Gallaiier v. City Of Moundsville.
| Citation | 34 W.Va. 730 |
| Court | West Virginia Supreme Court |
| Decision Date | 30 June 1890 |
| Parties | Gallaiier v. City of Moundsville. |
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 defence of res judicata.
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.
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 said bonds and deliver them to commissioners authorized by the ordinance to receive and sell the same. Said injunction is dissolved. Afterwards two of these plaintiffs, as tax-payers, obtain an injunction to restrain collection of taxes to pay interest on said 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 defence of res judicata.
Ewing, Melvyn & Riley of counsel for appellant cited.: 14 Kan. 463; 46 Md. 67, 71; 61 Ind. 1; 80 Ill. 270; 27
Mo. 560; 2 Iiand. 103; 2 Dan. Neg. Instr. (2d. Ed.) § 1545;
658, 666; 29 Ohio St. 500, 511, 512; 29 Ind. 192; 39 la.
267; 34 Ind. 192; High Inj. (Inj. 2d.) § 1549; 63 Barb.
288, 294; 10 Am. & Eng. Ency. 863, 869 & note; 1 Pom.
1872, c. 141, s. 9; Code, c. 85, s. 16; 2 Par. Cont. (5th Ed.)
510 note; 19 Ohio St. 586; 31 Mich. 421, 423; 77 Ind. 371,
376; 96 U. S. 433, 440; 33 Gratt. 245, 250. J. J. Jacob of counsel for appellant, cited Gr. Br. Ult. Views 268 note a.; 2 Dan. Nego. Instr. §§ 1537-1542; Acts 1872-3, c. 141; 72 U. S. 772.92 IT. S. 491; 132 IT. S. 107; 112 IT. S. 183; 14 Wall. 282; 1 Wall. 84; 13 Otto 562; Id. 648; 24 How. 286; 73 N. Y. 238; 48 Mo. 390; 9 Otto 214; 26 W. Va. 488; 10 W. Va 250, 283-295; 76 N Y. 256; Big. Estop. 68, 72-78; 9 Otto 676; Id. 684; Dan. Ch'y Pr. 402 and notes; Const. Art. X, s. 8; Acts 1889, c. 4, s. 33.
J. B. McLure for appellees, cited:
21 Barb. 644; 19 Ohio St. 586; 31 Mich. 423; 2 Am. & Eng. Ency. 162; 1 Dill. Men. Corp. §§ 89, 449, 457; 30 W. Va 439; 101 IT. S. 693; Cool, Const. Lim. (3rd Ed.) 124, 125; 5 McL. 158; 1 Minn. 104; 22 Wis. 54; 25 W. Va. 824; 3 Am. & Eng. Ency. 691; 30 W. Va. 435; 1 Dill. Mini. Corp. 130-138; 89 Ill. 847; 12 Wheat. 64, 68; 51 Tex. 532; 73 N". Y. 338; Acts 1872-8, c. 141, s. 8; 28 W. Va. 698; 26 W. Va. 488; 23 W. Va. 667; 19 W. Va. 408, 435; 23 W. Va. 667; 16 W. Va. 527; 9 W. Va. 162; 7 W. Va. 501; 13 Gratt. 78; 2 Dill. Man. Corp. 914-923; 39 la. 543, 548; 44 Md. 446; 1 Dan. Ch'y Pr. (4th Ed.) 295; 1 Gratt, 316; 13 W. Va. 22; 7 C. E. Greene 583; 26 W. Va. 488; 6 Wart Act. & Def. 599, 500, 775, 787; 2 Dev. 244; 17 Vt. 138; 3 Pa. St. 434; 7 Mete. 570; 65 N C. 478; 45 Pa. St. 161; 10 Ohio St. 45; Warth's Code c. 133, s. 13; 1 Bar. Ch'y Pr. 377; 14 Gratt. 48; 7 Johns. Ch'y 1; Sto. Eq. PL § 791; 10 Mass. 72; 3 Jones (N: C.) 225; 9 Pa. St. 345; 14 Ohio St. 325; 34 Barb. 28; Cool. Const. Lim. (2nd Ed.) 48, 49; 92 IT. S. 735; 103 IT. S. 735; 29 Mich. 19; 16 Ohio St. 615, 625.
On the 5th day of February, 1890, the council of the city of Moundsville passed an ordinance providing for the issue and sale of its bonds to the amount of twenty thousand dollars, 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 one thousand two hundred dollars 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 themselves 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 per centum of the taxes imposed on said Gallaher and Price; and, the Circuit Court of Marshall county having overruled a motion to dissolve said injunction, the city of Moundsville has appealed to this Court from the order overruling said motion.
We shall not decide the merits of this controversy, deeming it improper to do so, for the reason that we are of opinion that the defence of res judicata made by appellants ends this 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 were issued, obtained an injunction to restrain the issue and sale of the same; which injunction was on the 2d of May, 1890, dissolved, but the bill was not dissmissed. There was no appeal from tins 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 for the issue of twenty thousand dollars 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. X, 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. Purdy, 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 and placed 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 one thousand two hundred dollars, 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 taxes 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 been 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, thus holding the ordinance and bonds valid, could the same parties turn around and enjoin taxes levied to pay bonds so held valid? I think not. Why not? Because of the decision holding the bonds valid. It would have put on them the stamp of validity. This is just what was done by the order of dissolution in the first suit. There is identity in the subject-matter of the two suits. The question of the validity of the bonds arose and was necessarily decided in the first. This Court said in McCoy v. McCoy, 29 W. Va. 794 (2 S. E. Hep. 809) that ...
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