Brush v. the City of Carbondale.

• Decision Date: 30 June 1875
• Citation: 1875 WL 8423,78 Ill. 74
• Parties: DANIEL H. BRUSHv.THE CITY OF CARBONDALE.
• Court: Illinois Supreme Court

78 Ill. 74

1875 WL 8423 (Ill.)

DANIEL H. BRUSH

v.THE CITY OF CARBONDALE.

Supreme Court of Illinois.

June Term, 1875.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Jackson county; the Hon. MONROE C. CRAWFORD, Judge, presiding.

Mr. D. H. BRUSH, pro se.

Mr. ANDREW D. DUFF, and Mr. DAVID A. NORMAN, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

Appellant filed his bill in chancery against the city to restrain its officers from tearing up a sidewalk and replacing it with another of different width. The bill alleges that complainant was the owner of the lot in front of which the walk had been laid; that when it was constructed he had paid half of its cost; that by being repaired, at an expense of about $1 per rod, it would last four or five years, and that the cost of constructing the new one would be from $4.50 to $5 per rod; that the present walk is sufficient to accommodate all who travel over it. He alleges that the city officers, without any legal authority, have ordered the street commissioner to tear up the present walk and to construct a new one; that the act is illegal, and without authority of law, and that such a change will burthen the citizens with heavy and oppressive taxes. It alleges that the city has no right to tear up sidewalks, without necessity, for the purpose of imposing burthens as taxes and assessments by constructing new walks in their stead.

To this bill defendant filed a demurrer, and, on a hearing thereon, it was sustained by the court and the bill dismissed, from which complainant appeals to this court, and asks a reversal. The bill fails to state that the city is even incorporated, nor does it refer to its charter, even if it is so organized. On the contrary, the bill does aver that the contemplated acts are illegal and unwarranted; and if this allegation be true, then we can see no reason why the writ of injunction should be abused by restraining the city from the performance of the contemplated acts. If that allegation is true, then the remedy at law is ample and complete; and in such cases a court of equity will not take jurisdiction, unless it be under special circumstances, none of which appear in this case.

All that the allegations of the bill amount to, is, that the city and its street commissioner are about to do an unlawful act, that will impose new burthens on appellant, or his property. If these acts are illegal and unwarranted, then any tax or assessment levied for its payment would be illegal and void, and the tax or assessment could not be enforced. The property owners could resist their payment at law.

Again, there is no allegation that the city, under its charter, has any right or authority to make an assessment on the property in front of which the walk is to be constructed, or that such levy is intended or will be imposed. The nearest...