
    WIGHTMAN vs. KARSNER.
    1. The Court of Commissioners of Koads and Revenue in this State has no power to hold special terms, except in eases expressly authorized by law; and all orders made at such unauthorized terms are coram non judice, and void.
    2. The orders of a court acting without authority are nullities, and may he inquired into, and impeached, in all other courts, before which such orders are brought and relied upon by a party claiming a right or benefit under them.
    3. A claim against a county, audited and allowed at an unauthorized term of the Commissioners’ Court, creates no liability on the county, and the county treasurer may rightfully refuse to pay it.
    Error to the Circuit Court of Lauderdale.
    Tried before the Hon. L. P. Walker.
    Motion against county treasurer under the statute.
    The plaintiff in error moved for judgment against the defendant as treasurer, of the county of Lauderdale, in the Circuit Court of said county, on a certificate of allowance of a claim in favor of John R. Henry, which is in the following words and figures: “ The State of Alabama, Lauderdale county. Commissioners’ Court, Special Term, 4th April, 1849. Ordered by the Court, that John R. Henry be allowed two thousand two hundred and ten dollars, the balance due him on final settlement of his contract for building Shoal Creek Bridge, with interest thereon from the 1st day of December, 1848. No. 596. $2,210. W. T. HAWKINS, Clerk"
    
    On which was endorsed, “No. 980. The treasurer of Lau-derdale county will pay tbe .within to Jobn Wightman, for value received. JOHN R. Henrt.”
    Tbe other evidence in tbe case shows, that this claim was presented to one Joseph Bigger, who was then treasurer of Lauderdale county, and was by him registered in a book kept by him for tbe purpose; that after tbe death of Bigger, tbe defendant was appointed treasurer, to whom tbe plaintiff presented bis claim for payment, which was refused. It was also proved that tbe defendant bad paid several thousand dollars of claims against tbe county, which had been presented and registered after that of tbe plaintiff, and that tbe defendant bad bad ample means in bis bands to have paid tbe claim, if be bad paid tbe claims against tbe county in tbe order of their registration.
    On this proof, tbe court below charged tbe jury, “ that if they believed that tbe claim, now tbe foundation of tbe plaintiff’s motion, was audited and allowed at a special term, held by tbe Judge of tbe County Court, and Commissioners of Revenue and Roads of tbe county of Lauderdale, and not at one of tbe regular terms held at tbe times appointed by law, tbe plaintiff in this motion cannot recover.”
    To this charge of the court tbe plaintiff excepted, and assigns it for error in this court.
    Ormond & Nicolson, for plaintiff in error.
    We contend first: There is nothing in tbe act creating tbe court which prevents it from bolding a special term.
    Tbe first section of the act (Clay’s Dig. 149) gives this court tbe jurisdiction over roads, bridges and ferries, tbe levying of tbe county tax, and tbe appointment of county officers; and tbe second section declares that for tbe performance of tbe duties enjoined, tbe court shall meet at certain designated periods, and tbe next section gives them power to make appropriations for county purposes, and gives them control over tbe funds of tbe county.
    This was a case of that kind: it was tbe auditing an account for building a bridge, and directing its payment. There does not appear to be any good reason why tbe court might not bold a special term for tbe performance of any county business than that enumerated in tbe first section, and great inconvenience might result. For instance, the condition of treasurer’s bond is, that from time to time, and at all times when required, he shall render a true account to the Commissioners’ Court. Suppose his securities be about to fail, and he be squandering the county funds, cannot the court have a right to call upon him immediately for new security and a settlement ? Surely they could under the act of 1848, (Sess. Act, p. 102) which gives them the power to hold a court whenever in their opinion the public convenience requires it.
    
    Again: The act of 1806 (Clay’s Dig. 142) which prescribes the manner of auditing, registering and paying claims against the county, was passed long anterior to the existence of the Commissioners’ Court, and although the Commissioners’ Court succeeded to the duties which the act of 1806 imposed on the old justices and County Court, no argument can be drawn from the use of the words, “ in term time,” because that language had no reference to the Commissioners’ Court as now constituted. (See the original act, Aikin’s & Toulmin’s Dig.) All that the act meant to declare was, that the powers should be exercised by the justices sitting as a court, the opposite of “ term time,” not being as contended regular, as opposed to special terms, but action in open court, as opposed to action by the members not sitting as a court. We insist, therefore, that there is nothing in the act referred to which prohibits the court from holding a session whenever the wants or the business of the county demanded it, even as to subjects enumerated in the first section. But if that were not so, the control given them over the county treasury in the third section is an independent grant of power, in the exercise of which they are not confined to the terms prescribed by the first section, and if the act of 1806 is to exert any control over the subject, it. merely confines the court in the exercise of the powers to “ term time,” viz: not in vacation.
    But independent of this criticism on the two acts mentioned, an act was passed in 1848, by which the commissioners were authorized to change the time of holding this court, whenever, in them judgment, the public convenience required it. (Acts ’48, p. 102, § 6.) Surely, then, when they do hold a court for the transaction of business, and audit and pass an account by which a right is vested, it must be held that the court was convened because the public convenience required it, of which convenience they are made the exclusive judges. The public convenience would be advanced by increasing the number of terms in a year, not by merely changing the times of holding the stated terms.
    As the court unquestionably had jurisdiction of the subject matter, its action is not void, but voidable merely, and cannot be impeached collaterally by any one, especially not by a stranger to the proceeding, as the county treasurer is. The effect of the order of the court was, a direction to the treasurer to pay the money, and the claim was presented, numbered, placed on the book of the treasurer, and a sufficient fund is shown from which it might have been paid. It does not then lie in the treasurer’s mouth to question the power of his principal, the Commissioners’ Court. 7 Ala. 85; 15 Ala. ■134; 1 Rich. 335; 1 Con. 1; 1 Kelly, 271; 2 How. U. S. 338, et seg.
    
    R. W. WALKER, contra.
    
    1. The Commissioners’ Court is a court of special and limited jurisdiction: and it is a general rule, that nothing will be intended in favor of the jurisdiction of such a court, but every thing necessary to sustain it must affirmatively appear on the face of the record. 18 Ala. Rep. 694; 18 Ala. Rep. 482 (487); 16 Term. 246; 3 Phil. Ev. 1013, and cases cited; 1 U. S. D. 629, and cases cited; 3 Phil. Ev. 987,1021, 1104; 15 Ala. Rep. 134.
    2. If there is a want of jurisdiction, the judgment or proceedings are coram non judice and void. They may be impeached collaterally in any other court, where any right or benefit is sought to be taken under them. 16 Ala. 280; 6 Porter, 219 ; 10 Peters, 449 ; 13 ib., 511; 1 ib. 340; 3 Howard U. S. 762; 11 Wend. 655; 3 Phil. Ev. 990, and authorities ; 2 Suppl. U. S. D. 230, 249, and cases cited; 6 Wheaton, 119; 8 Sm. & M. 85, 421, 505; 5 Hill, 568; 1 Denio, 158; 6 Howard Miss. 168.
    3. If a court of limited jurisdiction does not proceed according to the mode prescribed by the statute, its acts are nullities. 5. Black. 462; 3 Phil. Ev. 987-8-9-90, 995-6; 1 Bailey, 457, and authorities supra.
    
    
      4. Jurisdiction is tbe power to bear and determine the cause; and there is no jurisdiction, either when the subjéct-matter of the cause is one of which the court has not legal cognizance, or when the person proceeded against is not subject to its control, or when the process by which the cause has been instituted is one which the court cannot issue, or when the mode of proceeding prescribed by law has not been pursued, or when the court is held at a time ox place not authorized by law. 3 Phil. Ev. 998, 997,1000,1002, 1003; 2 How. TJ. S. B. 338; 3 How. IT. S. 762.
    5. Where a court is held at a time or place not authorized by law, its proceedings are coram nonjvdice and void. 1 Ala. Bep. 351; 2 Pike, 229 (250-1-2); 27 Maine, 114; 1 Scam-mon, 555; 2 ib. 227; 2 ib. 303; 3 Blackf. 501; 2 Cowen, 445; 1 IT. S. D. 631, § 95; 8 Term B. 431; Marshalsea case, 10 Coke B. 76; 3 Phil. Ev. 1003, 1007; 2 Blackf. 305, 306; 3 H. & J. 560; 7 ib. 79; 1 GK & J. 184; 6 C. & P. 337; 6 Cowen, 456, 463.
    The case of Lewis v. Intendant of Grainesvüle, 7 Ala. Bep. 85, is not in point. There the proceeding was had at an adjourned term, not a special one, and the record recited that fact; here the record shows affirmatively that the order was made at a special term, and that there was no evidence that such special term had been previously ordered. In the case in 7 Ala. Bep. 85, the order was really made at a regular term; for an adjourned term is part of the regular term. Every court has the power to adjourn its sittings, and an adjourned session is a mere continuance of the regular term from which the adjournment was made. 2 Pike, 229, 250; 5 Mass. 435; 6 Wheat. 106.
    But a special term is not part of the regular term. It is entirely distinct and substantive; and the power to hold a special term must be given by statute. 7 Yerger, 365 ; 2 Pike, 229, 250; 6 Yerger, 395; 2 Scammon, 303; 13 Sm. & M. 153, 156.
    Whenever special terms, as distinct from the regular ones, have been held by the Commissioners’ Courts, they have been authorized by special acts. Acts of ’43, 137, 156; Acts of ’45, 14, 63.
    6. The Act of ’48, Acts, p. 103, has no application. It simply authorizes tbe Commissioners to change tbe time of bolding tbeir court, i. e. to change tbe time wben by preexisting law they were required to bold tbeir court. Tbe whole object and effect of tbe act were, to authorize them to alter tbe time of bolding tbeir regular terms.
   LIGrON, J.

Tbe charge of tbe court below, which is here assigned for error, proceeds upon tbe assumption, that tbe special term of tbe Court of Commissioners of Revenue and Roads for tbe county of Lauderdale, at which tbe claim of Henry was audited and allowed, was held without authority of law, and consequently its acts were coram nonjudice and void.

If tbe Court of Commissioners of Revenue and Roads, at tbe session at which this claim was audited and allowed, was clothed with all tbe attributes necessary to give it jurisdiction, tbe manner of its exercise is certainly regular in this instance.

Jurisdiction, wben applied to courts, is defined to be tbe power to bear and determine tbe cause. But, before a court of bmited jurisdiction will be sustained in its action, even in cases in which, by tbe law creating it, it bad full power to bear and determine, it must be shown by tbe record, that every preliminary required by law has been complied with before it acted. 18 Ala. Rep. 694, and authorities there cited. That tbe Court of Commissioners of Revenue and Roads is tbe creature of tbe statute, and one of limited authority or jurisdiction, has been several times ruled by this court. 18 Ala. Rep. 694; ib. 482. One essential ingredient to tbe exercise of jurisdiction by any court, for tbe sessions of which a time is appointed by law, is, that it act within the time prescribed, and should it fail to do so, or presume to act at another anda different time, such acts are absolutely void. Cullum v. Casey, 1 Ala. Rep. 351; 27 Maine Rep. 114; 2 Scammon, 227; 1 ib. 555.; 3 Blackf. 501. In the case before us, tbe claim on which the suit is founded, appears to have been audited and allowed, at a “ special term" of Commissioners’ Court, held on the 4th of April, 1849; and tbe question arises, bad that court authority of law to bold such a session ? It is entitled in tbe record, a “special term,” as contra-distinguished from a-regular or adjourned term of tbe court. By tbe former, we understand a term appointed by tbe presiding officer or officers, beld at an unusual time, for tbe transaction of some particular business. By tbe latter is meant, a term begun at tbe time appointed by law, and continued, at tbe discretion of tbe court, to sucb time as it may appoint, consistent witb law. We have sought our statutes in vain, for authority in tbe Courts of Commissioners of Bevenue and Boads, to bold special terms of tbeir courts, except for fixed purposes named in tbe acts giving sucb authority. By tbe 28th section of tbe act of 1821, four Commissioners of Bevenue and Boads are directed to be elected for each county, two of whom, witb tbe judge of tbe County, (now Probate) Court, shall constitute a court, whose powers and duties are defined. Clay’s Digest, 149, § 1. By tbe first section of tbe same act, as amended by tbe act of 1824, tbe terms of these courts are appointed to be beld on tbe first Mondays in December, February, and May, and third Monday in August. Clay’s Dig. 149, § 2. In none of tbe acts concerning this court, before tbe act of 1848, is any other direction, given for tbe bolding of its terms, except, in tbe revenue laws of tbe State, a special term has sometimes been directed to be beld, for tbe sole purpose of levying tbe county tax, but from these, no authority to bold a term like tbe one we are now considering, can possibly be derived.

But it is contended, that by tbe sixth section of tbe act of 1848, entitled “ an act to reform tbe evils arising from local legislation,” (Sess. Acts, 1848, p. 100), it was intended to confer tbe power of bolding'special terms upon tbe Commissioners of Bevenue and Boads, and that in tbeir capacity as sucb, without assembling as a court, on any day regularly appointed by law for that purpose, they may appoint tbe time for bold-ing tbeir courts, and sucb appointments will be good, and tbe terms beld pursuant to it will be both legal and regular. Several reasons, too important to be disregarded, forbid us from adopting this construction of that act.

In tbe first place, before tbe passage of that act, tbe General Assembly was repeatedly annoyed witb applications from tbe several counties in tbe State, for acts to authorize tbe Commissioners’ Courts of some one county to bold one or more of its regular terms at periods of time different from those fixed by the general law. The acts of that body, before 1848, and even during the session of that year, show that such applications were granted, and laws passed pursuant to them. The leading object, then, of the General Assembly, in tbe passage of the act referred to, was correctly set forth in its caption, and must be held to be, to give authority to the Commissioners’ Court, while sitting as such, to order its regular terms to be held at times different from those fixed by the act of 1824, above referred to. This would free the General Assembly from the necessity, in future, of passing acts for this purpose.

That it was not intended to confer the power to appoint a term of their court on the Commissioners of Eevenue and Eoads, in their individual capacity, we think, will sufficiently appear, from an examination of the several sections of the act itself. By the fifth section of the act, power is given to “the Commissioners of Eevenue and Eoads” whenever it may be necessary to levy a tax for county purposes, to levy it. The same careless phraseology is employed in the sixth section, which confers the power to alter the terms of their' court, when the public convenience may require. The General Assembly could not have intended to clothe the Commissioners, in their individual capacity, with the powers enumerated in the fifth section of the act, nor can we suppose they designed to employ the same phrase, in a different sense in the sixth section; in both places it should be understood as though it read, “the Court of Commissioners of Eevenue and Roads,” &c.

Our conclusion is, that the special term of the Commissioners’ Court of Lauderdale county, at which the claim on which plaintiff’s motion is founded was audited and allowed, was not held at a time authorized by law, and consequently its proceedings were coram non judice, and void.

Having seen that the proceedings of the court, at which the claim of the plaintiff was audited and allowed, were void for want of jurisdiction, it only remains to be seen whether the defendant could avail himself of it in a collateral proceeding. As far as our search has extended, the best authorities on the subject concur in saying, that a judgment void in one court, is not binding upon any other court, in which an interest arising- under it is sought to be enforced. If the proceedings were merely irregular or erroneous, and liable to be set .aside on appeal or writ of error, the ease would be different.

The cases of Davison and another v. Gill, (1 East. 64) and Welch v. Nash, (8 East. 394) were both actions of trespass guare clausum fregit, brought by the owners of land, against persons for shutting up an old, and opening a new, foot-path through the premises of the plaintiffs, and the defendants sought to justify by an order of the justices of the peace under the statute (13 Geo. 3, c. 78, § 19) which gave such justices jurisdiction over the subject matter, and pointed out the manner in which it should be called into action, and exercised ; and in both these cases the court permitted the plaintiff to show that the orders, under which the defendants acted, were not. made by the justices according to the requirements of the. statute conferring the jurisdiction, but that they were such gross departures from it as to be void, and thus afforded the. defendants no protection whatever. Yoid orders and judgments have been allowed to be impeached collaterally, when those who claimed rights under them have sought to enforce them, by the Supreme Court of the United States, in the case of Elliot et al. v. Piersol et al. (1 Peters, 341) in which that court employs this language: “ When a court has jurisdiction, it has a right to decide every question which occurs in the cause: and whether its decision be correct or otherwise, its judgment, until reversed, is regarded as binding on every other court. But if it act without authority, its judgment and orders are regarded as nullities. They are. not voidable, hut simply void; and form no bar. to a recovery sought, even prior to reversal, in opposition to them. They constitute no justification; and all persons concerned in executing such judgments or sentences, are considered in law as trespassers. This distinction runs through all the cases on the subject; and it proves, that the jurisdiction of any court exercising authority over a subject, may be inquired into in every court, when the proceedings of the former are relied on and brought before the latter, by the party claiming the benefit of such proceedings.”

Such is the rule laid down by the Supreme Court of the United States, and we believe it to be the true one, especially in relation to courts of limited jurisdiction. See also 10 Peters, 449; 13 ib. 511; 6 Wheat. 119; 3 Howard U. S. Rep. 762. It has been recognized and acted upon in New York, 5 Hill, 568; 11 Wend. 652; 1 Denio, 158: in Mississippi, 6 How. Miss. Rep. 106; 8 Smedes & Marshall, 521 and 505: in Vermont, 16 Ver. 251: in Illinois, 4 Scam. 364: and in Arkansas, 5 Pike, 424.

In the case of Cole, Adm’r, v. Connolly, 16 Ala. Rep. 280, this court quotes approvingly the language of Mr. Justice Baldwin, in the case referred to in 10 Peters, 449, which is at least as strong as that which we have quoted from Mr. Justice Trimble, in the one cited from 1 Peters, 341.

The decision of this court, in the case of Lewis v. the Intendant and Town Council of Gainesville, (17 Ala. Rep. 85) we hold to be proper, upon the facts of that case. But we are constrained to dissent from the strong language employed by the Judge who delivered the opinion of the court, especially from that portion of it in which he repudiates the right of collaterally inquiring into the legality of the time of holding the session of the court at which the order was made, the validity of which is called in question collaterally, in a proceeding by which the party to the void order seeks a benefit under it. But, we repeat, this point did not necessarily arise in that case, and what is said upon it must be regarded as a dictum. The order there sought to be impeached, purported to have been made at an “ adjourned term ” of the Commissioners’ Court, and it was correctly remarked in that case, that it is not necessary to validate the acts of the Commissioners’ Court, that it should have adjourned from day to day, down to the time of making the order; if it met at the proper time, an adjournment to any day before the commencement of the next term, would be sufficient, as it is authorized to sit until the business was completed.1’ This was quite enough to justify the conclusion of the court in that case.

There is no error in the record, and the judgment must be affirmed.  