delivered the opinion of the court.
The temporary injunction was issued without bond. It is urged that this was error. Sec. 9 of Chap. 69, entitled Injunctions, provides that “ bond need not be required when, for good cause shown, judge or master is of the opinion that the injunction ought to be granted without bond.”
Section 8 of the same chapter states the only exception to this provision, and that is when the collection of a judgment is enjoined.
In the absence of anything appearing to the contrary, we must presume that “ good cause ” was shown to the judge who ordered the temporary injunction.
It is also urged that the affidavit was not sufficient and that it was made before one of the complainants.
Defendants having answered the bill after their demurrer was overruled, and the case having proceeded to a hearing, and the temporary injunction thereupon being made perpetual, we think they must be held to have waived these objections.
A graver question is presented by the bill itself. Its legal effect is to charge that defendants, without authority, have assumed to act and exercise the functions of justices of the peace in the city of East St. Louis.
In other words, it charges that, without right, they have usurped said offices; that they are in said city acting as de facto, but not de jure, justices of the peace.
It does not differ in character from a bill to enjoin a party from assuming to act as a public officer who has never been elected to such office, or whose term of office has expired. The fact that defendants may be de jure justices of the peace in one locality, does not affect the remedy against them if they assume to act in another locality where they are not de jure justices. We think Burgess v. Davis, 186 Ill. 576, is in point. It was a bill to enjoin defendant from collecting his salary as county judge, upon the ground that he had been appointed a trustee of the sanitary district of Chicago, and alleging that by the acceptance of such an appointment he had ceased to be county judge. In deciding the case, the court quotes from the quo warranto act, “ that in case any person shall usurp, intrude into or unlawfully hold or execute any office, a petition may be filed,” etc., and say :
“ When an officer has originally been elected, or appointed in a legal or proper manner, his continued holding of the office may become unlawful by reason of subsequent occurrences. * * * Hence, under the statute as above quoted, the proper mode of proceeding against him is by quo warranto.”
And again:
“ The bill admits that the defendant was county judge de facto by setting up that he was claiming to act and acting as judge of said county court since said acceptance of said office as said trustee.”
A court of equity will not entertain jnrisdiction for the purpose of enjoining a defacto incumbent in office from performing its duties. Such result must be effected by judgment of ouster in a quo warranto proceeding. Samuels v. Drainage Corns., 125 Ill. 540; Sheridan v. Colvin, 78 Ill. 238; Delahanty v. Warner, 75 Ill. 185; People, etc., on relation of John King et al. v. Matteson et al., 17 Ill. 167; High on Injunctions, Vol. 2, Secs. 1312-1314.
If the' allegations of the bill in the case at bar are true, defendants in error are defacto justices of the peace in East St. Louis, by maintaining offices there as justices, issuing writs, trying cases, administering oaths and taking acknowledgments. It was to prevent them from exercising these functions that the injunction was prayed and issued. If they had never been elected justices, but had assumed to act, as alleged in the bill, it is clear that quo warranto would have been the appropriate remedy, and that an injunction to prevent their so acting would not be sustained. By a parity of reasoning, if defendants were not elected in the town and city of East St. Louis, and were not on this account authorized to maintain their offices as justices, and to do business as such in East St. Louis, they were to this extent usurpers in office, and upon a proper showing would be ousted from their usurpation by a judgment in quo warranto.
For the reasons assigned, the judgment of the court is reversed and the case remanded, with directions to the Circuit Court to dissolve the injunction and dismiss the bill.