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"Sec. 10. At the time or before incurring any indebtedness, the board of trustees shall provide for the collection of a direct annual tax sufficient to pay the interest on such debt as it falls due, and also to pay and discharge the principal thereof as the same shall fall due, and at least within twenty years from the time of contracting the same: Provided, that the net earnings from water power and docks may be appropriated and applied to the purpose of paying the interest or principal of such indebtedness, or both, and to the extent that they will suffice, the direct tax may be remitted."

"Sec. 12. The board of trustees may levy and collect taxes for corporate purposes upon property within the territorial limits of such sanitary district, the aggregate amount of which for each of the years 1895, 1896, 1897, 1898 and 1899, shall not exceed one and one-half per centum of the value of the taxable property within the corporate limits, as the same shall be assessed and equalized for the State and county taxes of the year in which the levy is made, and the aggregate amount of which in any one year after the year 1899 shall not exceed onehalf of one per centum of such value." *

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At the date of the issue of the bonds sought to be enjoined in this proceeding there was an existing indebtedness incurred by the sanitary district aggregating $12,210,000. By the act under which it was organized the district is authorized to incur debts in the aggregate to an amount not exceeding five per centum on the valuation of the taxable property in the district, to be ascertained by the last assessment for State and county taxes previous to the incurring of said indebtedness, provided the same shall not exceed the sum of $15,000,000. Twelve million two hundred and ten thousand dollars plus $2,375,000 equals $14,585,000. The assessed and equalized valuation of the property within the sanitary district for the year 1899 amounted to $338,674,447. Five per cent of that amount would equal $16,933,722, so that upon the

basis of the assessment of 1899 the sanitary district, after the issue of these bonds, was within the amount which it was by law authorized to raise, both in regard to the percentage of indebtedness and the $15,000,000 limit established by the act.

It is claimed, however, that the board of review of Cook county had so decreased and cut down the assessed valuation of assessable property within said county that five per centum of the amount of the assessed valuation of the taxable property within said district for the year 1900 would not equal the indebtedness of the sanitary district. The bonds in question were issued and sold to the Illinois Trust and Savings Bank October 22, 1900, and the equalized value of the assessable property in the county of Cook was not arrived at by the action of the State Board of Equalization until long after that date. The last assessment for State and county purposes, therefore, was for the year 1899, and upon that basis the sanitary drainage district had a right to contract the indebtedness in the manner that it did.

Under the authority of Culbertson v. City of Fulton, 127 Ill. 30, the equalized assessed valuation of the property within the Sanitary District of Chicago for the year 1899 alone determined the amount to which the district might become indebted. In that case, on page 37 we say: "The constitution provides that the value of the taxable property must be ascertained by 'the last assessment for State and county taxes previous to the incurring of such indebtedness.' Inasmuch as the indebtedness must be regarded as baving been incurred at the date of the contract, we must ascertain the value of the taxable property, for the purposes of this case, from the assessment for State and county taxes for the year 1886, and not for the year 1887. This is so, for the reason that the equalized value of the assessable property in the city of Fulton for the year 1887 was not arrived at by the action of the State Board of Equalization until the first

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day of October, 1887. It is the assessment as fixed by the State board which must govern, and the State board did not fix such assessment until after August 15, the date of the incurring of the indebtedness." If the possibilities of the future as to whether values would increase or decrease, according to the assessment as made by boards of review or boards of equalization, should be the test as to the validity of municipal securities, the result would be to practically destroy the value of all such securities.

The further contention of appellant, that the tax of one-half of one per centum upon the taxable property of the district, in view of the proposed reduction by the board of review of Cook county, will not produce a fund sufficient to pay the annual indebtedness of said district and its current running and incidental expenses, and that such power to tax is a limitation upon the power to incur indebtedness, cannot be sustained. A tax of one-half of one per cent upon the taxable property of said district, as shown by the assessment in 1899, would produce $1,693,372, while its then annual indebtedness, including the interest upon said bonds accruing in the year 1891, amounted only to $1,396, 450, leaving a surplus of $296,922 in the hands of the trustees, if the full limit of one-half per cent were levied, with which to pay the current running and incidental expenses of the district. Whatever exigencies the future might develop in regard to the reduction of assessable values in said district were unimportant, because, as we have seen, if the taxable property in said district at the time the indebtedness was incurred was sufficient to authorize the issue of said bonds, they could not be defeated by reason of the decreased valuation of the property of said district subject to taxation thereafter.

Neither can the contention that the bonds are void upon the ground that no provision was made by the ordinance, as amended, for the levy of a tax to pay the inter

est upon the same for the year 1900, be sustained. The ordinances under which the bonds were issued were passed in the months of September and October, 1900, and directed that the first year's interest, which amounted to $95,000, should be payable, one-half on the first day of April and one-half on the first day of October, 1901. No interest, therefore, fell due during the year 1900. The ordinance, as amended, provided for a tax levy for the year 1901 of $225,000, which was ample to pay the first year's interest and leave a surplus sufficient to pay the first maturing bonds, which did not fall due until October 1, 1902.

We are further of the opinion that the court properly dismissed said amended and supplemental bill for want of parties. It is claimed the bonds were sold to and paid for by the Illinois Trust and Savings Bank on October 22, 1900. Said amended and supplemental bill subsequently filed attacks the validity of the bonds, challenges the right of the district to levy a tax with which to pay the same, and charges that the same were collusively sold. The Illinois Trust and Savings Bank, therefore, should have been made a party to the said amended and supplemental bill and brought into court, as the court was powerless to declare said bonds invalid and said sale fraudulent and collusive, and thereby forfeit said bank's rights thereto, without having it in court and giving it an opportunity to defend.

We have examined this record with the care which we have deemed the importance of this case demands, and have reached the conclusion that the circuit court did not err in dismissing said bill for want of equity. The decree of the circuit court will therefore be affirmed. Decree affirmed.

Mr. JUSTICE MAGRUDER, dissenting.

192

430 CLEVELAND, CINCINNATI, CHICAGO AND ST. LOUIS RY.CO.

202 5 72 104a 2285

v.

ELEAZER MUNSELL.

Opinion filed October 24, 1901.

1. EQUITY-equity has jurisdiction to enjoin destruction of easement. A court of equity has jurisdiction to enjoin a railroad company from destroying an easement claimed by the complainant in a passageway under a trestle, used by the complainant, to some extent, as a means of communication between the portions of his farm divided by the right of way.

2. SAME-defense of adequate remedy at law should be raised below. If an application for injunction is not wholly foreign to equity jurisdiction under the facts alleged in the bill, the defendant should raise the question of an adequate remedy at law by the pleadings in the trial court.

3. RAILROADS-building of an open bridge does not confer easement of passage under it on owner of farm. A railroad company which has condemned a right of way through a farm and paid all damages allowed, has a right to build an open bridge over a ravine without thereby conferring on the owner of the farm any right to convert the ravine into a farm crossing or creating in him an easement in the ravine as a passageway.

4. SAME-use of ravine under trestle must be adverse to create any right thereto by prescription. To create an easement by prescription in the use of a ravine under a railroad bridge for a passageway, such use must not only be continuous and uninterrupted for a period of twenty years, but it must be adverse to the railroad company and under claim of right.

5. SAME right of railroad company to fill ravine used by owner of farm as a passageway. If a railroad company maintains a grade farm crossing which is used by the owner of the farm, the fact that it consented to the use of a ravine under a trestle as an additional passageway does not deprive it of the right to remove the trestle and fill the ravine, when deemed necessary for the safe operation of the railroad.

WRIT OF ERROR to the Circuit Court of McLean county; the Hon. COLOSTIN D. MYERS, Judge, presiding.

In 1869 the Danville, Urbana, Bloomington and Pekin Railway Company condemned a right of way one hundred feet wide through Munsell's farm of three hundred and

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