118 Ky. 85 | Ky. Ct. App. | 1904
Opinion op the court bt
Reversing.
The last General Assembly passed an act, which was approved by the Governor on February 9, 1904, entitled “An act creating the county of Beckham.” The first section of the act is in these words:
“Section 1. That the county of Beckham be, and the same is hereby, created, and the boundary lines thereof are established as follows:
“Beginning on three black oaks by the county, or old State road, the comer of John Reid’s and Wilburn Hall’s and Marion Oldfield’s lands, being ten andl one-half miles by survey from Grayson, the present county seat of Carter county, Kentucky; thence S. 12° 6' E. 36, 740 feet to a small locust; thence S. 56° W. 2,871 feet to a-black oak near the
The second section makes Olive Hill the county seat. The third section divides the county into five magisterial districts, and gives the boundary of each. The fourth, fifth, sixth, and seventh sections provide for the organization of the county, and make the act take effect from its passage. Appellee Brooks was appointed by the Governor county judge of Beckham county, pursuant to the act, and appellant Zimmerman, on March 4, 1904, filed this suit to test its validity. He alleged that the county of Beckham was created out of parts of the counties of Carter, Elliott, and Lewis; that the part taken from Carter county leaves it with only about 250 square miles; that the county line between Beckham county and Carter runs within less than ten miles of the county seat of Carter county; that Elliott county, before any territory was taken from it, had a less area than 400 square miles, and was by the act reduced to far less than that. He prayed judgment declaring the act void, and restraining Brooks from acting as county judge of Beckham county. Brooks demurred to the petition. The county of Carter then appeared in the action, and moved to file its petition, in which it sought the same relief as Zimmerman. It alleged that the matters involved weine of
The constitutional objection to the act is more serious. Section 63 of the Constitution, which is part of its provisions defining the powers of the legislative department, contains the following: “No new county shall be created by the General Assembly which wiill reduce the -county or counties, or either of them, from which it shall be taken, to less area than four hundred square miles; nor shall any county be formed of less area; nor shall any boundary line thei'eof pass within less than ten miles of any county seat of the county or counties proposed to be divided.” Section 64 further provides: “ . . . Nor shall any new county be established which will reduce any county to tess than twelve thousand inhabitants; nor shall any county be created containing a less population.” It is earnestly maintained for appellee that the constitutional restrictions as to area and population or location of the county line are for the guidance of the Legislature, and that, when the Legislature has determined these questions by passing the act creating the county, it is incompetent for the courts to inquire into the correctness of the legislative findings. In support of this view we are referred to a number of authorities. Thus, in De Camp v. Eveland, 19 Barb., 81, the constitutional provision was that no new county should be thereaftér erected
In re Short, 47 Kan., 250, 27 Pac., 1005, the defendant was convicted of manslaughter, and then took out a writ of habeas corpus on the ground .that the county in which he w.as convicted did not have the requisite area under the Constitution, and therefore the act creating it was void, although the county had been in existence for years. The Constitution required the county should not have less than 432 square miles, and it was alleged that the county had only 480' 1-2 spuare miles. It was held that the county was at least a de facto public corporation, that its existence could not be collaterally questioned, and that the validity of the act creating it could only be assailed in a direct proceeding. To the same effect is Ex parte Renfrow, 112 Mo., 591, 20 S. W., 682, and in that opinion other previous cases holding the same rule are referred to. On the other hand, in Tennessee, where they have a similar constitutional provision, in a number of cases it has been held that, if the act creating a county is in violation of the Constitution, it may be declared void! by the court. Thus in Bradley v. Powell County, 2 Humph., 428, 37 Am. Dec., 563, the facts being disputed,, the chancellor had a survey made to show what the truth was. Upholding its power to act in the premises, the court said: “The convention of the State which formed the Constitution thought proper to place restrictions upon the power of the Legislature to establish new counties, and, of consequence, any attempt to do so contrary to the restrictions is a void exercise of power, which can and must be stopped (by the Judicial department of the State. There is no other place to which an appeal can be made, and, if the court can not interfere, the Constitution, if violated, is a dead letter.” This case was
It will thus be seen that the conclusions reached by the courts are more harmonious than the reasons given for them. The two New York cases reported in 19 Barb., and 19 N. Y., were criminal prosecutions, in which the invalidity of the act creating the county was relied on collaterally, and in the Missouri and Kansas cases it was held that this could not be done where the county was organized in fact and was an existing corporation. In the West Yirginia and Washington cases the suits' were by the taxpayer after the liabilities were created by the county as an existing corporation de facto and it is conceded in Tennessee that' in this state of case the taxpayer can not maintain an action assailing the validity of the act creating the county; but the weight of authority is to'the effect that, when assailed in the proper way and at the proper time, the court will enter upon the inquiry as to the constitutionality of the statute, while the Arkansas case seems to limit the evidence which may be received more narrowly than the other cases.
Lafferty v. Huffman, 99 Ky., 80, 18 R., 17, 35 S. W., 123, 32 L. R. A., 203, and Taylor v. Beckham, 108 Ky., 278, 21 R., 1735, 56 S. W., 177, 49 L. R. A., 258, 94 Am. St. Rep., 357, are relied on. for appellee. It was held in the first of these cases that the enrolled bill, properly authenticated; is conclusive of the regularity of the steps taken in the, passage of the statute, and in the other case! it was held that the judgment of the Legislature, in a contest over the office of Governor, pursuant to the -Constitution, is conclusive, and that the record made by the Legislature and approved by. it
But we do not rest our judgment here, for, while the public surveys are presumptively correct, they may be shown to be incorrect, The Constitution recognizes the existing counties of the State. It confers upon them the right to remain in area not less than 400 square miles: They are quasi corporations, they may sue and be sued. They have certain public burdens to bear. When part of their territory is cut off, these burdens fall more heavily upon the remaining territory. The rights of these corporations which are guarantied them by the Constitution are as sacred as any other rights secured by that instrument to other corporations or private persons. The Legislature, in the creation of new counties, is simply an agency, with well defined restrictions upon its powers. If it acts in a case where it has no power to act, its act, like that of any other agent beyond the scope of his power, is void. The county whose rights are affected may complain, and so may any taxpayer who is prejudiced, for the taxpayers have a right to insist
Judgment reversed, and cause remanded: for further proceedings not inconsistent with this opinion.
Whole court sitting.
Petition for extension of opinion overruled.