Nothing in the statute nor the ordinance itself is discriminatory or unauthorized so as to require its invalidation. If the court in an equitable proceeding such as this may enjoin the enforcement of an illegal part of an assessment and uphold the valid part where severable from the invalid part then surely it may uphold a valid assessment ordinance and strike down discriminatory and unauthorized regulations enforcing it. 14 McQuillin 425-426, 491, §§ 38.177, 38.206; Struble v. City of Cincinnati, 1948, 83 Ohio App. 304, 82 N.E.2d 127, appeal dismissed 149 Ohio St. 582, 79 N.E.2d 910; Hills v. City of Rahway, 1953, 29 N.J. Super. 16, 101 A.2d 563; Smith v. City of Parkersburg, 1943, 125 W. Va. 415, 24 S.E.2d 588; McCaskill v. City of Homestead, 1948, 160 Fla. 662, 36 So.2d 272. The plaintiffs contend that there was no benefit and none could be conferred on the property subject to the stand-by ordinance and that the ordinance is therefore invalid on a constitutional ground.
They indicate that if an estimate be given too liberal a construction then that estimate might have no relation at all to the actual cost, thus in a sense giving the taxpayer no notice. Smith v. City of Parkersburg, 125 W. Va. 415, 24 S.E.2d 588; Lucas v. City of Nampa, 41 Idaho 35, 238 P. 288; Kutchin v. Engelbret, 129 Cal. 635, 62 P. 214; City of Chicago v. Terwilliger, 253 Ill. 395, 97 N.E. 694. In Payne v. Village of South Springfield, 161 Ill. 285, 44 N.E. 105, 108, the court made the following observation:
" Although the revisers' note to this section states that it "omits provision for the rule to answer and prescribes in lieu thereof a definite time within which the defendant must answer after plea or demurrer overruled.", a discussion of the section by Mr. Leo Carlin in the West Virginia Law Quarterly, Volume 40, Page 360, shortly after the revision, in which he said that the final effect of the provision must await "the test of judicial construction," has proved prophetic in view of the many exceptions to the rule which have been established by decisions of this Court. State ex rel. Trent v. Amick, 137 W. Va. 842, 74 S.E.2d 587; Powell v. Sayres, 134 W. Va. 653, 60 S.E.2d 740; Wolford v. Wolford, 133 W. Va. 403, 56 S.E.2d 614; Strachan v. Mutual Fire Ins. Co., 130 W. Va. 692, 44 S.E.2d 845; Smith v. City of Parkersburg, 125 W. Va. 415, 24 S.E.2d 588; Barnes v. Warth, 124 W. Va. 773, 22 S.E.2d 547. It is not necessary to here review all of those cases, and none will be specifically referred to except State ex rel. Trent v. Amick, supra, although it is interesting to compare Wolford v. Wolford, supra, with Crouch v. Crouch, 124 W. Va. 331, 20 S.E.2d 169.
This Court has held that the rule so laid down in the Strachan case is subject to exceptions. In Smith v. Parkersburg, 125 W. Va. 415, 24 S.E.2d 588, it was held that when a ruling in a cause is before this Court on certificate that the 15 day period prescribed by Code, 56-4-56, does not limit the time within which an answer may be filed. Another exception relative to "filing an answer" to a replication will be found in Bank v. Ellison, 133 W. Va. 9, 54 S.E.2d 182. In Powell v. Sayres, 134 W. Va. 653, 60 S.E.2d 740, the provisions of Code, 56-4-56 were held inapplicable to a proceeding upon an issue devisavit vel non under Code, 41-5-11.
Code, 56-4-56, quoted above, has been given consideration by this Court in a number of cases. Its history may be gathered from the following cases: Powell v. Sayres, 134 W. Va. 653, 60 S.E.2d 740; Wolford v. Wolford, 133 W. Va. 403, 56 S.E.2d 614; Strachan v. Mutual Fire Ins. Co., 130 W. Va. 692, 44 S.E.2d 845; Smith v. City of Parkersburg, 125 W. Va. 415, 24 S.E.2d 588; Barnes v. Warth, 124 W. Va. 773, 22 S.E.2d 547. In the Strachan case this Court held: "Upon demurrer to a bill of complaint being overruled, and after the lapse of the time provided by Code, 56-4-56, for the filing of an answer or of a proper extension of that time as therein provided, without the incoming of an answer, the right of the plaintiff to a default decree as upon a bill taken for confessed becomes absolute.
The principles announced in the Strachan and Wolford cases have been developed in a number of comparatively recent cases. See Kinkead v. Securo, 112 W. Va. 671, 166 S.E. 382; Hughes v. McElwee, 120 W. Va. 176, 197 S.E. 631; Beatty v. Trust Co., 123 W. Va. 144, 149, 13 S.E.2d 760; Smith v. Parkersburg, 125 W. Va. 415, 24 S.E.2d 588. An issue out of chancery granted under Code, 56-6-4, is distinguishable from an issue of devisavit vel non.
An injunction is an instrument by which courts of equity enforce their remedial and preventive decrees. Smith v. City of Parkersburg, 125 W. Va. 415, 24 S.E.2d 588. It does not create a right but protects an existing right. Deeds v. Gilmer, 162 Va. 157, 174 S.E. 37; Ladner v. Siegel, 298 Pa. 487, 148 A. 699, 68 A.L.R. 1172; Sontag Chain Stores Company v. Superior Court in and for Los Angeles County, 18 Cal.2d 92, 113 P.2d 689. In the opinion in the case of Deeds v. Gilmer, 162 Va. 157, 174 S.E. 37, the Court used this language: "An injunction is granted to protect or enforce existing rights or liens. It does not create any new lien or give rise to any new substantive rights between the person to whom it is granted and the persons enjoined.
On the whole the steps so far taken by defendants conform with the provisions of the statute and do not contravene any constitutional inhibitions. For cases involving similar attacks upon similar proceedings see Duling Bros. Co. et al. v. City of Huntington et al., 1938, 120 W. Va. 85, 196 S.E. 552, and Smith v. City of Parkersburg et al., 1943, 125 W. Va. 415, 24 S.E.2d 588. For the reasons stated, the judgment is affirmed.