81 W. Va. 478 | W. Va. | 1918
As a candidate for the office of sheriff of Cabell county in
Two questions are certified to this court, pursuant to the provisions of the last paragraph of §1, ch. 135, Code — the sufficiency of the declaration challenged by demurrer, and of a special plea tendered by defendants and filed by the court over the protest and objection of the plaintiff. As the demurrer and objection, in effect raise the same issue, the determination of either one will dispose of the case finally here as now presented.
There is no necessity for reviewing or restating and applying the principles enunciated in Sutherland v. Miller, as no question is raised as to them. On the contrary, they are recognized as controlling upon the questions presented by the petition charging corrupt practices. The controversy requires the determination of a single inquiry, namely, whether a bond voluntarily executed, in conformity with the requirement of a statute subsequently adjudged tó be invalid as in contravention of the fundamental or organic law, can serve as the basis of an action to recover damages for the breach of the obligation. As a further limitation upon the scope and extent of the inquiry, it may be said that its solution depends not wholly upon the constitutional incompetency
The decisions cited on behalf of plaintiff recognize this distinction. For in Daniels v. Tearney, 102 U. S. 415, it was held that the obligors in a bond given under an unconstitutional law of the Confederate Government, which authorized an execution debtor to give such bond to suspend the sale of property until the operation of the law ceased, were estopped from asserting the unconstitutionality of the law. They availed themselves of its benefit's and must not be permitted to escape its responsibilities. The benefits which in that case effected an estoppel resulted from the deferred enforcement of the judgment, in consequence of the bond sanctioned by an act declared to be void because violative of the constitutional provision against the impairment of contracts.
The same qualification appears in Railroad Co. v. Vanderwarker, 19 W. Va. 265, a proceeding upon a motion to quash an execution upon a decree against the railroad, where the contention was that, as the,bond to supersede the decree pending an appeal was executed only in the name of the appellant’s attorney, without, surety and without the consent
Most of the cases cited by counsel and examined upon this investigation-point out this demarcation between liability and exemption, where the bonds were given under the authority of void legislative enactments, and none of them more elearly and logically than Stevenson v. Morgan, 67 Neb. 207. It matters not that some of these cases declined to relieve the oblig-ors from liability, because, as. found therein, they had derived some substantial benefit, advantage or protection from the instruments. In Stevenson v. Morgan, the principal obligor had continued temporarily in the possession, and enjoyment of the premises from which plaintiff sought to. oust him. While emphasizing the qualification of the rule of liability, other cases deny the right to a recovery upon bonds where no such emoluments or benefits accrued. 9 C. J. 28; 4 R. C. L. 55.
It is this point of divergence between the two classes of authority which should be kept constantly in mind in determining the results of the conflicting contentions of the parties to this controversy. For if none of the defendants, has received any, substantial aid, profit or advantage by or through the instrument it can not serve as the foundation of an action to recover the penalty. Wherein such beneficial results enured to them is not pointed out by counsel, and none is perceived. McCoy and his co-obligors have not. profited by the obligation they assumed. It did not in the least improve their condition or situation. The proceeding: instigated by them proved wholly abortive; and, when the act whose provisions they invoked broke down, the bond fell
There is no real merit in the objection urged against the right claimed by defendants to rely upon legislative incompetency to enact the section under which the petition was filed and the bond executed. This question, so far as anything appears to the contrary, may have been raised by the demurrer to the declaration — a method of procedure approved in Hoxie v. Railroad Co., 82 Conn. 352, and Adkins v. Richmond, 98 Va. 91, whether the obnoxious character of the act is pointed out specifically or not. Besides, the recitals of the bond itself and the averments of the special plea bring the case within the scope and purview of the act. Turpin v. Lemon, 187 U. S. 51; Food Co. v. Wright, 225 U. S. 540. Furthermore, it is evident the proceeding upon the petition terminated upon the theory that the act is void, a theory to which counsel address their arguments.
As the circuit court did not err in permitting the special plea to be filed, we approve its action, and remand the case.
Circuit court affirmed. Case remanded.