session OF the General
Assembly and that the Secretary, on
that ground alone, was justified in with
holding his signature and the seal OF
| state; that It is case attended with
great difficulties, both as to the rights to
be ascertained and decided that it in
wolves, in collateral manner, the right
OF both the real parties in the controver.
sy; who are not before the Court, and
whose right to the Executive power,
could alone be determined, if at all, III
this Court, by writ Of quo zuarranfo
and that on the state Of facts presented,
no mode has been provided by which
this Court could assume data by which