McClung v. Livesay

7 W. Va. 329, 1874 W. Va. LEXIS 17

• Court: West Virginia Supreme Court
• Decided: February 27, 1874
• Status: Published

Opinion

Moore, Judge :

From an order of the circuit court of Greenbrier county, dismissing the bill of the plaintiffs, this appeal has been taken.

The object of the bill was an injunction restraining the collection of taxes; a subject matter not always welcome in the forum of chancery, and admissible only upon the showing of such special circumstances as clearly indicate that there is not an adequate remedy at law. Non intervention with the speedy collection of taxes is the general rule adopted by courts of equity, upon the plain principle of public policy. Taxation furnishing the means of supporting the government, in all its departments, and for the maintenance of the institutions of learning and asylums for the helpless, renders necessary a strict adherence to the rule, unless productive of peculiar or irreparable injury, or must lead to a multiplicity of suits. The matters of complaint in taxation generally resolve themselves in torts, or simple questions of trespass, having ample remedy at law; and, therefore, when a plaintiff seeks the extraordinary power of equity, by way of injunction, the court will look with critical eye, not only to the character in which the plaintiff sues, but also, to the allegations of the bill.

Such strictness is necessary to prevent usurpation of jurisdiction, and the non-observance of it has occasioned the seeming conflict of decisions.

It is a principle of practice well established that, in a case like the one now under our consideration, where all the tax-payers of the township have a common interest in the subject matter, although their individual interests may be several and distinct, the plaintiff must aver that he files his bill in behalf of himself and all others of similar interest; and where some of the tax-payers file such a bill, they must make a similar averment. Upon this rule of practice, judge Davies, in the case of Wood v. Draper, 24 Barb. (N. Y.), 187, has collated the leading authorities, showing it to be an imperative rule, and essential to a complete determination of all the rights affected by the suit. I refer to this decision especially, because made in a case famed for the ability with which it had been argued, and also because it reviews the leading authorities. The same principle and rule of practice is laid down in the case of Bull and Read, 13 Gratt., 78. The object of the rule is to settle the rights of all persons similarly situated, and thus prevent a multiplicity of suits.

Now, in the case before us, the plaintiffs have filed the bill for themselves alone. The interests and rights of all others similarly situated in the township would not be determined by this suit. Their interests might be, however, injured by it, and all such persons are therefore necessary parties.

For the protection of the defendants against a multiplicity of suits, where the bill shows a prima fade case against them, courts have permitted the plaintiffs to amend their bill, in that respect, before the interlocutory injunction was acted upon ; and it has been allowed even after motion to dissolve. As this bill is defective in th.at mrespect, and it not appearing to have been amended, the court below, upon the precedents cited in Wood v. Draper, properly dismissed it.

Note by the Reporter. — At the same term, in a suit by John Williams’ Admr. et ais. v. John Arga-brite, Treasurer of Blue Sulphur Township, Greenbrier county, et als., in this Court, by an appeal, by plaintiffs, from’a decree of the circuit court of Greenbrier county, rendered on the 20th day of April, 1871, wherein substantially the same facts were alleged and the same relief sought, this Court affirmed the principles adjudicated and determined Jm the suit of Mo Clung v. Livesay, infra. The same principles were, also, affirmed in the case of Ludington v. McMillan, on appeal from the circuit court of Greenbrier county, at the same term.

The face of the bill, without that averment, presents merely a question of tort for which equity ought not to interpose. The general allegation' of irreparable injury is not sufficient without some equitable circumstances be shown,' such as insolvency or impediment to a judgment at law or to adequate legal l’elief or a threatened destruction of the property or the like. Burnett v. Whitesides, 13 Cal. 156.

The decision of the court below should bo affirmed with costs and damages.

The other judges concurred.

Decree AffirMed.