181 Ill. 186 | Ill. | 1899
delivered the opinion of the court:
It has been held by this court that where a bill for injunction, only, is before the court, and a temporary injunction has been granted, a motion to dissolve the injunction for want of equity has the same effect as a demurrer to the bill, and the court, on sustaining the motion to dissolve the injunction, may properly dismiss the bill, and is not required to retain the same for hearing of pleadings and proofs. (Titus v. Mabee, 25 Ill. 257; Weaver v. Poyer, 70 id. 567; Prout v. Lomer, 79 id. 331; Live Stock Commission Co. v. Live Stock Exchange, 143 id. 210.) On principle, the same rule would prevail where a bill is filed for injunction only, which, on hehring, is refused. The bill may, in such case, be dismissed for want of equity for the same reason as in a case where a preliminary injunction has been granted and a motion has been entered to dissolve the same. In this case the bill is for injunction only, and on motion for an injunction, which is refused by the chancellor because of the want of equity in the bill, it was not error to refuse to allow the defendant to answer; nor was it error, if the bill was without equity, to dismiss the same on the refusal of the injunction.
The gist of the bill is that the ordinance is unreasonable, unjust,* unfair and oppressive. The ordinance for the construction of the sidewalk by a resort to special assessment as a means of raising money to pay for the improvement, was enacted under the Sidewalk act of 1875, which has been held by this court a valid act. (White v. People, 94 Ill. 604.) The question of the necessity of a local improvement is by the law committed to the city council, and courts have no right to interfere to prevent such improvement except in cases where it clearly appears that such discretion has been abused. The ground on which courts interfere is that the ordinance is so unreasonable as to render it void. (McChesney v. City of Chicago, 171 Ill. 253; Peyton v. Village of Morgan Park, 172 id. 102; Walker v. Village of Morgan Park, 175 id. 570.) In the latter case it was said (p. 573): “From the allegations of the bill it is apparent that the real ground relied upon to defeat the ordinance providing for the construction of the sidewalk is that the locality where the sidewalk is ordered constructed is so thinly settled that there is no necessity whatever for thé construction of a sidewalk; that no sidewalk was needed where it was ordered to be made. What the public necessities were was a question solely for the determination of the president and board of trustees of the village of Morgan Park, and when the incorporation clothed with power has acted in strict conformity to the statute conferring the power, as was the case here, its decision must be held final and conclusive, unless it is apparent that the action of the municipality is unreasonable, unjust and oppressive, as held in Hawes v. City of Chicago, 158 Ill. 658. It may be that there was no pressing demand for the sidewalk in question, and that it would in the end have been better had its construction been postponed until the population of the village had increased; but that was a matter for the board of trustees to settle for themselves. * * * The rule is, that it requires a clear and strong case to justify a court in annulling the action of a municipal corporation acting within the apparent scope of its authority. No such case was made by the bill here. No sidewalk had ever been laid over complainant’s property, and while we do not think a great necessity existed for the improvement, still we do not regard the action of the village so unreasonable, unjust and oppressive as to call upon a court of equity to interfere.” In McChesney v. City of Chicago, supra, it was claimed that appellant had a plank sidewalk in front of his lot which was up to grade and in good repair, and on objection to confirmation it was insisted the improvement was unnecessary, and it was held the objection was not sustained. Under the averments of this bill it cannot be said that it does not appear that the sidewalk in question would be of convenience to the public, nor does it appear that there is such a sidewalk and in such a condition as affords sufficient accommodation to the public who have occasion to go along the premises in which the complainant has an interest. It does appear that no sufficient sidewalk exists.
Complainant relies on the case of Hawes v. City of Chicago, 158 Ill. 653, as being a case identically in point with this case, where it was held that the sidewalk ordinance was unreasonable, unjust and oppressive, and therefore null and void. That case and this are entirely dissimilar. In the Hawes case the owner of a large tract of unimproved property, in conformity with the requirements of the city council, put down a good and sufficient plank sidewalk, which was in good condition. That walk, so constructed in conformity with the ordinance, was 1256 feet long. Five months after it had been put down, and when it was in good condition and safe and sufficient for public use, the city council passed another ordinance which required the plank walk to be torn up and a cement walk to be constructed at a cost to Hawes of $1915. To require that he should build a board sidewalk in conformity to the city’s plans, and, when this expense had been incurred and whilst that walk was in good condition, in so short a time thereafter to further require it to be torn up and another walk to be laid was an imposition on the property owner that was so unreasonable, unjust and oppressive that it was well held that an injunction could issue to restrain the enforcement of such second ordinance. But no such question is presented before the court here.
Even if it should be conceded that the ordinance was unjust and oppressive because of being unreasonable, still the appellant would have a complete remedy at law. In Peyton v. Village of Morgan Park, supra, which was an appeal from a judgment confirming a special assessment for curbing with concrete and paving with brick certain streets, objections were heard by the trial court to the legality of the assessment on the ground that the ordinance was unreasonable and oppressive, in view of the character of the streets, the improvements along them and the uses to which they were put, and this court, in passing upon the same on appeal, said': “The improvement was not wholly useless, and we are not prepared to say that the ordinance is void for unreasonableness or that the court erred in overruling the objections on that ground.” In McChesney v. City of Chicago, supra, an objection was made that the improvement was unnecessary, because, it was claimed, the appellant had a sidewalk in front of his lot which was up to grade and in good repair, and this court held, on appeal, that the ground on which courts interfere is that the ordinance is unreasonable to such an extent as to render it void, and that under the proofs in that case it could not be so held. The two cases last mentioned were cases of confirmation of the assessment, and sufficiently indicate that a com-, píete remedy at law would exist, based on the objection that the ordinance was unreasonable, oppressive and unjust, and if such could be shown to be the case by evidence, the court could grant the relief sought in this case. Where the remedy at law is complete and adequate, equity will not assume jurisdiction.
We are of opinion that there is no error in the record, and the judgment of the circuit court of Cook county is affirmed.
Judgment affirmed.