Fletcher v. City of Paris

• Decision Date: 17 June 1941
• Docket Number: No. 26150.,26150.
• Parties: FLETCHER et al. v. CITY OF PARIS et al.
• Court: Illinois Supreme Court

377 Ill. 89

35 N.E.2d 329

FLETCHER et al.

v.CITY OF PARIS et al.

No. 26150.

Supreme Court of Illinois.

June 17, 1941.

Suit for injunction by Orlie William Fletcher and others against the City of Paris and others. From a decree dismissing the complaint, plaintiffs appeal.

Affirmed.Appeal from Circuit Court, Edgar County; Frank B. Leonard, judge.

Van Sellar & Van Sellar, Robert F. Cotton, and Harold E. Nimz, all of Paris, and C. H. Swick, of Urbana, for appellants.

Vail, Mills & Armstrong, of Decatur, and Hartman Schwartz, of Paris, for appellees.

SMITH, Justice.

This is an appeal from a decree of the circuit court of Edgar county dismissing the complaint filed by appellants against appellees. The three appellants are described in the complaint as citizens, legal voters, residents, property owners and taxpayers in the city of Paris, Edgar county, Illinois. The defendants named in the complaint are the city of Paris, the individual commissioners of the city, constituting its common council and other officers of said city.

The acts complained of are set out in much detail in the complaint. In so far as the facts pleaded are necessary to the proper consideration and decision of this case they may be summarized as follows: On November 28, 1939, by resolution of its council, the city of Paris purported to enter into a contract with Lansford and Company, by which the city approved the selection by said company of engineers to furnish the necessary engineering services for the construction of a proposed municipally owned light and power plant. The amount to be paid to the engineers for engineering services was not to exceed the sum of $40,000. The purported contract further recited that the city of Paris had agreed to issue and sell, and Lansford and Company had agreed to buy, $600,000 par value of public utility certificates proposed to be thereafter issued by the city at a price and upon the terms stated in the purported contract. It is unnecessary to further consider the provisions of that purported contract for the reason that appellees concede that it was wholly void. Such concession accords with our view of the law.

The complaint further alleged that on October 19, 1940, the city council passed ordinance No. 6, which ordinance provided for the construction of a municipally owned light and power plant for said city. It was alleged that said ordinance No. 6 was not legally passed and was void and ineffective for various reasons set forth in the complaint. It was further alleged that the city council adopted and passed ordinance No. 7, which ordinance purported to call an election for the purpose of submitting said ordinance No. 6 to a referendum vote, as provided in the Municipal Ownership act. Ill.Rev.Stat.1939, chap. 111 2/3, par. 98. It was alleged that ordinance No. 7 was not legally passed and was void for all the reasons alleged in connection with ordinance No. 6, and for various other reasons averred in the complaint. The prayer of the complaint was that appellees be enjoined from holding said election, or paying out any funds of the city for the expenses thereof, or in connection therewith, or incurring any obligations in connection with the holding of such election.

By ordinance No. 7 the election was called and was to be held on October 15, 1940. This suit was filed on September 17, 1940. A motion was filed by appellees to dismiss the complaint. The motion was heard, and on October 14, 1940, the day prior to the day on which the election was to be held, the court entered an order sustaining the motion and dismissing the complaint for want of equity. The trial judge has certified that the case involves the validity of a municipal ordinance and the appeal was taken to this court direct. It was stated, on oral argument, that the election was held on October 15, 1940, as provided in said ordinance No. 7.

This being a suit primarily to enjoin the holding of a municipal election, and the election having already been held, the case might well be disposed of on the ground that the questions have become moot, were it not for the fact that the case also involvesthe right of appellants to enjoin the city and city officials from the use of public funds to defray the expenses of the election. The sole question remaining in the case is the right of appellants, as taxpayers, to enjoin the use of public funds to defray the expenses of holding an election called to vote upon the approval of ordinance No. 6, which is alleged to be invalid.

At the threshold of this inquiry we are met with the question of jurisdiction. That the courts have no jurisdiction to enjoin the holding of an election has been long settled in this State. As far back as 1868, in the case of People v. City of Galesburg, 48 Ill. 485, the rule was definitely announced. In that case the court was asked to enjoin the holding of an election under an act of the legislature alleged to be unconstitutional and inoperative. The circuit court sustained a demurrer to the complaint and dismissed the suit for want of equity. On appeal to this court the decree was affirmed. In disposing of the case this court said in the opinion: ‘We are aware of no well considered case which has enjoined the holding of an election, or prevented an officer of the law from giving the required notices for, or the certificate of election. To sanction the practice of granting temporary injunctions in such cases, would be highly calculated to obstruct the various branches of government in the administration of public affairs. Courts of equity can have no such power, otherwise any and all elections might be prevented, and government greatly embarrassed.’

In the more recent case of Payne v. Emmerson, 290 Ill. 490, 125 N.E. 329, 331, which was a suit to enjoin the submission of a public policy question to a referendum vote, after citing Spies v. Byers, 287 Ill. 627, 122 N.E. 841,People v. McWeeney, 259 Ill. 161, 102 N.E. 233, Ann.Cas.1916B. 34, and People v. Barrett, 203 Ill. 99, 67 N.E. 742,96 Am.St.Rep. 296, the rule was stated as follows: ‘Accordingly, it has been held in a great number of cases in this state that an injunction will not issue out of a court of equity for the purpose of restraining the holding of an election or in any manner directing or controlling the mode in which the same shall be conducted. The reason is that an election is a political matter with which courts of equity have nothing to do, and that such an attempt to check the free expression of opinion, to forbid the peaceable assemblage of the people, to obstruct the freedom of elections, if successful, would result in the overthrow of all liberties regulated by law. [Citing numerous cases.] The rule is the same whether it is contended that the election is without authority of law or otherwise. Pomeroy, in his latest editions of Equity Jurisprudence (sections 1753-1755), lays down the same rule, and further says that the rule goes to the extent that an injunction will not be issued to forbid any of the steps in the proceedings looking to or pertaining to an election. He also lays it down as the law that the mere fact that the cost of the election will have to be borne by the state, and indirectly by the taxpayers, is no ground for an injunction at the relation of a taxpayer, because the injury is too trifling. In the case in hand appellee was the only party defendant, and the only way to have prevented the alleged illegal expense would have been for the court to have enjoined him from certifying said question, as prayed for in the bill, and there can be no question that the court had no jurisdiction to grant that relief.’

The citation of other authorities on this point would constitute useless repetition. We have found no case, and counsel have cited none, departing from this rule. But counsel for appellants insist that this case is different because here they seek to enjoin the use of public funds and it is claimed that, for this reason, the taxpayer is interested and may be directly injured if the threatened payment of the expenses of the election be not enjoined. They say this is not a suit solely to enjoin the holding of an election, but that it can be sustained because a taxpayer has the right to prevent public officers from paying out funds raised by taxation for expenses, or purposes, not authorized by law. They rely on McAlpine v. Dimick, 326 Ill. 240,157 N.E....