56 W. Va. 141 | W. Va. | 1904
Bryant and others, suing on behalf of themselves and alb other citizens of Parkersburg similarly situated, filed a bill inequity against Logan and others, stating thatf||£ City of Park-ersburg had purchased, with the proceeds of bonds issued by it,-42 acres of land and converted it into a public park having drive ways, walks, a bicycle track, trees and other constituents of a’ park for public use and enjoyment, and the city had adopted rules for its regulation, and it was under the city’s control and management; that by such rules and regulations this park was-opened to tire public during certain hours, and that for some years it*was used by the public as a park for the benefit of all’ persons; that contrary to law the council had accepted a proposition from the Gentlemen’s Driving Club to lease a portion of’
The first law question is as to the right of the plaintiffs to •maintain the bill. They aver no special interest in themselves; they state no injury to their property, no interest peculiar to themselves. The only interest in them presented by the bill is that common to all the people of Parkersburg as citizens and tax-payers. In this respect the.case is of practical importance, involving the right of anybody and everybody in a city to invoke (equity to frustrate and avoid the action of the council in the management and control of city property. The case is not free -from difficulty, both in itself and under diverse, authority. A city 'is a branch, a subordinate agent, of the state government, vested •with grave and important powers of state government delegated •to it by the state. It is claimed that the use of this park for the •purpose contemplated by the lease is misuse and diversion, I may •say, a perversion from the proper use, of property paid for by public taxation, and held in trust by the city for public use. 'Who can question it in the courts ? Can a resident and tax-payer, ■without other interest, do so? On the one hand, it is of high import that the action of constituted authority of government (Should not be hampered and delayed by assailment by any and every individual from disappointment, whim or caprice. The • door would be open wide to multitudinous suits filling the courts •with litigation. They would arise constantly to carry out the individual idea of each person, on good and bad grounds. Public policy argues against this. Though bad action of the city au-thorities would loudly call for redress, better that some instances -of it go without redress, and that such redress be left to the public officials. On the other hand, municipal authorities do go wrong sometimes in the exercise of powers committed to them; 'but we must reflect that the people have entrusted them with dis■cretion and power, and that it would produce'infinite confusion, if it should lie in everybody’s will, in every instance, to act on his ■own impulse to question the public action of municipal authority. Unlawful action should be redressed; but who can call for •'it? The attorney-general representing the stale’s abused eonfi-
In State v. Matthews, 44 W. Va. 372, we decided that where one usurped the office of sheriff, in which all are interested, his right must be contested by somebody interested further than as a citizen or taxpayer, unless the attorney-general intervened. I dc< not see why the case of Smith v. Cornelius, 41 W. Va. 59, is not pointed authority in this case. The Berkeley Springs property was in the custody of a public corporation created by the State to hold it in trust for public health and pleasure, and this Court held that a lease by such corporation, though ultra vires, could not be contested by a private person, but only by the state. In Gall v. Cincinnati, 18 Ohio St. 563, it was held that taxpayers as such could not oppose the removal of a market house. The court said that whatever rights adjacent lot owners might have, tax-payers, as such, could not, by injunction, prevent it. When private persons sought to challenge the action of the county court in changing the location of a bridge, Judge Lucas said: “They stand here simply as private citizens and tax-payers, who undertake to represent the whole county in opposition to the judgment and action of the properly constituted authorities.” He further said that they stood simply as citizens honestly believing that the decision and judgment of the tribunal appointed by law to determine such questions were at fault, and seeking to
But if the plaintiffs could sue, they cannot on the merits succeed. Chapter 32, Acts 1893, amending the charter of Parkers-burg, empowers the city to “purchase, take, receive, hold and use goods and chattels, land and tenements * * either for' the proper use of said city; * * and the same may grant, sell, convey, transfer, let and assign, pledge, mortgage, charge or encumber in any case and in any manner in which it would be lawful for a private person so to do, subject to the limitation and" provisions of the constitiution.” Here is a very broad power-given by the Legislature to the city. I do not see why it does not-legitimate the lease made by the city from the imputation of excess of power and voidness.
Again: Even if the power to make the lease in question had' not been given by the act of the Legislature, still we would not brand it as void and illegal, because the use contemplated by the-lease is not an unlawful diversion of a part of the park from the use in view in its acquisition. The bilPsays the ground was acquired for park purposes “for the health, pleasure and comfort of the people.” Racing horses is enjoyed by thousands and thousands of people, high and low, rich and poor. The use of the-park for this purpose would give people recreation and pleasure, and is not foreign to the object for which it was purchased. N. Orleans v. Louisiana Co., 140 U. S. 654. Note, too, that there-
Therefore, we affirm the decree.
Affirmed.