Hinton v. Perry County
84 Miss. 536
Miss.
1904
Check Treatment
Calhoon, J.,

delivered the opinion of the court.

On р. 172, Laws 1902, appears an act (ch. 123) authorizing the board of supervisors of Perry county, on the petition of two hundred qualified electors of thе county, to order an election to determine the question of removal of the seat of justice from *546Augusta “to some convenient point on the M., J. & K. C. Railroad;” and the act authorizеd a vote, at the same election, on competing points on that railroad. Accordingly the board ordered the election, and it rеsulted in nearly a unanimous vote for the removal, and a large majority for the point, Augusta Depot, over all the competitors combined; there being three other points contesting. The act also provides that if no point got a majority over all, and if the question of removаl was determined affirmatively, another election should be ordered to determine between the two points receiving the highest number of votes, and the act also authorizes bonds to get money to pay the expenses, etc. It seems that Mr. Hinton was an earnest advocate оf removal, and of the point he preferred. No appeal was taken from the action of the board of supervisors; but, after the election and the order of removal, Mr. Hinton filed his bill for, and obtained, an injunction against any further action toward removal. This injunction was dissolved, аnd $300 allowed as damages as attorney’s fees, and he appeals.

We can see no merit whatever in his objection to the allowаnce of attorney’s fees, and many of the grounds on which he bases his right to have the action of the board declared void are valueless, because not jurisdictional, and yet attempted to be availed of in a collateral attack. Actions of the board not involving jurisdictional ‍‌‌‌‌​‌​‌​‌‌​​‌‌‌​‌​​‌‌​‌‌​​​​‌​‌​​‌‌‌‌​​‌​‌‌‌‌‌‌‍power are conclusively right in this collateral litigation. Its jurisdiction being, in this matter, limited, the minutes must show that the jurisdictional facts were found to exist. This bеing done, there is no need ever to set forth the evidence in the judgment, and it is not controvertible, except on direct appeal.

It may be as well to say now that Simpson County v. Buckley, 81 Miss., 481 (33 South., 650), is а very different case from this. There the bill contained specific charges of fraud, collusion, and corruption, and, of course, any judgment mаy be attacked on these grounds seasonably set up. In the case before us now there is no pretense of fraud of any sort.

*547The legislature of the state of Mississippi has all political powers not withheld in her own constitution, or in conflict with the constitution of the United States. Sec. 3, аrt. 5, of the constitution of 1817 provides that “the state shall be divided into convenient districts, and each district shall contain not less than three nor more than six counties.” Sec. 19 of art. 6 provides that no new county shall be created with a less area than 576 square miles. This implies power in the legislature to make new counties within the prescribed area. The constitution of 1832 contains the same provisions, and the same implication fоllows. Art. 4, sec. 13; art. 7, sec. 17, Neither mentions judicial districts in a county. Under these constitutions the case of Alfred v. State, 37 Miss., 296, held that the legislature could enact а valid law dividing ‍‌‌‌‌​‌​‌​‌‌​​‌‌‌​‌​​‌‌​‌‌​​​​‌​‌​​‌‌‌‌​​‌​‌‌‌‌‌‌‍a county into two judicial districts. It is true that Lindsley v. Coahoma Co., 69 Miss., 815 (11 South., 336), said that that decision “is now deemed unsound,” though, we assume, not on the line now under discussion; but the court followed it, because the constitutions of 1869 and 1890 had like provisions, and there had been another act, before the last-mentioned constitutiоn, and four other acts after it, without the appearance of anything restrictive of such legislation. So we may safely assume that the deсision in Alfred v. State is as binding as if it had announced correct law, and that the legislature had the unrestricted power to so divide counties into judicial districts. If it had such power then, it has such power now, and also power to change the “seat of justice” of the districts of any county, unless the power is lopped off by the constitution of 1890 under which we now live. This conclusion is irresistible, unless we overrule these decisions and the reasoning on which they are based. Portwood v. Montgomery Co., 52 Miss., 523.

Now, Constitution 1890, sec. 152, provides that the state shall be divided ‍‌‌‌‌​‌​‌​‌‌​​‌‌‌​‌​​‌‌​‌‌​​​​‌​‌​​‌‌‌‌​​‌​‌‌‌‌‌‌‍into convenient court districts, as the other three con- stitutions did — i. e., those of 1817 and 1832, and Constitution 1869, art. 6, sec. 13, did. So if there is to be any change of *548judicial conclusion, it must be because of sec. 259 or 260 of our present constitutiоn of 1890. Sec. 260 does not apply, for the reason that there is no purpose in the act, or shown in this record, to “change the boundary of any judicial district in a county.” Lindsley v. Coahoma Co., 69 Miss., 815 (11 South., 336). Perry county has two “seats of justice,” and the act under review authorized the board of supervisors to ascertain, аnd the board tried to see, if the voters wanted one of them changed, and this does not in any way affect the “boundary” of the district. Sec. 259 has reference only to removal of the “county seat,” while here there is involved only ‍‌‌‌‌​‌​‌​‌‌​​‌‌‌​‌​​‌‌​‌‌​​​​‌​‌​​‌‌‌‌​​‌​‌‌‌‌‌‌‍the question of removal of the “seat of justice” of one of the judicial districts of a county. If the section embraced this, and the words “toward' the center of the county” applied, it might easily hapрen that the two courthouses might be side by side, and this view is intolerable. We think the legislature had the power to pass the act of 1902 (Portwood v. Montgomery Co., 52 Miss., 523), but think, if -this section is pеrtinent at all in reference to legislative power and the vote, it must be held in the case before us to require a two-thirds vote, unless the remоval is toward the center of the district, in which event the majority of those voting is enough. Here it appears by the minutes that the board found that the сhange was toward the center of the district, and that a majority of the votes were for the removal. In fact, largely over two-thirds of the votes were for removal, and a large majority for Augusta Depot as the point to which removal was wanted, and, in fact, this point happened to be nearer, not only the center of the district, but also nearer the center of the county.

Notwithstanding the section of the bill of rights in the cоnstitutions of 1817 and 1832 providing for the right to “a speedy and public trial by an impartial jury of the county where the offense was committed,” the court in Alfred v. State, 37 Miss., 296, sustained an act not only dividing a county into two judicial ‍‌‌‌‌​‌​‌​‌‌​​‌‌‌​‌​​‌‌​‌‌​​​​‌​‌​​‌‌‌‌​​‌​‌‌‌‌‌‌‍districts, for which there was no express warrant in these *549constitutions, but providing also that the jurors should be tаken, not from the body of the county, but the district of the county in which district the court was to be held. As we have said, this was recalcitrantly followed in Lindsley v. Coahoma Co., 69 Miss., 815 (11 South., 336). In Portwood v. Montgomery County, 52 Miss., 523, it was bеld that, without express grant, it was competent for the legislature to create new counties. So, we say, it follows that the legislature may not оnly create a new county, subject to the prescribed area and the other constitutional restrictions, but may also divide one into districts, subjеct to the constitutional provisions, and may, there being no restriction in the organic law, authorize, as here, a change of the “seat оf justice” of any district of a county, where the change does not affect the boundaries of the district affected. In the case beforе us, it has done so in the act of 1902, on terms prescribed by that act. Those terms are set forth in tbe act, and those terms constitute tbe jurisdictional prerequisites, and tbe orders of tbe board show they were complied with, and they are conclusively true on collateral attack.

Affirmed.