Appeal from the Circuit Court of Cook County; the Hon.
CORNELIUS J. HARRINGTON, Judge, presiding. Judgment affirmed.
MR. PRESIDING JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.
Rehearing denied April 5, 1967.
This is an appeal from the dismissal of an amended complaint filed by plaintiff, pro se, as a taxpayer. The grounds for dismissal were (1) that plaintiff lacked capacity to sue and (2) that there was multifariousness in the cause of action.
Plaintiff filed a voluminous complaint, which was later amended. The gist and gravamen of the amended complaint alleges that plaintiff is a taxpayer and resident of the City of Chicago, County of Cook, State of Illinois; that the action is brought on behalf of all taxpayers within the above area; that the Metropolitan Sanitary District revenues are provided primarily by taxes; that the district also receives revenues from the sale of sludge and spoil bank and rentals from land leased; that rentals received defray taxes, which in turn lowers taxes upon property of owners in the area; that rentals from certain leases, entered into during 1963 and the five years prior thereto, were inadequate; that the above inadequate rentals result from a fraudulent conspiracy among the district, certain of its officials and the lessees; that, but for this conspiracy, taxes would be reduced by one and a half million to two and a half million dollars annually; that irreparable injury to plaintiff has occurred and will continue to occur; that the real estate department of the district has annual expenses of at least One Hundred Thousand Dollars ($100,000) as a result of these leases; and that these expenses are not reimbursed by the lessees.
Plaintiff in his prayer asks (1) for a declaration that the leases are void; (2) that an accounting take place with respect to all leases; (3) that an order be entered requiring lessee defendants to pay adequate rental; and (4) that an injunction be entered against the collection of the aforesaid illegal taxes.
Motions to dismiss the complaint were filed by the various defendants and sustained by the court on April 25, 1964. Subsequently, the plaintiff filed an amended complaint on May 3, 1964. Thereafter, motions to dismiss the amended complaint were filed by the various defendants. A motion for a change of venue was filed on June 10, 1964, by plaintiff. On June 12, 1964, the court entered an order denying plaintiff's motion for a change of venue and continued oral argument to June 17, 1964. On June 18, 1964, the court entered its final order and decree dismissing the amended complaint. This appeal is, in substance, from the above two orders entered by the lower court.
It is plaintiff's theory of the case (1) that the change of venue should have been granted; (2) that he has standing to bring this suit in that a taxpayer can obtain relief for losses suffered by the district taxpayers as a result of the expenditures unlawfully and fraudulently made; (3) that there is no multifariousness in the cause of action; and (4) that the amended complaint states a cause of action.
Defendants' theory of the case is (1) that the denial of the change of venue was proper; (2) that plaintiff lacks capacity to sue in that plaintiff has not suffered special damages; (3) that there is multifariousness in the cause of action; and (4) that the amended complaint fails to state a cause of action.
[1-3] At the outset, we agree with defendants that the denial of the motion for a change of venue was proper. The statutes authorize a change of venue in all civil cases. An application for change of venue, however, must be made at the earliest practicable moment. An application made after a hearing begins is not timely, particularly after the trial judge has made several rulings adverse to the party seeking the change. Tidwell v. Smith, 57 Ill. App.2d 271, 273, 205 N.E.2d 484 (1965); Swanson v. Randall, 30 Ill.2d 194, 198, 195 N.E.2d 656 (1964). In the instant case the motion for the change of venue was not timely in that considerable argument had taken place in respect to the defendants' motions to dismiss and the court had in fact dismissed plaintiff's complaint. The chancellor did not abuse his discretion in denying plaintiff's motion for a change of venue.
In response to plaintiff's second contention that he has standing to sue, defendants argue that the case of Koehler v. Century of Progress, 354 Ill. 347, 188 N.E. 445 (1933) disposes of the problem. In that case a taxpayer filed a suit, seeking an injunction against "A Century of Progress," a corporation, and the South Park Commissioners, a municipal corporation, for the purpose of restraining the former from operating an exposition on the public grounds under the jurisdiction of the South Park Commissioners and restraining the latter from consenting to such use of public property. The bill alleged that the ordinance of the South Park Commissioners, which was authorized by an act of the Illinois Legislature and which granted to the aforementioned private corporation the use of public property without any compensation, was illegal. The bill also averred that such use of public property without compensation by the private user amounted to a diversion of public funds and that in consequence thereof the complainant and other taxpayers would be specially and irreparably damaged to the extent of the additional taxes they would be compelled to pay. The Supreme Court affirmed the decree of the trial court sustaining a demurrer to the bill and dismissing it for want of equity and declared:
Without considering further the inconsistencies existing in the bill and the various prayers for relief, the fundamental question of appellant's right, as a taxpayer, to bring this suit is of first importance in this case. The lands involved here and which are described in the bill are held in trust by the South Park Commissioners for the use of such lands by the public. An obstruction or misuse of public property which does not result in special injury to the individual cannot be complained of except by the people. To entitle a tax-payer to maintain a bill to enjoin a breach of public trust, he must, in the absence of statutory authority conferring such right, show that he is specially injured thereby. An individual has no standing in equity on account of an injury to the public by the mis-use of property held in trust for the public. He is entitled to invoke equitable jurisdiction only to protect his property from threatened injury, and unless it is shown that he will suffer special damage, different in degree and kind from that suffered by the public at large, he will not be heard to complain of mis-use of public property. Carstens v. City of Wood River, 344 Ill. 319; McCormick v. Chicago Yacht Club, 331 id. 514; McPike v. Illinois Terminal Railroad Co., 305 id. 298; Hill v. St. Louis and Northeastern Railway Co., 243 id. 344.
. . . the bill alleges that the contract should require payment to the South Park Commissioners of a large sum of money, and that, because this was not done, the appellant and other tax-payers similarly situated suffer in the matter of taxation. Though this point seems not to be particularly stressed in the briefs it is clear that such allegations in the bill do not show special injury to appellant.
The case of Droste v. Kerner, 34 Ill.2d 495, 217 N.E.2d 73 (1966) reiterates the principle enunciated in Koehler as to the misuse of public property. In Droste the legislature enacted legislation allowing 194.6 acres of land submerged beneath the waters of Lake Michigan, to be granted, quit-claimed, and conveyed in fee to the United States Steel Corporation, with the proviso that the grant was to become effective (1) when the corporation paid $19,460 to the State Treasurer, and (2) when the Chicago Park District had conveyed all of its right, title and interest in the submerged lands to the State of Illinois. Plaintiff, Droste, instituted two separate taxpayer actions to enjoin the sale. One action was purportedly brought under authority derived from the Public Moneys Act, which permits a taxpayer to initiate an action to enjoin the disbursement of public funds and public moneys by State officials. The second action alleged the constitutional invalidity of the legislation authorizing the conveyance. The court held that a taxpayer has no standing in equity to enjoin an alleged misuse of public property in that he must show special damage, different in degree and kind, from that suffered by the public at large. We feel that the above two cases are dispositive of the instant situation.
Plaintiff contends, however, that despite the above decisions, he does not have to allege or prove any special damages. Plaintiff's contention is based on his argument that the instant case is distinguishable from Koehler and/or Droste. Plaintiff first argues that only general allegations of wrongdoing were asserted in Koehler, whereas allegations of fraud were alleged in the present action. An examination of Koehler ...