Perdue v. Ferguson
| Decision Date | 13 November 1986 |
| Docket Number | No. 17297,17297 |
| Citation | 177 W.Va. 44,350 S.E.2d 555 |
| Court | West Virginia Supreme Court |
| Parties | Terry PERDUE, David Pancake, Betty Barrett, Howard Mullens, Greg Hawkins and Garry Black v. C.W. FERGUSON, III, as Special Judge of the Circuit Court of Wayne County, West Virginia. |
Syllabus by the Court
1. A court of equity normally may not enjoin a municipal legislative body from exercising legislative powers by enacting a municipal ordinance. This principle that an injunction does not lie to restrain enactment of an ordinance applies generally even though the proposed ordinance is alleged to be unconstitutional or otherwise invalid.
2. It is presumed that an ordinance, especially one concerning the public health, safety or welfare, was passed in good faith and that the legislative body of the municipality acted in the best interest of the community.
3. An injunction does not lie to restrain the enforcement of an invalid municipal ordinance merely because the ordinance is unconstitutional, arbitrary or otherwise invalid; other circumstances, such as irreparable injury, inadequacy of remedies at law, etc., bringing the case within one or more of the grounds for equity jurisdiction must also be alleged and shown.
4. Where a municipal corporation or the officers thereof act within well-recognized powers, or exercise discretionary power, a court is unwarranted in interfering by granting an injunction, unless fraud is shown, or the power or discretion is being manifestly abused, to the oppression of the citizen.
5. Syl. pt. 4, State ex rel. Ayers v. Cline, [---] W.Va. [---], 342 S.E.2d 89 (1985).
Charles F. Dodrill, Huntington, for petitioners.
Lafe C. Chafin, Barrett, Chafin, Lowry & Hampton, Huntington, for respondent.
The petitioners, Terry Perdue, David Pancake, Betty Barrett, Howard Mullens, Greg Hawkins and Garry Black, who are six of the eleven members of the City Council of the City of Huntington, West Virginia, brought this original prohibition proceeding against the respondent, the Honorable C.W. Ferguson, III, as special judge of the Circuit Court of Wayne County, West Virginia, to prevent that court from taking any further action in injunction proceedings which had been brought by members of the Huntington Floodwall Board against the members of the City Council of the City of Huntington to restrain City Council from enacting and enforcing an ordinance changing the duties of the Huntington Floodwall Board.
The Huntington Floodwall Board was established by an ordinance enacted by the City Council of the City of Huntington. 1 The purpose of the Huntington Floodwall Board was to operate and maintain the floodwall system of the City of Huntington. The City Council, not the Floodwall Board, is responsible for funding the floodwall system. 2
On August 11, 1986, City Council heard a first reading of a proposed ordinance which would alter the manner of funding the floodwall system to that of an actual service charge or fee (flood protection service fee), authorized by W.Va.Code, 8-13-13 [1971], to be calculated at the rate of three-fourths of one cent ($0.0075) per square foot of floor space in a residential or commercial building or structure which is protected from flooding by the city's floodwall system. 3
The proposed ordinance would also make certain organizational changes, primarily transferring the assets and the control of the floodwall system from the Floodwall Board to a newly created division within the city's Department of Public Works, to be called the Division of Flood Protection. The Floodwall Board, with its existing membership, would be transformed by the proposed ordinance into a Floodwall Advisory Board, with only advisory, not operational, responsibilities. Second reading of this proposed ordinance, for passage thereof, was scheduled for the evening of August 25, 1986.
In the afternoon of August 25, 1986, the members of the Huntington Floodwall Board, by their attorney, petitioned the respondent, as special judge for the Circuit Court of Wayne County, for an injunction against the members of the City Council of the City of Huntington, to restrain them "from taking any further action with regard to dissipating the authority and operations of the Huntington Floodwall Board and transferring its authority and responsibilities to the Department of Public Works of the City of Huntington...." 4
On August 25, 1986, the respondent herein entered an order granting the preliminary injunction requested by the Huntington Floodwall Board. The injunction "restrained [the members of City Council] from taking any further action ... in regard to changing the authority and duties of the ... Huntington Floodwall Board and from in any manner interfering with the continued operation of the floodwall system of the City of Huntington, West Virginia, until the further order of [the] [c]ourt." The order also set a date (September 9, 1986) for a hearing on whether the injunction should be made permanent. A copy of the order was served upon two of the petitioners herein (David Pancake and Howard Mullens) immediately prior to the scheduled meeting of City Council on August 25, 1986, at 7:30 p.m. A copy of the order and petition was also delivered at 7:15 p.m. on that date to the city attorney, who thereupon advised the City Council that, in his opinion, the injunction order was void for lack of proper appointment of the special judge.
That evening, City Council proceeded to have the proposed ordinance in question read the second time, and the same was passed by a vote of six to three, with two abstentions.
On August 26, 1986, upon the affidavit of one of the members of the Huntington Floodwall Board, a rule was issued by the respondent herein, returnable on August 28, 1986, for the petitioners herein, the six members of City Council who had voted in favor of the new floodwall ordinance, to show cause why they should not be held in contempt of court for violating the respondent's injunction order of August 25, 1986.
The petitioners subsequently filed with this Court their petition for a writ of prohibition to preclude the respondent from any further proceedings. We issued a rule to show cause why such relief should not be granted and thereafter heard oral argument of counsel.
The fundamental issue in this case is whether the trial court exceeded its legitimate powers by granting a preliminary injunction against enactment and enforcement of the municipal ordinance. We hold that it did.
In their petition for an injunction in this case, the members of the Huntington Floodwall Board alleged merely that (1) the ordinance would, by eliminating such Board, breach the city's agreement with the federal government pertaining to the operation and maintenance of the floodwall system of the city 5 and that (2) the ordinance would make appointment to the newly designated Floodwall Advisory Board more "political," by shifting from various community organizations to the mayor the right to designate nominees, in the event that any of the holdover members from the existing board resign in the future.
A municipal council or other governing body of a municipality, when acting or attempting to act in a legislative capacity, upon a subject within the scope of its powers, is entitled to the same immunity from judicial interference with the exercise of legislative discretion as is the state legislature. See, e.g., Hackney v. City of Guthrie, 171 Okla. 320, 322, 41 P.2d 705, 707 (1935). A court of equity normally may not, therefore, enjoin a municipal legislative body from exercising legislative powers by enacting a municipal ordinance. See syl. pt. 4, City of Charleston v. Littlepage, 73 W.Va. 156, 80 S.E. 131 (1913). See also 5 E. McQuillin, The Law of Municipal Corporations § 16.92 (); 1 C. Antieau, Municipal Corporation Law § 4.28 (1986); annotation, Injunction against legislative body of state or municipality, 140 A.L.R. 439 (1942); 42 Am.Jur.2d Injunctions § 170 (1969); 43A C.J.S. Injunctions § 126 (1978). This principle that an injunction does not lie to restrain enactment of an ordinance applies generally even though the proposed ordinance is alleged to be unconstitutional or otherwise invalid. See City of Charleston v. Littlepage, 73 W.Va. 156, 160-62, 80 S.E. 131, 133-34 (1913); New Orleans Waterworks Co. v. [City of] New Orleans, 164 U.S. 471, 482, 17 S.Ct. 161, 165, 41 L.Ed. 518, 524 (1896); 5 E. McQuillin, The Law of Municipal Corporations § 19.04 (). The basis for this general rule is not merely precedence but the constitutional separation of powers among the branches of government. See, e.g., Smith v. Brock, 83 R.I. 432, 436, 118 A.2d 336, 338 (1955). 6
Under this general rule the trial court in this case clearly exceeded its legitimate powers by enjoining City Council from even enacting the ordinance transferring to another local agency the control of the city's floodwall system. 7
As stated earlier in this opinion, City Council, despite the preliminary injunction, enacted the ordinance. The focus therefore shifts to whether the injunction lies to restrain enforcement of the ordinance.
Courts are also reluctant to restrain the enforcement of a municipal ordinance. This reluctance is part of the broader principle that courts generally disfavor the interference with governmental functions by the equitable and extraordinary remedy of an injunction:
As a general rule equity is conversant only with matters involving property and the maintenance of civil rights and will not...
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