139 Ill. 306 | Ill. | 1891
delivered the opinion of the Court:
On the 17th of October, 1882, the village of Colfax, by its president and board of trustees, attempted to pass an ordinance disconnecting certain territory which had formerly been within its boundaries. The ordinance received a majority of the votes of the members present, but not a majority of all of the nfembers elect, which was requisite under the statute. The ordinance, therefore, was never legally passed. It was, however, published, and recognized as valid by the officers of the village and the officers of the township in which the territory’ lay. The latter took charge of it, levied taxes upon it, worked the roads, built a bridge within it costing $6000, one-half of which was paid for by the county, and from the time such disconnecting ordinance was published the territory so attempted to be disconnected was recognized and treated by both village and township as not being a part of the village, until the 5th day of August, 1889, when the president and board of trustees of the village passed an ordinance levying a tax upon the real and personal property within its limits for corporate purposes, and a demand was made upon appellee, Maxon, who was county clerk, that he extend such taxes, and upon his refusal so to do a writ of mandamus issued to compel him to extend such taxes. No defense was made by Maxon, but the commissioners of highways of the township, by leave of court, became parties, and filed a demurrer to the petition, which being overruled, they answered, setting up the same facts recited in the petition, and also, that relator caused said disconnecting ordinance to be printed in pamphlet form; that they, the said defendants, believing said ordinance to be valid, have each year, since 1882, assessed road and bridge taxes on the lands described in said ordinance; that they opened a public highway through the territory therein described, and worked- the same, and expended large sums of money on the same; that they caused a bridge to be constructed at a cost of $6000, and procured county aid therefor to the extent of $3000, and that no road tax was assessed against relator’s inhabitants for the construction of said bridge nor the opening of said highway; that the voters residing on said territory have not, since 1882, exercised any rights in relator’s government, nor has relator exercised any jurisdiction over said territory, and that relator was therefore estopped and barred, by the lapse of time, from claiming jurisdiction over said territory. They also denied that the appropriation ordinance, upon which relator’s petition for the writ was based, ever passed or became an ordinance.
Relator demurred to all of the answer except that part which denied that the appropriation ordinance was ever passed. The court overruled the demurrer. Relator then filed three pleas to the answer, as follows: First, that its board of trustees did not, on the 17th day of October, 1882, or at any”other time, pass and adopt said disconnecting ordinance; second, that its board of trustees did pass said appropriation ordinance; third,' that its village clerk, of his own wrong, and without authority of law, certified that said alleged disconnecting ordinance was properly passed, and of his own wrong, and without authority of law, filed a copy of said disconnecting ordinance in the office of the recorder and county clerk of said county, and that relator did not cause the said clerk to so certify or so file said ordinance. Defendants demurred to the third plea, which was overruled. Defendants then filed a motion for judgment on the issues joined, which the court sustained, and gave judgment for defendants for costs. The Appellate Court affirmed the judgment of the circuit court, holding the village was estopped to deny the validity of said ordinance under the decisions of this court, citing Chicago, Rock Island and Pacific Railroad Co. v. Joliet, 79 Ill. 25, and Lee v. Mound Station, 118 id. 304.
It is insisted by appellant here that the doctrine of estoppel in pais has no application to this case, for the reason that the village authorities are not shown to have done any affirmative act calculated to influence others to act on the faith of said invalid ordinance. Theirs, it is said, was mere non-action. The judgment of the circuit court being rendered on the issues joined without evidence, must rest on allegations of the answer not denied by the pleas. But among such allegations is the averment, that after the attempted passage of the disconnecting ordinance the village board caused it to be published, with its other ordinances, in pamphlet form. Here, certainly, was an affirmative act. Was it calculated to lead others to act upon the supposition that the ordinance was valid ? Our statute provides that when city or village ordinances are printed in book or pamphlet form, purporting to be published by authority of the board of trustees or city council, such book or pamphlet shall be received as evidence of the passage and legal publication of such ordinances, as of the dates mentioned in such book or pamphlet, in all courts and places, without further proof. (Rev. Stat. sec. 4, chap. 24.) Certainly respondents and all others had a right to act on that which relators had made legal evidence of the passage of the ordinance, which they now seek to treat as invalid.
We entertain no doubt that on the authorities cited by the Appellate Court, as well as upon reason and justice, the village is estopped from claiming any power over the territory in question, as being within its limits. The judgment of the Appellate Court will therefore be affirmed.
Judgment affirmed.
