80 Va. 321 | Va. | 1885
delivered the opinion of the court.
This is a writ of error to an order of the circuit court of Chesterfield, entered 20th day of May, 1882, in a proceeding on appeal from the county court of Chesterfield, wherein L. L. Lester, executor of Wilkins Hall, deceased, was appellant, and the county of Chesterfield was appellee. The record presents the following case':
On the 18th December, 1878, L. L. Lester, as the executor of Wilkins Hall, deceased, presented for payment to the board of supervisors of Chesterfield county, a claim for $2,000, with interest from 9th of June, 1862, which he alleged to be due to him by virtue of a bond of the said county, which it was claimed the said county had issued in the year 1862, under the provisions of an act of the general assembly of Virginia, passed May 9th, 1862, and known as the “ Salt Act; ” which said bond it was claimed the said county had executed and delivered to the said Wilkins Hall in his lifetime. The board of supervisors of Chesterfield county, being of opinion that there is no liability on the county, by reason of the said asserted claim, rejected and refused to pay it: from which decision and action of the said board of supervisors, the said Lester, executor, &c., took an appeal to the county court of Chesterfield. In the said court the case was tried before a jury; who, after a great deal of evidence introduced, and sundry instructions given by the court, and argument of counsel, came into court and ren
This case has arisen under section 1 of an act of the general assembly of Virginia, passed May 9th, 1862, entitled “ an act to authorize the county courts to purchase and distribute salt amongst the people, and provide payment for the same; ” which said section is in the following words:
“ § 1. 13e it enacted by the general assembly, That the courts of the several counties of this commonwealth, when a majority of the acting justices of the county is present, or when the justices have been summoned to attend to act upon the matter, are hereby authorized and empowered to order the purchase, for the use of the people of said counties respectively, such quantities of salt as the said courts may deem necessary, and to provide for the payment of the same, by county levies, or by loans .negotiated upon the bonds of said counties, to be redeemed by county levies or otherwise.”
Numerous cases have arisen since the close of the late civil war, upon contracts entered into by the county courts of this commonwealth under the authority of this act; and the case of Dinwiddie County v. Stuart, Buchanan Co., 28 Gratt. 526, and the case of Pulaski County v. Stuart, Buchanan Co., 28 Gratt. 872, are directly and pointedly conclusive of the case under review. In the Dinwiddie case there was a bond of the county, under seal of the county court, and in legal form and effect.
In the Pulaski case, ('supra) the same Judge, Christian, said, for the court, “ 'While it is true that the county courts, which were clothed by the act of May, 1892, with the power to purchase and distribute salt, were courts of general jurisdiction, yet such power did not belong to it as a court of general jurisdiction, but was a special summary power, conferred by statute. It was a power purely ministerial, and was not exercised judicially, according to the course of the common law. * * Certainly the power to purchase salt, and bind the people of the several counties for its payment, was not judicial power, to be exercised according to the course of the common law. It was a special and extraordinary power, to be exercised ministerially and not judicially. It- was natural and proper, in the highest degree, that the legislature should throw around the exercise of this extraordinary power, by which the county courts
In the case before us, there is no pretence that all the justices had been summoned to attend the June term, 1862, of the county court of Chesterfield, “to act upon the matter” of ordering the purchase of salt for the use of the people of Chesterfield county, and to provide for the payment of the same by county levy, or by loans, to be negotiated upon the bonds of the said county, &c., as specifically provided in the statute known as the “ Salt Act” — already cited.
"But it is contended by the appellee here, (who was appellant in the circuit court,) that a majority of the acting justices was present, and constituting the county court of Chesterfield.
On the 9th day of June, 1862, when it was “ Ordered, That bonds of this county, to the amount of nine thousand dollars, hearing six per cent, interest from date, be issued for the purchase of salt, said bonds to be issued and signed as the bonds heretofore issued, and payable one year after date.”
At a court held for Chesterfield county, May 18th, 1861, the following order was made: “Be it ordered that the bonds proposed to be issued in the foregoing report, this day unanimously adopted by the court, shall be signed by the presiding justice, and countersigned by the clerk of the court, and to issue in such sums as the said officers may think advisable from time to
The clerk of the county court certifies that the records in his-office show that at the June term, 1862, of the said county court of Chesterfield county; there were twenty-four acting justices-of the said county. Of these, one, William B. Chalkley, had accepted a commission as postmaster, under the Confederate states government, and the county court instructed the jury, at the request of the plaintiff, (who is the appellee here,) that the said Chalkley could not be regarded as an “ acting justice.” Of' this the plaintiff could not complain, though the record shows that Chalkley continued to act as a justice of the county. This reduced the number of acting justices to twenty-three, and the plaintiff below claimed that the record showed that twelve were-present on the 9th of June, 1862, when the order was entered on which this asserted bond was based.
The record shows that the county court of Chesterfield county, at its session on the 9th of June, 1862, transacted a great amount and variety of business, and that during that day the composition of the court — both as to numbers and individuals — changed three times. It began with three justices, and transacted a great deal of business, and then the following-entry appears: “Present — Gentlemen Justices L. L. Lester, Healey Cole, W. Tucker, P. L. Jones, Y. Markham, P. G. Hancock, William B. Gates, H. B,. Graves and Edward Williams.”'
“ Ordered, That James H. Cox and Alex. Sims be and they are hereby appointed commissioners to obtain from the salt works, in Washington county, the proportion of salt which the law authorized them to furnish this county; and that having obtained the same, they are further authorized to select a place or places for deposit, and by advertisement notify the public of the place or places for distribution.
“Ordered, That Alex. Sims, having given bond as the law
“ Ordered, That bonds of this county, to the amount of nine thousand dollars, bearing six per cent, interest from date, be issued for the purchase of salt; said bonds to be issued and signed as the bonds heretofore issued, and payable one year after date.”
This record affirmatively shows that the court was composed of the nine justices who are recorded by the clerk as being “Present;” and, upon the legal and logical maxim, “ expressio unius, est exclusio alterius” it not only fails to show that any others than those named were present, but it excludes the inference.
Nevertheless, it is claimed by the appellant that it is to be presumed, that the three justices who are recorded as being “present ” at the opening of the court on the 9th of June, 1862, were likewise present, at the reorganization of the court, to take action under the “ Salt Act.” This, it seems, is a violent presumption in the teeth of the record of those who were “ Present,” and of the fact, shown by the record, that the court was organized four different times on the 9th of June, 1862, according to the requirements of the large and varied business of the court on that day. But we have already quoted from the opinion of this court, in the case of Dinwiddie County v. Stuart, Buchanan & Co., and repeated in the case of Pulaski County v. Stuart, Buchanan & Co., that no presumption can come in aid of the record of the court, acting under the special summary jurisdiction conferred by the statute; “that to give validity to such action of the county court, the conditions prescribed by the statute must be complied with, and it must so appear upon the record. The facts essential to give the court jurisdiction, must appear affirmatively, and no presumption of jurisdiction toill attend the judgment.”
The plaintiff below contended, and attempted to show, that there were only seventeen “acting justices” in the county of Chesterfield on the 9th of June, 1862. To do this, he at
This case was tried in the county court,, by a jury, upon an issue made up by petition and answer, which expressly denied the execution and delivery of the bond as the obligation of the county, and denied the alleged loan to the county of the money asserted as the consideration of the bond. There was a great mass of testimony — much of it conflicting, ■ and much of it tending to show that the bond asserted never was executed and issued by the county of Chesterfield, and the money had never been loaned to the county; and that if so, it had been
There being no day of payment named in the bond, it is (as the appellee claims) payable on demand, with interest from June 9th, 1862: yet the order of June 9th, 1862, under which it is claimed it was issued, expressly provides that the bonds to be issued' under its provisions, shall be made payable one year after date. This bond is, therefore, not a good execution of the power conferred by the order, was issued (if at all ?) without authority; and no recovery can be had on it as a bond. Story on Agency, 63-73; Dinwiddle County v. Stuart, Buchanan & Co., and Pulaski County v. Same; supra. Batty v. Carswell, 2 Johnson’s L. Reports, p. 48: Tate Hopkins v. Evans, 7th Missouri, 419. In Batty v. Carswell, supra., the authority was to execute a note for $260, payable in six months; the agent gave the note payable in sixty days. The court held that the prin
But, for the reasons set forth at length, we are of opinion that the circuit court erred in disturbing the verdict of the jury and reversing the judgment of the county court, and that the judgment of the county court must be affirmed, and that of the circuit court reversed and annulled.
JUDGMENT REVERSED.