Perry v. Hanna
| Decision Date | 30 April 1866 |
| Citation | 1866 WL 4661,42 Ill. 160 |
| Parties | JOHN J. PERRY et al.v.GEORGE KINNEAR et al.JOHN J. PERRY et al.v.ROBERT B. HANNA et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Woodford county; the Hon. M. WILLIAMSON, Judge, presiding.
A statement of the case will be found in the opinion of the court.
Messrs. JOHNSON, HOPKINS & CHITTY, for the appellants.
Messrs. BANGS & SHAW and Mr. A. E. STEVENSON, for the appellees.
These cases are substantially the same, and will therefore be considered together. The bill, which was first filed, alleges that the board of supervisors had, by resolution of their body, ordered the county clerk to issue a county order on the treasurer, in favor of the judge of the twenty-third judicial circuit, for the sum of three hundred dollars. That Woodford county is embraced in that circuit, and the appropriation was made as a gratuity, and addition to the salary allowed to him by law for discharging the duties of his office of judge, and not for any indebtedness or other consideration. That the appropriation is unlawful, and was made without the knowledge or consent of complainants, who are property owners, citizens and tax payers. The prayer of the bill is, that the county clerk be restrained from issuing, and the county treasurer from paying such an order. A temporary injunction was issued according to the prayer of the bill.
At the December Term, 1865, of the Woodford Circuit Court, the judge of the sixteenth judicial circuit being present, by consent of parties he acted as judge in the case. A motion was entered to dissolve the injunction; and complainants also filed another bill, in which they referred to, and made the first bill an exhibit and adopted its allegations. It alleged, in addition thereto, that the board of supervisors of Woodford county were in session, and had just rescinded the order upon the clerk to issue the county order on the treasurer for the sum as stated in the original bill, but had at the same time passed another order, directing the county clerk to issue a similar order for the same sum, and for the same purpose as was required by their first order. That these proceedings were intended as an evasion of the injunction previously granted to restrain the county order from issuing or being paid. The bill prayed an injunction to restrain the clerk from proceeding to execute the order of the board. Another injunction was issued in accordance with the prayer of this bill.
The bill states that “John Perry and various other persons whose names are stated as parties complainant to a bill filed in said court by said Perry and others v. Robert B. Hanna et al., except Andrew J. Egbert, one of the complainants since deceased, and whose names for the want of time, on account of the urgency of the case, are omitted; but said bill so filed September 29, 1865, is hereby referred to, and the allegations and prayer thereof, appended to the order herein named, and made a part of the bill, the same as if herein fully copied; and in which complainants are now written and prefixed hereto, and which said former bill herein referred to, has since the filing of this bill been copied and placed on file, and is by leave of the court to amend without prejudice to the injunction, marked exhibit ‘A.’ ” A motion was also entered to dissolve the injunction granted under this bill. On a hearing both injunctions were dissolved and the bills dismissed. A decree was rendered against complainants for costs. An appeal is prosecuted to this court for the purpose of reversing the decree.
The court below assigns, in the bill of exceptions, as a reason for dissolving the injunction, that the names of complainants are not sufficiently set out in the bill, although in the court below as well as in this, it is docketed as two, when substantially it is but one. The last bill filed is in the nature of a supplement to the former; and, in the view we take of the case, the supplemental bill was unnecessary. All of the facts which the latter bill contained were set forth in the former, except the effort to evade the injunction. It is a maxim of the law that a person cannot do indirectly what the law prohibits being done directly. If the board of supervisors had passed an order rescinding the first, and ordered the clerk to issue a similar county order, they would have been in contempt. If the clerk and treasurer had acted under such a second order, they would have also been in contempt, in disobeying the injunction. It is obvious, that such a course would have been a mere shallow pretext by which to evade the injunction. They were all as much prohibited from adopting such a course as they were from...
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