Purcell v. Conrad, 84 Va. 557

84 Va. 557 | Va. | 1888

Lewis, P.,

delivered the opinion of the court.

The case, as presented by the pleadings, lies within a narrow' compass, and may be briefly disposed of. The decree appealed from is sought to be sustained on two grounds. The first is that the act, approved August 27, 1884, under which the defendants—the appellants here—claim, is unconstitutional and void, because it impairs the vested rights of the complainant under the sixth section of the act, approved March 4, 1884, entitled “ an act for the preservation of oysters,” etc. Acts 1883-84, p. 225, § 6; Acts (extra session) 1884, p. 37, § 6.

The answer, however, to this objection is, that the right to revoke the privileges accorded under and by virtue of the sixth section of the act last mentioned, is expressly reserved in the act by the legislature, and that the act first above mentioned, so far as it is novr complained of, is merely the exercise of the right so reserved. The rights or privileges of the complainant, which by the bill are sought to be protected, were therefore acquired subject to the exercise by the legislature of this reserved right, and consequently the objection above mentioned cannot be sustained. This is an elementary principle, in support of which the citation of authority is unnecessary.

It is, however, contended, in the second place, that the act of March 4, 1884, is unwarranted by the constitution, because it deprived the appellee of his rights of property without due process of lawr and without just compensation. The ground of this contention, as stated in the briefs of counsel, is, that the appellee, by virtue of his rights as a riparian owner, has the exclusive right to the oyster grounds opposite his land for the purpose of planting and propagating oysters, and that any act of the legislature which arbitrarily deprives him of this right, in whole or in part, is void. But, manifestly, all this is beside the present case, and cannot be considered on this appeal for two reasons: Hirst, because no such question is raised in the pleadings; and, secondly, because the appellee, having availed- himself of the benefit of the statute, and in Ms bill claiming under it, is estopped in this litigation from contesting its validity, whether it be constitutional or not.

In Daniels v. Tearney, 102 U. S., 415, Mr. Justice Swayne, in delivering the unanimous opinion of the court, said: “ It is well settled as a general proposition, subject to certain exceptions not necessary to be here noted, that where a party has availed himself for his benefit of an unconstitutional law, he cannot, in a subsequent litigation with others not in that position, aver its unconstitutionality as a defence, although such unconstitutionality may have been pronounced by a competent judicial tribunal in another suit. In such cases the principle of estoppal applies with full force and conclusive effect;” citing Ferguson v. Landram, 5 Bush (Ky.), 230; 1 Id., 548; Van Hook v. Whitlock, 26 Wend., 43; Lee v. Tillotson, 24 Id., 337; People v. Murray, 5 Hill (N. Y.), 468; City of Burlington v. Gilbert, 31 Iowa, 356; B. C. R. & M. R. R. Co. v. Stewart, 39 Id., 267. See also Cooley Const. Lim., marg. p. 181; Roanoke City v. Berkowitz, 80 Va., 616, 623.

We do not mean, however, to be understood, as expressing any opinion as to the constitutionality of the act of March 4, 1884, for no such question, as we have said, is presented for determination on this appeal. The decree must, therefore, be reversed, and the bill dismissed.

Decrees reversed.