191 N.E. 255 | Ill. | 1934
Appellees, being the chief justice and the associate justices of the municipal court of Chicago, filed their bill and afterwards their amended bill of complaint in the superior court of Cook county seeking by mandatory injunction to compel the city of Chicago, through its mayor, comptroller, treasurer, clerk and city council, to pay, and to make the necessary appropriations for paying, certain salaries alleged to be due the complainants for the years 1932 and 1933 on the basis of the amounts fixed by statute. It was alleged that the city council had made insufficient appropriations therefor, and that the city officers had neglected, failed and refused to pay to complainants, and others alleged to have been similarly situated, the full amount due them, and that, in effect, their salaries had been decreased during the term for which they were elected or appointed, in violation of section 11 of article 9 of the constitution. General and special demurrers to the bill were overruled and a decree was entered as prayed. The case is before us on direct appeal, the trial judge having certified that the validity of a municipal ordinance is involved.
It is the first contention of appellants that where the established distinction between equity and law is still observed, the remedy by injunction and the remedy bymandamus are not correlative and cannot be used interchangeably; that in this jurisdiction there is an adequate remedy at law by way of mandamus, and that where there is a remedy by mandamus that remedy must be pursued rather than to seek relief through a court of equity; that an injunction is only called into use to afford preventive relief, and that a mandatory injunction will be employed only *43 in so far as it may necessarily be incident to the granting of affirmative relief to take effect in futuro. If these contentions of appellants are sound and well founded there can be no possible occasion for considering other errors assigned, and we will therefore give our first consideration to this branch of the case.
Appellees resist the contention of appellants upon this proposition by referring us to the cases of Hunt v. Sain,
In the case of Cox v. Malden and Melrose Gas Light Co.
The law as stated by Chief Justice Knowlton in the Massachusetts case above cited is in accord with the general trend of authority and with the decisions in our own State. The mandatory injunction is recognized as an extraordinary remedial process, which is granted not as a matter of right but in the exercise of a sound judicial discretion. (Morrison v. Work,
It is also urged by appellants that the bill is multifarious, the decree not properly based either upon the allegations of the bill or the contents of the stipulation on file, and that there is a variance between the bill and the decree. None of these errors need be considered.
Complainants having misapprehended their remedy and the court of equity being without jurisdiction, it is necessary that the decree of the superior court be reversed.
Decree reversed. *46