Campbell v. Bryant

• Decision Date: 23 November 1905
• Citation: 104 Va. 509,52 S.E. 638
• Court: Virginia Supreme Court
• Parties: CAMPBELL et al. v. BRYANT, Mayor, et al.

52 S.E. 638

104 Va. 509

CAMPBELL et al.

v.BRYANT, Mayor, et al.

Supreme Court of Appeals of Virginia.

Nov. 23, 1905.

1. Municipal Corporations — Taxes — Restraining Collection.

Equity has jurisdiction to entertain a bill to enjoin the officers of a town from undertaking to collect taxes on the ground that the act purporting to incorporate the town is unconstitutional and void.

2. Same—Parties.

In a suit to enjoin the collection of taxes by the authorities of a town on the ground of the invalidity of the act incorporating the town, where the mayor and members of the council of the town are made parties defendant, and appear and answer the bill in their official capacity, as well as in their own right, it is not necessary that the town itself be made a party by name.

3. Statutes—General and Special Laws— Incorporation or Municipalities.

Under Const, art. 8, § 117 [Va. Code 1904, p. ccxxxviii], requiring the General Assembly to enact general laws for the organization and government of cities and towns, and providing that no special act shall be passed in relation thereto, except in the manner prescribed in article 4 of the Constitution, cities and towns not in existence when the Constitution went into effect can only be incorporated under general laws, regardless of what special acts may be passed in relation to cities and towns under article 4 [Va. Code 1904, p. ccxvii].

4. Same—Departures from General Law.

Acts 1904, p. 283, c. 167, purporting to incorporate a certain town, and which provides that the election of mayor and councilmen shall be held on the first Tuesday in June, 1904, and every two years thereafter, whereas, under the general law [Va. Code 1904, § 1021] town elections for mayor and councilmen must be held on the second Tuesday in June, and which further provides that the mayor shall be vested with the power and authority of a justice of the peace to a distance of 1 1/4 miles beyond the town limits, and gives the sergeant of the town the authority of a constable within the same territory, whereas the general law [Va. Code 1904, §§ 1032, 1033a] confines the criminal jurisdiction of town authorities to territory extending one mile beyond the corporate limits and confines their civil jurisdiction to these limits, and which contains other departures from the general law, is repugnant to Const, art. 8, § 117 [Va. Code 1904, p. ccxxxviii], requiring the General Assembly to. enact general laws for the organization and government of cities and towns.

5. Constitutional Law — Self-Executing Provisions.

Const. art. 8, § 117 [Va. Code 1904, p. ccxxxviii], requiring the General Assembly to enact general laws for the organization and government of cities and towns, and prohibiting the enactment of special acts in relation thereto, except in the manner prescribed in article 4 of the Constitution, and amending the charters of towns and cities so as to make them conform to the provisions of the Constitution, is self-executing, in so far as it prohibits special legislation and amends existing municipal charters.

6. Taxation — Constitutional Requirements—Uniformity.

Acts 1904, p. 283, a 167 [Va. Code 1904, p. 484], purporting to incorporate a certain town and exempting the persons residing within the territorial limits of the proposed town from the payment of certain county taxes, is repugnant to Const, art. 13, § 168 [Va. Code 1904, p. cclxii], which provides that all taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws.

7. Statutes — Effect of Partial Invalidity.

Acts 1904, p. 283, c. 167 [Va. Code 1904, p. 484], purporting to incorporate a certain town, is, in view of the provision exempting persons within the town from the payment of certain county taxes in violation of Const, art. 13, § 168 [Va. Code 1904. p. cclxii], requiring taxes to be uniform within the territorial limits of the levying authority, invalid as a whole, since the proffered exemption was one of the chief inducements held out to procure votes for the charter when it was submitted to the inhabitants of the proposed town, and it cannot be determined that they would have voted for the charter, had the exemption provision been omitted.

8. Same—Effect of Total Invalidity.

An unconstitutional statute purporting to incorporate a town is absolutely inoperative, and does not empower the town authorities to levy or collect taxes.

9. Municipal Corporations — Taxation-Decrees Enjoining Collection.

A decree enjoining the collection of a municipal tax on the ground of the unconstitutionality of the act purporting to incorporate the municipality is not subject to the objection of purporting to judicially dissolve a municipal charter.

Appeal from Circuit Court, Amherst County.

Bill by Duncan Campbell and others against A. J. Bryant and others, mayor and councilmen, etc., of the so-called town of Madison Heights. From a decree of dismissal, complainants appeal. Reversed.

Caskie & Coleman and W. K. Allen, for appellant.

Whitehead & Whitehead and J. G. Haythe, for appellees.

HARRISON, J. By an act of the General Assembly, approved March 14. 1904. (Acts 1904, p. 283, c. 167 [Va. Code 1904, p. 484]), entitled "An act to incorporate the

i town of Madison Heights, in Amherst county, " it was enacted that the territory in Amherst county contained within the limits set forth and described in section 2 of the act should be deemed and taken as the town of Madison Heights, and that the inhabitants thereof should be a body politic under that name for all purposes for which towns are incorporated in this commonwealth. By the terms of the act, the charter thereby created was not to become operative until it had been ratified by a majority of the registered voters within the limits of the proposed town and by a majority vote of the freeholders voting at the special election to be ordered by the judge of the circuit court of Amherst county for the purposeof ascertaining the will of those entitled to vote on the question.

In pursuance of the terms of the act an election was held on the 10th day of May, 1904, at which a majority of the whole vote cast was for the ratification of the charter, and a majority of the freeholders voting were likewise in favor of such ratification. It further appears that on the 7th day of June, 1904, A. J. Bryant was elected mayor, and George A. Christian, C. P. Shener, J. N. Cooper, George T. Harris, Thomas H. Ban-ton, and C. E. Bell, councilmen. At a meeting of these persons, claiming to be mayor and councilmen, respectively, of the town of Madison Heights, by virtue of the election of June 7, 1904, certain persons were appointed officers of the town, among others J. D. Mays as sergeant and collector, and on the same day the council proceeded to levy a tax for various town purposes for the year ending June 30, 1905, amounting in the aggregate to $2,010, and to place the same in the hands of J. D. Mays, sergeant, for collection.

Shortly thereafter (the date does not appear) the bill in this case was filed by Duncan Campbell and 20 others, suing for themselves and on behalf of-all other citizens of the territory embraced within the limits designated by the charter act, alleging that said act, purporting to incorporate the town of Madison Heights, was unconstitutional and void, and that the mayor and council of the so-called town were therefore without authority to levy or collect taxes, and praying that the taxes assessed by the council be declared to be nugatory, and that J. D. Mays, the pretended sergeant of such town, be perpetually enjoined from undertaking to collect the same. To this bill the persons already mentioned, styling themselves mayor and council of the town of Madison Heights, and J. D. Mays, styling himself collector of said town, were made parties defendant, and filed a joint demurrer and answer in their own right and in their several official capacities, in which answer they deny all of the material allegations of the bill, insisting upon the validity of the charter act of March 14, 1904, and of their proceedings thereunder.

Upon the hearing the circuit court of Amherst county, by decree of March 16, 1905, overruled the demurrer, but dismissed the bill upon the ground that the complainants were not entitled to the relief prayed for. This conclusion of the circuit court, which rests upon the view that the act of March 14, 1904, incorporating the town of Madison Heights, is constitutional, is called in question by the present appeal.

The demurrer was properly overruled. The jurisdiction of a court of equity in this class of cases is well established. Bull v. Read, 13 Grat. 78; Eyre v. Jacob, 14 Grat. 422, 73 Am. Dee. 367; Johnson v. Drummond, 20 Grat. 419; Redd v. Supervisors, 31 Grat. 695; Lynchburg v. Dameron, 95 Va. 546, 28 S. E. 951; Cahoon v. Iron Gate, 92 Va. 367, 23 S. E. 767; Day v. Roberts, 101 Va. 248, 43 S. E. 362.

The mayor and members of the council are parties defendant, and have appeared and answered the bill in their official capacity, as well as in their own right. It was, therefore, not necessary to make the town ...