Wood County Court v. Boreman
| Decision Date | 06 December 1890 |
| Citation | 12 S.E. 490,34 W.Va. 362 |
| Parties | COUNTY COURT v. BOREMAN, Judge, et al. |
| Court | West Virginia Supreme Court |
Submitted November 25, 1890.
Syllabus by the Court.
Prohibition will not lie to prohibit an inferior court from entertaining a cause, if it has jurisdiction of cases of the same general nature, and is not abusing such jurisdiction by exceeding its legitimate powers.
Petition for writ of prohibition.
J. B Jackson, Van Winkle & Ambler, and John A. Hutchinson, for petitioners.
J. M Jackson, for respondents.
This is an application by the county court of Wood county for a writ of prohibition against Hon. ARTHUR I. BOREMAN, judge of the circuit court of that county, and others, to prohibit the prosecution of a chancery suit brought by Calvin Campbell and others against the county court and others which had for its purpose the enjoining further proceedings in the construction of a bridge over the Little Kanawha, and the payment of money to contractors for its construction. It is another feature of the protracted litigation which has attended the construction of that bridge. Other decisions of this court in that litigation may be found in 33 W.Va. 589, 11 S.E. 72; 34 W.Va.--. [1]1 I state only such of the many facts presented in the record as I deem material in the decision we now make in the case before us. Calvin Campbell and others presented to the Honorable THOMAS P. JACOB, judge of the fourth circuit, on the 2d of October, 1890, their bill in equity, stating that they were citizens and taxpayers of Wood county, and sued for themselves and all other citizens and taxpayers of that county, except the defendants, and had been assessed with taxes for the year 1890; that a county bridge across the Little Ka nawha river, at the foot of Market street, Parkersburg, had been swept away by flood except the abutments; that the county court then made a contract to rebuild the superstructure of iron at the former site; that the county court, claiming that the secretary of war had warned it that the bridge must be 57 feet and 7 inches above lowwater mark, and that it could not be so built on the old site, ordered that it be built at the foot of Juliana street at a cost of $80,000, but that it would cost, as they averred, from $100,000 to $125,000; that they had petitioned the county court to recall its order to build at Juliana street, and build a draw-bridge at Market street, utilizing the old abutments and saving money, but the court refused to do so, and refused to make them parties to the proceeding. The bill then proceeded to allege that the county court was subjecting tax-payers to heavy burdens for building the bridge at Juliana street without conforming to law as to the manner of laying the county levy, and exceeded its constitutional power in this: that it had made contracts for the bridge, whereby the county had become obligated and indebted in a sum many thousands of dollars in excess of the amount levied for in the year 1890, after deducting that part of the levy made for other purposes, and adding any sum applicable to said contracts from any other source; in other words, that the amount for which the court had obligated the county for the bridge contracts is many thousand doolars more than the amount in the treasury, or to be collected into it applicable to the payment of said contracts from any source, including the amount levied for the bridge under the levy of 1890, which was up to the maximum rate of levy allowed by the constitution; and alleging further that the county court made up an estimate of the amount necessary to be levied for the fiscal year 1890, to cover county debts and liabilities payable during the year; and that such estimate did not give a true statement, as required previous to a county levy by section 29, c. 39, of the Code, in this: that there were then due and payable bonds of Wood county known as the "Little Kanawha Navigation Bonds," amounting to $16,900, binding the county, which should have been paid out of the levy of 1890, and levied for in preference to other sums in said estimate, especially $46,571.05, stated therein as to be levied for under the language, "Estimated amount necessary to pay on contract for the erection of the bridge across the Little Kanawha river, $46,571.05;" and that there were, in addition, outstanding orders on the treasury not included in said estimate which would increase still more the indebtedness over what was provided for by said levy of 1890. The bill charged that said sum was to be paid "on contract" for the bridge, not in full; that there was nothing in the clerk's office to show what was to be the entire cost of the bridge; and they could not have access to such contract, if it existed; that contracts had been made with Dellicker-Jolly Bros. for masonry, and other matters for the bridge, and with the Wrought Iron Bridge Company for iron-work; but it was impossible to tell from the contract with Dellicker-Jolly Bros. What the work it provided for would cost; but the bill charged that a debt was created to build the bridge in excess of what the constitution allowed. The bill charged that the county court would also incur liability for damages to adjoining land-owners, if the bridge should be built at Juliana street. It further stated that work was proceeding under said contracts, and the county's money was being paid out for it; and that there was not money to pay the cost of the bridge, as evidence that a debt was being made beyond the constitutional limit; that the court submitted to the people a proposition to issue $20,000 bonds to finish the bridge, the order of submission in words admitting "that to make said expenditure it will be necessary to have a loan and issue bonds of the county of Wood, which can only be authorized by a vote of the qualified voters." The bill prayed that the county court be enjoined from collecting from tax-payers any money to be paid on contracts for constructing the bridge under the levy of 1890, or from proceeding with its erection until such matters could be investigated, and from paying the same on contracts, and that contractors be enjoined from proceeding with work under their contracts. Such injunction was granted, but afterwards Judge JACOB modified the injunction order so far as it prevented building the bridge, leaving in force so much as enjoined the collection and disbursement of money levied to build the bridge. The defendant, the county court, filed an answer charging that the suit was only one of many steps taken by the plaintiff and persons in confederacy with them to defeat the building of the bridge at Juliana street, and the wart the court in the exercise of its powers, denying that a debt would, by the contracts, be created beyond the constitutional limit, and asserting the legality of the levy and its adequacy to meet all county demands, including all for which the county had yet become liable under any binding contracts; in short, traversing all the numerous facts charged in the bill. The county court, without waiting decision of any question in the cause, has come to this court for a prohibition against the prosecution of said chancery suit. This court awarded a rule to show cause why such prohibition shall not issue, and the individuals prosecuting the suit moved the discharge of the rule, and filed a written answer thereto
A question which at once confronts us in the consideration of the case is, does the writ of prohibition lie in this case? The Code of 1887, (chapter 110, § 1) provides that "the writ of prohibition shall lie as a matter of right in all cases of usurpation and abuse of power when the inferior court has not jurisdiction of the subject-matter in controversy, or, having such jurisdiction, exceeds its legitimate powers." The writ is an extraordinary remedy, to be used only where the usual and ordinary forms of remedy are insufficient and inadequate to afford redress. It issues only in cases of extreme necessity, and before issuing it must appear that there is no available remedy in inferior tribunals. It is used by superior courts to restrain inferior courts from acting without jurisdiction, or from exceeding their legitimate powers, where damage or...
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