
    James County v. Hamilton County.
    
      (Knoxville.
    
    October 4, 1890.)
    1. Injunction. Dissolution at chambers. Notice.
    
    Upon notice thereof for less period than five days, the Chancellor has no jurisdiction of motion to dissolve injunction at chambers.
    2. Same. Motion to dissolve entertained in term without notice.
    
    In term the Chancellor may dispose of motion to dissolve made in vacation without notice, and he may appoint special term for that purpose.
    3. Constitutional Law; Legislature has no power to abolish and partition counties.
    
    The Legislature has not power, by its mere act, without a vote of the people to be affected, to abolish an established county and divide its territory among the adjoining counties.
    Case cited: 12 Ill., 391.
    Question reserved: Can a county be abolished and its territory partitioned among other counties even with the consent of the people?
    EROM JAMES.
    Appeal from Chancery Court of James County. W. H. DeWitt, Sp. Ch.
    P. B. Mayeield, S. P. • G-aut, D. A. Gaut, ' and J. E. Mayeield for Janies County.
    Shepakd, Watkins & Bates for Hamilton County.
   TüRNEY, Ch. J.

An Act of the Legislature, approved March 11, 1890, by its -first section abolished the county of James, and restored its territory to the counties of Hamilton and Bradley, from which it had been formed in 1871.

This bill is filed charging that the Act of 1890 is unconstitutional and void, enjoining action under it, and asking that it be declared null.

On April 9, 1890, notice was served on complainant that on April' 12, 1890, motion would be made to dissolve the injunction. The motion was made, and the decision reserved, but never rendered.

On May 14 the Chancellor ordered a special term, of the Chancery Court to be h olden on June 14, “ to render such decree as may be necessary in the suit of James County against Hamilton County et al., and for no other purpose.”

At the special term the Chancellor held the Act to be constitutional, and retained the injunction in force until the question could be determined by this Court.

It is now objected that the Court was not authorized to entertain the motion to dismiss in the absence of notice of such motion to complainant. This objection is not well taken. ' Our statute provides: “A defendant may move to dissolve or modify an injunction in vacation before the Chancellor of the division in which the bill is filed, either for want of equity in the bill or upon the coming in of the answer to be heard upon certified copies of the bill or bill and answer; but five days’ notice of such application shall be given to plaintiff or his solicitor.”

“A motion to dissolve an injunction may be. made at any time upon answer or for want of 'equity on the face of the bill.” Code (M. & V.), §§ 5194, 5195.

It is clear to us that the action of the Chancellor in ordering a special term was induced by two considerations :

First. — The notice to dissolve was insufficient— and, in fact, no notice — the law demanding that the plaintiff shall have five days’ notice, while in this case there were only about three; and therefore there was no jurisdiction in the Chancellor to act out of .term.

Second. — The matter being one of public importance, the Chancellor correctly determined to pass upon it as promptly as the law would allow. Ro notice of motion to dismiss in term time is necessary. The Chancellor may dismiss of his own motion. The order appointing the special term called attention directly to the purpose of; the Court to make such decree as he thought necessary in this case, and was notice to the complainant that every step that could ' be taken in the cause would or might be asked for.

This brings us to a consideration of the constitutionality of the Act. Our Constitution, Article X., Section 4, ordains:

“Hew counties may be established by the Legislature, to - consist of not less than two hundred and seventy-five square miles, and which shall contain a population of seven hundred qualified voters. No line of such county shall approach the court-house of any old county from which it may he taken nearer than eleven miles, nor shall such' old county be reduced to less than five hundred square miles. * * * No part of a county shall be taken off to form a new county, or a part thereof, without the consent of two-thirds of the qualified voters in such part taken off; and when an old county is reduced for the purpose of forming a new one, the seat of justice in said old county shall not be removed without the concurrence of two-thirds of both branches of the Legislature, 'nor shall the seat of justice of any county be removed without the concurrence of two-thirds of the qualified voters of the county.”

Ai’ticle X., Section 4, contains all the provisions on the subject of counties, county lines, etc.

Erom it it is clearly manifest the authority and only authority conferred is to build up, and not to ppll down1. It is equally apparent that it never occurred to the framers that a county could be destroyed or dissolved by an arbitrary Act of the Legislature. The expression of the one thing is the exclusion of the other.

If the Constitution is so careful of the rights of old counties in taking from them fractions to form new counties; if it is so watchful of the rights of citizens in county seats, it follows that it is also jealous of any power that might utterly destroy old counties. At the passage of the Act before us, James County was, in a legal sense, as much an “old county” as Washington or Davidson, and had all the rights of such.

In all the cases that have arisen in the State touching county lines, the reduction of counties to form new ones, the removal of county seats, etc., the Courts have invariably held to the restrictions of the Constitution.

If two-thirds of the qualified voters in the part taken from an old county to go to the formation of a new is required, why is not the same' prin-i ciple, derived from the same instrument — the Constitution — applicable to the effort to divide an old county into two parts, giving one part to Bradley and another part to Hamilton? ' If it requires two-thirds of the qualified voters of a county to remove its seat of justice to another point in that county, by what process of reasoning can we conclude that a seat of justice may by legislative enactment be divided between the seats of justice of two adjoining. counties ?

If the voters must by a two-thirds majority consent to a removal or to a detachment from one and attachment to another county by the terms of the Constitution, why is not the same rule applied to the purpose of dissolving a county, and then attaching its several parts to' other counties, if it can be done at all? — a very doubtful question.

As we have seen, James County was regularly formed and organized. It had built its courthouse, jail, and other public buildings; had its officers in all respects as other counties. Now, must all these be swept from it without the consent of its people? Must the moneys expended in the nineteen years of' its existence go for nothing? Of course-these things must be if the Act is constitutional.

The public buildings and improvements which have been paid for, or its people yet to be taxed to pay for, cease to be of use as public property, while the money paid, or to be paid, is a total loss to the tax-payers.

It is insisted that as the Constitution does not prohibit by its terms the dissolution of a county, therefore the Legislature may dissolve it. The answer to this argument is, as we have already intimated, that it was never intended that such thing should be done, unless, perhaps, by a vote of the people (about which we intimate no opinion), as in the case of the taking off a part of a county to form a new one, which is a partial dissolution, and the only one provided for in the Constitution.

A county is a government within a government, and its voters must be consulted in all matters pertaining to it. It is not created, nor can it be dismembered or destroyed by an arbitrary legislative breath. The Legislature having once granted its consent, cannot of its mere motion withdraw it. The county was made at the instance of the people, and for its people, and can be changed or abolished, when at all, only by their consent. If the Legislature may dissolve one county and divide it out amongst its neighbors, it may abolish all, and destroy the State. It may divide Davidson or Knox, and remove their county seats to any other county by its legislative partition.

The sole purpose of the Constitution was to build up and preserve, hence its restrictions about legislative interference with organized counties.

It may be said to have been the policy of the framers of the Constitution of 1870 to encourage the creation of new counties, as it reduced the approach to county seats of old counties in the formation of new ones to eleven miles instead of twelve, as ordained by the Constitution of 1834.

We are aware of but one case in the Union in which the question here presented has arisen— The People v. Marshall, 12 Ill., 391 — in which it was held: “The Legislature cannot abolish counties, and form the territory of which they were composed into one or more counties, without submitting the Act to a vote of the inhabitants affected by the change.”

In that case the county of Gallatin had been divided, and the county of Saline formed of part of it. The Legislature undertook “to create the county of Gallatin out of the counties of Gallatin and Saline,” in other words, to abolish Saline and add its territory to Gallatin.

The Constitution of Illinois is in this respect very similar to ours.

The .fact that the question has only arisen in the two cases, goes to show that Legislatures have heretofore interpreted Constitutions as giving no such power, either by implication or in terms.

If desirable to abolish or change counties, the people interested ought to be consulted. Such are the spirit and policy of constitutional popular governments. They can and ought to be carried out.

The Legislature cannot do indirectly a thing not to be done directly.

To abolish a county and give its territory to others, is to take from the one and add 'to the others without the consent of the people to be affected. A Constitution which prohibits a small taking off, or appropriation, certainly protects against entire destruction. The. act is void.

Reverse.  