86 Va. 158 | Va. | 1889
after stating the case, delivered the opinion of the court.
The defendants in error have moved to dismiss the writ of error as improvidently awarded, because, they say, the amount involved is less than $500, and therefore that the case is not within the jurisdiction of this court. It is true the amount involved is less than $500, but inasmuch as there is drawn in question a franchise—i. e., the right of the board, as the representatives of the county, t'o levy a tax to pay the claim in question—the court has jurisdiction of the case, and of the -whole
The further objection that the case cannot be considered on its merits, because no exceptions were taken to the action of the county court awarding a mandamus, is also without merit. The ease was presented to the county court upon the pleadings and the exhibits therewith filed, and as it was presented there the record presents it here, the exhibits being, in effect, a part of the pleadings. Wright v. Smith, 81 Va., 777.
As to the merits, the principal point made by the defendants in error is, that the. allowance of the claim by the hoard on the 14th of December, 1871, was in its nature and effect an adjudication of the merits of the claim, which it was not competent for the board, at a subsequent meeting, to reverse or ignore. But we do not concur in this view. The powers and duties of a hoard of supervisors in Virginia are not judicial in their character, but are wholly executive or administrative. If it allows a claim not properly and legally chargeable on the county, or which it has not authority to allow, it exceeds its power, and its act is not binding on the county. Its allowance of a claim has no more effect than a settlement between individuals, and a warrant to pay a claim which has been allowed is nothing more than an order upon the county itself, the debtor. That the allowance of a claim by a board of supervisors does not partake of the nature of a judgment which will estop the county, has been decided in many states and in numerous cases.
In a recent case in the supreme court of Uorth Carolina, it was held that an allowance of a claim by a county board of commissioners is not final and conclusive, and may be re-examined by the board itself, and that it was error to instruct the jury that the allowance of a claim by the board was an adjudication as binding as the judgment of a court. Abernathy v. Phifer, 84 N. C., 711.
So in Gurnee v. Brunswick county, 1 Hughes, 270, Chief Jus
To the same effect is the opinion of Judge Dillon in Shirk v. Pulaski County, 4 Dill., 209, who cited the following authorities in support of his ruling that the allowance of a claim by a board of supervisors is not an adjudication, which will estop the county from setting up a defence to the claim when subsequently sued upon it, viz: Webster County v. Taylor, 19 Iowa, 117; Clark v. DesMoines, Id., 199; Clark v. Polk County, Id., 248; School District v. Lombard, 2 Dill., 493; Keller v. Leavenworth County, 6 Kan., 510; Goodnow v. Ramsey County, 11 Minn., 31; 1 Dill. Mun. Corp., sec. 412; The Mayor of Nashville v. Ray, 19 Wall., 468. See, also, High, Extr. Rem., sec. 354.
We have no doubt, therefore, that where, as in the present ease, a board of supervisors is sought to be compelled by mandamus to make provision for the payment of a claim previously allowed, it is competent for the defendants, in answer to the application for the writ, to set up the invalidity of the claim originally, or to plead the statute of limitations, or both.
Uor does mandamus lie to compel a board of supervisors to levy a tax for the payment of a claim which it has no authority to pay, even though the claim may have passed into judgment. In such a case there is no estoppel by the judgment, and a fortiori there is none Avhere the claim is of a class, payment of which, is prohibited by laAv. The writ lies to compel that to be done AA'hich it is the defendant’s duty to do without it,
In the present case, while the exact period during which the services were rendered for which claim is made, does not appear, the fair inference from the record is that at least a part of the service was rendered under the appointment of the 4th of November, 1863, and subsequent orders of the county court, directing distribution of salt to be made among those citizens only who were loyal to the Confederate government. It is unnecessary, however, to decide the constitutional question raised in this connection by the respondents, because the claim is barred by the statute of limitations, and that is decisive of the case. A proceeding like the present, is in the nature of an action to recover money founded upon a contract not under seal, and, therefore, as the petition for the writ was not filed within five years after the date of the order of the board first allowing the claim, in December, 1871, the statute applies. The order of the 4th of August, 1887, which was rescinded the same- day, does not affect the case. The allowance of the claim, so far as the question before us is concerned, had no more force and efiect, as already said, than an ordinary settlement between individuals. It was not an adjudication; it was merely the recognition of the liability of the county upon a contract to pay money not under seal, and as to which the doctrine of res judicata has no application.
The judgment of the circuit' court must, therefore, be reversed, and this court proceeding to render such judgment as the said circuit court ought to have rendered, the order of the county court, awarding the writ, will also be reversed and annulled, and the petition dismissed.
Judgment reversed.
