| Ill. | Mar 21, 1881
delivered the opinion of the Court:
The questions presented by the assignment of errors do not affect the decree enjoining the collection of the tax and the payment of the taxes collected on account of the bonds and annexed coupons issued to the Jacksonville, Northwestern and Southeastern Railway Co., and our remarks will be limited, strictly, to the errors assigned.
First.—The bondholders were not personally before the court, and no personal decree could, therefore, be rendered against them. The notice by publication only enabled the court to give effect to the proceeding so far as it was one in rem. Harris et al. v. Pullman et al, 84 Ill. 20" date_filed="1876-09-15" court="Ill." case_name="Harris v. Pullman">84 Ill. 20; Cooley’s Const. Lim. (1st ed.) 404.
The court did not have the bonds and coupons under its control, and so it was impossible to make any decree enforcing their surrender or cancellation. AVhat decree, then, other than that which was rendered, could the court have3 rendered giving complainants relief? We are unable to perceive any. Had the bonds and coupons been under the control of the court, or their holders been personally within its jurisdiction, their cancellation might have been decreed and enforced; but without having the bonds and coupons under its control, or their holders personally within its jurisdiction, this was impossible.
So far as the taxes, collected and uncollected, are concerned, the decree gives the complainants all that the protection of their interests requires.
The rule is, when persons who are necessary parties refuse to appear, and the court has no power to reach them by its process and compel them to appear, the bill must be dismissed without prejudice. Picquet v. Swan, 5 Mason C. C. 561. The action of the court in dismissing as to the unknown bondholders appears, therefore, to be in strict conformity Avith the approved rules of practice.
Second.—There are several answers to the other assignment of error. There is no prayer in the bill that a decree be rendered directing the paying over of the money collected for the payment of the bonds and coupons in question to the corporate authorities of the town of Virden. There is no allegation that there is any definite amount of such money in the hands of the respective treasurers,—the allegations in that regard being, “that some portions of the money-arising from the collection of said illegal tax, from the tax-payers aforesaid, are now in the possession of the county treasurer of the county of Macoupin, aforesaid, and the State treasurer of the State of Illinois.” For aught that appears those portions may be too insignificant in amount to justify the trouble of making such a decree.
But, Avaiving these objections, this dilemma is presented: The money thus in the hands of the respective treasurers is either there by authority of law, or it is there Avitliout authority of law. If it is there by authority_of law, it is as revenue for the payment of the bonds and coupons issued to the Jacksonville, Northwestern and Southeastern Railway Company, and there can be no lawful right to devote it to any other purpose. If it is there without authority of law, it is not revenue at all, but belongs to the several tax-payers by whom it was paid. There are but five .tax-payers parties to this suit. They have no right to a decree in regard to that which belongs to their neighbors, and if they want to donate money which belongs to themselves to the corporate authorities of the town of Virden, they can do so without a decree. People can not be compelled to give money or property away by decree of court. Donations depend, for their validity, upon the free and voluntary act of the donors.
.In our opinion neither of the errors is well assigned.
The decree below is, in this respect, affirmed.
Decree affirmed.