Opinion of the Court.

particulars the duty of assessors is undoubtedly ministerial; but, in fixing the value of taxable property, the power exercised is, in its nature, purely judicial. * * * * The writ of certiorari, at common law, lies only to officers exercising judicial powers, and to remove proceedings of that character. (The People v. The Mayor, etc., 2 Hill, 9-11. In the matter of Mount Morris Square, etc., id. 14, 21, 22.) Yet all the authorities agree that this writ lies to remove an assessment." To the same effect are also Barlyte v. Shepherd, 35 N. Y. 238; Swift v. City of Poughkeepsie, 37 id. 511; B. and St. L. R. R. Co. v. Sup'rs Erie Co. 48 id. 105. And the same doctrine was recognized by this court in Spencer et al. v. The People, 68 Ill. 510.

In Cook County v. C. B. and Q. R. R. Co. 35 Ill. 466, the previous decisions of this court relating to enjoining the collection of taxes were reviewed, and it was there announced as the settled law of the court, that a court of equity will never entertain a bill to restrain the collection of a tax, excepting in cases where the tax is unauthorized by law, or where it is assessed upon property not subject to taxation. To this exception should properly be added cases in which property has been fraudulently assessed at too high a rate. City of Chicago v. Beatrice et al. 24 Ill. 489; Elliott v. Chicago, 48 id. 294; Town of Ottawa v. Walker et al. 21 id. 608; Metz v. Anderson, 23 id. 467.

In no event will an injunction lie, unless it is clearly made to appear that the party has been wrongfully assessed, and will sustain irreparable injury unless the collection of the tax be enjoined.

Even from appellee's own showing it is difficult to conceive that this assessment does it injustice.

An exhibit filed with the bill is Schedule No. 4, being a copy of one filed by appellee with the Auditor, and by him laid before the Board of Equalization. It states the amount of appellee's capital stock, actually paid in, to be $6,490,579.41,

Opinion of the Court.

and that the amount of its debts, other than for current expenses, is $9,098,156.39.

The capital stock paid in is presumed to have been used in the corporate business, and this indebtedness could have been lawfully created for no other than corporate purposes. The two combined amount to $15,588,735.80. After making the most liberal deduction from this amount, on account of the depreciated value of its bonds when they were sold, for reckless management of the corporate business and property, and for loss and depreciation in the value of property, it would still seem almost incredible how the amount could, in the limited time this corporation has been in existence, be reduced far below the valuation assessed by the Board of Equalization, which was only, in the aggregate, $3,151,412. It would seem that $12,437,323.80 ought to cover the various items of depreciation and loss.

But, be this as it may, we are not convinced, from the allegations in the bill, taken in connection with the accompanying exhibits, that the valuation of appellee's property, as made by the Board of Equalization, is so unjust or oppressive, as to be sufficient evidence of fraud on the part of the board to justify us in restraining the collection of the tax imposed upon it.

It is also objected, that the valuations were first determined by a committee of the board, and not by the board. The assessment, as made, is the act of the board, and not of a committee. The report of the committee was acted upon by the board, and the fact that the mode of valuation adopted was the same as that recommended by the committee, no more impairs its validity than does the fact that a particular bill is recommended by a legislative committee, impair its validity when enacted into a law by the General Assembly. The report of the committee was suggestive only, and the members of the board can not be presumed to have been affected by it any further than it met the approval of their judgments.

Opinion of the Court.

Some further objections are urged, on the ground that the corporations were not notified of the meeting of the Board of Equalization, or of its intention to adopt the rule by which the assessments were made, and that no right of appeal was allowed.

The constitution does not provide that the legislature shall require that persons or corporations whose property shall be assessed for taxation shall be notified of the assessment, or the rules adopted whereby to determine the value of the property, or that there shall be allowed the right of appeal in such cases.

These matters address themselves purely to the discretion of the legislature. The law, as it is made, is, in this respect, conclusive.

We are, for the reasons given, of the opinion that the circuit court erred in overruling the demurrer to the bill, and enjoining the collection of all the taxes levied on the capital stock, including the franchise, of the corporation.

But it is alleged in the bill, and admitted by the demurrer, that taxes have been levied upon the property of appellee in excess of the proportional amount necessary to be levied on it to produce the $3,500,000, levied for State purposes by the act in force May 1, 1873. This excess, for the reasons given in Ramsey v. Hæger, ante, 432, is unauthorized by law, and its collection must be enjoined.

The decree of the court below is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

Decree reversed.

Syllabus.

FRANCIS G. LOMBARD

v.

FRANCIS H. JOHNSON et al.

1. PARTIES-mechanic's lien. Where a contract for the building of a house and the furnishing of the materials therefor was made in the name of one partner, but for the benefit of both, and both performed the labor and furnished materials, it was held, that a petition to enforce a mechanic's lien was properly brought in the name of both partners, notwithstanding the written contract was made with one only, the rules of equity governing in such a case.

2. EVIDENCE-secondary. Where the copy of a written contract is offered in evidence, the law does not require that the person who made the copy should be produced and sworn before it can be read. It is sufficient if any witness testifies that it is a copy, to admit it in evidence.

3. SAME-on question of when an alteration was made in a contract. Where a written contract, when produced, appears to have been changed, a copy taken of the same is admissible in evidence for the purpose of showing that the change was made before its execution.

4. MECHANIC'S LIEN-proof as to the lots on which the lien is given. Where a petition for a mechanic's lien showed that the defendant, at the time of making the contract, was the owner of certain described lots, and the contract, which was made a part of the petition, showed that the plaintiff was to furnish the materials, and put up a house for the defendant on his lots in the same town, without describing them, and the petition claimed a lien upon the lots described: Held, that these averments were sufficient to authorize a decree for a lien on the lots named; and the answer not denying such ownership, and the proof showing the completion of the building upon the lots of defendant, it was further held, that, in the absence of proof that the defendant owned any other lots in the town, the proof was sufficient to authorize the decree giving a lien thereon, especially where the question was not raised in the court below.

5. SAME-instruction as to performance. In a proceeding to enforce a mechanic's lien, the court instructed the jury that if they found, from the evidence, that the plaintiffs had done the work, etc., substantially as required by the contract, they should find for the plaintiffs: Held, that there was no error in the instruction, and that, as the contract was made a part of the petition, the instruction was not in violation of the rule that a party must recover according to the allegations in his bill.

APPEAL from the Circuit Court of Morgan county; the Hon. CYRUS EPLER, Judge, presiding.

76 599 149 448

Opinion of the Court.

Messrs. DUMMER & BROWN, for the appellant.

Messrs. MORRISON, WHITLOCK & LIPPINCOTT, for the appellees.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was a bill in the circuit court of Morgan county, exhibited by Francis H. Johnson and Floyd Epling against Francis G. Lombard, to enforce a mechanic's lien upon lots 11 and 12, in block 7, in the town of Waverly.

The defendant answered the bill, replication was filed, and a trial was had before a jury, which resulted in a verdict for appellees for $314.91. The court rendered a decree upon the verdict, establishing the lien, and directed the money to be paid within twenty days, and in default of payment, the master in chancery was ordered to sell the premises.

The first question raised by appellant is, upon the decision. of the court in admitting in evidence the contract for the erection of the house.

The contract was in writing, and was between Francis H. Johnson of the one part and F. G. Lombard of the other.

The bill having been filed by Johnson and Epling, it is insisted the contract could not properly be admitted in evidence under the averments.

The evidence, however, shows that, at the time the contract was made, Johnson and Epling were partners, and as such they furnished the materials and erected the house to recover pay for which the bill was filed.

A proceeding to enforce a mechanic's lien is, in effect, a suit in chancery, and the rules that govern causes in equity usually control cases instituted under the statute to enforce a mechanic's lien.

The general rule in courts of equity, as to parties, is, that all persons materially interested in the subject matter ought to be made parties to the suit, either as plaintiffs or defendants. Story's Equity Pleading, sec. 76.