90 Ill. 104 | Ill. | 1878
delivered the opinion of the Court:
The bill in this case, showing that the city of Peoria, at the time of the passage of the appropriation bill or ordinance in question, was already indebted to an amount largely- in excess of the constitutional limit, the cases of City of Springfield v. Edwards, 84 Ill. 626, and Law v. The People, 87 id. 395, must be regarded as governing the present decision, and as authority for the injunction asked for, at least to the extent of restraining the levy or application of any tax for the payment of this additional indebtedness.
It is suggested, on the part of appellee, that there is no occasion or intention to levy or appropriate any tax for that purpose; that, by the charter of the city, all funds arising from or on account of the water works are to be kept separate from all other moneys, as “The Water Fund,” and all moneys belonging to the water fund are to be applied only to purposes connected with the water works ; 'and it is asserted that the income from the water works will be amply sufficient for the liquidation of this indebtedness without resort to taxation; wherefore it is claimed the city should be left free to incur this additional indebtedness, to be paid only out of the income from the water works. Without expressing any opinion upon the propriety of this claim, it is sufficient to remark, that the state of facts upon which it is asserted does not appear from the bill, and the motion to dissolve the injunction was made and sustained, as well as the dismissal of the bill, o-n the ground of the want of equity apparent on the face of the bill, without any extrinsic evidence. The bill distinctly negatives that there were any funds in the treasury of the city, or to the credit of the water works fund, out of which such indebtedness might be paid, and avers that the city authorities will proceed to provide for the payment of the indebtedness by taxation, unless enjoined.
It is said, the veto message of the mayor, incorporated in the bill, shows the state of facts alleged. We do not consider that it does. It but states, in this regard, that in the year 1876 the receipts on account of the water works fund exceeded the expenditures in the sum of $6,753.21. Besides, we do not regard the bill as adopting the statements of fact in the message. It was not, as we understand, made a part of the bill for any such purpose, but to show the fact of the mayor's veto of the ordinance—there being a further claim by the bill that there had been a veto of the ordinance by the mayor, and that the ordinance had not been properly passed over the veto.
In order to avail of this supposed defense, if it be any, in whole or in part to the bill, it should be set up in the answer and made the subject of proof.
It is said that Dean Brothers were necessary parties to-the bill, and that the bill was properly dismissed because they were not made parties. The bill should not have been dismissed for this reason, but retained in order that the proper parties might be made. Knapp v. Marshall, 26 Ill. 63; Thomas v. Adams, 30 id. 37.
The decree will be reversed and the cause remanded.
Deoree reversed.
