Ingles v. Straus 1

• Decision Date: 21 March 1895
• Citation: 91 Va. 209,21 S.E. 490
• Parties: INGLES et al. v. STRAUS et al.1
• Court: Virginia Supreme Court

21 S.E. 490

91 Va. 209

INGLES et al.

v.STRAUS et al.¹

Supreme Court of Appeals of Virginia.

March 21, 1895.

Title or Act—Sufficiency—Change of County Seat—Equity Practice — Dissolution of Injunction—Sufficiency of Showing — Continuance.

1. In an act entitled "An act to authorize and provide for a special election in the county of P. as to the removal of the courthouse of said county" may be properly embraced provisions for a second election, in case one should fail to decide the issue, and for the selection of a site, and for other matters in furtherance of the building of a new courthouse.

2. As the judge of a court in which an injunction is pending may in vacation dissolve the same upon reasonable notice (Code 1887, § 3444), the proof to sustain the bill should be taken with all reasonable dispatch.

3. Where there are sixty-seven working days between the granting and a motion for the dissolution of an injunction, upon only ten of which the plaintiff takes depositions, and during one month of which time he takes but one deposition, a continuance should not be granted, especially when the affidavit does not state the names of the witnesses to be examined, or that their evidence is believed to be material.

4. Though a waiver by plaintiff in a bill for an injunction of answer under oath, deprives the answer of its effect as evidence, yet such answer, if it negatives the equities of the bill, must be treated, upon a motion to dissolve, as a denial of plaintiff's case.

5. The dissolution of an injunction rests in the sound discretion of the court, and, unless it appears that there has been an abuse of such power, the action of the lower court will not be disturbed.

6. If a motion to dissolve an injunction comes up on bill and answer, and depositions used as affidavits, and the evidence does not show probable cause from which it may reasonably be inferred that plaintiff will be able to make out his case upon the final hearing, the injunction will be dissolved.

Appeal from circuit court, Pulaski county.

Bill by A.L. Ingles and others against Franz Straus and others for an injunction. From a decree dissolving an injunction which was granted, plaintiff's appeal. Affirmed.

I. H. Larew and J. C. Wyson, for appellants.

J. E. Moore, A. A. Phlegar, and James A. Walker, for appellees.

CARDWELL, J. This case grew out of an act of the general assembly approved January 22, 1894 (Acts 1893-94, p. 41), entitled "An act to authorize and provide for a special election in the county of Pulaski as to the removal of the court house of said county." The act provided that "it shall be the duty of the judge of the circuit court of Pulaski county, upon the petition of not less than one hundred qualified voters, to order a special election in the said county to be held at the several voting precincts thereof, on a day to be designated by him, within thirty days after the presentation of said petition to him for the purpose of taking the sense of the qualified voters of said county whether the county-seat of said county be removed from the town of Newbern at all; and, if so removed, whether to the town of Pulaski, in said county, or to the town of Dublin, in said county." And then after providing for the notice to be given, the manner of conducting the election, and how the ballots should be printed and counted, the act further provides that, if three-fifths or more of the votes cast be cast for the removal of the courthouse to the town of Pulaski, then the courthouse and county seat shall be removed to the town of Pulaski in said county, and the county seat shall be thenceforward at the said town of Pulaski; or, if three-fifths or more of the votes cast be for the removal of the courthouse to the town of Dublin, in said county, then the courthouse shall be removed from the said town of Newbern to the town of Dublin, and the county seat of said county shall be thenceforward at the said town of Dublin; but, if more than two-fifths of the votes cast be cast against the removal of the courthouse, then the county seat shall remain at the town of Newbern; and, In the event that three-fifths or more of the votes cast shall not be cast either for the removal of the courthouse to Pulaski or to Dublin, but if the combined vote in favor of Pulaski and Dublin shall be three-fifths or more of the votes cast in said election, then and in that event the circuit judge of the county of Pulaski should immediately after the said election, and within 20 days thereafter, enter an order in the clerk's office of said county ordering another election to be held within 40 days after the entering of the said order, said election to be held and canvassed, and result ascertained, in like manner, after like notice, as the first election, the act further prescribing how the ballot should be printed, etc.

On the 14th day of February, 1894, a petition was presented to the judge of the circuit court of Pulaski, signed by 106 of the qualified voters of the county, praying that the special election be ordered in accordance with the act of the legislature, and the judge made the order directing a special election to be held at the several voting precincts in the county on the 6th day of April, 1894. This election was held in conformity in all respects to the act, and resulted in the polling of 2,-670 votes, of which 1, 439 were counted as votes in favor of removal to Pulaski, 308 as in favor of removal to Dublin, and 923 as against removal. The result was reported by the commissioners of election to the judge of the circuit court of Pulaski on April 9, 1894; and it appearing by their report that two-fifths of the votes cast were not cast against the removal of the courthouse, and that three-fifths or more of the votes cast were not cast either for removal to Pulaski or to Dublin, but that the combined vote in favor of Pulaski and Dublin was three-fifths or more of the votes cast in the election, the judge, on the ——day of April, 1894, entered an order directing another election to be held on the 22d day of May, 1894, to determine whether the courthouse should be removed to Pulaski or to Dublin. This election was accordingly held, and the result, ascertained by the commissioners duly appointed for the purpose, was reported to the judge of the circuit court on May 24, 1894. At this election 2, 168 votes were cast. of which 1, 536 were counted as in favor of the town of Pulaski, 615 for the town of Dublin, and 17 scattering votes counted as against removal; whereupon the judge of the circuit court entered an order declaring that the county seat of the county of Pulaski should thereafter be the town of Pulaski, and appointed commissioners to select a site in the town of Pulaski for a courthouse, and directed all things else to be done necessary to carry out the provisions of the act, and in accordance with the wishes and determination of the voters of Pulaski county, as ascertained by the election held. Immediately upon the entry of this order, the plaintiffs below, and appellants in this court, filed their bill of complaint in the circuit court of Pulaski county; charging fraud in the conduct of the election; that illegal votes had been cast and counted against the town of Newbern, and in favor of the removal of the courthouse; that voters had been intimidated; that the act of January 22, 1894, was unconstitutional, etc.; and praying that the petitioners for the election of April 6, 1894, and the commissioners appointed by the court to choose a location for the courthouse in the town of Pulaski, be enjoined and restrained from doing any further acts in the premises, and for general relief. This bill was presented to the judge of the hustings court of Radford, who refused the injunction prayed for; whereupon it was presented to Hon. Robert A. Richardson, then one of the judges of this court, on May 30, 1894, and the injunction granted. Answer was promptly filed, denying all material allegations of the bill, and after due notice a motion was made to dissolve the injunction on the 19th day of July, 1894; but, on motion of plaintiffs for a continuance, the hearing of the motion to dissolve was postponed to August 18, 1894, to enable them to complete their depositions. On the 18th of August they again moved for a continuance, which was refused, and the injunction was dissolved. From this decree an appeal with supersedeas was allowed by one of the judges of this court.

Quite a number of questions have been raised in the record, but those not disposed of by the order entered in the case at the November term, 1894, of this court, which, by consent, removed the cause from Wytheville to this court, at Richmond, and continued it to the January term, 1895, ¹ may be disposed of by the determination of the two main questions in the case, namely: First. Is the act of January 22, 1894, in conflict with section 15, art. 5, of the constitution, and therefore null and void? Second. Did the judge of the circuit court of Pulaski county err in refusing the motion made by plaintiffs below August 18, 1894, for a continuance, and in dissolving the injunction at that hearing?

We come first to consider the constitutionality of the act in question, the title of which has been quoted; and as the contention of appellants is that the act itself is broader than its title, containing provisions not covered by the title and subjects not embraced in the title, we must first see what is embraced in the act.

The first three sections of the act contain the usual provisions for holding a special election, that special election to determine-First, whether the courthouse shall be removed; second, whether it shall be removed to Dublin or Pulaski. The fourth section simply provides that if, at the first election, more than two-fifths vote against removal, the county seat shall remain at Newbern: but, if three-fifths be cast for removal either to Dublin or Pulaski, the place receiving three-fifths shall be the county...