Village of Fox River Grove v. Aluminum Coil Anodizing Corp., 114 Ill. App.2d 226, 252 N.E.2d 225, 226 (2d Dist. 1969) (statutory citations omitted). See also LaSalle National Bank v. Village of Riverdale, 16 Ill.2d 151, 157 N.E.2d 7, 11 (1959). Plaintiff, in arguing that the installation of the new line is not within the scope of the easement, makes two principal arguments.
The issues before this court are threefold: first, whether the damages portion of the plaintiff's mandamus action survives the plaintiff's death; second, if not, whether the executor should be allowed to amend the complaint; and third, if the damages portion of the mandamus action survives, whether the board of education failed to tender Rosemarie Walter a teaching position that the board was legally obligated to offer. A writ of mandamus is issued as an exercise of judicial discretion only in those cases where the plaintiff can demonstrate a clear right to this extraordinary relief. ( White v. Board of Appeals (1970), 45 Ill.2d 378; La Salle National Bank v. Village of Riverdale (1959), 16 Ill.2d 151.) Where an administrative officer or board has arbitrarily failed to act, mandamus will lie to compel that officer or board to perform a duty which the plaintiff is entitled to have performed. Taylor v. State Board of Education (1978), 56 Ill. App.3d 387.
We observe that a writ of mandamus should be awarded only in the exercise of sound judicial discretion and only where the plaintiff has established a clear right to this extraordinary remedy. ( LaSalle National Bank v. Village of Riverdale, 16 Ill.2d 151, 160; People ex rel. Adamowski v. Dougherty, 19 Ill.2d 393, 400.) We consider that the allegations of the third count did not sufficiently establish the "clear right" required for the issuance of the writ.
They rely on the principle that the writ will not issue unless the petitioner shows a clear and legal right to it, and a clear neglect of duty on the part of the defendant. ( La Salle National Bank v. Village of Riverdale, 16 Ill.2d 151; People ex rel. McDowell v. Department of Public Works and Buildings, 326 Ill. 589.) They contend that the corporation failed to file corrected plans and specifications, failed to make a reapplication for the permit, and failed to pay or tender the permit fee. It is not clear from Stika's testimony whether or not the amended plans and specifications were filed in his office.
Our independent research has discovered two Illinois cases which hold that a landowner has a vested interest in connecting to specific municipal sewers when the landowner has paid a special assessment levied to construct those sewers. ( La Salle National Bank v. Village of Riverdale (1959), 16 Ill.2d 151, 157-58, 157 N.E.2d 7; Frank v. State Sanitary Water Board (1961), 33 Ill. App.2d 1, 6, 178 N.E.2d 415.) There is no evidence in the record before us to indicate that the bank or any of its predecessors in title paid any special assessment levied by the city for construction of the sewer main to which the bank's permit allowed connection in the case at bar.
A writ of mandamus will not issue to compel a party to perform an act unless it is affirmatively made to appear that it is his clear duty to do so. ( White v. Board of Appeals (1970), 45 Ill.2d 378, 381-82, 259 N.E.2d 51; People ex rel. Adamowski v. Dougherty (1960), 19 Ill.2d 393, 400, 167 N.E.2d 181; La Salle National Bank v. Village of Riverdale (1959), 16 Ill.2d 151, 160, 157 N.E.2d 7; People ex rel. Pignatelli v. Ward (1949), 404 Ill. 240, 244, 88 N.E.2d 461; People ex rel. Sanitary District v. Schlaeger (1945), 391 Ill. 314, 331-32, 63 N.E.2d 382.) Moreover, mandamus is not proper where the right of the petitioner must be established or the duty of the officer sought to be coerced must first be determined.
In a similar vein, for this court to order a writ of mandamus to issue the plaintiff must show a clear legal right to the relief sought. ( La Salle National Bank v. Village of Riverdale, 16 Ill.2d 151, 157 N.E.2d 7; People ex rel. Heffernan v. Smukal, 13 Ill. App.2d 342, 142 N.E.2d 133; 26 Ill. L. Pr. Mandamus § 32 (1956).) We have no record of the type of application made or the nature of the plans submitted other than from facts gleaned from the testimony of the witnesses presented at trial, from which we cannot say that plaintiff established in the trial court a clear legal right either to a special use permit as an auto laundry or to the use of a car wash facility under the Automobile Service Stations section (9.3-1B(1)) of the Zoning Code. Thus, on the record presented us, the judgment of the trial court must be affirmed.
We believe this is the correct rule to be applied in such cases. See Deer Park Civic Assn. v. City of Chicago, 347 Ill. App. 346, 352, 106 N.E.2d 823; River Forest Bank v. Village of Hillside, 6 Ill.2d 451, 129 N.E.2d 171; La Salle Nat. Bank v. Riverdale, 16 Ill.2d 151, 157 N.E.2d 7; Cities Service Oil Co. v. City of Des Plaines, 21 Ill.2d 157, 163, 171 N.E.2d 605. For these reasons we hold that the Pollution Control Board and Environmental Protection Agency were estopped from withdrawing the sewer connection permission earlier granted to Petitioners by the Sanitary Water Board. As the permits in question have now been furnished to Petitioners, no further direction by this court is required.
It is important to note that the court said that the permit must be granted to "a property owner" — not a taxpayer indirectly or remotely affected, but a property owner adversely affected and confronted with loss of value by a denial of due process. Finally, counsel for appellees also cite La Salle National Bank v. Riverdale (1959), 157 N.E.2d 7, a case in which mandamus was sought to secure a building permit. The basic position taken by the Supreme Court of Illinois is thoroughly sound.
Employees holding positions in the State service herein shall continue under the following conditions: Employees who have been appointed as a result of having passed examinations in existing merit systems, and who have satisfactorily passed their probationary period, or who have been promoted in accordance with the rules thereunder, shall be continued without further examination, but shall be otherwise subject to the provisions of this Act and the rules made pursuant to it," had not been construed by an Appellate Court. In La Salle Nat. Bank v. Village of Riverdale, 16 Ill.2d 151, at page 160, 157 N.E.2d 7, the Supreme Court said, "It is well established that a writ of mandamus will not be issued unless the plaintiff shows a clear and undisputed right to the relief sought." Plaintiff's right to the writ, if mandamus is to issue, must stem from legislative enactment.