GreeN, Judge,
announced the opinion of the Court:
The merits of the controversy in this case are involved in the question, whether the ordinances of the supervisors of Wetzel county promised to pay to each volunteer in the United States army, who should be credited to the quota required of that county, the sum of $350.00. This question resolves itself into two distinct and independent enquiries, first, whether such promise can be deduced from a fair construction of the language of these ordinances, and secondly, had the supervisors of the county legal authority to make such promise.% This authority is claimed for them under the act of the Legislature of West Virginia, passed February 6, 1864. See Session Acts of 1864, chapter 6, page 5. But on the other hand it is contended, that this act conferred no such authority, because it was unconstitutional and void.
It is obvious, that the first ordinance cannot be construed as making such a promise to such recruits. It simply provided, that bonds to the amount of $40,000.00 should be issued by the county to be negotiated by certain persons, and out of the moneys so raised they were to pay in cash to each of such recruits such an amount, as by a contract with such recruit these persons on behalf of the county might agree to pay. These persons were not authorized to make any contract with such recruits for any money to be paid them at a future day; and under this first ordinance it is clear, that the county could not incur any responsibility in the future to any recruit. The language of this ordinance was, that the committee was “ to negotiate the loan and pay to such recruit, as may be duly accredited to Wetzel county under said call, the amount that may be agreed upon by said committee, or either of them, and the recruit so accredited.” '
The second ordinance did not repeal the first ordinance. It simply amended it. The only alteration made in this provis[638]*638ion of the first ordinance was, first, to take from the committee the authority to fix with any recruit the amount to be paid him in cash for his services, and instead thereof the supervisors themselves fixed the amount in cash, which the committee was authorized to pay to each recruit, at $350.00. Secondly, it authorized the committee to pay this amount in cash out of the monies in their hands arising from the sale of the county bonds, or to pay it to the recruit in three of these county bonds of $116.66-| each. There was no authority conferred on the committee to promise on behalf of the county to pay them anything in the future. The ordinance did not authorize the committee to make any contract with the recruits, but simply authorized $350.00 in cash or in county-bonds to be paid to each of the recruits by the committee. If any such contract or promise was made by the committee it was unauthorized and imposed no obligation on the county. It is true, that this second ordinance does say: “each recruit credited to Wetzel county under said call is to be allowed $350.00.” But the ordinance goes on to provide expressly how it is to be allowed, that is, by payment in cash, as provided in the previous ordinance unaltered in this respect or by giving to each recruit three bonds of Wetzel county, amounting in all to $350.00. It seems to me clear, that under these ordinances no obligation could be imposed on the county of Wetzel to pay anything to any recruit, unless under them he became the holder of bonds of the county.
The object of the supervisors in withholding, as they did, from his committee any power to bind the county to pay to any recruit, who did not hold these county bonds, anything for their services seems to have been to avoid all controversies and disputes with their recruits and to prevent demands being made on the county for any sum exceeding the $40,-000.00, which they were willing to appropriate for this purpose. This was obviously a prudent course on their part. They wisely declined to make any promise to pay anything in the future to any recruit, but directed the committee to deal with him for cash only or its equivalent, the county bonds. The case of Childers et al. v. The Supervisors of Jackson County, decided by this Court on March 2, 1874, but not reported, illustrates the wisdom of the supervisors of Wetzel [639]*639county in the course pursued by ■ them. That case shows, that in that county the board by ordinance agreed to pay the sum of $100.00 bounty to each accepted volunteer in the service of the United States for three years or during the war for enough men to fill up the quota of Jackson county under the late call of the President of the United States. The result was, as the answer of the supervisors in that case shows, that while they deemed that only twenty-two men were needed, when the ordinance passed, to fill up the quota of Jackson county, more than one hundred recruits afterwards set up claims to be paid $100.00 each under this order ■ and the county actually paid a much larger number than the twenty-two besides getting into disagreeable and expensive litigation. .
The second enquiry, whether the board of supervisors of Wetzel county had any authority to contract with any recruit to pay him anything on behalf of the county, is unnecessary under the views we have expressed in order to a determina-nafcion of the controversy in this case. As the answer to this enquiry depends on the question, whether chapter 6 of the Acts of 1864, page 5, was unconstitutional, so far as it authorized “ the supervisors of the several counties of the State from time to time during the war to borrow money in their corporate names for the payment of bounties- to soldiers,” it is better for us in this case not to consider or decide this question. See Hoover v. Wood, 9 Ind. 287. It is more proper to decide this constitutional question when its decision becomes necessary in order to decide some case. See ex parte Randolph, 2 Brock. 447 ; Frees v. Ford, 6 N. Y. 177; Mobile and Ohio Railroad Co. v. State, 29 Ala. 573.
The views we have expresed show, that the plaintiff in this case cannot sustain his action, and it will therefore save trouble and expense to all parties, if the judgment of the circuit court can be affirmed by this Court without remanding the case for further proceedings, asitis obvious, that no change in the pleadings or evidence, which can take place, will give the plaintiff a right to recover in this action ; and therefore this case should not be remanded, unless the record as now presented is so defective and contains such errors, as necessitates a reversal of the judgment of the court below and' a remanding of the case for further proceedings.
[640]*640The first error claimed by counsel of the plaintiff in error was the sustaining by the court below of the demurrer to the last or special count in the declaration. That count states, that by the second ordinance of the supervisors of Wetzel county they agreed to allow to each recruit credited to Wet-zel county $350.00, omitting to state what, we have seen, was a material qualification of this language, that said $350.00 to be allowed was to be paid in cash or in county-bonds. If this special count had been replied to generally instead of being demurred to, the court would properly have refused to permit these ordinances being offered in evidence to the jury, as they were materially different from the ordinances described in this count of the declaration.
Free access — add to your briefcase to read the full text and ask questions with AI
GreeN, Judge,
announced the opinion of the Court:
The merits of the controversy in this case are involved in the question, whether the ordinances of the supervisors of Wetzel county promised to pay to each volunteer in the United States army, who should be credited to the quota required of that county, the sum of $350.00. This question resolves itself into two distinct and independent enquiries, first, whether such promise can be deduced from a fair construction of the language of these ordinances, and secondly, had the supervisors of the county legal authority to make such promise.% This authority is claimed for them under the act of the Legislature of West Virginia, passed February 6, 1864. See Session Acts of 1864, chapter 6, page 5. But on the other hand it is contended, that this act conferred no such authority, because it was unconstitutional and void.
It is obvious, that the first ordinance cannot be construed as making such a promise to such recruits. It simply provided, that bonds to the amount of $40,000.00 should be issued by the county to be negotiated by certain persons, and out of the moneys so raised they were to pay in cash to each of such recruits such an amount, as by a contract with such recruit these persons on behalf of the county might agree to pay. These persons were not authorized to make any contract with such recruits for any money to be paid them at a future day; and under this first ordinance it is clear, that the county could not incur any responsibility in the future to any recruit. The language of this ordinance was, that the committee was “ to negotiate the loan and pay to such recruit, as may be duly accredited to Wetzel county under said call, the amount that may be agreed upon by said committee, or either of them, and the recruit so accredited.” '
The second ordinance did not repeal the first ordinance. It simply amended it. The only alteration made in this provis[638]*638ion of the first ordinance was, first, to take from the committee the authority to fix with any recruit the amount to be paid him in cash for his services, and instead thereof the supervisors themselves fixed the amount in cash, which the committee was authorized to pay to each recruit, at $350.00. Secondly, it authorized the committee to pay this amount in cash out of the monies in their hands arising from the sale of the county bonds, or to pay it to the recruit in three of these county bonds of $116.66-| each. There was no authority conferred on the committee to promise on behalf of the county to pay them anything in the future. The ordinance did not authorize the committee to make any contract with the recruits, but simply authorized $350.00 in cash or in county-bonds to be paid to each of the recruits by the committee. If any such contract or promise was made by the committee it was unauthorized and imposed no obligation on the county. It is true, that this second ordinance does say: “each recruit credited to Wetzel county under said call is to be allowed $350.00.” But the ordinance goes on to provide expressly how it is to be allowed, that is, by payment in cash, as provided in the previous ordinance unaltered in this respect or by giving to each recruit three bonds of Wetzel county, amounting in all to $350.00. It seems to me clear, that under these ordinances no obligation could be imposed on the county of Wetzel to pay anything to any recruit, unless under them he became the holder of bonds of the county.
The object of the supervisors in withholding, as they did, from his committee any power to bind the county to pay to any recruit, who did not hold these county bonds, anything for their services seems to have been to avoid all controversies and disputes with their recruits and to prevent demands being made on the county for any sum exceeding the $40,-000.00, which they were willing to appropriate for this purpose. This was obviously a prudent course on their part. They wisely declined to make any promise to pay anything in the future to any recruit, but directed the committee to deal with him for cash only or its equivalent, the county bonds. The case of Childers et al. v. The Supervisors of Jackson County, decided by this Court on March 2, 1874, but not reported, illustrates the wisdom of the supervisors of Wetzel [639]*639county in the course pursued by ■ them. That case shows, that in that county the board by ordinance agreed to pay the sum of $100.00 bounty to each accepted volunteer in the service of the United States for three years or during the war for enough men to fill up the quota of Jackson county under the late call of the President of the United States. The result was, as the answer of the supervisors in that case shows, that while they deemed that only twenty-two men were needed, when the ordinance passed, to fill up the quota of Jackson county, more than one hundred recruits afterwards set up claims to be paid $100.00 each under this order ■ and the county actually paid a much larger number than the twenty-two besides getting into disagreeable and expensive litigation. .
The second enquiry, whether the board of supervisors of Wetzel county had any authority to contract with any recruit to pay him anything on behalf of the county, is unnecessary under the views we have expressed in order to a determina-nafcion of the controversy in this case. As the answer to this enquiry depends on the question, whether chapter 6 of the Acts of 1864, page 5, was unconstitutional, so far as it authorized “ the supervisors of the several counties of the State from time to time during the war to borrow money in their corporate names for the payment of bounties- to soldiers,” it is better for us in this case not to consider or decide this question. See Hoover v. Wood, 9 Ind. 287. It is more proper to decide this constitutional question when its decision becomes necessary in order to decide some case. See ex parte Randolph, 2 Brock. 447 ; Frees v. Ford, 6 N. Y. 177; Mobile and Ohio Railroad Co. v. State, 29 Ala. 573.
The views we have expresed show, that the plaintiff in this case cannot sustain his action, and it will therefore save trouble and expense to all parties, if the judgment of the circuit court can be affirmed by this Court without remanding the case for further proceedings, asitis obvious, that no change in the pleadings or evidence, which can take place, will give the plaintiff a right to recover in this action ; and therefore this case should not be remanded, unless the record as now presented is so defective and contains such errors, as necessitates a reversal of the judgment of the court below and' a remanding of the case for further proceedings.
[640]*640The first error claimed by counsel of the plaintiff in error was the sustaining by the court below of the demurrer to the last or special count in the declaration. That count states, that by the second ordinance of the supervisors of Wetzel county they agreed to allow to each recruit credited to Wet-zel county $350.00, omitting to state what, we have seen, was a material qualification of this language, that said $350.00 to be allowed was to be paid in cash or in county-bonds. If this special count had been replied to generally instead of being demurred to, the court would properly have refused to permit these ordinances being offered in evidence to the jury, as they were materially different from the ordinances described in this count of the declaration. But described as they were in the declaration, if we were to regard this chapter 6 of Acts of 1864, page 5, .as constitutional, and waive certain supposed errors in the framing of this special count, the court below might have overruled the demurrer to it. And if we were to admit, that it erred in sustaining this demurrer, we would have further to enquire, before we reversed the case for this error, whether the plaintiff could have been injured by this error; for if not prejudicial to him, this Court would not reverse the case because of such error.
In considering whether the plaintiff could have been injured by the action of the court below sustaining the demurrer to this special count we observe, first, that the inserting of this special count in the declaration was in no manner necessary to enable the plaintiff to insist upon and prove the case stated in this special count. The rule being, that if the agreement has been completely performed by the party, who was to render the service, and there was nothing special in the contract in relation to the time or manner of payment, or the credit, if any, has expired, there is then a duty on the other party to pay the stipulated price, for which a general indebi-tatus assumpsit will lie. Caruthers, &c. v. Graham, 14 East. 578; Ladue v. Seymour, 24 Wend. 63. Wherever the plain-tifif has done everything, which was to be executed on his part, before making his demand, and nothing remains but a mere duty on the defendant’s part to pay money, the plaintiff need not declare specially but may recover on a general count. Scott v. Parker, 1 Adol. & El. N. S. (41 E. C. L.) 812; Fel-[641]*641lon v. Dickson, 10 Mass. 292; Porter v. Talcott, 1 Cow. 378, 386; Baker v. Corey, &c., 19 Pick. 496; Kelley v. Foster; 2 Binn. 4.
These authorities abundantly show, that the case stated in the special count could in the case before us have been proven under the general counts in the declaration. And in point of fact on the trial the plaintiff proceeded to prove his case, as stated in this special count, and had the ordinances of the supervisors of Wetzel county been such, as they were stated to be in this special count, the court below ought to to have allowed them to be read in evidence to the jury as proper evidence as much under the general as under the special counts, unless they were excluded, because the supervisors bad no right to pass such ordinances, the act authorizing it being unconstitutional. But assuming this act to be constitutional the circuit court properly refused to permit these ordinances to be read to the jury under the general counts, because according to their true construction they did not tend to sustain plaintiff’s case, but on the contrary showed, that he could have had no case, as they show, that no promise to pay anything in the future to any recruit Avas áuthorized to be made. Had the' special count been in the declaration, these ordinances would still have been excluded from the jury, as they were essentially variant in meaning from the ordinances described in this special count. It has been decided by this Court in Hale v. The West Virginia Oil and Oil Land Company, 11 W. Va. 229, that it is not error to reject a special plea setting up matter in defence to the action, Avhen the plea of non assumpsit is filed, and the matter of defence of such plea may be given in evidence under the plea of non assumpsit. In Douglass v. Central Land Co., 12 W. Va. 502, it was decided, that though an issue be not made on a special plea, yet if the evidence to sustain it was admissible- under the general issue, and non assumpsit had been pleaded, this Court ought not to reverse a judgment on a verdict for such irregularity, when all the evidence is certified and sustains the verdict. See Baltimore & Ohio R. R. Co. v. Laffertys, 14 Gratt. 478; Baltimore & Ohio R. R. Co. v. Polly, Moods & Co., 14 Gratt. 454; Fant v. Miller & Mayhood, 17 Gratt. 47; Merchants Bank of Wheeling v. Evans & Dorsey, 9 W. Va. 373. In the case be[642]*642fore us the entry on the record-book states, that with the exception. of these ordinances the plaintiff gave no evidence to the jury.
It is true these were cases of special pleas offered, where the matter of defence set up could have been proven under the several issues already filed ; but the principle involved in these decisions is equally applicable, where a special count is proposed to be inserted, and the common counts .are already filed in the case, and what is stated in the special count could be as well proven under the common counts. We feel safe inlaying down this rule, that if there are common counts in a declaration, and a special count be included, which is such, that all the facts alleged in it, and on which it is based, could be as well proven by the plaintiff under the common counts, and the court improperly sustains a demurrer to such special count, and the record shows, that at the trial of the case the plaintiff in point of fact sustained no injury from the action of the court in sustaining the demurrer to the special count, the appellate court will not reverse the judgment below because 'of such error.
We are therefore of opinion, that there was no error in the •judgment of the circuit court of April 8th, 1875, and the same should be affirmed, and the defendant in error should recover of the plaintiff in error its costs in this court expended and $30.00 damages.
Judges Haymond AND Johnson CoNcurred.
JudgmeNt Affirmed.