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ADOLPH ANDEL, County Treasurer,

V.

WILLIAM STARKEL et al.

Opinion filed October 24, 1901.

1. EQUITY-party cannot resort to equity if relief at law is adequate. A bill by a county treasurer to enjoin the members of a grand jury from collecting their certificates cannot be maintained where the facts relied upon in the bill could be set up in defense of mandanıus or other legal proceedings to collect such certificates.

2. SAMEwhen equity is not justified in taking jurisdiction to avoid a multiplicity of suits. Equity is not justified in taking jurisdiction of a bill to enjoin mandamus upon the ground that a multiplicity of suits will be avoided, where complainant's allegation that he is threatened with a multiplicity of suits is denied by the answer, and the proof is positive that but one suit has been brought and that the parties having similar rights are willing to abide by the result.

Special concurrence by MAGRUDER, J.

APPEAL from the Circuit Court of St. Clair county; the Hon. M. W. SCHAEFER, Judge, presiding.

R. W. ROPIEQUET, for appellant.

FREELS & JOYCE, for appellees.

Mr. CHIEF JUSTICE WILKIN delivered the opinion of the court:

At the March term, 1899, of the city court of East St. Louis, an order was issued by the judge for a grand jury to serve at the following August term. The county board of St. Clair county, at its June meeting of that year, selected twenty-three persons to serve as grand jurors for said court for the same August term, and they were regularly summoned to serve as such. They appeared in answer to the summons on the first day of the term, but were discharged by the judge because they were not selected by the county board upon the request of the court. Thereupon the court ordered a venire to issue for a grand

jury to be selected by the sheriff within the limits of the city of East St. Louis, which venire was duly issued on August 28, and by its mandate the sheriff summoned twenty-three persons from the city to appear on the 30th of said month, and they duly appeared and were empaneled and served as grand jurors for said term. The clerk of the court afterwards issued to each of the persons so served, including appellee William Starkel, a certificate, certifying that they would be entitled to two dollars per day for seven days, amounting to $14. These certificates the county treasurer, under instructions of the county board, refused to pay, and he filed this bill against the twenty-three holders of the certificates to enjoin collection. He charges in his bill that the grand jurors so summoned from within the city limits were summoned contrary to the statute, and the certificate to each member is therefore void; that the city court had no power to summon or empanel any grand jury; that its attempt to do so was unconstitutional, and that the act of the legislature providing for the payment of grand jurors of city courts out of the county funds is unconstitutional and void, and the holders of said certificates have no legal claim to the amount therein named. He also alleges in his bill that the holders of the several certificates are demanding payment thereof from him and threatening to bring suits to compel him to pay the same; that the defendant William Starkel filed his petition for a writ of mandamus in the circuit court of St. Clair county to compel plaintiff to pay him, and that he is threatened with a multiplicity of suits on said certificates, all holders of which he alleges have a common interest in the question of law and fact. He prays for a writ of injunction against the original and unknown holders of said certificates. A temporary injunction was issued on the filing of the bill, and a motion subsequently made to dissolve the same for want of equity upon the face of the bill; that the court of chancery has no jurisdiction or

power to enjoin the proceeding by the defendant Starkel for mandamus; that there is a complete remedy at law, and that the writ was granted without notice. The motion to dissolve was overruled, and the defendants answered. They admit the facts as set up in the bill as to the discharge of the grand jury selected by the county board and the order of the judge of said court for a venire for a new grand jury to be selected from the limits of the city, and that the defendants and others were empaneled, and aver that they have not been paid their fees, and that the plaintiff, as treasurer, is indebted to them in the sum of $14 each, for their services as such grand jurors. They deny that the act of the legislature providing for the payment of jurors out of the county treasury is unconstitutional, and deny that the county board had the right to instruct the treasurer to refuse payment of said certificates. They admit the filing of the petition for mandamus by the defendant William Starkel, and that the same is undisposed of, but deny that any other holders of certificates are threatening to bring mandamus or that the plaintiff is threatened with a multiplicity of suits. They aver want of equity in the bill, deny jurisdiction to enjoin a mandamus proceeding, and allege that there is an adequate remedy at law. The plaintiff having filed his replication, the cause was heard, the injunction dissolved and the bill dismissed for want of equity. To reverse that decree this appeal has been prosecuted.

The appellant had a full, complete and adequate remedy at law. If the facts set up in his bill can be urged as a defense to the claim of defendants, no reason is or can be shown why they cannot be pleaded to a petition for mandamus or other legal proceedings to collect these certificates. "A party cannot have a footing in a court of equity where his remedy is adequate at law.” (Coughron v. Swift, 18 Ill. 414; Winkler v. Winkler, 40 id. 179; Chittenden v. Rogers, 42 id. 96; Gore v. Kramer, 117 id. 176; Chicago,

Burlington and Quincy Railroad Co. v. City of Ottawa, 148 id. 397.) For the same reason a court of equity will not enjoin a mandamus or other proceeding at law. High on Injunctions, sec. 68; Montague v. Dudmann, 2 Ves. Sr. 396; People v. Wasson, 64 N. Y. 167; 14 Am. & Eng. Ency. of Law, (1st ed.) 217.

The contention on behalf of the appellant that this proceeding in chancery is justifiable on the ground that it will prevent a multiplicity of suits is untenable. It is not shown by the bill that a multiplicity of suits have been instituted. It is true, the bill alleges that the plaintiff is so threatened, but it is denied by the answer, and the proof is direct and positive that no other suits have been brought or threatened than that brought by Starkel, but that all of the parties holding certificates for services as grand jurors with Starkel were willing that their rights should be determined by the suit on his behalf. The case is therefore wholly unlike City of Chicago v. Collins, 175 Ill. 445, cited by counsel.

Other questions are discussed in the brief, but they are such as may arise in the trial of the mandamus proceeding, and need not, therefore, be decided now.

For the reasons stated, the decree of the circuit court is right and must be sustained.

Decree affirmed.

Mr. JUSTICE MAGRUDER, dissenting: I concur in the conclusion reached by this opinion and with the general tenor of the reasoning, but this court has no jurisdiction to entertain the cause unless a constitutional question is involved, and if it is involved, the constitutional question ought to be discussed and disposed of. This opinion does not do so.

THE WEST CHICAGO MASONIC ASSOCIATION

192 210 99a 1443

V.

192 210 110a 1248

CHARLES Conn.

192 210 112a 344

Opinion filed October 24, 1901. 1. NEGLIGENCE-duty of owner of premises where excavation has been made under sidewalk. The owner of premises who, by authority from the city, constructs a vault and coal-hole under a sidewalk, is liable only in the event he fails to use ordinary care in constructing the vault and coal-hole and keeping it in such repair as to be as safe for the use of the public as any other part of the sidewalk.

2. LANDLORD AND TENANTliability for failure to keep leased premises in repair. If a vault and coal-hole constructed under a sidewalk by the owner of a building, with the consent of the city, is connected with and used only for a portion of the building in the exclusive possession of a tenant who has covenanted to make repairs, and the coal-hole and covering were in good condition when the landlord delivered possession, the tenant, and not the landlord, is responsible for injuries occasioned by failure to keep the covering of the coal-hole in repair.

West Chicago Masonic Ass. v. Cohn, 94 Ill. App. 333, reversed.

APPEAL from the Branch Appellate Court for the First District;-heard in that court on appeal from the Circuit Court of Cook county; the Hon. E. F. DUNNE, Judge, presiding.

FRANCIS W. WALKER, and KENNER S. BOREMAN, for appellant:

It is the general doctrine that the municipality has the power to license such a use of the public highway as is consistent with the public objects for which they may be held. The city, under its general powers, may grant permits for and regulate the building of vaults under streets, alleys and sidewalks. Chicago Gas Light Co. v. Lake, 130 Ill. 42; Gregsten v. Chicago, 145 id. 451; Nelson v. Godfrey, 12 id. 20; Railway Co. v. People, 91 id. 251; Babbage v. Powers, 130 N. Y. 281; Quincy v. Bull, 106 Ill. 337; Murphy v. Chicago, 29 id. 279.

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