52 Ark. 430 | Ark. | 1889
The power of the Legislature to alter and abolish counties ; to erect new corporations in the place of the old; to divide and dispose of the property held by counties; to charge portions of the debt of the old county upon that receiving its detached territory, is everywhere conceded, and nowhere more emphatically than in this State. Eagle v. Beard, 33 Ark., 497,. and cases there cited.
Upon general principles of law, if a part of the territory and inhabitants of a county be separated from it by annexation to another, or by the creation of a new county, the remaining part of the county retains all its property, and remains subject to all its obligations and duties. Laramie Co. v. Albany Co., 92 U. S., 307, and cases cited ; 100 U. S., 514.
The only debatable question is as to whether the act segregating the territory must impose such proportion of the debt of the old county upon the new one, or upon the county receiving the detached territory, as is equitable and just, or whether,, where such act is silent as to this, subsequent legislation may make the imposition. This has been ruled differently in the courts.
The earlier doctrine (still followed by some courts) was that the act detaching the territory must apportion the debt, and that it could not be subsequently taken from the old and imposed upon the new county. Hampshire v. Franklin, 16 Mass., 75; Bowdoinham v. Richmond, 6 Greenl., 112.
The act in this case is less open to objection than those usually passed, since it makes Conway County liable for only such equitable proportion of the debt as can be established by legal evidence. The field is open to show, as against a proportion of the debt, the value of county property retained by the old county, and the equity of the imposition of any burden at all.
The demurrer should have been overruled.
Reverse and remand for further proceedings.