Delahanty v. Warner

• Citation: 1874 WL 9215,75 Ill. 185,20 Am.Rep. 237
• Parties: PATRICK DELAHANTYv.JOHN WARNER et al.
• Decision Date: 30 September 1874
• Court: Supreme Court of Illinois

75 Ill. 185

1874 WL 9215 (Ill.)

20 Am.Rep. 237

PATRICK DELAHANTY

v.JOHN WARNER et al.

Supreme Court of Illinois.

September Term, 1874.

APPEAL from the Circuit Court of Peoria county; the Hon. JOSEPH W. COCHRAN, Judge, presiding.

Messrs. MCCULLOCH, STEVENS & WILSON, for the appellant.

Mr. J. S. STARR, and Messrs. LEE & QUINN, for the appellees.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

Appellant was superintendent of streets in the city of Peoria, and he alleges, by his bill, that he was unlawfully removed from his office, and prays that the aldermen and mayor of the city may be enjoined from appointing a successor, and from interfering with him in any way in the discharge of his duties as street commissioner.

The court below dissolved the temporary injunction which had been issued, and dismissed the bill for want of equity.

In this we perceive no error. Appellant's remedy was complete at law. High on Injunctions, sec. 781. If he was not properly removed, and a successor cannot therefore be legally appointed, the question can be settled by quo warranto against the person claiming to be his successor in office. People ex rel., etc., v. Forquer, Breese (Beecher's ed.), 104; People, etc., v. Matteson, 17 Ill. 168.

By mandamus, the mayor and aldermen may be compelled to restore to him any evidence of his right to the office, or any property pertaining thereto which they may have improperly withheld from him. People ex rel., etc., v. Head, 25 Ill. 325; People ex rel. v. Kildruff, 15 ib. 492; People ex rel. v. Hilliard, 29 ib. 414. And where the title to the office is not in dispute, mandamus will lie to restore the person entitled to it. Street v. County Comm's, Breese (Beecher's ed.), 50; People v. Stevens, 5 Hill, 616. Nor can there be any doubt of appellant's having a complete remedy at law for any fees and emoluments pertaining to the office of which he may have been unlawfully deprived by the action of the mayor and aldermen.

The court below, however, in dismissing the bill, ordered the payment of one hundred dollars, as solicitor's fees, to appellees, and there is no evidence preserved in the record justifying this order. We have held that this must be done, and that it is error to make an allowance for solicitor's fees on the dissolution of an injunction, except upon evidence showing that services of the solicitor were actually rendered, and that they were, in value, equal to the amount ordered to be paid....