Opinion of the Court.

cemetery to be opened in the town without the permission of the trustees, and providing a penalty for a violation of the ordinance.

This is a bill in chancery brought by the town to enjoin the defendants from establishing a cemetery, which it is alleged, they were about to establish within the limits of the town. On the hearing the Superior Court dismissed the bill.

The decree of the Superior Court was proper. The act of the legislature authorizing the board of trustees "to abate and remove nuisances," gave them no power to pass an ordinance forbidding the establishment of a cemetery. Conceding that the power to "abate and remove," should be construed as including the power to prevent, yet this preventive power could only be exercised in reference to those things that are nuisances in themselves, and necessarily so. There are some things which in their nature are nuisances, and which the law recognizes as such. There are others which may or may not be so, their character in this respect depending on circumstances. Now, the town of Lake View is a rural township, containing about eleven sections or square miles of territory. It is therefore impossible to hold, that a cemetery, anywhere within the limits of the town, must be necessarily a nuisance, and can be prohibited in advance as such. A cemetery may be so placed as to be injurious to the public health, and therefore a nuisance. It may, on the other hand, be so located and arranged, so planted with trees and flowering shrubs, intersected with drives and walks, and decorated with monumental marbles, as to be not less beautiful than a public landscape garden, and as free from all reasonable objection. The power to prohibit the establishment of cemeteries except by the authority of the trustees cannot be considered as falling within the power to abate and remove nuisances.

Neither, for the same reason, did the power to pass this ordinance arise under that clause in the law of 1865, giving the trustees the power to regulate and restrain places "where any nauseous, offensive, or unwholesome business may be carried To establish a rural cemetery and to inter the dead

Opinion of the Court.

therein would not necessarily nor probably be a business of this character.

It may be conceded that the trustees had the right, under these grants of power, to pass an ordinance regulating or restraining the use of any specific cemetery within its limits, on the ground that its use would be injurious to public health, and therefore a nuisance, and such an official determination on the part of the town authorities would be entitled to the respect that such municipal action always receives in courts of justice. All that we decide is, that the trustees had no power, under this grant, to prohibit in advance, the establishment of any cemetery except as authorized by the trustees.

We are referred, however, to an act of the legislature, approved March 5, 1867, by which the ordinances theretofore passed by the town of Lake View, are declared valid. The final decree in this case was made on the 21st day of November, 1866, and before the passage of this law. The act would make the ordinances valid only from the date of its own passage, and cannot affect the question of error in a decree rendered prior to that date.

We cannot, therefore, reverse this decree, merely because of this ordinance of April, 1866.

It is urged, however, that independently of this prohibitory ordinance, the town has the right to invoke the chancery powers of the court to restrain a nuisance, and that the cemetery in question will be a nuisance not only because injurious to the public health, but because it will obstruct certain streets which, it is alleged, have been dedicated to the public.

We had occasion in the case of Dunning v. The City of Aurora, 40 Ill. 481, to examine the jurisdiction of courts of chancery in abating nuisances. We there held, following adjudged cases of high authority, that where the thing complained of is not necessarily a nuisance, but may or may not be so according to circumstances, a court of chancery will not stay a party until the matter has been tried at law, or, in special cases, by a jury on an issue directed out of chancery. We also held that where the alleged nuisance consists in the obstruction of a

Syllabus.

street, there is, unless in rare and exceptional cases, a complete remedy at law, to which resort must first be had, and in which the right must be established. See also Bliss et al. v. Kennedy, 43 Ill. 67. There is nothing in the record before us to take this case out of the general rule, or to justify a resort to the preventive power of the court. It falls fully within the principle of both the cases above quoted.

The decree must be affirmed.

Decree affirmed.

CHARLES P. ALLEN, Treasurer and Collector of Bureau County, State of Illinois,

v.

THE PEORIA AND BUREAU VALLEY RAILROAD COMPANY.

1. TAXES-special tax· to be valid must be authorized. The levy of a special tax for purposes not authorized by the legislature, is void. Thus after the passage of the act of 1863, authorizing " county courts, for county business in counties without township organization, and the board of supervisors of coun. ties under township organization in such counties as may be owing debts which their current revenue under existing laws is not sufficient to pay, may, if deemed advisable, levy a special tax, not to exceed, in any one year, one per cent, upon the taxable property of any such county, to be assessed and collected in the same manner, and at the same time and rate of compensation as other county taxes; and when collected, to be kept as a separate fund, in the county treasury, and to be expended under the direction of the said county court, or board of supervisors, as the case may be, in liquidation of such indebtedness," the supervisors of Bureau county passed a resolution levying among other taxes a special tax "for the purpose of liquidating the interest on any loan made, or to be made, and to provide for paying the indebtedness of Bureau county, for war purposes, one dollar on one hundred dollars of valuation"; and payment thereof was resisted, on the ground that the supervisors had no authority to levy a tax to liquidate interest on loans to be made. Held, that the levy was unauthorized, and void to the extent of future loans. 2. SAME-legal not invalidated by connection with unauthorized, if separable. The board of supervisors having authority to levy a tax to pay existing indebtedness, the levying of a tax, in connection therewith, to pay a non-existing indebtedness, does not render the entire levy void, if the authorized can be separated from the unauthorized.

APPEAL from the Circuit Court of Bureau county; the Hon. M. E. HOLLISTER, Judge, presiding.

Statement of the case.

In September, 1864, after the passage of the act of February 16, 1863, entitled "An act to enable counties owing debts to liquidate the same"- an extract from which will be found in the opinion of the court- the board of supervisors of Bureau county, passed the following resolutions:

"Resolved, That the sum of fifty cents on the $100 valuation of the taxable property in the county of Bureau, is hereby levied to defray the county expenses for the year 1864.

Resolved, That there be, and is hereby levied, fifty cents on each $100 of taxable property in Bureau county, for the relief of needy families resident in said county, of persons who have and may hereafter volunteer in and from said county, into the military or naval service of the United States.

"And, also, that there be levied the sum of one dollar on each one hundred dollars of taxable property in said county, for the purpose of liquidating the interest on any loan made. or to be made, and to provide for paying the indebtedness of Bureau county, for war purposes.

"Resolved, That the sum of forty cents on the $100 of taxable property in the county of Bureau, is hereby levied for the purpose of liquidating the indebtedness of the county to Messrs. Ruxton & Co., maturing on or before October 1st, 1865.

"Resolved, That the treasurer of Bureau county be and is hereby authorized to borrow a sum of money on the credit of the county, not exceeding $7,000, for the purpose of meeting such portion of the indebtedness of the county as shall mature before the next tax can be collected, for such length of time as in his judgment such sum may be required, at a rate of interest not to exceed ten per cent per annum."

Under the resolution to levy the tax to pay interest on loans made and to be made, and pay indebtedness of the county, the sum of $272, was levied on the Peoria and Bureau Valley railroad. The railroad company paid all the taxes levied upon its property except the said $272, which it refused to pay, on the ground that such tax was unauthorized. Whereupon the treasurer brought suit to recover the balance of $272 so levied, for which amount the court gave judgment, and the defendant appealed.

Opinion of the Court.

Mr. GEO. L. PADDOCK, for the appellant.

Mr. GEO. C. CAMPBELL, for the appellee.

Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

The question is presented by this record whether the tax for which this suit was brought was authorized and legal. It appears that the board of supervisors of Bureau county, at their September session in 1864, levied five mills on the dollar of taxible property to defray the expenses of the county; five mils for the benefit of the families of volunteers; one per cent for the purpose of liquidating the interest on any debt made or to be made, and to provide for paying the indebtedness of Bureau county for war purposes; and for paying indebtedness to Luxton & Co., four mills on each dollar of taxable value. Appellee paid all of the taxes levied upon its property, except that to meet interest on any loan made or to be made, and to pay indebtedness of the county. The tax for this purpose impsed upon appellee's property amounted to $272, which they contend was levied without legal authority and is void.

It appears, from the treasurer's report made to the board at the tme this tax was laid, that there would be various sums of money required by the county to meet expenses and indebtedness. It appears from that report that the total county indebtedness amounted to $45,563.38. That relief purposes would require $25,000. The expenses of the Circuit Court would require $3,000; expenses of the county farm $2,000; expenses of the county $12,000; expenses of collecting tax, etc., $2,000; in the aggregate $89,563.38. From this sum $4,715.70 cash in the treasury was deducted, leaving a balance of $84,847.68. The various levies not in controversy, on the taxable property of the county, would produce about the sum of $57,163.15, which, ċeducted from the balance required as shown by the treasure's report, would leave a deficit of $27,684.53. And the law of February 10, 1863, gave the board of supervisors power to levy not exceeding one per cent to meet this indebtedness.