Joos v. Illinois Nat. Guard

• Decision Date: 06 February 1913
• Citation: 257 Ill. 138,100 N.E. 505
• Parties: JOOS v. ILLINOIS NAT. GUARD et al.
• Court: Illinois Supreme Court

257 Ill. 138

100 N.E. 505

JOOS

v.ILLINOIS NAT. GUARD et al.

Supreme Court of Illinois.

Dec. 17, 1912.

Rehearing Denied Feb. 6, 1913.

Appeal from Circuit Court, Peoria County; Leslie D. Puterbaugh, Judge.

Bill by W. T. Joos against the Illinois National Guard and others. From a decree for complainant, defendants appeal. Affirmed.

B. M. Chiperfield, of Canton (W. H. Stead, Atty. Gen., and C. E. Chiperfield, of Canton, of counsel), for appellants.

C. E. Stone and Weil & Bartley, all of Peoria, for appellee.

FARMER, J.

Appellee, W. T. Joos, and Philip Rastetter filed their bill in chancery in the circuit court of Peoria county against the Illinois National Guard, Frank S. Dickson, adjutant general, and Fred Fauser, range officer, to enjoin them from using the premises known as Camp Grant rifle range, in Kickapoo township, in Peoria county, Ill., for rifle practice. Before a decree was entered, the bill as to Rastetter was dismissed on his motion, and the cause proceeded to final decree with W. T. Joos as the only complainant. The bill, briefly summarized, alleged that complainant was residing upon and engaged in farming premises adjacent to said rifle range; that defendants had erected on the premises known as Camp Grant various targets, and the militia of the state of Illinois was using the same for the purpose of instructing certain members of the Illinois National Guard in rifle fire; that said rifle range and targets were so used from one to three times per week many months in the year; that the use of the range was a constant danger and menace to complainant and his family; that bullets passed over complainant's premises, and, in addition to the disturbance and annoyance to him and his family, made it difficult for him to obtain labor to work on his premises; that from five to one hundred persons would be engaged in shooting at targets on said rifle range at one time; that the firing was in the direction of complainant's home; that many bullets passed over and near the residence of complainant, endangering the life of himself and family, and making it dangerous for complainant to prosecute his work of farming and gathering his crops and caring for his live stock. Defendants to the bill answered, denying the material allegations. The case was referred to the master in chancery to take the testimony and report his conclusions of law and fact. The master reported that the proof sustained the allegations of the bill; that the equities were with the complainant; and that he was entitled to an injunction restraining defendants from using said rifle range for target practice in such manner as to cause ricochet bullets or other dangerous missiles being sent across or upon the premises of the complainant. Objections to the report of the master were overruled by him, and were renewed as exceptions before the chancellor. The chancellor overruled the exceptions and entered a decree enjoining the defendants from using the rifle range known as Camp Grant for target practice ‘in such manner as at any time to cause or permit ricochet bullets or other dangerous missiles being sent across or upon the premises of the said complainant, W. T. Joos, so adjoining the said Camp Grant rifle range.’ This appeal is prosecuted by the defendants to the bill to reverse that decree.

Appellee's mother owned 160 acres of farm land. Immediately south of it appellants leased lands from other parties for the establishment of a rifle range for use by the men in the practice of target shooting. For this purpose a concrete abutment was erected, 135 feet long east and west, and high enough to protect men stationed behind it for the purpose of observing and signaling the effect of the shots upon the target. The targets were in steel frames, generally 6 feet square, and were raised and lowered by a mechanical device operated by the persons stationed behind the concrete abutment to mark the effect of the shots. South of the abutment firing stations were established, one for revolver practice at distances not exceeding 100 yards, and stations for rifle practice every 100 yards from 200 to 1,000 yards. The firing from these stations was toward the farm of appellee's mother, which lay north of the targets. Just north of the targets the land of appellee's mother rose to an elevation of about 100 feet above the abutment upon which the targets were placed, and from her appellants leased land on the hillside back of the targets as a part of the rifle range. Appellee was at the time the bill was filed, and had been for several years prior thereto, lessee of his mother's farm, and resided thereon with his family. He raised grain on the farm and kept cows and other stock thereon.

[1] Appellants first contend the court had no jurisdiction to entertain the suit, because the National Guard is a part of the state government of Illinois; that a suit against it is, in effect, a suit against the state, and both the state and its administrative officers are exempt from suit under section 26 of article 4 of the Constitution, which reads: ‘The state of Illinois shall never be made defendant in any court of law or equity.’ We do not think this can properly be considered a suit against the state. The officers of the National Guard are charged with unlawful acts infringing the rights of appellee in the lawful use of his property. If it be conceded that the National Guard and its officers, while in the lawful discharge of their military duties, are exempt by the Constitution from being sued, where they unlawfully deprive a citizen of his property, or prevent his free enjoymentof it, they cannot be considered as representing the state. The establishment of a rifle range and the practice of target shooting is a lawful exercise of power; but when it is so conducted as to be a menace to the life of a citizen upon his own premises and to deprive him of the rightful use of said premises, the officers of the National Guard become trespassers, and are not representatives of the state. We would not like to say that the officers of the National Guard could take property without compensation to the owner, by making it so dangerous to the life and safety of the owner as to prevent his use of it, and that he would have no remedy in the courts. When the officers of the National Guard exceed their authority and by wrongful act injure another, they should be, and are, answerable to the injured party in the courts.

In Osborn v. United States Bank, 9 Wheat. 738, 6 L. Ed. 204, the Supreme Court of the United States considered the jurisdiction of a court of equity to enjoin state officers of the state of Ohio, the state not being made a party, from the performance of unlawful acts, which the bill alleged would lead to irreparable injury to individuals. The point was raised that if any case was made by the bill for the interference of a court of chancery it was against the state of Ohio, and an action against the state was prohibited by the Constitution. It was admitted by the court in that case that the state had a direct interest in the suit, but in an exhaustive opinion by Chief Justice Marshall it was held that the alleged official oppression of the officers of the state made it a proper case for the interference of a court of equity.

In Ryan v. Brown, 18 Mich, 196, 100 Am. Dec. 154, which was a bill for injunction by a private landowner to restrain the state canal commissioners from cartain acts alleged to be an unlawful interference with the property of complainant, it was held a court of equity had jurisdiction, and Osborn v. United States Bank, supra, was cited and commented upon.

In Mott v. Pennsylvania Railroad Co., 30 Pa. 9, 72 Am. Dec. 664, it was sought to enjoin the Governor of the state of Pennsylvania from selling, under alleged authority of an act of the Legislature, at public auction, certain public works and property. The Governor denied the court's jurisdiction, and upon this question the court said: ‘It is objected that the Governor is not subject to this form of our jurisdiction. It is far from our intention to claim the power to control him in any matter resting in executive discretion; but the rule of law seems to be that when the Legislature proceeds to impose on an officer duties which are purely ministerial he may be coerced by mandamus or restrained by injunction, as the rights of the parties interested may require. In such a case no individual in the land, however high in power, can claim to be above the law.’

In Smyth v. Ames, 169 U. S. 466, 18 Sup. Ct. 418, 42 L. Ed. 819, it was held a bill for injunction against state officers of the state of Nebraska, for the purpose of preventing the enforcement by them of an unconstitutional act of the Legislature, to the injury of the rights of the complainants, was not a suit against the state. The court said: ‘But to prevent misapprehension we add that within the meaning of the eleventh amendment of the Constitution the suits are not against the state, but against certain individuals charged with the administration of a state enactment, which, it is...