Bryant v. Logan
| Decision Date | 01 November 1904 |
| Citation | 56 W.Va. 141 |
| Parties | Bryant v. Logan |
| Court | West Virginia Supreme Court |
Citizens and tax-payers, simply as such, stating no special harm to them different from others, cannot enjoin the use of a lease of a part of a city park, made by the city for a term of years for the purpose of racing horses. (p. 144).
a lease for the term of one year, with right to extend it five years, by a city, of a part of a public park, to improve it and use it at times for training and running race horses, for a rental to the city, reserving access at times to the public for riding and driving on the track, is not an unlawful diversion of such park from its legitimate use, and the lease is not void. (p. 146).
Appeal from Circuit Court, Wood County.
Bill by G. S. Bryant and others against Thomas Logan and others. Decree for defendants, and plaintiffs appeal.
Affirmed.
W. N. Miller, for appellants. Smith I). Turner, for appellees.
Bryant and others, suing on behalf of themselves and all other citizens of Parkersburg similarly situated, filed a bill in equity against Logan and others, stating that the City of Parkersburg had purchased, with the proceeds of bonds issued by it, 42 acres of land and converted it into a public park having drive ways, walks, a bicycle track, trees and other constituents of a park for public use and enjoyment, and the city had adopted rules for its regulation, and it was under the city's control and management; that by such rides and regulations this park was opened to the public during certain hours, and that for some years it was used by the public as a park for the benefit of all persons; that contrary to law the council had accepted a proposition from the Gentlemen's Driving Club to lease a portion of the park, about half, to said club for one year, with the right to extend the lease five additional years, for training and racing horses; that this lease was detrimental to the public, because hindering and restricting its public use. Upon demurrer the bill was dismissed, and the plaintiffs appeal.
The first law question is as to the right of the plaintiffs to maintain the bill. They aver no special interest in themselves; they state no injury to their property, no interest peculiar to themselves. The only interest in them presented by the bill is that common to all the people of Parkersburg as citizens and tax-payers. In this respect the case is of practical importance, involving the right of anybody and everybody in a city to invoke equity to frustrate and avoid the action of the council in the management and control of city property. The case is not free from difficulty both in itself and under diverse authority. A city is a branch, a subordinate agent, of the state government, vested with grave and important powers of state government delegated to it by the state. It is claimed that the use of this park for the purpose contemplated by the lease is misuse and diversion, I may say, a perversion from the proper use, of property paid for by public taxation, and held in trust by the city for public use. Who can question it in the courts? Can a resident and tax-payer, without other interest, do so? On the one hand, it is of high import that the action of constituted authority of government should not be hampered and delayed by assailment by any and every individual from disappointment, whim or caprice. The door would be open wide to multitudinous suits filling the courts with litigation. They would arise constantly to carry out the individual idea of each person, on good and bad grounds. Public policy argues against this. Though bad action of the city authorities would loudly call for redress, better that some instances of it go without redress, and that such redress be left to the public officials. On the other hand, municipal authorities do go wrong sometimes in the exercise of powers committed to them; but we must reflect that the people have entrusted them with discretion and power, and that it would produce infinite confusion, it it should lie in everybody's will, in every instance, to act on his own impulse to question the public action of municipal authority. Unlawful action should be redressed; but who can call for it? The attorney-general representing the state's abused confi- donce, at the relation of a resident, can call upon the courts to arrest or nullify such unwarranted action. 2 Dillon, Munic. Corp. section 912. 2 High. Injunc. section 1303. If the lease is beyond the council power, the occupation of the park under it is a public nuisance, because it obstructs the public use, just as the obstruction of a highway is a public nuisance. So viewing it, the authorities are clear that no one interested only as all others are, not personally affected in property or otherwise, can have an injunction. 2 High on Inj section 839; Mississippi v. Ward, 2 Black 485; Talbott v. King, 32 W. Va. 6.
In State v. Matthews, 44 W. Va. 372, we decided that where one usurped the office of sheriff, in which all are interested, his right must be contested by somebody interested further than as a citizen or taxpayer, unless the attorney-general intervened. I do not see why the case of Smith v. Cornelius, 41 W. Va. 59, is not pointed authority in this case. The Berkeley Springs property was in the custody of a public corporation created by the State to hold it in trust for public health and pleasure, and this Court held that a lease by such corporation, though ultra vires, could not be contested by a private person, but only by the state. In Gall v. Cincinnati, 18 Ohio St. 5G3, it was held that taxpayers as such could not oppose the removal of a market house. The court said that whatever rights adjacent lot owners might have, tax-payers, as such, could not, by injunction, prevent it. When private persons sought to challenge the action of the county court in changing the location of a bridge, Judge Lucas said: "They stand here simply as private citizens and tax-payers, who undertake to represent the whole county in opposition to the judgment and action...
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