Lindsley v. Board of Supervisors, 69 Miss. 815

Lindsley v. Board of Supervisors

69 Miss. 815 | Miss. | 1892

Campbell, C. J.,

delivered the opinion of the court.

There is a suggestion of incongruity in securing to every one prosecuted “ by indictment or information a speedy and *822public trial by an impartial jury of tlie county where the offense was committed,” and providing that no county shall have an area less than five hundred and seventy-six square miles, and then upholding an act of the legislature which divided a county into two districts for holding courts, and limited the venire facias to a part of the county comprising one of the districts, as was done in Alfred v. State, 37 Miss., 296. It seems plain that the bill of rights gave the-right to a jury, selected as prescribed by law, in the county, without regard to a line drawn through it; and that the prohibition against making any county to contain less than five hundred and seventy-six square miles was for the wise purpose of protecting the tax-payers against the evil of undue multiplication of court-houses and incidental expenses sure to follow. But, in the case mentioned, it was decided that the legislature had the right to divide a county into two districts for holding courts, and to provide that jurors should come alone from that district of the county in which the court is held, and not from the body of the county as a whole. That was the single matter decided in that case, so far as respects the constitution. No other constitutional question was involved or presented. The legislative act involved in the case cited divided Hinds county into two districts for holding circuit and chancery courts, with certain appropriate provisions as to venue in civil and criminal proceedings, grand and petit jurors, process and other matters having relation to the holding of courts in the two districts.

In 1867 a similar act was passed with reference to Chickasaw county. Laws of 1867, p. 617.

In 1873 (Laws, pp. 161, 166) similar acts were passed for Carroll and Yalobusha counties, which acts embraced a provision as to recording certain instruments required by law to be recorded.. The act dividing Hinds county into two districts for circuit and chancery-courts had been amended, as to recording instruments, in 1871. Laws, p. 759.

In 1874 the act, as to Carroll county, was amended (Laws *8231874, p. 81), and the act as to Yalobusha was also amended then (Laws 1874, p. 95); and the act as to Yalobusha was again amended in 1875. Laws'1875, p. 159.

In 1878 there was similar legislation for Panola county (Laws 1878, p. 147), and an act of like nature for Marion county was passed in 1888 (Laws of 1888, p. 74), and it was amended and extended in 1890. Laws of 1890, p. 91.

The acts as to Hinds and Chickasaw counties were passed under the constitution of 1832, which contained the provisions mentioned in ¡the beginning of this opinion.

The acts as to Carroll, Yalobusha, Panola and Marion were passed under the constitution of 1869, which embraced similar provisions to those contained in the constitution of 1832, and before mentioned.

At the time of the adoption of the constitution of 1869, as already stated, there were two counties in each of which there were two districts for holding circuit and chancery courts, and the case cited above, in which the right of the legislature to create these districts was maintained, had been decided; and that constitution contains no new provision restrictive of legislative power on this subject. This is significant, and must be accepted as indicative of acquiescence in the view held in the decision named.

"When the constitution of 1890 was adopted, there were six counties, each of which had been divided into two districts for holding circuit and chancery courts, and for other purposes — indeed, for nearly every purpose pertaining to county affairs, except the election of county officers. So that, in the six counties named, the spectacle was presented of practically twelve counties in nearly all but names. "While each of the six had one name, and one set of county officers elected by the electors of the county, and was but one for certain purposes, it bad two seats of justice, two circuit and chancery courts, two court-houses, two jails, two sets of record-books. In fact, it was double as to nearly every thing that can be called county matters.

*824All of this came about gradually, step by step, from the seemingly harmless enactment sustained by the decision of Alfred v. The State. Had the appalling'results which have flowed from it beeu foreseen bj^ the court, it is incredible that it would have made that unfortunate decision; but it was made, and we have the evil results, and had them when the constitution of 1890 was adopted, which contains no word of condemnation or prohibition or restriction of the practice of dividing counties into court districts, but, with the spectacle before the convention, it dealt with the subject, and, while it prohibited the removal of a county seat without the assent of the electors of the county at an election, and prohibited the formation of a new county without the assent of certain electors, and a county less than four hundred square miles in extent, it purposely sanctioned the division of counties into districts for holding courts, and prohibited the disturbance of the dividing line in a county, without the assent of two-thirds of the voters, and guards against too frequent agitation of the subject by prohibiting the recurrence of elections oftener than once in four years in reference to this. The obvious purpose of the clause in § 260 of the constitution, in the words “nor shall the boundary of any judicial district in a county be changed, unless, at an election held for that purpose, two-thirds of those voting assent thereto,” was to protect the dividing line, whereby a county is or may be divided into districts for holding circuit and chancery courts, from change, except as provided for. The language is peculiar. The “ boundary ” is not to be changed, that is, the line drawn in the county, whereby the county is divided into judicial districts, shall not be changed, unless, etc. The provision was in view of the legislation as to the six counties mentioned, each of which had been divided into two districts. “The boundary ” is what divides them. It is the boundary of each district in the county. This clause has no reference to the boundaries of-a county, but, the “boundary of a judicial district in a county.” The state has “boundaries.” § 3 *825of the constitution. Each county has boundaries, and each judicial or court district in a county has boundaries, but the constitution has no reference to them, in the clause under consideration, but to “the boundary” which makes the judicial districts in any county — that without which the county would be as was originally intended it should be, viz., one for all purposes pertaining to the county.

It is true that the expression “judicial district” in a county had not been used in the acts creating districts in the six counties for holding courts, and other purposes, but it is not inappropriate; on the contrary, it is quite expressive as descriptive of them, and is not applicable to any thing else in the constitution or to which it refers.

The case of Alfred v. State was argued and decided with 1’eference to the rights of the prisoner, and not with due regard to the rights and interests of the people. We would not hesitate to overrule and disregard it, were it not fob the constitutional history of the state since, from which it appears that the matter must have been before the constitutional convention, with no manifestation of dissent, but, rather, indication of approval, so far as to recognize existing conditions in this respect, and protect the districts in a county from change, without the consent of two-thirds of the voters, and from too frequent trial of the strength of the sentiment in favor of such change. The sole object of the clause of the constitution under consideration is to inhibit change of the “boundary” described. There is no interference by it with the right of the legislature to abrogate the evil of two districts in a county. The inhibition is only of a change of this line by drawing it somewhere else. The right of the legislature to alter the boundaries of counties is in no way affected by this provision, whose purpose and effect are to meet the supposed evil of proposed changes of the line drawn in the county separating the districts in it. The power of the legislature over the whole subject exists as before, except as modified by this provision.

*826We regret to be driven to the conclusion reached, and would gladly announce the opposite view, if we were at liberty to do it, and thereby correct what we regard as a very •great public evil; but in this, as in all other cases, our duty is to declare the law to be not as we could wish it was, but what we find it to be, whatever may be the consequence.

Affirmed.