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has been omitted, the court should, of its own motion, require the omission to be corrected before proceeding further.

3. A person appearing moved to be made a party defendant after demurrer had been submitted. Held, that the motion did not come too late, since a proceeding could be stayed at any time, to make proper parties.

Appeal from Cook county court; E. F. Dunne, Judge.

Bill by the Chicago Real-Estate Board and others against Philip Knopf, county clerk of Cook county. Judgment for plaintiffs. Defendant appeals. Reversed.

This was a bill in chancery exhibited by the appellees in the circuit court of Cook county against the appellant. In substance, the allegations of the bill are that the complainants were the owners, respectively, of taxable real property in one or more of the towns of South Chicago, Lake, and Hyde Park; that the South Park commissioners, a municipal or quasi municipal corporation, are invested by law with certain limited powers of taxation in a territory comprised of said towns, for the purpose of procuring a fund to be appropriated by said commissioners to the payment of the costs and expenses of maintaining and managing a system of public parks and park ways committed to the care and custody of said commissioners by the laws of the state; that said commissioners have construed an act adopted by the general assembly of the state at the session of 1895 to authorize them to raise a fund by a levy of 2 mills on each dollar of the assessed valuation of all the property in said towns (ir. addition to other sums which other enactments authorize the commissioners to cause to be levied) for the purpose of the corporate duties of the said commissioners (i. e. governing and maintaining the parks, boulevards, and pleasure ways within their jurisdiction), and that, acting upon such construction of the said act, said commissioners have adopted an ordinance providing for the creation of a fund in the sum of $295,164 by the levy of a tax of 2 mills on each dollar of the assessable value of all the property in said towns, and have certified such action to the appellant, Philip Knopf, county clerk of Cook county, to be by such clerk extended upon the town collector's tax books in each of said towns as taxes against the real and personal property of said town; that said act of the general assembly is not susceptible of such construction, but, on the contrary, is not applicable to said board of commissioners, and invests them with no power or authority whatever to exact any sum of money from the taxpayers in their jurisdiction; that said levy is illegal and oppressive; and that the said county clerk is about to extend the same against the property of complainants, and thereby cloud their titles, etc. The bill makes said Knopf, the clerk, the sole defendant; and the prayer is that he be perpetually enjoined from extending the alleged ille

gal levy against any property in any of said towns. The defendant to the bill, the county clerk (appellant), interposed a general demurrer, and the same was argued and submitted to the court. The court took the demurrer under advisement, and while the cause was so pending the South Park commissioners appeared, and moved the court to be made parties defendant to the bill. The court denied the motion, and on the same day overruled the demurrer. The county clerk declined to further plead or answer, and the court entered a decree perpetually enjoining the county clerk from extending said tax levy against any property within the limits of the towns in the jurisdiction of the said South Park commissioners. This is an appeal to bring the proceedings in review in this court.

Green, Robbins & Honore (Robert S. Iles and Frank L. Sheperd, of counsel), for appellant. Wilson, Moore & McIlvaine, for appellees.

BOGGS, J. (after stating the facts). It is a general rule of equity, so familiar that the citation of authorities in its support is wholly unnecessary, that all persons, natural or artificial, who have any substantial legal or beneficial interest in the subject-matter of the litigation, or who will be materially affected by the decree which may be rendered, are to be made parties to the suit. The rule is inflexible, yielding only when the allegations of the bill disclose a state of case so extraordinary and exceptional in character as that it is practically impossible to make all parties in interest parties to the bill, and, further, that others are made parties who have the same interest as have those not brought in, and are equally certain to bring forward the entire merits of the controversy as would the absent persons. The sole question presented to the court by the allegations of the bill in the case at bar was as to the right and power of the South Park commissioners to demand and receive from the complainants in the bill, and other taxpayers within the jurisdiction of the commissioners, the taxes sought to be declared illegal by the bill. The determination of that question was of vital importance to the South Park commissioners, who were not made parties, and of no concern to the county clerk, who was made the sole defendant, except in so far as it might serve to guide him in the discharge of the duty of preparing the books for the use of the tax collectors. The only necessity for bringing the clerk into the case was to preserve existing conditions until the real parties in interest could be heard by the court, and their rights determined. The South Park commissioners are a body politic and corporate, having a home and exercising functions in the same county in which the court was being held. The relief sought by the bill was a decree of the court that the commissioners were

without lawful authority or right to cause the taxes in question to be levied. No other question was involved, and no other party than the commissioners was interested as defendant in the decision. Their presence

party is brought within the jurisdiction of the court. Nor is it necessary, in such state of case, that the chancellor should await action on the part of either the complainant or defendant to the bill, or the absent party, but should, of his own motion, whenever it comes to his knowledge that a necessary party has been omitted from the bill, require the omission to be corrected before proceeding with the case. This is proper practice, not only during the time of the pendency of the proceeding in the trial court, but also during its pendency in a court of review. We have repeatedly ruled that, where the rights of parties not before the court are so intimately connected with the subjectmatter of the controversy that a final decree cannot be made without materially affecting their rights and interests, the objeetion that there is a lack of proper parties may be taken at the hearing, or in a court of review on appeal or on error. Spear v. Campbell, 4 Scam. 424; Prentice v. Kimball, 19 Ill. 320; Lynch v. Rotan, 39 Ill. 14; Allen v. Woodruff, 96 Ill. 11; Bank v. Sperling, 113 Ill. 273.

in the case as parties was essential to the rendition of a final decree. High, Inj. §§ 576, 577; Hays v. Hill, 17 Kan. 360; Atkins v. Billings, 72 Ill. 597; Berry v. Berry's Heirs, 3 T. B. Mon. 263; Binney's Case, 2 Bland, 99; Lefferts v. Supervisors, 21 Wis. 638; Gilmore v. Fox, 10 Kan. 509; Abrahams v. Vellbaum, 54 Tex. 226; State v. Anderson, 5 Kan. 90; Anderson v. McKay, 30 Tex. 186; Moreland v. Barnhart, 44 Tex. 275; Allen v. Turner, 11 Gray, 436; Calwell v. Prindle, 11 W. Va. 307; Samis v. King, 40 Conn. 212; Carpenter v. Grisham, 59 Mo. 247. Yet the court refused to permit them to appear and be heard, but proceeded to enter a decree declaring that they had no lawful right to levy the taxes in question, and deprived them, by a perpetual injunction against the clerk, of the only means provided by law for the collection of such taxes. In this, we conceive, the court fell into error. We need not pause to answer the suggestion that this holding will make it necessary that the state and each taxing body shall be made parties defendant in every bill brought to enjoin the extension or collection of taxes. It is sufficient to say that the circumstances of this case demand that the commissioners be made parties defendant to the cause, and that the ruling is confined to this case. That the South Park commissioners were necessary parties to the suit appeared affirm-conformity with the views here expressed. atively from the allegations of the bill. Their privilege to appear and defend against the assault upon their rights, interest, and powers was not in any degree dependent upon the action or nonaction of the defendant, the county clerk. It was a substantial, subsisting right, resting in the commissioners, to be made defendants to the bill; and the fact that the demurrer which was presented by the clerk did not specifically raise the point could have no effect to destroy the right. The court, of its own motion, should have taken notice of the omission, without regard to the character of the demurrer. Herrington v. Hubbard, 1 Scam. 569.

It is insisted that the application of the commissioners to be allowed to defend against the bill came too late, and for that reason was properly refused. They were not a party to the proceeding, and were under no obligation to appear at any time. The application came in ample time to enable the court to avoid the error of entering a decree without having jurisdiction of the person of a necessary party. We conceive it to be the duty of the chancellor, if it appears at any time, or any stage of the proceedings, that a final decree cannot be entered in the case without materially affecting the interest of some one who is not a party to the suit, to stay further action until the absent

It was error for the court to proceed to final decree without having jurisdiction of the South Park commissioners, and as the questions sought to be presented in this court by the record are such only as materially affect the rights and powers of the commissioners, it is manifest that we should not assume to consider and determine such questions. The decree must be reversed, and the cause remanded for further proceedings in

Reversed and remanded.

KNOPF v. FIRST NAT. BANK OF
CHICAGO.1

(Supreme Court of Illinois. April 21, 1898.) TAXATION INJUNCTION-PARTIES-CORPORATIONS

-APPEAL.

1. A bill by a corporation to enjoin the collection of a tax against stockholders will lie, although there are no dividends belonging to the stockholders on hand, out of which it would have to pay tax, if collected.

2. A single taxpayer may restrain the extension of an illegal tax, as an entirety, on all the taxable property in the district.

3. In a suit against a county clerk to restrain him from extending on the collector's book a tax levied by the park commissioners, the clerk is sought to be restrained from performing only a ministerial duty, and the park commissioners are the only parties beneficially interested, and hence should be joined as party defendants.

4. Where a nonjoinder of necessary parties is pointed out for the first time on appeal, and the only party interested has been omitted, the decree will be reversed.

5. The fact that admitting necessary parties will cause delay and inconvenience to plaintiff will not justify a court in proceeding without them.

Appeal from Cook county court; E. F. Dunne, Judge.

1 Rehearing denied June 10, 1898.

Bill by the First National Bank of Chicago | tax, if illegal, as an entirety, upon all the against Phillip Knopf, county clerk. There was a decree for complainant, and defendant appeals. Reversed.

Green, Robbins & Honore (Robert S. Iles and Frank L. Sheperd of counsel), for appellant. Edward O. Brown and Charles B. Pike. for appellee.

CARTWRIGHT, J. The South Park commissioners in Cook county attempted to levy a tax of two mills on the dollar on the taxable property in the park district, amounting to $295,164, and included that sum in an ordinance providing that $785,246-the aggregate of the items specified in the ordinance --should be levied upon the property subject thereto. They certified the same to appellant, county clerk of said county, as their tax levy for the year 1897, and appellee filed the bill in this case to restrain said clerk from extending said two-mill tax upon the collector's books. Appellant demurred to the bill, and, his demurrer being overruled, he elected to stand by it, and the court entered a decree perpetually enjoining him from extending the said sum of $295,164, or any sum including it, as a tax upon the district. From that decree he took this appeal.

The threatened tax was against the stockholders of complainant, and objection is made to its maintaining the bill in the absence of an allegation that there were dividends belonging to the stockholders on hand and in its possession out of which it would be required to pay the tax if extended and collected. It is argued that, unless there are such undistributed dividends, the bank has no duty in connection with the tax. We do not think the objection valid. A tax, when levied and collected, is paid by the bank itself, and collected by it from its stockholders by deducting it from dividends. The bank would be subject to suits by its stockholders in case it should pay an illegal tax, and might enjoin the collection of it if extended. In Cook, Stock, Stockh. & Corp. Law, § 572, it is said: "Accordingly, in order to avoid a multiplicity of suits, it is now well established that the bank itself may file a bill in equity to prevent and enjoin the collection of an illegal tax on its stockholders." If this tax should be extended, the bank would be called upon and required by law to retain so much of any dividend that might then be on hand as would be necessary to pay the tax, and we can see no distinction in the right to dispute the validity of the tax at different steps in the creation of the illegal burden. We do not see that it makes any difference whether the moneys out of which the tax should be paid had been earned when the bill was filed, in a case where the tax would be payable in the future out of any and all earnings of the stock.

It is also contended that equity has no jurisdiction to restrain the extension of the

taxable property in the district. The claim is that no person or collection of persons, short of the entire body of taxpayers, has a right to restrain the extension of the whole tax, and that complainant and its stockholders should not be allowed to litigate the grievances of other taxpayers who have not asked relief. It is true that in any suit to prevent the levy or collection of an illegal tax there is no privity or legal relation of common property or common right as between the taxpayers. The only common interests between them is in the question at issue, and in the fact that all are injured by the same wrongful and illegal act of levying the tax. This is just as true when several taxpayers join, or if the whole body of taxpayers should unite in a bill. The right of each one is individual and separate, but the common relation has been deemed sufficient to authorize the exercise of the power of equity either where the suit is by a number of taxpayers on behalf of themselves and others similarly situated, or by one suing on behalf of all others, or even where the suit is by one suing for himself alone, where the effect would be to settle the rights of all. In this case the suit is to maintain the rights of the stockholders, but the necessary effect is to determine the right of every taxpayer in the district, and it would be an irrelevant distinction that the bill does not, in set phrase, purport to be on behalf of all others having individual and separate interests of the same character. In a case where a proposed tax is illegal, complete relief may be given to thousands of taxpayers by one decree, which would otherwise require an indefinite number of suits by different taxpayers who all have the same remedial right, and where the threatened tax would be an injury to all alike. It is the only method of doing substantial justice by relieving the whole body of taxpayers, where each of them must otherwise maintain an action at the same time and on the same ground. In conformity with this principle, this court has constantly recognized the right of an individual or individuals to restrain an entire tax that is without authority and void. In Town of Ottawa v. Walker, 21 Ill. 605, a bill was filed against the county clerk and the town to enjoin the clerk from extending a twomill tax for the purpose of building a bridge across Fox river. An injunction was granted, and made perpetual. The tax was unauthorized, and for want of authority was held by this court to be void, and the power of a court of equity to grant relief was maintained. It was said (page 609): "But when the law has conferred no power to levy a tax, or in case a person or an officer not authorized by law to exercise such a power shall levy a tax, or when the proper persons shall make the levy for purposes, on the face of the levy, not authorized, or for fraudulent purposes, a court of equity may stay its collection by

injunction." It was held, however, that a mere motion to dissolve an injunction did not authorize the court to make it perpetual, and the cause was remanded for a hearing on the merits. In Drake v. Phillips, 40 Ill. 388, a bill was filed by four taxpayers to restrain the collection of a tax imposed by the town of Delavan. An injunction was issued, and made perpetual, enjoining the entire tax, and the decree was affirmed by this court. It was said that courts of equity refuse to take jurisdiction simply because some formality or legal requirement in making the levy is wanting; but when officers or individuals have no legal authority to lay a tax, and they assume the right, a court of equity will interpose to afford preventive relief by restraining the exercise of powers perverted to fraudulent or oppressive purposes. In Briscoe v. Allison, 43 Ill. 291, a bill was filed by a number of taxpayers to restrain the collection of a tax levied in the town of Marshall, and an injunction against the entire tax was made perpetual. It appeared that a portion of the tax was to pay county orders which were legal and valid, and a portion to pay those which were issued without legal authority. The jurisdiction of equity was recognized, and the decree was reversed, with directions to ascertain the portion of the tax levied to pay illegal orders, and to render a decree enjoining the payment of that portion. In Vieley v. Thompson, 44 Ill. 9, a bill was filed by a single taxpayer to enjoin the collection of a tax levied in the town of Pleasant Ridge. A temporary injunction which had been granted was dissolved, on hearing, and the bill was dismissed. On appeal, this court said that equity would take jurisdiction, and interpose its power to prevent the collection of a tax not authorized by law. It was decided that the tax in that case was unauthorized, and the decree was reversed, and the cause remanded, that the collection of it might be stayed. In Town of Drummer v. Cox, 165 Ill. 648, 46 N. E. 716, an appropriation of $1,000 was made at a town meeting to straighten and deepen Drummer creek, and taxpayers filed a bill to enjoin the extension of the tax by the county clerk. The tax having been enjoined, the decree was affirmed in this court, because the law conferred no power to levy a tax for such a purpose, and the extension of the whole tax was prevented on the sole ground that the levy was unauthorized and void.

There have been numerous cases where the jurisdiction was exercised, but rested in part on the power to prevent a municipality from incurring an illegal debt which would become a burden upon the property of taxpayers; but the cases cited found the sole basis of the jurisdiction in the unauthorized and void character of the tax. They settle the law as to the jurisdiction of courts of equity in this state, and as to the right of a taxpayer or a number of taxpayers to en

join the extension or collection of an entire tax that is unauthorized and void. The decision in Dupage Co. v. Jenks, 65 Ill. 275, is relied upon as holding that one taxpayer cannot enjoin the extension or collection of a tax except as against his own property; and, on the other hand, that decision is attacked as being wrong, and what is there said as mere dictum. The case seems to be wholly misunderstood. It is unquestionably right, and the question involved has no relation to this case. In that case two bills were filed, each by a number of taxpayers, to enjoin the collection of all the taxes levied in the towns of Naperville and Lisle for the year 1868. The suits resulted from a county-seat war, and were prosecuted upon the ground that all taxes levied in those towns for the support and maintenance of government were unconstitutional and void. There was a perpetual injunction against the collection of the taxes, but the decree was reversed in this court, and it was held that in such a case individuals could not enjoin the entire tax, and that in that instance there was no merit in the suits, or ground for enjoining the taxes. As to that kind of a suit it was said (page 281): "It may be, and is, no doubt, true, that many of the citizens of these towns felt themselves under at least a moral obligation to lend the necessary support to the state, county, town, and municipal governments under which they lived, and by which they were protected in their persons and property, and were willing to waive any irregularities that may have intervened in levying these taxes. They, no doubt, felt the duty they owed to support the state and county governments by paying these taxes. They seem to have had no disposition to engage in a cause that would tend to embarrass the state, and to disorganize the county, and stop the administration of justice, even if the tax was not technically correct in the mode in which it was levied. ** It cannot be held that a litigiously disposed person may, on his own motion, file a bill in his own name and on behalf of all other taxpayers of the county, and stop the collection of all the revenue for the support of the state, the county. township, cities, towns, schools, and other municipalities. Our government is not, and never can be, at the mercy of one or a few individuals thus to bring it to an end by the forms of law. To so hold would be a perversion of the purposes for which a court of chancery was created, and would be a power never conferred, destructive to the peace and good order of society, if not to the government itself. Such a power can never be exercised by any court. It would be revolutionary, and highly dangerous to all our institutions." That case involved the entire machinery and existence of all government within those towns. The decision does not rest on the ground that a single wrongful act, which, by its general na

*

ture, inflicts the same injury upon every taxpayer, may not be prevented, and relief given to all at the suit of one, but it involv ed considerations of the existence and administration of government, and, when such considerations and questions of public pol icy are involved, they restrain or supplant the exercise of the power of the court, and sometimes even deny what would otherwise be a remedial right in the individual. The decision did not deny or limit the right of the individual to demand action even in such a case, but did require that his right should be limited to himself in a case where it could not be presumed that the other taxpayers desired to stop the administration of the government, and where such disastrous consequences would surely result. The principle does not apply to mere cases of misrule in particular matters, such as are involved in this case, where it cannot be presumed that the taxpayers desired the imposition and collection of an illegal burden, if it should be found to be such.

After the demurrer, and before the decree was entered, the South Park commissioners made their motion to be admitted as parties defendant to the suit, and this motion the court denied. The court was wrong in denying the motion. The commissioners were the only persons beneficially interested in the tax. The clerk was the mere ministerial officer to extend it. The effect and purpose of the suit were to prevent the commissioners' levy of the tax from becoming effective on the ground of their want of power, and their title and right to levy it were the only things assailed in the bill. The county clerk had no interest in the suit, and his presence was only necessary to the injunction. By the decree the commissioners' right to make the levy was decided against them, and they were, in effect, forbidden to exercise a power which they claimed to have without an opportunity to defend; and, aside from their motion, the defect appeared on the face of the bill, and was, of course, apparent to the court. They were necessary parties (High, Inj. § 576; Beach, Inj. § 373; 10 Enc. Pl. & Prac. 91; Bradley v. Gilbert, 155 Ill. 154, 39 N. E. 593), and the objection is fatal if insisted upon (High, Inj. § 1191). When the fact appears that the only party to be affected by the decree is not before the court, it should refuse to proceed; and in Beach, Inj. § 374, it is said that on appeal the court will dismiss a bill although the circuit court should have ordered the necessary parties brought in. It has been held that, where the question is raised for the first time on appeal, it will only be a ground of reversal in case the decree will have the effect of depriving the party omitted of his legal rights. Washburn & M. Mfg. Co. v. Chicago Galvanized Wire Fence Co., 109 Ill. 71; Chicago, M. & N. R. Co. v. National Elevator & Dock Co., 153 Ill. 70, 38 N. E. 915. In those cases, however, par

tiès to be affected by the decrees were before the court, so that they could properly take effect; but in this case the defect was brought to the notice of the court, and the indispensable party, and only party whose rights were in any way involved, was not before the court. An affirmance of such a decree would be an adjudication against the park commissioners without their being heard, which would be a flagrant violation of the rules. We will not pass upon the merits of the controversy in the absence from the suit of the only party whose rights are to be affected by the decision.

It is said that the park commissioners wanted to be admitted to the suit for an improper purpose, and that complainant could not get a decree as soon if they were admitted as if the county clerk were the only defendant. It appears that they asked to be let in to defend their rights, which they would probably defend in their own way; and, while the ease and convenience of complainant might be somewhat interfered with, that fact has never been held sufficient ground for a court proceeding without a necessary party. Here was a single corporate authority attempting to exercise a power by the levy of a tax, and there was no difficulty in making the commissioners defendants. This decision is only intended to apply to such a case.

We are not disposed to dismiss the bill, but will reverse the decree, and the cause will be remanded to the circuit court with leave to complainant, upon payment of all costs, to make the park commissioners defendants, and with directions to the court, if that is not done, to dismiss the bill at complainant's cost. Reversed and remanded.

ROCK ISLAND & P. RY. CO. v. KRAPP.1 (Supreme Court of Illinois. April 21, 1898.) APPEAL-HARMLESS ERROR-DIVERSION OF WATER

COURSE-LIABILITIES.

1. If, upon an examination of all the instructions, it appears that they were not calculated to mislead the jury, it is not ground for reversal that certain of the instructions were erroneous.

2. Instructions that, if defendant changed the channel of a creek, it was his duty to provide in the artificial channel for the proper discharge of the water which should flow in the creek, that it would be liable for all damages arising from the inefficiency of the artificial channel in times of great floods, and that, if defendant was guilty of negligence, it could not be heard to say the flood was the act of God, were erroneous, there being evidence that the natural channel was insufficient; but the errors were substantially cured by the further instructions that defendant was only bound to provide that the new water way should be as efficient as the natural channel, and that, if they found for plaintiff, to assess damages in such sum as they believed he had sustained over and above those he would have sustained, if any, had not such channel been changed.

1 Rehearing denied June 10, 1898.

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