68 W. Va. 709 | W. Va. | 1911
B. E. Whetsell and J. D. Marstiller, appellants, seek by their bill to enjoin collection of special assessment upon their property and that of all others similarly situated, made by the City of Elkins for street paving, on the theory of lack of power in the city to pave its streets and charge two-thirds of the cost thereof to the abutting property owners. This is the sole ground of invalidity alleged. There is a paragraph which denies derivation of any special benefit to the property, but all the property charged abuts on the paved streets and that benefit accrues to it cannot be denied, if the authority existed. A demurrer to the bill was overruled, a preliminary injunction granted on it dissolved and the bill dismissed as upon the merits.
The authority of the city to pave at all is a question in which all persons charged with special' assessments for, paving have a
That authority was conferred upon the City of Elkins to pave its streets and charge two-thirds of the cost thereof to the abutting property owners, according to their frontages on any square paved by it, upon a petition of those owning more than one-half -of the frontage on such square, is not a debatable question. The city was originally incorporated under the provisions of chapter 47 of the Code, section 34 of which vests such power in municipal corporations organized under it. Chapter 151 of the Acts of the Legislature of 1901, ordaining a special charter for the city,' expressly reserves to it all rights and powers conferred upon it by said chapter 47 of the Code. Harvey v. City of Elkins, 65 W. Va. 305.
As lack of such authority in the city is the only ground of' invalidity alleged, and it utterly fails, the demurrer should have been sustained. An applicant for equitable relief against a tax or- special assessment must show ground therefor. He must allege as well as prove illegality of the charge in some respect. Tingue v. Port Chester, 101 N. Y. 294; Lasbury v. McCague, 56 Neb. 220; Spangler v. Cleveland, 43 O. St. 526; 21 Enc. Pl. & Pr. 452. This accords with the general rules of pleading. The pleader must show right to the relief he seeks. He cannot merely demand the latter and impose upon his adversary the negative burden of showing he is not entitled to it.
The remaining inquiry is whether the injunction should have been dissolved. Observing the distinction between ordinary and. extraordinary equity jurisdiction, I have always had some doubt as to whether a sale of personal propertjr, for an illegal tax or public charge can be enjoined. Detinue seems to be an adequate legal remedy. This impresses me as being conclusive, when personal property only is the subject of the tax and no lien is imposed upon real estate. Here, however, the special assessments
There is evidence tending to prove a ground of invalidity in some of the assessments not alleged, namely, that the owners of the major part of the frontage on Randolph Avenue between Gay Street and High Street on the east side and Eirst Street and an alley on the west side, did not petition the council to pave that portion of said avenue. B-ut there is no evidence showing whether petitions for paving other streets or portions of 'streets were died. Thus it seems probable that, on an amended bill in this cause, the injunction can be maintained as to the assessments on property abutting on the portion of Randolph Avenue here described, but nothing in the record indicates such right in respect to any other property in the city. While this evidence is inadmissible for want of an allegation of the fact it tends to prove, it indicates a right in the plaintiffs to part of the relief they ask. Strong c probability of ultimate right to the benefit of the extraordinary jurisdiction of the court constituted sufficient ground for leaving the injunction in force and effect for a reasonable time to enable the plaintiffs to amend their bill so as to make it conform to their evidence. The general and liberal rule respecting amendment of bills applies measurably to bills- for injunctions. McCrum v. Lee, 38 W. Va. 583; Moore v. Holt, 10 Grat. 384. Before dissolving an injunction for insufficiency of the bill, the court should allow a reasonable opportunity for amendment, if the bill is susceptible of amendment so as to sustain it, without a departure from the original cause of action, and probable right to ultimate relief by injune
The injunction, however, is much broader than the evidence. It forbids collection of any and all the special assessments, including those representing paving of streets other than Randolph Aivenue, and sections of that avenue other than the one herein described; while the evidence indicates insufficiency of the petition as to that section of that avenue only. As no probability of right to relief, respecting assessments on property abutting on other streets or other sections of- that one, has been shown, the trial court should have sustained the motion to dissolve the injunction as to all the assessments except those relating to the property on that section of Randolph Avenue.
The bill must also be dismissed as to all assessments other than those, relating to property abutting on that section, unless some ground of invalidity, common to all the persons and property assessed, other than that of alleged lack of authority in the city to pave its streets and charge two-thirds of the cost thereof to the abutting property owners, can be found. Lack of a petition, which must necessarily be tested as to its sufficiency7, by sections of streets, since it can operate only by sections, affords a ground of invalidity7 common only to owners of property abutting on a section. In paving the city had to proceed by sections, the section having been made the unit by the statute. Hence it is clear that persons whose property does not abut on the same paving section of a street cannot join in
For the reasons stated, the decree, complained of, will be reversed, the demurrer sustained, the injunction dissolved as to all assessments on property other than that abutting on the section of Randolph Avenue, lying between Gay and High Streets, on the east, and First Street and the alley opposite High Street on the West, and the cause remanded with leave to the plaintiffs to amend their bill, within a reasonable time, to be fixed by the circuit court; and, in ease of failure to amend the bill so as to make it sufficient, within such time, the circuit court 'will wholly dissolve the injunction and dismiss the bill. Substantially prevailing, the appellants will be allowed their costs in this Court.
Reversed and Remanded, with' leave to Plaintiff to Amend.