47 W. Va. 132 | W. Va. | 1899
The board of education for Cabin Creek district, at its meeting held in July, 1898, made a regular levy of thirty-five cents on every one hundred dollars valuation of the property in said district for the building fund, and of ninety cents on every one hundred dollars for the teachers’ fund, and, in addition thereto, the said board, at the same meeting, laid a special levy of twenty-five cents on every one hundred dollars valuation of the property taxable in said district, which was designated as a ‘‘special building fund.” At the time said lavies were made it is claimed there was no legal indebtedness due, owning or payable bj' said board; but the voters of said district, pursuant to section 41 of chapter 45 of the Code, had authorized said board to continue the free schools of said district for seven months in the year. The levies so made had been extended upon the tax books of said district, and the books containing the same had been delivered to J. H. Copenhuver, sheriff of Ka-nawha County, who was proceeding to collect said levies, and threatening to compel the taxpayers of said district to pay their respective taxes at the rates aforesaid by dis-training therefor, when, on the 17th of December, 1898, the Winifrede Coal Company and others, who sued on behalf of themselves and all other taxpayers of ■ Cabin Creek district, filed their bill in equity in the circuit court of Kana-wha County, alleging the above-mentioned facts, with others, and praying that the court would restrain, inhibit and enjoin said Sheriff Copenhaver from collecting said special building tax of twenty-five cents on the one hundred dollars valuation, which was levied by said board at its meeting in July, 1898, and from collecting said levy for the teachers’ fund of ninety cents on each one hundred dollars valuation, or, if not the whole of the levy for the teachers’ fund, that it would restrain, inhibit, and enjoin the said sheriff from collecting more than fifty cents on each one hundred dollars valuation for 'teachers’ purposes for said year from the plaintiffs and from all the other taxpayers in said district, and also from levying on or selling any of the property of said plaintiffs for said specific tax, and from paying any of the taxes which he had collected or might collect on account of said building fund of said district upon alleged
While it is true the action of the court in overruling the defendants’ demurrer to plaintiffs’ bill is not assigned as one of the errors relied upon in the petition for an appeal, yet counsel for the appellants, in their brief, insist that the
The plaintiffs further allege and charge that said board of education had certain transactions and made certain pretended agreements and contracts with school furniture and book companies or firms but are not informed as to the companies or firms with which such contracts were made, or of the facts necessary to enable them to set out such alleged contracts, but say it has been done without lawful authority, and in violation of the Constitution; and thus fails to point out in what the alleged illegality consists. See Armstrong v. County Court, 41 W. Va. 602, (24 S. E. 993). Sands, in History of a Suit in Equity (page 11,' §17), says: “The biil must show sufficient matters of fact far sc to maintain the case, and, if it be defective in this, the bill will be dismissed;” citing Mitf. Eq. PI. 125. As to the allegation that they were not informed as to the parties with whom such contracts were made, they might easily have ascertained these facts from the records of the board of education, and such firms or persons were necessary parties to the bill. The general rule laid down in 1 Bart. Ch. ’Prac. p. 141, is that “all persons interested in the subject-matter of the bill, and which is involved in and to be affected by the proceedings and result of the suit should be made parties,” etc. The parties who sold the books to this board of education are directly interested in the result of this suit, which seeks to enjoin the payment
Reversed.