This was an application for a mandamus to the County Court of Peoria county, against the Board of School Inspectors of that county, to compel them to admit the child of the relator, Henry Grove, to one of two public schools, in,the city of Peoria; and the first question presented is, has the County Court power to award such writ ?
This is an important question in some respects, chiefly, however, confined to these courts, not affecting, materially, the public at large.
By the Constitution, Art. V, Sec. 18, the jurisdiction of said court shall extend to all probate and such other jurisdiction as the General Assembly may confer in civil cases, and such criminal cases as may be prescribed by law, where the punishment is by fine only, not exceeding one hundred dollars.
The General Assembly, conferring power upon the County Court of Peoria county, provided, by the Act of Feb. 9, 1855, page 194, “ that its jurisdiction is hereby so extended, that said court shall have jurisdiction with the Circuit Courts in this State, of all matters, suits and proceedings at common law or by statute, in civil cases, except actions in ejectment, within said county, and shall have concurrent jurisdiction of all misdemeanors punishable by fine only, not exceeding one hundred dollars, commenced otherwise than by indictment.” Sec. 3 provides that appeals and writs of error may be directly prosecuted from that court to the Supreme Court.
In civil cases then, it has jurisdiction over all subjects and suits, except in actions of ejectment, co-extensive with the Circuit Court.
On the Circuit Court, R. L. 1845, Ch. 67, title “ Mandamus,” is conferred the power to issue writs of mandamus, and, by Ch. 86, of quo warranto.
The question then arises, are the cases in which these writs issue, civil cases ? The plaintiff in such writ is the people, on the information of some one claiming an interest in the subject matter to which the writ relates. The writ of mandamus is a -prerogative writ, and issues to compel the performance of a public duty by a public functionary, in a case in which the public have a right to complain of neglect of that particular duty. Courts vested with the power to issue this writ, by direct grant of the legislature, are all of them superior courts, of unlimited jurisdiction. It has never been conferred upon inferior courts expressly, whose powers and jurisdiction are limited, and even if conferred, it would extend only to their inferiors.
For the ordinary conduct of business in civil cases in the County Court, we see no necessity of giving it the power to issue such a writ. It has not been given in express terms, and in construing grants of power to inferior courts, nothing is to be held by implication, as granted, unless absolutely necessary to a full exercise of its granted powers.
Something may be gathered of the views the legislature entertained in enacting this law. It may be safely inferred from the known condition of the business in the Circuit Court of -that county, having within it one of the most flourishing cities in the State, that the main design in extending the jurisdiction of the County Court, in civil cases and in small misdemeanors, was to relieve the Circuit Court from a great pressure, a pressure so great as to amount, in ordinary civil cases of small or large amount, to a great delay of justice. It was for this kind of business their power was extended, the important action of ejectment being withheld from their cognizance, and in criminal cases, all indictable offenses, and all offenses where the fine to be imposed exceeded one hundred dollars. Here will be seen great care and caution on the part of the legislature, in' extending the jurisdiction of this court, and we think it would be going too far to admit they have, by implication, the vast and formidable power now claimed in this case.
This case goes far to show the impropriety of implying such a power, for we are informed by it, that the relator in two different proceedings before the Circuit Court, in both of which he failed, endeavored to accomplish the same object contemplated by this application for a mandamus. Admitting, then, the power of the County Court in the premises, it amounts to an appeal, in another form, from the Circuit Court to the County Court. This is the consequence, and it will be so in all similar cases.
We do not think the County Court had jurisdiction to award this writ. It is not expressly given by statute, and not being necessary to carry into full effect the jurisdiction granted, it cannot be implied.
But the writ itself is defective in not alleging that the relator had no other remedy. He had previously, as the record shows, attempted to attain his object by certiorari and bill in chancery in the Circuit Court, in which latter proceeding full and complete justice could be done, and the parties were heard on bill, answer, replication and testimony, and the bill was dismissed, and we have affirmed that decree. This was alleged in support of the motion to dismiss the petition for this writ, and the court should have allowed the motion, for the relator having chosen his forum, and the decision being against him, his proper remedy was by appeal or writ of error, on dismissing the bill.
There are a few cases in which a party can pursue several remedies at the same time, but this, as situated, does not seem to be one of those cases.
Ñor does the petition show a clear legal right to the remedy asked. 12 Ill. R. 254. This writ is of such a nature that courts will grant it only in an extraordinary case, where otherwise there would be a failure of justice, which cannot be pretended here.
The return to the writ should not have been quashed. It is full and complete, is issuable and triable, and in bar of the remedy sought.
The board of inspectors are vested with a large discretion in the performance of their important duties, and courts will not attempt to control its exercise except in a palpable case, where a plain violation of the law is manifested.
In this case the board seem to have discharged their very onerous and responsible office, with every regard to the public interest, and with no disposition to deprive the relator of any of his rights. The deprivation of which he complains, is chargeable rather to his unfavorable position in the city for school advantages for his children, than to maladministration on the part of the board. What we have said in the chancery case between these parties, is applicable here, and we can add nothing to it. The judgment of the court refusing to dismiss the application for a mandamus was erroneous. It should have been dismissed.
The judgment is reversed.
Judgment reversed.