1877. July Term. Pulaski Co V. Stuart, Buchanan & Co. 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 Pu 1877. July Term. laski, 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 Stuart, 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 can not 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 Pulaski Co V. Buchanan & Co. 1877. July Term. Pulaski Co V. Buchanan case does not therefore come within the doctrine deBallard & als. v. Thomas & Here the jurisdiction was statute, and must be exer clared by this court in Stuart, cised in accordance with the provisions of the statute; & Co. 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 question of the constitutionality of the act, we have gladly permitted them to argue this point, as if no decision had ever been made by this court in respect to it. And with an anxious desire to correct our judgment (if wrong) on this point, we have carefully considered their argument and the authorities upon which it was based, as well as all others at our command, and our conclusion is, that both upon principle and authority the doctrines declared in the Dinwiddie case on this point are sound and true, and established by the decisions of the supreme court of the United States, as well as by the well considered decisions of the state courts. It was argued by the learned counsel for the appellee that the case of Ballard & als. v. Thomas & Ammon, 19 Gratt. 14, was in opposition to the opinion of the court in the "Dinwiddie case;" and that to affirm the 1877. July Term. Pulaski Co v. Buchanan & Co. Dinwiddie case would be to overrule the former case. These cases are perfectly consistent, and can well stand together. In the Dinwiddie case, the court distinguished that case from that of Ballard & als. v. Thomas & Ammon. The distinction is plain. In the Stuart, Dinwiddie case, and in this case, the action of the county court was purely ministerial and not judicial. In the case of Ballard & als. v. Thomas & Ammon, the action of the court was judicial. Judge Joynes recognizes this distinction, and founds his opinion upon the ground that laying the county levy was a judicial He said (page 22): "For while in the assessment of the tax the county court exercised power which does not come within the ordinary scope of judicial power, yet in the adjudication of the debts chargeable upon the county, on which rests the right of the creditor to proceed against the sheriff and his securities, the court exercises a power which is purely judicial in its nature, though it is not exercised in the usual form of judicial proceedings. The action of the court, in the exercise of such a power, cannot be questioned in a collateral proceeding." * * * * * In Harvey v. Tyler, 2 Wall. U. S. R. 328, 342, the supreme court of the United States uses the following language: "The jurisdiction which is now exercised by the common law courts in this country is, in a very large proportion, dependent upon special statutes conferring it. In all cases where the new powers thus conferred are to be brought into action in the usual form of common law and chancery proceedings, we apprehend there can be little doubt that the same presumptions as to the jurisdiction of the court and the conclusiveness of its action will be made as in cases falling more strictly within the usual powers of the court. On the other hand, powers may 1877. be conferred on the court and duties required of it, to July Term. be exercised in a special and often summary manner, in which the order or judgment of the court can only be Pulaski Co supported by a record which shows that it had juris Stuart, diction of the case." Buchanan & Co. In the case of Galpin v. Page, 18 Wall. U. S. R. 350, 370, Mr. Justice Field, in an able and exhaustive opinion in which he reviews many authorities, says, in noticing the argument of counsel in that case: "This reasoning would abolish the distinction in the presumptions of law when applied to the proceedings of a court of general jurisdiction acting within the scope of its general powers, and when applied to its proceedings had under special statutory authority. And, indeed, it is contended that there is no substantial ground for any distinction in such cases. The distinction, nevertheless, has long been made by courts of the highest character both in this country and in England and we had supposed its existence was not open to discussion." "However high the authority to whom a special statutory power is delegated," says Mr. Justice Coleridge, of the Queen's Bench, "we must take care that in the exercise of it the facts giving jurisdiction plainly appear and that the terms of the statute are complied with.” In Morse v. Presly, 5 Foster R. 299, referred to by Mr. Justice Field, the supreme court of New Hampshire said: "A court of general jurisdiction may have special and summary powers wholly derived from statutes, not exercised according to the course of the common law, and which do not belong to it as a court of general jurisdiction. In such cases its decisions must be regarded and treated like those of courts of limited and special jurisdiction. The jurisdiction in such cases, both as to the subject matter of the judg |