Pulaski County v. Stuart

• Decision Date: 16 August 1877
• Court: Virginia Supreme Court
• Parties: PULASKI COUNTY v. STUART, BUCHANAN & CO.

69 Va. 872

PULASKI COUNTY v. STUART, BUCHANAN & CO.

Supreme Court of Appeals of Virginia.

August 16, 1877

Absent, Anderson, J.

1. The state government of Virginia, which existed at Richmond during the war, and the Confederate government, of which it formed a part, were at least governments de facto, and contracts arising thereunder are valid, and will be enforced unless prohibited by the constitution of the state. (Acc. Dinwiddie Co. v. Stuart, B. & Co. supra 526.)

2. A contract made under the act of May 9th, 1862, to furnish salt to a county, does not come within the prohibition of the constitution, and must be enforced. (Acc. Din. Co. v Stuart, B. & Co., supra 526.)

3. Where a court of general jurisdiction acts within the scope of the general powers, its judgment will be presumed to be in accordance with its jurisdiction, and cannot be collaterally impeached.

4. Where a court of general jurisdiction has conferred upon it special powers by special statute, and such special powers are exercised judicially, its judgment cannot be collaterally impeached.

5. Where a court of general jurisdiction has conferred upon it special powers by special statutes, which are only exercised ministerially, and not judicially, no presumption of jurisdiction will attend its judgments, and the facts essential to the exercise of the special jurisdiction must appear on the face of the record.

On the 14th day of August, 1874, Stuart, Buchanan & Co. presented to the board of supervisors of Pulaski county, a claim for salt furnished to the county in 1862. This claim was rejected by the board of supervisors; and Stuart Buchanan & Co. thereupon took an appeal to the county court. Upon the hearing of the case in the county court, that court reversed the decision of the board of supervisors, and rendered a judgment in favor of Stuart, Buchanan & Co. for the sum of $650, with interest from the 1st of January, 1866. From this judgment the county appealed to the circuit court, where it was affirmed; and the county then applied to a judge of this court for a supersedeas; which was awarded.

It appears that at its June term 1862, the county court of Pulaski made an order appointing John B. Baskerville the agent of the county to contract with the proprietors of the salt works, in Smythe county, for such quantity of salt as the proprietors may be willing to permit, for the use of the citizens of the county, not to exceed twelve thousand bushels. Under this authority Baskerville contracted with Stuart, Buchanan & Co. for twenty-two hundred bushels of salt, at the price of one dollar per bushel, or $3.50 for the ordinary sacks of salt put up by them. Under this contract Stuart, Buchanan & Co. delivered two hundred sacks, or six hundred bushels. And in payment for it Baskerville delivered three bonds of the county of Pulaski. It does not appear that when the order was made appointing Baskerville the agent to buy the salt, a majority of the acting justices of the county were present, or that they had been summoned to attend; nor is there any order of the county court authorizing the issue of the bonds. They profess to be issued on behalf of the county, by " William J. Wall, a member of the finance committee," and are signed by him in his own name with F. C. annexed, and made payable to John B. Baskerville; who assigns them to Stuart, Buchanan & Co. " Countersigned by Lynch A. Currin, clerk of the county court of Pulaski county."

Pollock and Larue, for the appellant.

Pierce, Walker and Baskerville, for the appellees.

CHRISTIAN J.

This is one of the numerous cases which have arisen since the close of the late civil war, upon contracts entered into by the county courts of this commonwealth under the act passed March 9th, 1862, " authorizing the county courts to purchase and distribute salt amongst the people, and provide payment for the same."

The main question which arose in the other cases, to wit, that said act was void, because contrary to that provision of the constitution (article 10, section 10) which declares that " no county, city or corporation, shall levy or collect any tax for the payment of any debt contracted for the purpose of aiding any rebellion against this state or the United States," need not be further considered in this case, as it has been definitively settled by the decision of this court in the case of Dinwiddie County v. Stuart, Buchanan & Co., decided at the last Richmond term, and not yet reported. Supra 526. In that case it was held that said act was not in violation of said provision of the constitution, and that all contracts made in pursuance of its provisions were valid and could now be enforced against the counties. Upon this point, therefore, the decision in that case is conclusive of this.

In the case before us there are several other errors assigned to the judgment of the circuit court. It is necessary to notice only one, as the decision of the question therein raised will be conclusive of this case. That assignment of error is, that the circuit court erred in giving judgment against the county of Pulaski, because the record of the county court did not show that when the purchase of salt was ordered by said court " a majority of the justices of said county were present, or that the justices had been summoned to attend to act upon the matter," as provided by the first section of the act of May 9th, 1862.

This same question was raised incidentally in the Dinwiddie case ( supra ). In that case, the judge delivering the opinion of the majority (and in this part of the opinion the whole court it is understood concurred) said: " I am further of opinion that the paper exhibited in the record as the bond of the county of Dinwiddie is invalid as a bond. Such invalidity, however, does not arise from any want of legal form. In form and legal effect it is a bond. It is an obligation on the part of the county of Dinwiddie to pay a sum certain to Stuart, Buchanan & Co., it is sealed with the seal of the court; the seal is acknowledged in the body of the instrument as follows: " Being a bond created by order of the county court of Dinwiddie, made, & c., in pursuance of an act of the general assembly of Virginia," & c. This is equivalent to saying, " being an instrument under seal," and is a sufficient recognition of the seal in the body of the instrument. But this paper is invalid as a bond of the county, because it does not appear in the record that at the court at which it had been executed the justices had all been summoned, or that a majority were present; indeed, it appears that only three justices were present. It cannot be presumed in a case like this that the justices had been summoned. This ought to appear affirmatively, and the record should show that a majority were present. The court was acting upon a matter of special jurisdiction, conferred by a special statute, and upon a matter outside of its general jurisdiction. The case does not therefore come within the doctrine declared by this court in Ballard & als. v. Thomas & Ammon, 19 Gratt. 14. Here the jurisdiction was special, fixed by a special statute, and must be exercised in accordance with the provisions of the statute; that is, either when the justices had all been summoned, or when a majority were present. The proceeding in this case (the execution of a bond) not being a judicial proceeding, within its ordinary jurisdiction, must be shown affirmatively to be strictly within the provisions of the statute within which the proceeding was had."

The principles thus declared in the Dinwiddie case would seem to be conclusive of the case before us. But as it was urged by the able counsel for the appellees here that the question arose only incidentally in the Dinwiddie case, and that the attention of the court in that case was directed mainly to the great...