Leonard v. Arnold

• Decision Date: 19 April 1910
• Parties: LEONARD et al. v. ARNOLD et al.
• Court: Illinois Supreme Court

244 Ill. 429

91 N.E. 534

LEONARD et al.

v.ARNOLD et al.

Supreme Court of Illinois.

Feb. 16, 1910.

Rehearing Denied April 19, 1910.

Appeal from Circuit Court, La Salle County; Richard M. Skinner, Judge.

Bill by William Leonard and others against Henry L. Arnold and others. From a decree dismissing the bill, complainants appeal. Affirmed.Butters & Armstrong, for appellants.

John Garland, D. L. Dunaven, and B. F. Lincoln, for appellees.

VICKERS, J.

Appellants, together with Andrew Hughes, filed a bill in chancery on May 13, 1909, to the June term of the circuit court of La Salle county, in which they prayed that the court would decree that a new classification of all the lands in Union Drainage District No. 1 of the towns of Freedom and Ophir, in La Salle county, should be made, and that, pending the hearing, Henry L. Arnold, the treasurer of said county, should be restrained from selling or attempting to sell the appellants' land, or any part thereof, to pay a delinquent special assessment extended upon the classification of the lands of said district, and for general relief. At the same time they gave notice that they would move the court on May 15th to grant the injunction as prayed in said bill, and on that day they did enter such motion. On May 27th the motion was heard upon the bill, the answer of some of the defendants, affidavits and oral testimony, and the court entered a decree finding that there was no equity stated in the bill; that the equities of the case were with the defendants, and that the complainants were not entitled to the relief prayed for or to an injunction, and ordering that the injunction be refused, the prayer for relief denied, and the bill dismissed.

The appellants insist that the court had no power to dismiss their bill on the hearing of a motion for a temporary injunction before the term to which the bill was addressed. The appellees insist that the cause was submitted for final determination and was heard upon issues joined, and that the bill was dismissed upon the merits of the whole case. This view is not sustained by the transcript of the record. The decree entered recites that the cause came on to be heard upon the ‘motion of the said complainants for an injunction, upon the bill of complaint duly sworn to by the said complainants, and upon the answer to the said bill of complaint of the said defendants, Joseph F. Garland, William Hughes, and James J. Cantlin, signed and sworn to by them, and upon the several answers of the said other defendants above mentioned and the replication thereto, and also upon the affidavits of witnesses filed herein, * * * and also upon the testimony of witnesses sworn and examined in open court.’ In fact, no answer but that of the three defendants named appears in the record, and no replication, though the record is certified to be complete. But whether the issues were made up or not, the above recital is of a hearing of the motion for an injunction upon the pleadings and upon affidavits and evidence submitted. There is no finding of facts, but the court finds that there is no equity stated in the bill and that the complainants are not entitled to the relief prayed for, or to an injunction.

On a motion for a preliminary injunction a bill in chancery will not be dismissed unless the injunction is the only relief sought. Hummert v. Schwab, 54 Ill. 142;Brockway v. Rowley, 66 Ill. 99. The equity of a bill can only be questioned on demurrer or on the hearing. Brill v. Stiles, 35 Ill. 305, 85 Am. Dec. 364. A motion to dismiss may be entertainedupon the ground that there is no equity apparent on the face of the bill or that the court has no jurisdiction, and in such case the motion is treated as a general demurrer, admitting all the facts well pleaded by the bill. Vieley v. Thompson, 44 Ill. 9;Grimes v. Grimes, 143 Ill. 550, 32 N. E. 847;Canal Com'rs v. Village of East Peoria, 179 Ill. 214, 53 N. E. 633. It is only where it is manifest that no amendment can help it that a bill will be dismissed on such a motion. Thomas v. Adams, 30 Ill. 37. It is necessary, therefore, to inquire whether the bill shows, on its face, that it is without equity.

The bill alleged the organization of the drainage district in November, 1907, comprising the lands of complainants, the commissioners and five others, and the election of the appellees Cantlin, Garland, and Hughes as commissioners; that they made and filed with the clerk of the district a pretended classification roll containing all the lands of the district, a copy of which is set out in full, and a map of the lands of the district showing the relative size of the tracts of land, the names of the respective owners and the course of the proposed drain, a copy of which map is attached to the bill and made part thereof. The bill further alleged that the said commissioners wholly disregarded the provisions of the statute in making their rating and classification of said lands by conspiring and fraudulently confederating together to wrong and injure complainants, and to avoid the payment of their own just and fair proportion of the cost of said improvement according to the benefits received by their lands, made, returned, and filed said rating and classification aforesaid by classifying certain of the tracts of land of divers owners thereof in tracts of less than 40 acres, said tracts of land being then legally subdivided into tracts of 40 acres and so described in the records, maps, plats, and proceedings of said district-that is to say, said commissioners, instead of rating and classifying the S. E. 1/4 of the N. W. 1/4 of section 20, owned by said commissioner James J. Cantlin, in a tract of 40 acres, as the same is legally subdivided, for the purpose of fraudulently reducing the assessment of said James J. Cantlin they wrongfully and fraudulently classified the said 40-acre tract in two parts by rating and classifying the north 10 acres at 55 points and the south 30 acres at zero; that the same illegal, wrongful, and fraudulent practice of classification was adopted with reference to the lands of George P. Bonnell and others; that said commissioners, for the purpose of fraudulently reducing the classification and assessment of the lands of said commissioner William Hughes, illegally and wrongfully carved out certain small tracts and portions from 40-acre tracts owned by said Hughes, said 40-acre tracts being properly and legally subdivided into tracts of 40 acres each, and so improperly and fraudulently rated and classified them in tracts of less than 40 acres, so that of the whole tract of 160 acres owned by said Hughes but one tract of 40 acres was rated at 55 points, and 120 acres was classified at zero, when, if fairly, honestly, and legally made, said 160 acres would all have been rated at upwards of 55 points; that if said lands of said commissioners Hughes and Cantlin had not been fraudulently rated and classified, as aforesaid, the N. 1/2 of the 80-acre tract of said Cantlin would have been rated at 100 points, and the S. 1/2 thereof would have been rated at upwards of 30 points; that the same illegal and fraudulent practice of carving out small parcels or portions from 40-acre tracts was practiced in the classification of the lands of Margaret McGuire, who is a sister-in-law of commissioner Cantlin; that 12 acres of the S. W. 1/4 of the N. E. 1/4 of section 18 owned by Margaret McGuire was classified in 2 tracts-one of 4 acres at zero and the other of 8 acres at 55 points-when all of the lands of said Margaret McGuire are wet and greatly in need of drainage, and if fairly and honestly classified, according to benefits received from said drainage, would and should have been classified at nearly 100 points; that said commissioners knowingly, willfully, and fraudulently caused said ratings and said classification roll to be so made that their own lands, and the lands of said Margaret McGuire in particular, were classified manifestly too low, and so that such lands, and each tract thereof, should not bear their fair and just portion of the assessment and tax for the cost of said improvement, and that the lands of the other owners of land were not properly and fairly classified and rated on the graduated scale according to benefits, as shown on said roll, to the great injury and damage of orator; that where said lands were rated in parcels of less than 40 acres the descriptions given to such tracts in said classification roll were so defective and uncertain that in some instances it was impossible to define the boundary of such tracts; that by fixing said ratings upon parcels of less than 40 acres the unit of measure was wholly disregarded, and the percentage rendered unequal and unjust; that to give a color of apparent fairness to said system of rating and classification of said lands said commissioners divided and classified one 40-acre tract of the lands of appellant Leonard in two tracts of 20 acres each, but in so doing they wrongfully and fraudulently rated one of said tracts at 100 points and the other at 55 points when a fair and honest rating of said whole 40 acres should not have been over 50 points if all of the tracts of land in said district had been fairly and honestly rated and classified as provided by the statute of this state; that the same illegal, wrongful, and fraudulent system of rating and classification was adopted and practiced with three 40-acre tracts of appellant Madden, whereby the same were increased and rated over 20 points above what the same should have been if rated and classified as provided by statute, and if all of said lands had been fairly and honestly made according to benefits; that the ratings and classification of the lands of each of said commissioners and of the said Margaret McGuire and Eugene Ford were and are manifestly too low; that if their said ratings and classification had been fairly and honestly made the three 40-acre tracts of...