1879. March

subscription ordered in 1875, need not be further noticed after what has been already said in answering an objec- Term. tion in the petition of a somewhat similar character.

Redd & als.

V.

The other three assignments are founded on the assumption that the maximum amount of the subscription fixed by the order of the county court, of the 9th of Au- The Supervisors gust, 1875, exceeds the amount allowed by the statute, of Henry § 62, ch. 61, Code of 1873. The language of the statute County. is as follows: "The said order shall state the maximum amount proposed to be subscribed, which shall in no case exceed one-fifth of the total capital stock of said company, or an amount, the interest upon which, at the rate authorized by the council, or board of trustees, of any city or town, or board of supervisors of any county, or ' township board of any township shall (not*) require the imposition of an annual tax in excess of twenty cents on the one hundred dollars.

It is alleged that the interest on the maximum amount fixed by the order of court would require the imposition of an annual tax in excess of twenty cents on the one hundred dollars of the taxable property of Henry county, and that therefore the order and all the proceedings based thereon are void.

Certainly, if the fact alleged were true, and that fact appeared by the record in this case, the conclusion that the proceedings are void would necessarily follow. It is not pretended that the record discloses any such fact, but it is contended that the orders of the county court should show that the fact was otherwise-that is, that the amount to be subscribed would not require an annual tax greater than twenty cents on the hundred dollars of taxable values in the county. There is no doubt of the correctness of the general proposition, that where courts are invested with a special and limited jurisdiction the

*This word "not " is evidently inadvertently inserted in the statute. It should be omitted in the reading.

March
Term.

1879. facts necessary to give jurisdiction of the subject matter should appear by their records. Such was the case of Pulaski County v. Stuart, Buchanan & Co., 28 Gratt. 872. Redd By statute the county court, composed of justices of the & als. peace, was empowered to provide for the purchase and The Su- distribution of salt among the people, and it was required, pervisors of Henry before the court could act, that a majority of the acting County. justices should be present, or that all should have been

V.

summoned to attend; and it was held that to give validity to the orders of the court it was necessary that the record of the court should show, when the court acted, either that a majority of the justices were present or that all had been summoned. Without these facts appearing, it would not appear that the court had jurisdiction of the matter with which it was charged. So, in the present case, while the general law invests the county court with jurisdiction to order, without special application from any source, an election to determine whether there shall be a subscription to the capital stock of a railroad company, yet the special act incorporating the Danville and New River railroad company makes it the duty of the county court, in its discretion, to cause a vote of the qualified voters to be taken at such time as the president and directors of the company may ask. To authorize the action of the court as provided, it would seem to be necessary that it should be taken on the application of the president and directors of the company, and probably it might be considered essential to the jurisdiction of the court that that fact should appear by the records of the court. The fact does so appear, and, if that be necessary, it would seem to be all that need appear by the record to show that the court had jurisdiction of the subject matter.

But if the order of the court is not to be considered invalid for the reasons already assigned, we are asked to go a step further, and decide that it is invalid by reason.

1879. March Term.

Redd

V.

pervisors

of alleged extrinsic facts-facts not appearing by the record. To ascertain these facts, we are asked to take judicial notice of the auditor's reports, and of the books showing the assessments of property and the contents of those books. When it is said that the court will take &als. judicial notice of any fact, the meaning is that such facts The Suneed not be proved in the ordinary manner. They may of Henry be noticed without being proved in the case. Can such County. notice be taken by this court of the books referred to and of their contents? I think not. I can find no precedent to justify it. There are many facts of which courts will take judicial notice, and they are specified in the approved elementary works on evidence. 1 Greenleaf's Ev. §6 and notes; 1 Phillips' Ev. 619, 620 (marg. pp.) and notes. Among other things they will take notice, without proof, of the public laws of the state; of the sittings of the legislature, and its established and usual course of proceeding; the privileges of its members, but not the transactions on its journals; of historical facts, and generally, it is said, of whatever ought to be generally known within the limits of their jurisdiction. The assessments of property are made for the purposes of taxation, and the books containing them may be and are resorted to for that purpose by the authorities charged with the duty of levying taxes. But, when in a judicial proceeding, it becomes necessary to resort to those books to establish any fact arising in the cause, such fact, I apprehend, must be established in the ordinary way by producing the books as evidence in the cause.

Chief Justice Marshall, in a case where one of the questions was whether the court would take judicial notice of a pardon, observed that "it is a constituent part of the judicial system that the judge sees only with judicial eyes, and knows nothing respecting any particular case of which he is not informed judicially. A private deed not communicated to him, whatever

1879. may be its character, whether a pardon or a release, is March Term. totally unknown and cannot be acted on. The looseness which would be introduced into judicial proceedReddings would prove fatal to the great principles of jus& als. tice if the judge might notice and act upon facts not The Su- brought regularly into the cause. Such a proceedpervisors of Henry ing, in ordinary cases, would subvert the best estabCounty. lished principles, and overturn those rules which have

V.

been settled by the wisdom of ages." United States v. Wilson, 7 Peters' R. 150, 161. And in a very recent case decided by the supreme court of the United States, Mr. Justice Swayne, in the opinion of the court delivered by him, speaking of notorious facts of which the court will take judicial notice, said: "This power is to be exercised by courts with great caution. Care must be taken that the requisite notoriety exists. Every reasonable doubt upon the subject should be resolved promptly in the negative." Brown & others v. Piper, 91 U. S. R. (1 Otto) 37, 42, 43.

But the assignment of error relied on requires us to go still further. We are asked not only to take notice of certain facts which we cannot know judicially, but of facts which are not in issue in the cause, nor relevant to any issue made. It is nowhere in the record made a question whether the maximum amount of the subscription fixed by the county court of Henry exceeds the amount allowed by the statute. Although the bill states with great particularity and minuteness of detail numerous objections to the proceedings complained of, and the grounds of those objections, it does not allege, directly or indirectly, or even insinuate that the maximum amount of the subscription was in excess of the amount allowed by law. No allusion is made to it in the bill, answer, or in the proofs. If intended to be relied on it should have been put in issue. It was matter of fact susceptible of proof or disproof.

March Term.

Redd

Under these circumstances it would be an anomaly for 1879. an appellate court to reverse a decree for the causes alleged. We can only review the case made, and as made by the parties in the court below. We cannot go outside of the record and decide a case upon facts dehors. This would, in my judgment, be a palpable and flagrant abuse of appellate jurisdiction.

V.

&als. The Su

pervisors of Henry

Since the foregoing opinion was written, it has come County. to my knowledge that the governor of the commonwealth has approved an act passed by the general assembly authorizing the supervisors of Henry county to carry out the wishes of the majority of the voters of Henry county, as expressed by the vote taken on the 11th day September, 1875, and to assess and levy such annual tax as may be necessary to pay the subscription of one hundred thousand dollars, notwithstanding the limitations prescribed by the 62d section of chapter 61 of the Code.

The conclusions which I have reached in this case are independent of the special act referred to, but it may be as well to say that if there were any defects or irregularities in the proceedings reviewed in this opinion, which might offset the subscription made by the supervisors, they are cured by this legislation. That such legislation is valid seems to be well settled. Defective subscriptions may in all cases be ratified where the legis lature could have originally conferred the power. Mistakes and irregularities are of frequent occurrence in municipal elections, and the state legislatures have often had occasion to pass laws to obviate such difficulties. Such laws, when they do not impair any contract, or injuriously affect the rights of third persons, are never regarded as objectionable, and certainly are within the competency of the legislative authority. St. Joseph Township v. Rogers, 16 Wall. U. S. R. 644, 663, 664. Authorities to the same effect are numerous. Among them are the following: Ritchie v. Franklin County, 22 Wall.