Sherman v. Bellows, 24 Or. 553

Sherman v. Bellows

24 Or. 553 | Or. | 1893

Mr. Justice Moore

delivered the opinion of the court:

Two questions are here presented: First, has the plaintiff any legal capacity to sue; and, second, does the complaint state facts sufficient to constitute a cause of suit? While there is an irreconcilable conflict in the decisions upon the right of a taxpayer, in his own name, to restrain by injunction, a municipal corporation and its officers from illegally creating debts, or disposing of the corporate property, or funds, we think the. decided weight of authority supports the doctrine that he may invoke the aid of a court of equity to obtain such relief whenever it is made to appear that such illegal act of the corporation would increase his burden of taxation: Hodgman v. Chicago & St. Paul Ry. Co. 20 Minn. 48; Willard v. Comstock, 58 Wis. 565 (46 Am. Rep. 657; 17 N. W. 401); New Orleans R. R. Co. v. Dann, 51 Ala. 134; Springfield v. Edwards, 84 Ill. 627. When a plain official duty is threatened to be violated *556by some official act, any person who will sustain personal injury thereby, for which adequate compensation cannot be had at law, may have an injunction to prevent it; Board of Liquidation v. McComb, 92 U. S. 531. Conceding, without deciding, that the Soldiers’ Home is a public institution of the state, provided by the legislative assembly, and that section 3 of article XIV. of the constitution required the trustees to locate it at Salem; that they had threatened to violate their official duty by locating it at Roseburg,— does it appear that plaintiff has sustained a personal injury thereby? If it were alleged that, in consequence of the location of the Soldiers’ Home at Roseburg, plaintiff’s property would be subjected to a burden of taxation in addition to that which it would be required to bear if located at Salem, then he would sustain a personal injury, and, since an adequate compensation cannot be had at law, he would be entitled to an injunction to prevent such location. “The damages,” says Judge Dillon, “ which he will sustain in case his burdens of taxation are increased, are not in common with the damages to other taxpayers, but they are special, affecting his private property and private rights”: Dillon, Municipal Corporations, § 731, and cases cited.

A municipal corporation holds its property and funds in trust for the benefit of taxpayers, and whenever it attempts to allow an illegal claim, consent to a collusive judgment, misappropriate the public money, or do any other act ultra vires, the taxpayer, in his own name, may have an injunction to restrain such unlawful acts, when his property would thereby be compelled to bear its pro rata share of the burden thus imposed: Willard v. Comstock, 58 Wis. 565 (17 N. W. Rep. 401; 46 Am. St. Rep. 657). His right to invoke the aid of a court of equity to restrain by injunction such unlawful acts depends upon his personal injury, and the test of such injury is measured by the fact that his property would be subjected to *557an additional burden of taxation. If his property will not be subjected to an additional burden of taxation, and he will not sustain any other personal damages, his injury is not contra-distinguished from that of all other taxpayers of the municipality, and he cannot invoke the aid of equity to prevent an unlawful corporate act, however much he may, in common with others, be injured: Seager v. Kankakee County, 102 Ill. 669. His special injury is the gist of the suit and unless it is alleged and proved, there can be no equitable relief in such cases: McDonald v. English, 85 Ill. 236. In no case has it ever been held that a private individual may maintain a bill to enjoin a breach of public trust (in the absence of statutory authority) without showing that he will be specially injured thereby: Angel, Highways, § 284.

The plaintiff does not allege that in consequence of the location of the Soldiers’ Home at Roseburg his property will be subjected to any burden of taxation, or that he will sustain any other special injury. These allegations were necessary to give the court jurisdiction to entertain his suit and grant the injunction, and, in their absence from the complaint, the plaintiff shows no legal capacity to sue, and, besides, the facts therein stated are not sufficient to constitute a cause of suit. For these reasons the decree of the court below is reversed, the demurrer sustained and the cause remanded for such other proceedings as may be deemed necessary, not inconsistent with this opinion. Reversed.