( Stanley v. Illinois; People ex rel. Slawek v. Covenant Children's Home.) Where a statute is subject to two constructions, one of which may render it unconstitutional, courts are bound to adopt the construction which avoids the constitutional problem. ( McAleer Buick-Pontiac Co. v. General Motors Corp. (1981), 95 Ill. App.3d 111, 114, 419 N.E.2d 608; Grove v. Board of Supervisors (1927), 246 Ill. App. 241, 245.) Accordingly, we adopt the narrower construction of section 4.
Chicago Motor Coach Co. v. Budd, 346 Ill. App. 385, 390, 105 N.E.2d 140, 143. [5-7] The writ of mandamus is a writ commanding an official or official board to perform a ministerial act where the law imposes a duty to act and no discretion is vested in the official or board. Grove v. Board of Sup'rs of Piatt County, 246 Ill. App. 241, 244. In order to warrant the issuance of a writ of mandamus, it must appear that the petitioner has a clear right to the performance of a particular act or duty by the respondent.
At common law in Illinois, it was well established that if a proper party brought suit he need name no use party or real party in interest and that naming such party was surplusage. Lee v. Pennington, 7 Ill. App. 247 on 252; Schiff v. Supreme Lodge Order of Mut. Protection, 64 Ill. App. 341 on 343; Brownell Improvement Co. v. Critchfield for Use of Mexican Asphalt Paving Co., 96 Ill. App. 84 on 90; Continental Cas. Co. v. Maxwell, 127 Ill. App. 19 on 23; Cuna v. Supreme Tribe of Ben Hur, 157 Ill. App. 138 on 144; Smith v. Vandalia R. Co., 188 Ill. App. 426 on 429; People v. Egan, 239 Ill. App. 61 on 67; Grove v. Board of Sup'rs of Platt County, 246 Ill. App. 241 on 246; Stefanich v. Richard, 314 Ill. App. 183 on 186, 41 N.E.2d 104; Chadsey v. Lewis, 1 Gilm 6 Ill. 153, 159; Atkins v. Moore for Use of Cool, 82 Ill. 240, 241; Schott v. Youree, 142 Ill. 233, 241, 31 N.E. 591; Tedrick v. Wells, 152 Ill. 214 on 217, 38 N.E. 625; Knight v. Griffey, 161 Ill. 85, 87, 43 N.E. 727. Illinois does not have a "real party in interest statute.
The obtaining of such a license is a prerequisite to any right to engage in that business. While it has been held that the statute is mandatory as to all persons and corporations who bring themselves within its provisions ( Grove v. Board of Sup'rs of Piatt Co., Ill., 246 Ill. App. 241) it is of no consequence in this proceeding that appellee had applied for a license and had fully complied with the statute. The remedy by mandamus was complete and adequate.
Section 4, Cahill's St. ch. 34, ΒΆ 198, provides: "A license to operate or maintain a dance hall may be issued by the county board to any citizen, firm or corporation of the State," who submits a written application for a license as provided in said section 4. The act in question provides for the regulation of public dance halls or road houses used for public dances outside the limits of any city, village or town and does not provide for their prohibition. In Grove v. Board of Sup'rs of Piatt Co., Ill., 246 Ill. App. 241, the court at pages 244-245, said: "In section 4 of the act the word 'may' is to be construed as meaning 'shall,' " citing Canal Com'rs v. Sanitary Dist. of Chicago, 184 Ill. 597.