Rock Island daily Argus. (Rock Island, Ill.) 1886-1893, 1888-01-10
THE FULL TEXT.
The Ruling of the Appellate Court
in the AbattOir Case.
An InterestIn ID oeument- -The Opin-
ION by judge Lacy coneurred In by
the Full Bench

hock Island VS. hueslnS, was receNeu lu
Rock Island last evening Last evenings
ARGUS simply gave the docket entry as to
the case, and while it was sufficient to
show that the decision was in the city's
favor, the full text OF the opinion was
not obtainable at the time.
Last evenings mail brought the very
interesting document from Ottawa,
however. The decision is a lengthy one,
and after reviewing the case at length,
the opinion is given. 1t was prepared
by Judge Lacy and is signed by all the
other judges. and is as follows;
The appellant raises some preliminS
AIRY questions as to the right of appellee, a
mere tax payer to maintain the suit. IL
is insisted that the amount OF appellee s
tax is so insignificant, it being only 26
cents per annum, in addition an account
of abattoir expenses; that court Of equi-
" would not notice it; that the appellee is
not acting In good faith on his own ac-
count, but is proceeding in the interest OF
the butchers of the city of Rock Island;
that tax payer cannot enjoin the levy
and collection of the proposed tax levied
for the purpose of sustaining the abaitoir
in the manner proposed by the ordinance;
that appellee is eslopped because he
did not object to the building Of the abat-
toir and paid taxes for that purpose with
out objection, and that the state can only
question the right of the appellant to hold
and use the property. We are inclined
to hold all these points against the COM
tention of the appellant In the first
place if this case falls within the rule of
law that is announced in Lemont vs. Tai
colt Stone Co, 80 III. 9S,wbich holds the
doctrine that an Injunction will lie tn eu>
join tax 'where it has been imposed
where the law has not authorized 1t to be
levied" or as in the case of Wright vs.
Bishop, 3 Ill. 800, where it was held it
would lie to restrain the mourning or Is
suing evidence, of an illegal debt, it
would make no difference as to the amount
of tax the complainant would be liable to
pay in case the tax were levied or the
debt incurred end collection enforced.
The first inquiry will be as to the mas
ture of the tax sought to be imposed by
the appellant and enjoined in this suit.
Was there any law according to the
allegations and contentious OF the bill,
under which the tax or debt sought to be
incurred, which ever 1t may be termed.
could be imposed2 1t was asserted and
claimed in the bill, and upon that the
Judgment of the court was asked that
the ordinance under which the debt was
about to be created and the tax levied
was wholly illegal and void and without
the power of the appellant to pass it. II
this be so, which must be admitted, to
raise this point, then the city had no legal
authority to maintain the abattoir or to
incur any Indebtedness on its account.
We are therefore of the opinion this case
falls within the rule announced in the
above two cited cases. There would be
in such case no law under which to make
this levy or create the debt. The conten-
ton is, it was without the chartered
power of appellant to pass the ordinance
and that the creation of the debt was for
purposes not warranted, and that the cor
porate funds were about to be expended
for the same unwarranted purpose. See
also Hessing vs. Scott ct al. 1O7 Ill. 800.
1t is not like the case above, where the
vacation of street was sought to be en-
Joined, where the complainant in that
case did not allege that such vacation
would impose on him particle of loss,
nor that he has, or will sustain the sights
est injury or inconvenience distinct from
the general public"
- We also hold that no matter what the
appellee's private motives were as to aid
ing the butchers, he had right to main
tain his action if he showed legal grounds
without reference to such motives. Nor
do we think an estoppel could be invoked
against him. as his claim is the ordinance
10 70 al Mt nr 10
to create further indebtedness.
The payment of one tax created and
levied without legal authority could not
be invoked as an estoppel against the tax
payer who sought to enjoin another
wholly illegal debt bought TO be created
on the same or similar account Schaffer
VS. Bonham, 90 III. 1868. 1t is not sought
in the appellee's bill to interfere with the
right of the city to possess and own the
abattoir as a property but the mourning
the expense for the alleged illegal use
and maintenance of the same as an abat-
toir is only objected to. The appellee's
counsel take the ground that under the
charter under which appellant is organ
lied it had no legal power to pass the or
dinance in question to maintain the abat.
toir. On the other hand the appellant
insists that such power existed and that
the ordinance in question is valid and
binding. Upon the decision of this ques-
ton hangs this controversy.
The appellant claims the power to pass
the ordinance in question under certain
general provisions of the statute, there
being no express power granted in the
incorporation act of 1872 to regulate
slaughter houses within or without the
city.
The general provisions of the general
act for incorporation of cities and vii
lagos" in force July /, 1872, to which
we have been referred, and under which
the power is claimed. is as follows: Arti-
Gle 5. Sec. 90: The city council shall
have following powers, clause So.
ITO provide for and regulate the inspec-
ton OF meats, poultry, fish, butter, cheese,
lard, vegetables, cotton, tobacco, flour,
meal and other provisions"
Clause &C. ITO appoint board of
nealth and prescribe its powers andSdu>
ties"
Clause 7S. ITO do all acts make all
regulations which may be necessary or
expedient for the promotion of health or
the suppression of disease"
Clause 90. ITO pass all ordinances,
rules, and make all regulations proper or
necessary, to carry into effect the powers
granted to cities or villages, with such
fines and penalties as the city council or
board of trustees shall deem proper; pro-
vided no fines or penalties shall exceed
$500, and no Imprisonment shall exceed
six months for one offense."
If the appellant derived no power
under the above several provisions or
of them ia cd han n n
power.
The ordfnapca IN nuastioD With oil tha