Corrothers v. Board of Education

Johnson, Judge, delivered the opinion of the Court: Does the bill present a proper cáse for the interposition of a court of equity? Bull et al. v. Read et al., 13 Gratt. 78, was an injunction to a levy for taxes for school-purposes, on the ground that it was illegally levied under the act providing for free schools in the first magisterial district of Accomack county, and on the further ground that the said act was unconstitutional. It was claimed by the defendants that a court of equity had no jurisdiction in the case. Judge' Lee, who delivered the opinion of the court in that case, said at page eighty-seven : “It may be that for each act [541] of the board of commissioners affecting the inhabitants oí the district every one who is aggrieved might have a remedy at law of some sort, more or less effectual, but the remedy in equity would be far more perfect, adequate and complete ; and as (he acts of the commissioners would be in their nature continuing, and to be renewed from time to time, to restrict the parties to their legal remedies would be to consign them to interminable litigation, and involve endless multiplicity of suits. Hence the court of chancery will interpose by injunction to prevent the threatened wrong, and provide a remedy which shall at once reach the whole mischief and secure the rights of all, b'oth for the present and the future; and its jurisdiction in such cases would seem to be well defined, and fully sustained by authority.” He cites a large number of authorities to sustain the position. Syllabus 1. i Syllabus 2. A suit in equity will not lie to restrain the collection of a tax on the sole ground that the tax is illegal. There must exist in addition special circumstances, bringing the case under some recognized head of equity jurisdiction, such as, that the enforcement of the tax would lead to a multiplicity of suits. Dows v. City of Chicago, 14 Wall. 108, where the case is thus brought under some recognized head of equity jurisdiction, as wdiere the plaintiffs bring the suit in behalf of themselves and all other taxpayers in the district, who are to suffer by the tax imposed, if the bill shows that the tax is illegal, to avoid a multiplicity of suits, equity will take jurisdiction by injunction. Bull et al. v. Read et al., supra. Jurisdiction in such cases was sustained by this Court in Kuhn v. The Board of Education of Wellsburg et al., 4 W. Va. 499; McClung v. Livesay, 7 W. Va. 329; Williams's adm’r et al. v. Argabrite, Frame, &c., and Luddington v. McMillan, opinion by Moore, Judge. The two last cases were decided in February, 1874, but for some reason were not reported. In the last three cases, it was held that the injunctions were properly dissolved, because the plaintiffs did not bring their suits in behalf of themselves and all other tax-payers wrho v'ould be injured by the tax. [542] The suit in the ease at bar is properly brought; and if tax wcre illegal, for the reasons above stated the will be sustained, unless such jurisdiction is as claimed by counsel for appellees, by chapter seventy two of the Acts of the Legislature of 1875, which provides: “That upon the petition of ten taxpayers residing in any city, town or village, aggrieved by an unlawful or erroneous levy ,or imposition of taxes, the circuit court of such county may supersede the levy made by such city, town or village in the saíne manner, and to the same eflect, as the circuit court may now supersede a levy made by the county court. In like manner if an independent school district or any other school dis-drict impose a tax or levy contrary to law, or in excess of the rate of taxation prescribed in the act creating an independent district for school-purposes, upon a like petition the circuit court may supersede the levy. Upon like petition any ordinance of a city, town or village made contrary to law, the circuit court may supersede, revoke and annul the same.” syiiatms 3 There is nothing in this act faking away from courts of equity in express terms the jurisdiction to enjoin the collection of taxes illegally imposed. Where equity has jurisdiction of a subject, and the Legislature by statute gives a remedy at law for the injury complained of, and does not by the terms of said statute take away the equitable jurisdiction, it must be considered asan additional remedy, and the equitable jurisdiction is not thereby ousted. 1 Sto. Eq. § 80; Atkinson v. Leonard, 3 Bro. C. C. 218; 9 Ves. 464; 7 Ves. 19. Ifin such a case it was the intent of the Legislature to take away the jurisdiction of a court of equity, that intent must be made to appear in the statute itself, as it will not be presumed in the absence of such intent appearing, that it existed. It will not be presumed that the Legislature intended to take away any of the rights of the citizen already existing, merely because it has given him another right, unless the legislative intent to substitute one right for the other clearly appears. [543] But was the tax illegally assessed? It is claimed by counsel for appellant, that the gentlemen claiming to constitute the Board of Education of Clinton were declared by the old board not legally .elected, and therefore they had no legal right to levy the said tax; that this action ot the old board was final, as far as itwas concerned, and that therefore the reconsideration at the next meeting of the board, held a week later, ot the order entered on the 23d, setting aside the election ; and at that meeting held on the 30th of August, 1875, the action of the board reconsidering its former action, and declaring the result of the election for members of the board of education and declaring certain persons elected, and declaring the result of the election in favor ofa levy for school purposes was a nullity. Section two of chapter one hundred and twenty-three of the acts of the Legislature of 1872-3, among other things provides, that “ The board of education for each district shall assemble on the second Monday after said election, and, a majority of the same being present, shall open and examine the election-records of the several sub-dislricts. They shall ascertain therefrom who has received the largest number of votes for the several officers of the ’district board of education, and give certificates of their election to the persons entitled thereto. They shall also ascertain the sum of the votes cast in the several sub-districts, of their district for the person or persons voted for as county superintendent, and within five days report the same to the clerk of the county court. * * * * If a majority of the ballots given in the district have written or printed upon them "for power to levy’ it shall be construed as conferring upon the board of education the authority of the people to make the annual levies required in the thirty-eighth and •fortieth sections of this chapter, for each year during their term of office.” [544] Syllabus 4. [543] It was the manifest duty of the board, when it met on the second Monday after the election, to wit, on the 23d [544] of August, 1875, to examine the election records of the several sub-districts, and declare the result, and give certificates to those having the greatest number of votes for members of the board of education. The duty the act required of them was ministerial; and if they refused to perform it, they could have been compelled by mandamus to do what by law they were required to do. What they did, they clearly had no right to do; and when a week later they met and reconsidered their former action, and then proceeded to do what the act of the Legislature required at their hands, they only did what they might have been compelled by mandamus to do. The Board of Supervisors of Mason County v. Minturn, 4 W. Va. 300. If a board of education refuses to do an act required by statute to be done at a particular time, and the act is such that the board could be compelled by mandamus to perform it, the board may afterwards, on its own motion, do the act. The board having legally done the act, everything, so far as the bill declares, was regular, and the plaintiffs have no right of complaint. The bill shows no equity whatever. It is not decided in this case, how far a court of equity would enquire into the legality of an election upon a bill to enjoin the collection of taxes, on the ground that the members of the board which levied the tax wore not legally elected. It might be that such board assumed to act without the pretence of an election, or that they claimed to be elected by a town-meeting, or in some other mode not authorized by law. These questions do not arise in this cause. The election, so far as the bill shows, was held according to law; and we have seen that the board did what the law required them to do. It was therefore not necessary for an act to be passed legalizing the election ; and we do not decide whether the said act is constitutional or otherwise, as the question does not properly arise. The order of the judge of the circuit court of Monon-galia county dissolving the injunction, and the decree of [545] the circuit court of said county dismissing the plaintiffs’ bill with costs are affirmed, with costs and $30 damages. The Other Judges Concurred. Orders Affirjied.