People ex rel. Childress v. Illinois Cent. R. Co.

• Decision Date: 22 June 1921
• Docket Number: No. 13544.,13544.
• Citation: 131 N.E. 624,298 Ill. 516
• Parties: PEOPLE ex rel. CHILDRESS, County Collector, v. ILLINOIS CENT. R. CO.
• Court: Illinois Supreme Court

298 Ill. 516

131 N.E. 624

PEOPLE ex rel. CHILDRESS, County Collector,

v.ILLINOIS CENT. R. CO.

No. 13544.

Supreme Court of Illinois.

June 22, 1921.

Proceeding by the People, on the relation of Grant Childress, County Collector, against the Illinois Central Railroad Company, to enforce a tax levied in the town of Pleasant Grove, for road improvements. From judgment of the county court overruling the objections to the tax, the Railroad Company appeals.

Reversed.

Appeal from Coles County Court; John P. Harrah, Judge.

John G. Drennan, of Chicago, for appellant.

Emery Andrews, and Charles H. Fletcher, State's Attys., both of Mattoon (T. N. Coffer and Charles C. Lees, both of Charleston, of counsel), for appellee.

CARTER, J.

This is an appeal from a judgment of the county court of Coles county overruling objections filed by appellant to a certain tax levied in the town of Pleasant Grove, in said county, following a vote taken at a special election held in said town July 31, 1919, authorizing a direct annual tax for five years for the purpose of constructing gravel roads in said town, and to a certain tax levied in said town to pay principal and interest on certain road bonds, alleged to have been authorized at the same election.

Counsel for appellee most earnestly arguethat appellant is estopped by certain mandamus proceedings had in the circuit court of Coles county from objecting to the taxes in question. It appears from the record that certain citizens of said county by their solicitor filed an amended bill praying that the special election held as to said bonds should be held valid, and that the commissioner of highways of said town proceed to issue the bonds, and that an injunction might be issued against certain town officials from interfering with the sale and disposition of the same, and from the application of the proceeds of the sale of the said bonds to the making of the improvement. A demurrer was filed by certain of the defendants to the amended bill, and the bill was dismissed, and the cause was then, by leave of court, transferred from the chancery side thereof to the law side, and a petition for mandamus was filed therein in said court praying that the officials of said town (naming them) should proceed to issue, sell, and dispose of the bonds for the purpose of constructing the hard road in said town, and to do all the acts and things necessary for the speedy construction thereof.

The original amended bill of complaint in the chancery suit was filed to the January term, 1920, of the circuit court, and later, during the same term, was converted into this mandamus suit. As certain new defendants were brought in during the term, they could not have been legally summoned during that term, but must have entered their appearance. Joint and several answers were filed by the commissioner of highways and the town clerk of the town, admitting the allegations of the petition for mandamus to be true, except that part charging that they had neglected and refrained from selling and disposing of the bonds so voted at the special election, as set up in the petition for mandamus, and further stating that they had advertised with reference to the selling of the bonds, and that the Harris Trust Company offered the best bid. The answer then stated that certain persons who had been made defendants in the chancery proceedings had announced that they expected to contest the validity of the bonds, and that therefore the town officials had not sold or issued or disposed of said bonds or let any contracts upon the roads sought to be built thereby; that defendants and the town officials are ready and willing to issue the bonds and let contracts for the work when they can legally do so, and when all legal objections are removed so that purchasers will buy the bonds. The circuit court thereafter in said mandamus proceedings entered an order granting the relief prayed for, and directing the issue of the bonds.

It seems apparent from the record that the mandamus proceeding was a friendly suit. The original bill of complaint in chancery was brought by a certain solicitor, and the same solicitor filed the amended bill of complaint and the petition for mandamus in the circuit court in behalf of petitioners in the mandamus suit. It would appear from the record that the public officials who joined in the petition for mandamus can hardly be held to be representatives of the public, and have precluded appellant, the Illinois Central Railroad Company, and other taxpayers, by the mandamus proceeding, from filing objections to the payment of these taxes for the bonds for the building of said roads. In Lindsay v. Allen, 112 Tenn. 637, 82 S. W. 171, it is said:

‘While it is proper and just that even the rights of the public of and concerning any special matter should be concluded by one fair litigation, in which the matters involved were faithfully presented and considered, it should be emphasized that the litigation must be bona fide, fair, and honest from the beginning to the end. Those who assume as citizens and taxpayers to stand forth as the champions of public rights and the conservators of the interests of all other citizens and taxpayers standing in the like case, must discharge their voluntary trust with candor, and with such reasonable skill as to enable the court to see that there has been no such gross negligence in the conduct of the cause as would be equivalent to a fraudulent surrender of the rights involved in the controversy, and no such * * * abandonment of acquired advantages as would justly sustain an imputation of fraudulent purposes or gross incompetency on the part of those in charge of the public's case. In short, before the rights of the public are concluded, there must be a reasonably fair presentation of the case to a court of competent jurisdiction, and a consideration and determination of the matter by the court.’

Certain of the taxpayers who, it is shown by the bill in chancery and mandamus...