dissenting:
The gravamen of the appellants’ complaint is, that the commissioners, for the purpose of avoiding the payment of their own just and fair proportion of the cost of the improvement, knowingly, intentionally and fraudulently classified their own lands lower and the lands of the complainants higher than they should have been classified. Fraud is one of the broadest grounds of equity jurisdiction, and such jurisdiction'extends to the setting aside of every transaction fraudulently done to the injury of the party complaining. That it is a gross and palpable fraud for commissioners of a drainage district, with the design of avoiding payment of their just shares of an assessment, to classify their lands below what they know to be the proper figure and to classify the lands of other owners above what they know to be the proper figure, no argument is needed to show.
It is said, however, that the appellants had a complete remedy at law, of which they have availed themselves. Although equity has general jurisdiction in all cases of fraud, it will not ordinarily exercise such jurisdiction where there exists a plain, adequate and complete remedy at law. Had the appellants such remedy? The law gave them an appeal to the county court. Appellants pursued that remedy with such degree of success as was possible, securing a reduction in the classification of their own lands. Such reduction, however, only partially repaired the injury done by the improper classification. The classification of the lands of the commissioners at too low a figure relieved them from a proportionate amount of the assessment, and this amount which they escaped had to be borne proportionately by the other land owners. From the allegations of the bill it appears that the reduction of appellants’ figure of classification added $25 to the assessment of Andrew Hughes, and, of course, a proportionate amount to the assessment of every other land owner. The raising of the figure of classification of the commissioners in accordance with the averments of the bill will reduce pro rata the assessment of each of the other land owners, and until that is done there will be no complete remedy for the wrong done by the improper classification.
The county court restricted the hearing, on the appeal, to proof that the lands of the appellants were classified too high, because the clerk of the district had failed to' state on the record the objections of the appellants that the lands of the commissioners and other land owners were classified too low, and the court, on appeal, was confined to the objections which appeared by the record to have been made before the commissioners. It is said that if the appellants could not get adequate relief because of this condition of the record, they could by mandamus require the clerk to make a true record showing the objections which were actually made, and the case of New Haven Clock Co. v. Kochersperger, 175 Ill. 383, is referred to. In that case the complainant had an adequate remedy, by mandamus, to compel the county board to hear its appeal from the assessment. Mandamus does not here afford an adequate remedy. The county court was willing to act, and did act. To turn the appellants out of the court to which they had appealed, and compel them to go to another court and seek a mandamus, not to compel the court to hear their cause, but to compel an officer of another tribunal to make a record which they could afterward present to the county court, and by this circuitous route finally be enabled, through two suits at law, to obtain a hearing of their cause, is not giving them an adequate remedy. They have been diligent for their own protection by insisting upon their "legal rights and pursuing the remedy given by the statute. That remedy has proved insufficient through no fault of theirs, and equity ougiit to afford them relief without driving them indefinitely from court to court, j
The appellees insist that the bill is insufficient because the specific acts constituting the fraud should be alleged and because the acts charged against the commissioners were such as AÍvere within their discretion and the judgment which they were authorized by the statute to exercise. The averments of the bill are not consistent with the exercise of discretion and judgment by the commissioners. Appellants aver a refusal to exercise discretion and judgment. They substantially charge that with an intent to avoid payment of their just share of the assessment, which is a fraudulent intent, the commissioners classified their own lands lower and appellants’ lands higher than they knew they should, respectively, be classified, and this was a fraudulent act. An allegation that with such intent the commissioners knowingly classified their own lands at fifty-five when they should have been classified at one hundred, and appellants’ lands at one hundred when they should have been classified at fifty, is an allegation of a specific, fraudulent act.
It is not a valid objection that if the bill is maintained in this case a court of equity may be called upon to take jurisdiction in all cases where it is charged t-hat a fraudulent classification has been made. Courts of equity have always relieved against fraud, and the fact that the cases calling for relief are many has never been regarded as sufficient cause for declining jurisdiction. If such cases are numerous, the greater is the need that the courts should be open for their redress.
In our judgment the bill was sufficient to require an answer, and the demurrer to it should have been overruled.