Davenport v. Kleinschmidt

• Decision Date: 02 February 1887
• Parties: DAVENPORT and others v. KLEINSCHMIDT and others.
• Court: Montana Supreme Court

6 Mont. 502

DAVENPORT and others

v.KLEINSCHMIDT and others.

Supreme Court of the Territory of Montana.

February 2, 1887.

Appeal from district court, Lewis and Clarke county.

A. C. Botkin, City Atty., and Carter & Clayberg, for appellants.

B. Platt Carpenter, Sanders, Cullen & Sanders, E. W. & J. K. Toole & Wallace, and Bullard & Barbour, for respondents.

McLEARY, J.

This was a suit in the district court of Lewis and Clarke county, brought by William Davenport, William C. Child, Thomas C. Power, and Robert S. Hale, against Theodore H. Kleinschmidt and others, as aldermen of the city of Helena, and George F. Woolston, for a perpetual injunction against the defendants, restraining them from in any manner carrying out a certain contract, alleged to be illegal, by laying any mains or water–pipes, or erecting any hydrants in the city of Helena, or by issuing any warrants for any water supplied to said city, under the said contract. On the fourth day of December, 1886, the judge of the district court entered an order, enjoining the defendants from carrying out the contract, and from doing any act thereunder. Afterwards a motion was made to dissolve the injunction, for various reasons, and the same was, on the thirteenth day of December, 1886, overruled; and from this order overruling the motion to dissolve the injunction therein the defendants appeal to this court.

George F. Woolston was not served with the summons in this suit, nor with the writ of injunction; neither did he appear in the district court, nor take part in the motion for dissolution; nor did he appeal to this court. Hence he is not before this court; and this cause must be considered as if he were not a party thereto; and he is not directly affected by the result of this proceeding. The only parties hereto properly before this court are the mayor and aldermen, composing the city council of the city of Helena, who are the appellants heretofore named. The contract alleged to be illegal, on which this suit is based, is in the form of an ordinance, passed by the city council, the terms whereof were to be accepted by Woolston, by filing a writing with the city clerk of Helena.

A preliminary question, which meets us at the outset, is whether or not the plaintiffs herein have the right to institute and maintain this suit. The complaint alleges that they are residents and tax–payers of the city of Helena, owning, in the aggregate, taxable property within the corporate limits of said city amounting in value to $250,000. The right of the plaintiffs, as tax–payers, to maintain this suit, is certainly set at rest by the decision of the supreme court of the United States, in the case of Crampton v. Zabriskie, 101 U. S. 609. Mr. Justice FIELD, in delivering the opinion of the court, says: “Of the right of resident tax–payers, to invoke the interposition of a court of equity, to prevent an illegal disposition of the moneys of the county, or the illegal creation of a debt, which they, in common with other property holders of the county, may otherwise be compelled to pay, there is at this day no serious question. The right has been recognized by the state courts in numerous cases; and, from the nature of the powers exercised by municipal corporations, the great danger of their abuse, and the necessity of prompt action to prevent irremediable injuries, it would seem eminently proper for courts of equity to interfere, upon the application of the tax–payers of a county, to prevent the consummation of a wrong, when the officers of those corporations assume, in excess of their powers, to create burdens upon property holders. Certainly, in the absence of legislation restricting the right to interfere in such cases to public officers of the state or county, there would seem to be no substantial reason why a bill, by or on behalf of individual tax–payers, should not be entertained to prevent the misuse of corporate powers.” Crampton v. Zabriskie, 101 U. S. 609. Although this authority is entirely satisfactory, we may also refer to the following cases from the state courts, substantially to the same effect: Williams v. Peinny, 25 Iowa, 437, 438;City of Springfield v. Edwards, 84 Ill. 626;Harney v. Indianapolis, etc., 32 Ind. 244;Terrett v. Town of Sharon, 24 Conn. 108;Newmeyer v. Missouri & M. R. R. Co., 52 Mo. 84–89;Mayor of Baltimore v. Gill, 31 Md. 394;Page v. Allen, 58 Pa. St. 345; Valparaiso v. Gardner, 49 Amer. Rep. 417, 97 Ind. 1; and many other cases cited in these opinions.

The current of authority is to the contrary in New York, at least in the later cases, which have been followed in Kansas, Minnesota, and Massachusetts. In some of the states the matter is regulated by statute, imposing the bringing of such suits upon some public officer; but where there is no statutory provision, it is almost the uniform practice, sanctioned by reason and authority, for any tax–payer, or generally several, on behalf of themselves and others, to institute proceedings in a court of equity, to prevent the misapplication of public funds by municipal officers. And this right is based on the ground that the threatened illegal corporate act will increase the burden of taxation, and thus injure the plaintiffs.

In the Missouri case above referred to, decided in 1873, Judge EWING, in an exhaustive opinion, discusses the question and the authorities on both sides, and arrives at the conclusion “that the decisions which affirm the right of the plaintiffs, or those standing in the same relation to such controversies, to maintain the action, rest upon a more solid foundation of principle and reason than those holding the contrary doctrine.” 52 Mo. 89.

Mr. Dillon, in his excellent work on Corporations, collates the authorities, and discusses the subject, at some length. He says: “In this country, the right of property holders or taxable inhabitants to resort to equity to restrain municipal corporations, and their officers, from transcending their lawful powers, or violating their legal duties, in any mode which will injuriously affect the tax–payers, such as making an unauthorized appropriation of the corporate funds, or an illegal disposition of corporate property, or levying and collecting void and illegal taxes and assessments upon real property, under circumstances presently to be explained, has been affirmed or recognized in numerous cases in many of the states. It is the prevailing doctrine on this subject.” 2 Dill. Mun. Corp. § 731, p. 829. And the same doctrine is laid down explicitly by Mr. High, in his standard work on Injunctions, § 484.

The right of these plaintiffs, being tax–payers, to bring this suit, and, in a proper case, to procure an injunction to restrain the illegal disposition of the city's money, cannot be doubted. But it is claimed by the appellants that George F. Woolston is a necessary party to this litigation; that he has been made a party defendant to this suit; that his rights are affected by this injunction; and that he has not been served with process, or had an opportunity to be heard in the premises. It does not seem to us that Woolston is a necessary party to this suit. The question is one primarily between the tax–payers of the city of Helena and the city council, to determine whether or not there is about to be committed the misappropriation of funds in the city treasury. Woolston is not a tax–payer, nor even a citizen, of Helena, nor of the territory of Montana, so far as appears from the record of this case. He has shown no interest in the public funds of the city of Helena. No such connection appears between him and the other defendants as would require him to be summoned and enjoined before this case could proceed between the parties before this court. Certainly the defendants, the mayor and aldermen of Helena, cannot complain that he is not brought in. He files a written argument in the form of an opinion by eminent counsel residing in New York; but otherwise he is a silent spectator of the proceedings in the court below and in this court. This clearly appears to us as a case where a complete determination of the controversy can be had without the presence of Woolston; and the court below properly disregarded this objection. Rev. St. Mont. § 27, 1st div. p. 44. But it does not appear from the briefs that this point is insisted on by the counsel for appellants in this court, and for that reason, if for no other, it might be passed by without further consideration.

If, as is alleged by the appellants in their motion for dissolution, this injunction, being granted without the summons being served on other parties, would be nugatory and of no effect, then no one is injured by the order, and no one has the right to complain. But we do not think that such would be the result. Parties sufficient for the determination of this controversy, and making the injunction, unless dissolved, effectual, appear to us to be now before this court; and the case may properly proceed to a complete determination of the controversy and a settlement of the issues involved. But, before we proceed to a discussion of the main issues involved herein, we may as well dispose of some other matters, which may be regarded as preliminary in their nature, or at least incidental to the merits of the case.

It is suggested by counsel on behalf of George F. Woolston that, conceding, for the sake of argument, that the ordinance may be void in some particulars, as being ultra vires, and positively forbidden by the charter of the city or the act of congress, still there are certain sections of it, as those that grant the license or privilege of laying pipes or mains in the streets of the city, which must be held valid, inasmuch as this privilege or license is not exclusive, and the city council has the undoubted right to grant such a license or privilege to any person. It is contended that the ordinance in its several parts is severable, and that such portions thereof as are...