Thomas v. Rowe.1

• Decision Date: 25 April 1895
• Citation: 22 S.E. 157
• Parties: THOMAS, Inspector. v. ROWE.1
• Court: Virginia Supreme Court

22 S.E. 157

THOMAS, Inspector.

v.ROWE.¹

Supreme Court of Appeals of Virginia.

April 25, 1895.

Appeal?/span>Jurisdiction?/span>Injunction?/span>When Lies —Pleading?/span>Fisheries?/span>Collection of Fines —Constitutional Law.

1. One who has restrained an oyster inspector from collecting fees and fines under Code 1887, § 2134, as amended by Act March 5, 1894, on the ground that the act is unconstitutional, cannot dispute the jurisdiction of the supreme court of appeals, to which an appeal may be taken in all cases involving the constitutionality of a statute.

2. An allegation in a bill for an injunction that the act complained of is being committed under an unconstitutional statute will not. of itself, confer jurisdiction on a court of equity to grant the relief, where the other allegations do not make a case for such relief.

3. Code 1887, § 2134, as amended by Acts 1894, p. 778, requiring oyster inspectors to collect "all fines, taxes and all sums due, or would be due, " on oyster ground rented, or used and not rented, and conferring "the same powers to collect the same which a county treasurer has for the collection of taxes, " and also giving said inspectors power to remove enough oysters to pay the same, is not unconstitutional, as allowing the inspector to impose fines, as the fine is imposed by the statute itself.

4. Under said act the inspector may collect back rents, and is not confined to the sale of oysters, but may pursue all remedies given a county treasurer for collecting taxes.

5. Where an answer to a bill for an injunction negatives all its equities, and is sworn to, it is entitled to the weight of an affidavit, under Code 1887, § 3281; and on a motion to dissolve the injunction, heard on bill and answer, the injunction should be dissolved.

Appeal from circuit court, Gloucester county; T. R. B. Wright, Judge.

Bill by J. M. Rowe to restrain Joel Thomas, oyster inspector, from collecting rents for oyster beds. Decree for plaintiff. Defendant appeals. Reversed.

R. Taylor Scott, Atty. Gen., for appellant.

J. N. Stubbs, for appellee.

CARDWELL, J. Appellee, J. M. Rowe, obtained from the judge of the circuit court of Gloucester county, May 19, 1894, an injunction to restrain Joel Thomas, oyster inspector for district No. 10, Gloucester county, from selling at public auction certain property of Rowe levied on by Thomas, inspector, to satisfy claims in his hands for oyster-ground rent, surveying, assigning, etc., advertised May 18, 1894, for sale, as to three canoes, stock of oysters, on May 22, 1894, and as to four cows, yoke of oxen, and three heifers, on June court day. The bill filed by Rowe states "that on the 24th of April, 1894, he was in possession of, holding, and using certain oyster-planting ground in the county of Gloucester; that it had not been assigned to him, or surveyed at his request, or rent paid, under the act of the general assembly of Virginia approved March 5, 1894; that on the 24th day of April, 1894, Joel Thomas, inspector for district No. 10, Gloucester county, served notice on complainant, as the law provides; that on May 18, 1894, Thomas, inspector, posted notice of the sale of his property, as before stated; that the levy was made, as claimed by inspector, for back rent; that complainant owed no back rent, having never rented; that there could be no renting till the rent is paid in advance, "—vouching Acts Assem. 1893-94, § 2, approved March 5, 1894. And the bill then charges that Inspector Thomas had no authority to collect back rent, even if any be due, and denies the right of the inspector to levy for rent on complainant's property, —that, if he could levy at all, he could only levy on property on the leased premises, just as a distress warrant or an attachment could be levied for such,?and insists that the only remedy for the inspector was under section 2134, as amended by the act of assembly approved March 5, 1894, providing for the removal of oysters from the leased premises, and sale thereof; that section 7 of the act is plainly unconstitutional, as to the inspector imposing fines. The prayer of the bill is for an injunction to restrain Thomas, the inspector, from making sale of complainant's property; that he be required to survey, assign, and receive the rent on said oyster ground; that the law governing the matter of complaint be construed by the court; and that full and final relief be given.

Thomas, the inspector, and only defendant, demurred to this bill, as being insufficient inlaw, and filed his answer thereto, which states that he went to complainant in June, 1892, and asked him if he wanted the oyster-planting ground he had been occupying, and Rowe replied that he did; that Rowe then went with respondent, and marked off the ground as he wished it surveyed, and was present when all except one parcel was surveyed; that Rowe's oyster ground consists of several parcels, and that he had before designated how he wished that parcel surveyed, which, though surveyed in his absence, was surveyed in accordance with his wishes; that, after this survey, Rowe refused to pay the rent, or the fees of the inspector and surveyor; that Rowe did apply for the oyster-planting ground in question, and to have it surveyed, and for two years has been using and occupying it with oysters planted thereon, and persistently refuses to pay one cent of the rent or fees; and that respondent, failing to collect of Rowe the amount due to the state, and fees, did levy on Rowe's property, and advertise the same, to satisfy the claims in his hands as inspector. The answer is responsive, and negatives the equities of the bill, and is sworn to by Thomas.

Upon a hearing of the cause on the bill and its exhibits, and the demurrer and answer of Thomas, inspector, the circuit court overruled the demurrer, and, without stating in the decree the grounds upon which it was decreed, perpetuated the injunction; and an appeal was allowed Thomas, inspector, to this court.

The questions to be disposed of are:

1. The jurisdiction of this court. It is insisted by appellee's counsel that there is no constitutional question...