Gonyo v. Village of Wilmette ( 1907 )

Mr. Justice Adams

delivered the opinion of the court.

The bill in this case is filed, as shown by its averments, to enjoin the prosecution of suits by the village for the violation of an ordinance of the Village of Wilmette, and to enjoin alleged threatened trespasses by the authorities of the village.

First. Will.a bill lie to enjoin the prosecution of suits by a municipality, for the violation of its ordinances ? It is thoroughly established, on well-settled principles, that such a bill cannot be maintained. In Poyer v. Village of Desplaines, 123 Ill., 111, a bill was filed to enjoin the village from further prosecuting seven pending suits, and other suits alleged to be threatened, for violation of an ordinance of the village. In that case, as in this, the complainant had been fined for a violation of the ordinance, and had appealed from the judgment imposing the fine, and the appeal was pending and undetermined. The court held the bill could not be maintained, saying: “The questions arising in the prosecutions sought to be enjoined can be determined in the tribunal in which they are pending, or in that to which they may be taken by appeal. The legality or illegality of the ordinance is purely a question of law, which the common law court is competent to decide. If the defendant is not guilty of violating this provision, as alleged, the determination of that fact is .peculiarly within the province of that court. In either event, appellant had a full and complete defense at law. When ordinances have been enacted by the proper authority, a court of equity will not interfere, by injunction, to restrain their enforcement in the appropriate courts, upon the ground that such ordinances are alleged to be illegal, or because of the alleged innocence of the party charged.” The language quoted is approved in Village of Dolton v. Dolton, 201 Ill., 155, 163.

In City of Chicago v. Chicago City Ry. Co., 222 Ill., 560, the Chicago City Ry. Co. and the Chicago Union Traction Co. filed a bill against the City of Chicago to enjoin the prosecution of suits by the city for violations of an ordinance of the city, alleging, among other things, that the ordinance was unreasonable and void. The court held that the bill could not be maintained, saying, among other things: “It is settled beyond controversy that a court of equity has no jurisdiction to interfere with prosecutions for criminal offenses, and it makes no difference whether the prosecution is under a statute which applies to the State at large or under an ordinance which is in force only in a particular municipality. Courts of equity deal only with civil and property rights, and their powers do not extend to determining what laws or ordinances are valid or invalid unless such determination is incidental to the protection of rights recognized by courts of equity alone.” Uumerous authorities are cited in the foregoing cases.

Second. Can the bill be maintained to enjoin the alleged trespasses and threatened trespasses? The general rule is that a court of equity will not enjoin threatened trespasses, to which rule there are only two exceptions, viz.: to prevent irreparable injury, and where the party defendant is insolvent, and to prevent multiplicity of suits. Poyer v. Village of Desplaines, supra; Commissioners of Highways v. Green, 156 Ill., 504, 509; Thornton v. Roll, 118 ib., 350; Craig v. City of Charleston, 78 Ill. App., 309, and cases cited.

The bill in the present case does not allege irreparable injury or insolvency of the defendant. In Thornton v. Roll, supra, it was held that the bill, in failing to allege insolvency of the defendants, afforded no ground for equitable relief. The bill cannot be maintained on the ground of prevention of a multiplicity of suits. The complainant has not established his right at law. On the contrary, there has been a judgment against him, and the suit in which it was rendered is pending on appeal, and the right is disputed only between him and the village.

In Chicago Pub. S. Exchange v. McClaughry, 148 Ill., 372, 381, the court say: “If the right is disputed between two persons only, not for themselves and all others in interest, but for themselves alone, the bill will be dismissed. 2 Story’s Eq. ¿Tur., section 587.” The court further say: “But where there are continued suits between two single individuals, arising from the separate repetition of trespasses, equity will not interfere by injunction where the right has not been established at law, because a judgment in any one of the suits would be evidence in all the others. If the right has not been established at law, the necessity of intervention does not exist.” See, also, Chicago Gen. Ry. Co. v. C. B. & Q. R’d Co., 181 Ill., 605, 614.

The injunction in this case was granted without notice, on the recommendation of a master, and perhaps, in the hurry of business, without inspection of the bill by the chancellor. There is nothing in the bill' warranting the granting of an injunction without notice, especially against a municipal corporation, and if there had been notice and a hearing, there can be no doubt that the injunction would not have been granted, as is evidenced by the final decree.

The decree will be affirmed.

Affirmed.