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Lewis v. Harness

SEPTEMBER 5, 1967.

M.B. LEWIS AND ARNOLD COHN, PLAINTIFFS-APPELLANTS,

v.

WETZEL G. HARNESS AS TREASURER OF CANTEEN TOWNSHIP SEWER SYSTEM, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of St. Clair County, Twentieth Judicial Circuit; the Hon. JOSEPH E. FLEMING, Judge, presiding. Judgment affirmed.

MORAN, P.J.

This suit was commenced by the filing of a petition in two counts — Count I for a writ of mandamus, and Count II for a writ of injunction against Wetzel G. Harness, Treasurer of the Canteen Township Sewer System.

The trial court granted defendant's motion to dismiss and entered a final judgment dismissing said suit at plaintiffs' costs. Plaintiffs appeal.

Count I of plaintiffs' complaint alleges that appellants are residents and property owners in that portion of Canteen Township served by the Canteen Township Sewer System and that as such their property is subject to the rates and charges imposed under said system; that the charges for the sewer services are set forth in a township ordinance marked Exhibit A attached and made a part of the petition; that the defendant has repeatedly and consistently refused to accept legal tender (cash) for the payment of the sewer charges assessed against appellants' property and other property holders of the system; that the requirement of defendant that property owners pay such charges by money order or check imposes additional burdens on the property owners and is unjust and unreasonable. (It will be noted that appellants do not question the ordinance, but rather the actions of the Treasurer, acting pursuant to the ordinance.)

They prayed for a writ of mandamus from the trial court directed to defendant, Wetzel G. Harness as Treasurer of Canteen Township Sewer System, commanding him forthwith to accept legal tender of cash, in payment of all charges owing to him as such Treasurer now and at any time in the future, to accept without penalty, service charge or interest, the principal of all charges in said Canteen Township Sewer System which have been tendered in cash and refused by defendant or his employees.

Plaintiffs argue that they have a clear right under Count I to mandamus the defendant to accept cash in payment of all sewer bills, claiming that the Treasurer of the sewer system has a clear duty to accept cash as legal tender under the statutes of the United States and of the statutes of the State of Illinois. However, they did not rely upon or refer to any statute of the State of Illinois or of the United States in the trial court. Chapter 139, section 160.45 of Illinois Revised Statutes gives the Board of Town Auditors supervision and control of a sewer system and authority to establish all needful rules and regulations by ordinance. The bonding ordinance passed by the Board of Town Auditors which they attached to their complaint contained the following language: "All bills shall be payable by check or money order." It is undisputed that the defendant was acting pursuant to the aforesaid ordinance when he insisted that all sewer bills be paid by check or money order and that the defendant as Treasurer of the Canteen Township Sewer System is regulated in the conduct of his duties by the rules, regulations and ordinances adopted by the Board of Town Auditors of Canteen Township.

[1-4] A proceeding for a writ of mandamus is an action at law and the pleadings are covered by the same rules that apply to other actions at law. (People v. Dixon, 346 Ill. 454 at 460, 178 NE 914.) Since this judgment was entered by the court's granting of a motion to dismiss the complaint, the propriety of the judgment entered depends upon the sufficiency of the facts alleged, which must be taken as true. (Bengson v. City of Kewanee, 380 Ill. 244 at 250, 43 N.E.2d 951.) However, the petition must set forth the material facts on which the petitioner relies, distinctly, clearly and specifically, so that they may be admitted or traversed, and the allegations of the petition must show a clear right on the part of the petitioner to have performed, and a duty on the part of the persons sought to be coerced to perform the act or acts that it is sought to have commanded. (Osborne v. Bradford, 346 Ill. 464 at 467-468, 179 NE 118; Bengson v. City of Kewanee, supra.) Mandamus is not proper where the right of the petitioner must first be established or the duty of the officer sought to be coerced must first be determined. (Bengson v. City of Kewanee, supra.)

By their complaint, appellants have asked the trial court to compel the respondent to adopt a method of acceptance of payment different from that provided in the ordinance, when they did not even question the validity of the ordinance. Since the defendant in the performance of his duties was not compelled to look beyond the ordinance which governed him in the execution of his duties, the petitioners do not show a clear and undisputable right to mandamus in this case. Therefore, although we construe Count I of appellants' petition most favorably to them, we conclude that it does not state a cause of action. The trial court was therefore correct in dismissing Count I of appellants' complaint.

In Count II of their complaint, petitioners reallege all of the allegations of Count I and in addition complain that defendant is attempting to assess penalties and service charges for delinquencies in excess of those prescribed by the ordinance. They pray that defendant be ordered to accept from petitioner payment in legal tender of the United States for all charges assessed or billed; that he be restrained from insisting upon the payment of charges in said sewer system in other than legal tender; that he be restrained from collecting and attempting to collect any interest, penalty, or service charge for delinquency in excess of those prescribed by the ordinance.

Again, without questioning the validity of the ordinance requiring that "all bills shall be payable by check or money order," petitioners sought to invoke the equitable powers of the court to compel the defendant to adopt a method of acceptance of payment which would compel him to violate his duties under the ordinance. They also ask the court to invoke its equitable powers to compel the defendant to comply with the ordinance in assessing penalties for delinquencies when they have not tendered payment according to the terms of the ordinance.

In McLaurine v. Birmingham, 247 Ala. 414, 24 So.2d 755, 163 ALR 962, it was held that one who admits that his automobile was illegally parked will be denied injunctive relief on account of unclean hands against the enforcement of an ordinance providing that illegally parked automobiles may be summarily impounded by the police. In that case, the Supreme Court of Alabama said at 163 ALR 965:

It will also be observed that the complainant does not deny violating the parking ordinance in his bill, and does not allege that the city authorities propose to impound his car when he was not violating the city ordinance, and therefore he comes into court seeking equitable relief with respect to a situation where it is admitted, either expressly or impliedly, that he is violating the city ordinance fixing a time limit, whose validity is not questioned. A court of equity will not grant him relief under those circumstances whether or not the impounding ordinance or the manner of its enforcement may be in violation of certain features of the Constitution or law.

So, too, in the present case the appellants come into court seeking equitable relief against illegal treatment under an ordinance in a situation where their pleadings indicate that they, themselves, have not complied with the ordinance. Under such circumstances, equitable relief will be denied. (Village of Lake Bluff v. Horne, 24 Ill. App.2d 343, 164 N.E.2d 217; Carolene Products Co. v. Evaporated Milk Ass'n, 93 F.2d 202.) We come to this conclusion reluctantly because if the ...


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