Christie v.Malden.

• Decision Date: 29 March 1884
• Citation: 23 W.Va. 667
• Court: West Virginia Supreme Court
• Parties: Christie v. Malden.

23 W.Va. 667

Christie v.Malden.

Supreme Court of Appeals of West Virginia.

Submitted January 16, 1884

Decided March 29, 1884.

1. A suit in equity will not lie to restrain the collection of a tax on the sole ground that it is improper.

2. Courts of equity have jurisdiction to prevent municipal corpora8. If a municipal corporation erroneously or illegally taxes property, j which it has the power to tax in a proper manner, the remedy for such error must be sought generally in a court of law; but if it acts ultra vires by taxing property not subject to taxation, or taxes property, which it may tax, beyond the limit fixed by the organic law conferring the power to tax, a court of equity will on a bill filed by the owner of the property so illegally or excessively taxed, enjoin the collection of such tex. (p. 670.)

4. A municipal corporation possesses and can exercise the following powers and no others: 1st, those granted in express words by its charter or the general statutes under which it is incorporated; 2d, those necessarily or fairly implied in or incident to the powers thus expressly granted; and 3d, those essential to the declared purposes of the corporation not simply convenient but indispensable, (p. 672.)

5. A town incorporated under chapter 47 of the Code of this State can not assess and collect wharfage from the proprietor of a ferry for the use of a ferry-landing within its corporate limits; nor can it tax such ferry except as property, at the rate it may tax other property within its corporate limits, (p. 672.)

The opinion of the court contains a sufficient statement of the facts of the case.

W. A. McCorkle for appellant.

Knight $ Couch for appellee.

Snyder, Judge:

David Ruffner, the owner of the land on the south side of the Kanawha river in Kanawha county on which the present town of Maiden is located, laid oft said land into lots, streets and alleys and sold the lots to William Dickinson and others. By deed dated March 1, 1831, he conveyed said lots, streets, alleys and the bank of the said river fronting along said land to the middle of the river to Levi Welch and others, trustees, upon the trusts and for the uses and purposes following: to permit said Dickinson and others to have, use and enjoy the said lots for their own purposes, with power to said trustees to sell and convey the same in fee, when, and to such persons, as the said Dickinson and others may direct; and to hold the said streets, alleys and river-bank "for the public and common use of all the present and future owners of the lots of said town, for their joint and common convenience, accommodation and advantage, subject to their government and control (for the uses aforesaid) and to the trustees or corporation of said town, should it become incorporated, * * * and upon the further trust that they, or the survivors or survivor of them or the heirs of the survivor of them, may, at their own pleasure, and shall at the pleasure of a majority of the inhabitants of said town or of the trustees or corporation of the same, and at the expense of the inhabitants, trustees or corporation, convey the said alleys, streets and bank to other trustees in trust for the same trusts, uses and purposes as herein expressed in relation to the same."

The town ot Maiden was by an order of the circuit court of Kanawha county, made June 17, 1880, incorporated under the provisions of chapter 47 of the Code of this State.

On the application of 14. H. Wood, the owner of the land along the north side of said river opposite said town, the county court of said county by an order, entered March 10, 1845, granted to said Wood a franchise to operate a ferry from his land across the the river to the town. Subsequently, January 22, 1878, the said land, ferry and ferry-franchise were, by deed, con- veyecl to Samuel Christie, who, on September 11, 1882, tiled his bill in the circuit court of Kanawha county against the town of Maiden and Joseph Wallace, the sergeant thereof, alleging therein that he was the owner of said ferry and ferry-franchise and the landings thereto; that the said terry had been in possession of and operated by him and those under whom he claims for more than thirty years; that his ferry-landing on the Maiden side of the river is within the limits of the river-front dedicated by Daniel Ruff tier, by the aforesaid deed, to the public use; that said town has recently commenced to charge him wharfage for landing his ferry boats on his own landing, on the town-side of the river, at the rate of six dollars and twenty-five cents per month without any lawful power or right to do so, and. will continue to make such charge and collect the same uu.ess prevented by the court; that it has already made charges against him amounting to sixty-two dollars and fifty cent for such illegal wharfage and the same is now in the hands of the defendant Wallace, its sergeant, for collection; that his terry is assessed for taxation at the valuation of one thousand dollars in the manner required by law; and that said town has no right to levy a tax upon it in any other way. The prayer is for an injunction to restrain said town and its officers from collecting said charge for wharfage and from making any further charge therefor against him for landing his ferry boats at said landing; and for general relief.

The injunction prayed for was granted. The defendant-town demurred to and also answered the plaintiff's bill, but the answer denied none of its material allegations, and on December 23, 1882, the court entered a decree overruling the demurrer and perpetuating the injunction with costs. From this decree the town appealed.

The first question presented is as to the jurisdicton to enjoin the defendant. It may be conceded to be the established law of this State, that a court of equity will not restrain the collection of an assessment or tax imposed by an incorporated town on the sole ground that the tax is illegal, or where the party complaining has a plain and adequate remedy at law Douglass v. Harrisville, 9 W. Va. 162. But it is equally well established, in this State and elsewhere, that where the case presents special circumstances, such as would prevent a multiplicity of suits or irreparable damages, equity has jurisdiction Corrothers v. Board of Education, $c, 16 W. Va.527; C 0. Ry. Co. v. Miller, 19 Id. 408; Ball v. Read, 13 Graft. 78. In the latter case the court said: "Chancery will interpose by injunction to prevent the threatened wrong and provide a remedy which shall at once reach the whole mischief and secure the rights of all, both for the present and the future; and its jurisdiction in such cases would seem to be well defined and fully sustained by authority."

In 2 Dill on M. Corp. § 922, that author, upon a survey of the decisions in England and the United States, concludes that equity will entertain jurisdiction against a municipal corporation and its officers whenever they "are acting ultra vires, or assuming or exercising a power over the property of the citizen, or over the corporate property or funds, which the law does not confer upon them, and where such illegal acts affect injuriously the property-owner or the taxable inhabitant. But if in these cases the property-owner or the taxable inhabitant can have a full and adequate remedy at law, equity will not interfere but will leave them to their legal remedy."

The distinction established and recognized by the decisions between the cases, in which equity will and in which it will not take jurisdiction, is well defined by Lord Cottenham in Frewin v. Lewis, 4 Mylne & Craig, 249, 255. He says: "So long as the public functionaries strictly confine themselves within the exercise of those duties which are confided...