Gallaher v. City Of Moundsville

• Decision Date: 07 February 1891
• Citation: 12 S.E. 859,34 W.Va. 730
• Court: West Virginia Supreme Court
• Parties: Gallaher et al v. City of Moundsville.

12 S.E. 859

34 W.Va. 730

Gallaher et al

v.City of Moundsville.

Supreme Court of Appeals of West Virginia.

Feb. 7, 1891.

Res Adjudicata — Dissolution of Injunction-Identity of Pahties.

1. An order dissolving an injunction, based on the merits of the case, where the only relief sought by the bill is such injunction, is, as regards finality, such a decision as will sustain the defense of res judicata.

2. Where a bill asks an injunction against the issue and sale of municipal bonds, because of alleged invalidity of the ordinance authorizing their issue, and of the bonds themselves, under the law, and asks no other relief, and such injunction is dissolved on the merits, the order of dissolution will, as regards identity of the subject-matter, bar a subsequent bill seeking an injunction against the collection of taxes levied to pay interest on such bonds, so long as the order of dissolution" is unreversed.

3. Five persons, as tax-payers, on behalf of themselves and all other tax-payers of M., obtain an injunction to restrain the issue and sale of municipal bonds on account of their legal invalidity, the defendants being the mayor and clerk of the city authorized by such ordinance to sign and countersign and seal such bonds, and deliver them to commissioners authorized by the ordinance to receive and sell the same. Such injunction is dissolved. Afterwards two of these plaintiffs, as tax-payers, obtain an injunction to restrain collection of taxes to pay interest on such bonds on account of their legal invalidity, the defendants being the city and its marshal. There is sufficient identity of parties here to justify the application of the defense of res judicata.

(Syllabus by the Court.)

Appeal from circuit court, Marshall county.

Thayer Melvin and J. J. Jacob, for appellant.

J. B. McLure, for appellees.

Brannon, j. On the 5th day of Febrn ary, 1890, the council of the city of Mounds villepassed an ordinance providingfor the issue and sale of its bonds to the amount of $20,000, to enable the city to pave its streets, and submitted the question of the issue of such bonds to a vote of the people, and they ratified the proposition, and such bonds were issued and sold. The council having included in its estimate of expenditures for the year 1890 the sum of $1,200 to pay interest on said bonds, and levied taxes including it, j. W. Gallaher and B. W. Price, tax-payers and owners of property in the city, suing for them selves and all other tax-payers and property owners of said city, upon a bill by them against the city and Robert Low, its marshal, obtained an injunction restraining the collection of a certain per centum of the taxes within the city on property, and especially that percentum of the taxes imposed on said Gallaher and Price; and, the circuit court of Marshall county having overruled a motion to dissolvesaid injunction, the city of Moundsville has ap-poaled to this court from the order overruling said motion. We shall not decide the merits of this controversy, and deem it improper to do so, for the reason that we are of opinion that the defense of res judicata made by appellants ends this present cause. The plaintiffs in the present cause, together with three others, suing for themselves and all other tax-payers of the city of Moundsville, before the bonds issued, obtained an injunction to restrain their issue and sale, and that injunction was on the 2d of May, 1890, dissolved, but the bill was not dismissed. There was no appeal from this order, and the same stands in full force. An examination of the books has brought me to the conclusion that the essential elements of res judicata are present in the case to make that order an estoppel to this suit. "The essential conditions under which the plea of res judicata becomes applicable are the identity of the thing demanded, the identity of the cause of demand, and of the parties in the character in which they are litigants." Herm. Estop. § 102. What was the thing demanded in the former suit? The bill alleged that the council of Moundsville passed an ordinance forthe issueof $20,000 in bonds, submitting the question of their issue to the people, and making various provisions; that the people had approved it; that the city officers would prepare and issue the bonds, and deliver them to certain persons named by the ordinance as commissioners to sell them, and that they would sell the same unless enjoined. It further alleged that the ordinance for the issue of the bonds was null and void, and that any bonds issued and sold under it would be void, because the ordinance was in violation of section 8, art. 10, of the constitution, and also in violation of a statute entitled "An act authorizing municipal corporations to issue bonds, passed December 2, 1873; and it prayed that an injunction be awarded restraining Louis B. Purely, the mayor, and L. G. Brock, the clerk, from preparing, signing, and countersigning and sealing and delivering the bonds to H. W. Hunter and F. W. Brown, the commissioners, and restraining the latter from selling them. The defendants demurred, and answered admitting all the facts, and contesting only the contention that the ordinance and bonds were void; and on this demurrer, and a motion to dissolve, the injunction was dissolved.

What is the thing demanded in the present suit? The bill sets out the same ordinance and vote, and states that under the ordinance the bonds had been issued andplaced in the hands of the commissioners for sale, and that they sold the same, and that the council made a levy of taxes for the year 1890, including f1, 200, to pay interest on the bonds; and charges that the levy of taxes to pay such interest is illegal because the bonds are null and void, without saying wherein specifically, leaving it to be deduced as a matter of law from the faces of the ordinance and bond set out literally in the bill. Now invalidity of the ordinance and bonds under the law is the ground, the only ground, on which an injunction was asked against the issue of the bonds; and invalidity of the ordinance and bonds is also the only ground on which an injunction was asked against the collection of tax levied to pay interest, for no other ground is suggested or can be gathered from the bill. The ground specified in the first bill was more specifically stated than in the second, but only in the fact that it alleged the nullity of the ordinance and bonds to consist in the violation of a particular section of the constitution and a particular statute, while the second bill alleges the ordinance and bonds to be void, without saying why, leaving it to be inferred from the ordinance and bonds set out. Invalidity of ordinance and bonds is the point of both bills, —a judicial sentence of their nullity on identically the same facts is the thing demanded, the relief sought, by both. The one was for an injunction against their issue; the other, owing to the further facts, occurring later, that they had issued, and taxes had been levied to pay interest, was to enjoin the collection. If the parties are the same in both suits, and the decree had dissolved the injunction and dismissed the bill,...