Town of Ottawa v. Walker

Walker, J. This was a bill filed by complainants, to enjoin the collection of a tax, levied by the town of Ottawa in its corporate capacity, for the purpose of constructing a bridge within the corporate limits of the city of Ottawa. The court below granted the relief prayed, and rendered a decree making the injunction perpetual against the collection of this tax. It is claimed that the city under its charter has the exclusive jurisdiction over roads, streets, alleys and bridges within its limits, while on the other hand it is claimed that the town under the act establishing township organization has a concurrent jurisdiction over the same subjects. The act of the legislature incorporating the city of Ottawa, approved Feb. 10,1853, Secs. 9 and 10, Art. 5, Sess. L. 300, provides that the city shall have power “ To open, alter, abolish, widen, extend, establish, grade, pave, or otherwise improve and repair, streets, avenues, lanes and alleys, and other public highways. To establish, erect and keep in repair bridges,” within the corporate limits of the city. And to enable the city to accomplish this and other objects, by their charter, the common council are authorized to levy and collect a tax, of not exceeding one half of one per cent, per annum, on all real and personal property within the city. The power to erect, establish and keep in repair the bridges within its limits, is expressly delegated to the city authorities. And there would be no question that it was exclusive, were it not that the legislature by the first and fourth clauses of the first section of the 22nd article, of an act to establish township organization, adopted Feb. 17,1851, (Scates’ Comp. 347,) gives to the commissioners of highways the superintendence and care of roads and bridggs, and requires them to give directions for the repairing the roads and bridges, and to cause bridges that have been erected over streams intersecting highways, to be kept in repair, in their respective towns. These provisions must be construed in reference to the object the legislature had in contemplation at the time of their adoption. When the charter was granted to the city, there can be no doubt, that it was the design of the legislature to confer this power upon the city authorities. The language will bear no other construction. And when it was thus conferred, it deprived all other bodies of its exercise. Its exercise is repugnant to that of other authorities, and by implication repealed all other legislation on the same subject, the exercise of which would be repugnant to the power granted to the city. And so much of the act creating township organization was thereby repealed. The power in its very nature would seem to be inconsistent with its joint or concurrent exercise by the two bodies, and even if the city charter was not subsequent in date, unless it plainly appeared from the language employed, that it was intended to be joint or concurrent, it would be held that the power was exclusive in the commissioners beyond the city limits, and exclusive in the common council within their jurisdictional limits, and neither have any power to perform any acts in reference to this subject beyond their respective limits. If the town may erect this bridge, they may by • the same authority open other streets in, and grade and pave those streets and alleys already open in the city. The exercise of such a power by each of these bodies, would necessarily lead to endless strife and confusion, which the legislature never could have intended to produce by these provisions. The levy of this tax by the town was unauthorized, and was an exercise of power not possessed by them, which, for want of such authority, was void. The question then presented is whether a court of equity has power to grant the relief sought. This court in the cases of Merrit v. Farris, and Munson v. Minor, post, held, that where a corporation, or an officer, or a body of individuals are vested with the power to levy a tax for a specific purpose, a court of equity will not inquire into the regularity of the exercise of the power, but leave the parties to their remedy at law, unless it is exercised for fraudulent purposes. But when the law has conferred no power to levy a tax, or in case a person or an officer not authorized by law to exercise such a power, shall levy a tax, or when the proper persons shall make the levy for purposes on the face of the levy, not authorized, or for fraudulent purposes, a court of equity may stay its collection by injunction. And this tax having been levied by a corporation, or by persons acting as such, when by law, they were not authorized to assess it, and being so unauthorized, the court had the power to restrain its collection. Cowgill v. Long, 15 Ill. R. 202; Shirley v. Sabin, 20 Ill. R. 357. It was also urged that the court below acted prematurely in tendering a final decree in the case. The bill was entitled of February term, 1859, and was filed during the November term, 1858. The defendants to the bill at that time, entered their appearance, and moved to dissolve the injunction previously granted; the motion was overruled, and a decree rendered making the injunction perpetual. The complainants took no rule on the defendants for an answer, nor did they in any manner put them in default. The bill was not taken as confessed, and no answer or demurrer was filed. The defendant may, according to well settled practice, move to dissolve an injunction, at any stage of a cause, and its being overruled only operates to continue the injunction to a final hearing. The mere motion to dissolve an injunction does not authorize the court, on overruling it, to make the injunction perpetual. The defendant has still the right to be heard on the merits. The court can only render a decree making the injunction perpetual on a bill pro confesso, on overruling a demurrer to the bill, or upon a hearing on the bill, answer, exhibits and proofs. The Circuit Court, therefore, erred in rendering the decree in this case, and it must be reversed and the cause remanded for further proceedings not inconsistent with this opinion. Decree reversed. Caton, C. J., took no part in the decision of this case'.