Gibney v. Crawford

• Decision Date: 20 October 1888
• Citation: 9 S.W. 309
• Parties: GIBNEY, Collector, <I>v.</I> CRAWFORD <I>et al.</I>
• Court: Arkansas Supreme Court

9 S.W. 309

GIBNEY, Collector,v.

CRAWFORD et al.

Supreme Court of Arkansas.

October 20, 1888.

Appeal from circuit court, Clark county; H. G. BUNN, Special Judge.

J. L. Witherspoon, for appellant. Crawford & Crawford, for appellees.

BATTLE, J.

The county court of Clark county made an order calling in certain outstanding county warrants for canceling or reissue, and fixing the time for the presentation of the same. After the time fixed had passed, appellees tendered warrants, which had been called in, but had not been presented, to the collector, in payment of the tax assessed against their property for county purposes for the year 1885, and he refused to receive them. They then applied to the Clark circuit court for a mandamus to compel him to do so, which was granted, and the collector appealed. The record of the orders made by the Clark county court fails to show that any notice of the calling in of the warrants was given. No return in writing of the sheriff, showing that he had given notice to the holders of the warrants called in to present the same to the county court, could be found or produced. Two affidavits were on file. One of them, with a copy of the order calling in the warrants attached, was in the words and figures following, to-wit:

"State of Arkansas, County of Clark: Personally appeared before me, Adam Clark, one of the publishers of the Southern Standard, a newspaper published at Arkadelphia, Clark county, Arkansas, who, being duly sworn, deposes and says that the advertisement hereto attached was published in said newspaper for (2) two consecutive weeks prior to the January term, 1881, county court of said county, according to law, and that the fee therefor, _____ dollars, had been paid, the receipt of which is hereby acknowledged.

                                            "ADAM CLARK, Proprietor of Southern Standard
                

"Sworn to and subscribed before me this 3d day of Jan'y, 1881.

                [Seal.]                                 "A. M. CROW, Notary Public."
                

The other was made by Dean Adams, and is like the one made by Clark, except it stated that the order was published in the Arkansas Gazette, and the dates of publication, the last being 30 days before the day fixed for the presenting of warrants. Thomas Sloan testified that he was deputy-sheriff when the order was made; that he put up copies of the same at some of the election precincts in Clark county; and that the sheriff, who is dead, presented an account to the county court, in which he charged Clark county with $24 for giving notice that county warrants had been called in. This was all the evidence of notice adduced at the hearing of the application for mandamus.

The only question presented for our consideration is, were the holders of the county warrants tendered to the collector debarred from receiving any benefit from them by their failure or neglect to present them as required by the order of the county court? There is no question as to their genuineness or validity, or the duty of the collector to receive them in payment of taxes, if they were not barred by such order. As a general rule, the proceedings of a superior court, with respect to jurisdictional facts about which the record is silent, are presumed to be within the scope of its jurisdiction, until the contrary is shown. But this rule does not apply to proceedings had under special statutory authority. As said by the supreme court of New Hampshire "A court of general jurisdiction may have special and summary powers, wholly derived from statutes, not exercised according to the course of the common law, and which do not belong to it as a court of general jurisdiction. In such cases its decisions must be regarded and treated like those of courts of limited and special jurisdiction. The jurisdiction in such cases, both as to the subject-matter and as to the persons to be affected by it, must appear; * * * and everything will be presumed to be without the jurisdiction; which does not distinctly appear to be within it." In other words, the jurisdiction of the court in such cases must be shown affirmatively, to confer validity on its acts, and, unless it is shown, its whole proceedings will be invalid, and may be treated as a nullity when called in question in a collateral controversy. Galpin v. Page, 18 Wall. 350; Morse v. Presby, 5 Fost. (N. H.) 302; Lusk v. Perkins, 48 Ark. 238, 2 S. W. Rep. 847; 1 Smith, Lead. Cas. (8th Ed.) pt. II, 1105, 1127; Freem. Judgm. §§ 123, 127; Thatcher v. Powell, 6 Wheat. 119; Christie v. Unwin, 3 Perry & D. 208. In this case the Clark county court undertook to act under a special statutory authority. The power it undertook to exercise was wholly derived from the statute. It was special and summary, and is not exercised according to the course of the common law. The statutes under which the order calling in the warrants was made...