
    Bradley vs. Commissioners, &c.
    1. The legislature established the county of Powell. This county, did not, ae-» cording to prescribed limits, contain three hundred and fifty square miles, as re* quired by sec. 4, article 10, of the amended constitution of 1835: Held, that this was a void exercise of power and must be so declared by the judicial department of the State, when properly brought up.
    2. The writ of quo warranto is the common law mode of redressing such grievances; but a court of chancery, as established upon its present broad and substantial basis, will interfere upon the principle of quia timet, and use its process of injunction for the prevention of great and irreparable mischief.
    3. Any person aggrieved by the proceedings, may apply for the remedy.
    The 4th sect, of the IQth article of the amended constitution of the State of Tennessee, adopted in convention on the 30th of August, 1834, and by the voters in 1835, provides as follows: “New counties may be established by the legislature, to consist of not less than three hundred and fifty square miles, and which shall contain a population of four hundred and fifty qualified voters. No line of such county shall approach the court-house of any old county from which it may be taken nearer than twelve miles. No part of a county shall be taken off to form a new county or a part thereof, without the consent of a majority of the qualified voters in such part taken off.”
    In the year 1839, the legislature passed an act, (see pamphlet acts, ch. 15,) entitled, “An act to establish the county of Powell.”
    The first section provides, that “a new county be, and the same is hereby established, to be composed of fractions taken from the counties of Sullivan, Hawkins, Washington and Green, to be known and designated as the county of Powell, in honor of Samuel Powell, one of the judges of the circuit court of the State of Tennessee.”
    The second section gives the boundaries of the county, without specifying the number of square miles contained therein.
    The third section appoints commissioners for the purpose of organizing the county, who were required to take an oath, and give bond for the performance of the duties enjoined upon them by the act.
    The fourth section declares, that it shall be the duty of said commissioners, first giving notice in one or more public places, to open and hold an election at one or more places in each of the fractions proposed to be stricken off from the counties of Washington, Green, Hawkins and Sullivan respectively, for the purpose of ascertaining whether a majority of the voters residing in the several fractions were in favor of or opposed to the establishment of the county of Powell.
    
      The act proceeds to provide for the laying off the county into civil districts, the location of the seat of justice, the erection of public buildings, the election of civil and military officers and the administration of justice.
    The commissioners, to wit, Smith, Ball, Hulse, Shipley, Peoples, White, Gilman, Hendrick, England and Shanks, proceeded to the performance of the duties enjoined upon them by the act, held elections, and returned to the county court, that the decision of the voters had been favorable to the establishment of the county.
    On the 29th day of January, 1840, Orville Bradley and Samuel McPheters, filed their bill in the chancery court at Rogersville, Hawkins county, praying a perpetual injunction against the organization of the county of Powell.
    This bill charges, 1st. That a majority of all the qualified voters, residing in the several fractions, did not vote in favor of the establishment of the county of Powell, though a majority of those who did vote, were favorable to its establishment, and that the establishment of it would, therefore, be in opposition to the intent and letter of the constitution.
    2d. That there are not within the boundaries of said county of Powell, as described by the second section of the act of 1839, more than two hundred and sixty square miles of territory, and that the 4th section of the 10th article of the constitution of 1835, provides, that “no new county shall be established, containing less territory than three hundred and sixty square miles.”
    3d. That the boundaries of the county of Powell, as laid down in the act of 1839, approached within less than eleven miles of the court-house of Green county, within about eleven miles of the court-house of Hawkins county, within less than ten miles of the court-house of Sullivan county, and so they charge, that said county cannot be constitutionally established.
    4th. That they believe, that the establishment of the new county, as laid off, would reduce the county of Green below the number of six hundred and twenty-five square miles of territory, contrary to the 4th section of the 10th article of the amended constitution.
    5th. That the complainants resided in, and were citizens of that portion of Hawkins county, which had been proposed to be stricken off and attached to the proposed county of Powell, and that they were about to be aggrieved thereby.
    The bill, upon the premises aforesaid, prays, “that said defendants may be restrained by injunction from taking any further steps towards the organization of said county of Powell. That they be prohibited from holding any further elections, or doing any further act whatever, under the authority vested in them by virtue of the act of 1839, establishing the county of Powell;” and that inasmuch as the complainants had been informed, and believed, the defendants had threatened to cause the election of county officers to be made in defiance of any injunction that might be issued against their proceeding, they prayed, that J. S. Young, Secretary of State, might be enjoined from issuing any commission or commissions whatever, to any officer elected by virtue of the act of 1839, establishing the county of Powell. The bill further prays, that all persons who had been elected, or who might be elected officers under the provisions of said act, might be enjoined from the performance of any of the duties thereof, and that the contents of said county, as bounded in said act, might be more accurately and unquestionably ascertained. It also prays, that a survey be ordered, and that on final hearing a decree, awarding a perpetual injunction against all persons whatever proceeding to organize said county of Powell, might be made.
    This bill was verified by the affidavit of Orville Bradley, on the 25th day of February, 1840,' and on the 26th, the Honorable R. M. Anderson, one of the circuit, judges, ordered the issuance of an injunction as prayed for in the bill of complainants.
    On the 29th day of May succeeding, the defendants filed their joint answer to the bill. This answer denied all the material allegations of the bill.
    The answer also denied the right of complainants Bradley and McPheters to call the defendants into the chancery court to litigate the questions involved in their bill, and denied the jurisdiction of the court to try and determine the same at the instance of said complainants.
    
      On the filing of this answer, the defendants moved the court, Williams, chancellor, presiding, to dissolve the injunction.— This motion was overruled, the chancellor declaring, that though all the equity had been denied, yet in the exercise of the discretion vested in him, out of abundant caution, and in consideration of the embarrassing attitude of the case, and the irreparable injury that might result from the organization of the county, and the final perpetuation of the injunction, hejdeemed it proper to continue the injunction, as there existed no pressing reasons for a dissolution thereof.
    The court appointed at the same term a competent surveyor to run the lines and make surveys, and report to the next term, whether the county of Powell, as described in the boundaries laid off by the act of the General Assembly, contained the constitutional quantum of square miles, and whether the said county, so laid off, reduced the county of Green below its constitutional quantity, and also whether the lines of the county so run, approached, nearer than the constitution permitted, the county seats of the others, Sullivan excepted, as provided by the constitution.
    The complainants filed a general replication to the answer of the defendants, and at the May term, 1841, the cause came on for final hearing, Chancellor Williams presiding, when the following decree was entered:
    “This cause comeing onfor hearing on this 27th day of May, 1841. before the Honorable Thomas L. Williams chancellor, on the bill of complainants, the answer of defendants, the report of Addison A. Armstrong, a surveyor agreed upon by the parties, as admitted in court, in lieu of thesurveyor appointed by a former interlocutory order in this cause, and the depositions and proofs herein taken; and because it appears to the satisfaction of the chancellor, that there are not within the boundaries defined in the 2d section of the act, passed by the General Assembly of the State of Tennessee, on the 30th day of November, 1839, entitled, ‘An act to establish the county of Powell,’ three hundred and fifty square miles of territory; and because the chancellor is of opinion, that the lines of said county of Powell approach the court-house of Hawkins county, nearer than twelve miles, he doth order, adjudge and decree, that the said defendants be, and are hereby perpetually enjoined from doing any act whatever, under the authority vested in them by the said act, passed on the 30th November, 1839, tending to organize or establish the said county of Powell, and that all acts and things heretofore done by them, are declared null and void.
    “It is, therefore, ordered by the court, that the defendants pay all the costs of the cause, including the costs of the survey ordered by the court.”
    From this decree, the defendants appealed to the supreme court.
    
      J. A. Sf R. McKinney, for complainants.
    
      Peck, for defendants.
   Turley, J.

delivered the opinion of the court.

This bill is filed by the complainants, to enjoin the defendants from organizing the county of Powell, the establishment of which is directed by the act of 1839, ch. 192.

The 4th section of the 10th article of the constitution of the State, provides for the establishment of new counties, to consist of not less than three hundred and fifty square miles, and to contain not less than four hundred and fifty qualified voters.

The proof in the case shows conclusively, that the boundaries of the county do not contain the constitutional number of three hundred and fifty square miles, but much less; and the question is, whether the commissioners can be prohibited, by the decree of a court of chancery, from organizing the county contrary to the provisions of the constitution.

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 whichan appeal can be made,and if the courts cannot interfere, the constitution, if violated, is a dead letter.

But it is said, that the true remedy for this evil, is by writ of quo warranto and not by injunction.

To this we answer, if the courts have the power to remedy the evil, that remedy, which, under all the circumstances, will be most effectual, is the one which ought to be resorted to, if there is nothing in the mode of administering the law prohibiting it.

That the writ of quo warranto is the common law mode of redressing such grievances is admitted, and that it was the only one which could have been used, before the system of chancery jurisprudence was' established upon its present broad and substantial basis, is not denied. But that this remedy is inefficient, for the purposes desired, cannot be controverted. The writ of quo warranto is not a prohibitory writ, and before the question arising under it could be determined, much mischief could and would be done by the organization of the county, the thing sought to be prevented, and no subsequent action of the court could, by possibility, place the parties concerned, in their original, uninjured condition. It is this inability of courts of law to operate prospectively, by prohibition, for the prevention of mischief, that has established upon clear and definite grounds, that portion of chancery jurisdiction which rests jupón the doctrine of quia temet. It embraces a great variety of interests, which we need not, and do not design to investigate here. It sufficeth for this case, to say, that it always applies, where great and irreparable mischief may be the consequence of illegal action, which the common law courts, from their mode of proceeding, cannot stay; such we think this one to be. If the establishment of the county be unauthorised, its organization ought to be prohibited, and this, no court but one of chancery can do.

It is submitted, whether one or two private individuals can seek the aid of a court of chancery for this purpose ?

We think that any person aggrieved, by the proceedings, may apply for the remedy.

Let the decree of the chancellor be affirmed.  