73 Ill. 203 | Ill. | 1874
delivered the opinion of the Court:
Although the nominal purpose of this mandamrus is to open a highway, its real purpose is to remove obstructions claimed to have been improperly placed in a highway, established and used for a period of more than twenty years. The great mass of the testimony introduced by the respective parties relates entirely to the question, whether a highway in fact existed where the alleged obstructions were placed, and the arguments are chiefly devoted to this point. The case is, therefore, entirely different from Commissioners, etc. v. The People ex rel. 31 Ill. 99, and Hall et al. v. The People ex rel. 57 id. 307, cited by counsel for the relator. In those eases new highways, which had been lawfully established, were to be opened, and it was indispensable that the commissioners should act for that purpose. Parties could not be indicted or prosecuted for obstructing highways that had never been opened to the public for travel, and the commissioners were alone empowered by the law to take certain necessary preliminary steps for opening them.
Here, however, if a highway existed and was obstructed, there was a complete and adequate remedy, by which any person, feeling sufficiently interested, could cause the obstruction to be removed and the author of it to be punished, and there was no necessity for resorting to a mandarrms. It is said in Tapping on Mandamus, p. 76, side 25, in discussing whether there being a remedy by indictment for the grievance complained of, will preclude relief by mandamus, “ the test is, whether the writ or the indictment is the more effectual remedy. Therefore, in all cases where an indictment is a remedy equally convenient, beneficial, and effectual in its nature as a mandamus, or in other words, is the proper remedy, the court will not grant the writ.”
In addition to other remedies, provided by the highway laws, in cases of obstructions, at and long prior to the commencement of this suit, it was provided by statute: “If any person shall obstruct or injure, or cause to be obstructed or injured, any public road or highway, * * * or shall continue such obstruction, so as to render the same inconvenient or dangerous to pass, * * * * every person so offending shall, upon conviction thereof, be fined not exceeding §100; and every such nuisance may, by order of the circuit court before whom the conviction may take place, be removed and abated by the sheriff of the proper county,” etc. Gross’ Statutes of 1869, p. 193, sec. 21. Substantially the same provision will be found in Revised Statutes of 1874, p. 221, subdivision 5.
But the question, whether mandamus will lie in such a case, is not a new one in this court, and it is, therefore, unnecessary to pursue the discussion further. People v. Curyea et al. 16 Ill. 547, and Commissioners of Highways, etc. v. The People ex rel. etc. 66 id. 339, are directly in point, and hold that the case is not one in which there should be relief by mandamus.
The judgment is reversed.
Judgment reversed.