I agree with the conclusion that the writ of mandamus should be issued, but I do not agree with the reasoning set forth in the majority opinion.
This case might well be disposed of on the basis that the circuit court of Cook county did not have jurisdiction of the parties. The 7th section of the Civil Practice act (Ill. Rev. Stat. 1941, chap. 110, p. 2416) provides: "Except as otherwise provided in this act, every civil action shall be commenced in the county where one or more defendants reside or in which the transaction or some part thereof occurred out of which the cause of action arose." The complaint contains no allegation in reference to the residence of any of the defendants, nor is there any allegation that any part of the transaction or some part *Page 407 thereof out of which the cause of action arose occurred in Cook county.
The constitution requires that persons holding the offices of State Auditor and State Treasurer shall during their term of office reside at the seat of government, that is, in Springfield, Sangamon county. It is my view that the motion of the defendants to strike filed in the circuit court of Cook county raised this question and is preserved in the record here.
The complaint filed in the circuit court of Cook county should in my opinion be construed as a proceeding having for its ultimate aim the enforcement of the provisions of the Civil Service act. The statute and equitable rule which permits a taxpayer to enjoin the payment of public funds on the grounds there is to be an illegal disbursement does not extend to him the right to proceed in equity to enjoin the payment of public funds when the gist of the action is to enforce a provision of the Civil Service act and the payment of money a mere incident. The gist of the cause of action as stated in the complaint is that payment of salaries and compensation be enjoined so that they would be paid to other employees. The court was without jurisdiction of such subject matter and the mandamus was properly awarded.
Furthermore, the majority opinion does not distinguish between the remedy of quo warranto to try the title to an office and the remedy pertaining to a position which is a mere matter of employment.