
    In the Matter of the County Seat of La Fayette County ex rel. James H. Knowlton.
    Where, before tho adoption of the Constitution of tho State, tho Territorial Legislature had, adopted a County Seat; but afterwards passed an aot providing for the selection, by Commissioners of another plaeo for the establishment of the Public Offiees and tho holding of the Courts, until suitablo buildings should be erected at tho original site; held that the latter became the permanent site until a removal should be made by positive legislation or tho happening of the contingency, which, by tho act, locating it temporarily, should have occurred.
    Held, also, that tho County Site, though temporarily located, hut
    . being such at the time of the adoption of tho Constitution, is freo from all contingencies to which its removal might be subject by Statutory provision, before, and that a different location cannot be fixed otherwise than by resorting- to tho modo prescribed by tho Constitution.
    Held, also, that an act of the Legislature, passed after the Constituí tion had gone into effect, and providing for th© removal of a County Site, which 'aot did not Comport with tho provisions of tho Constitution, was a nullity; and that tho Court and not the Legislature, was the tribunal to decide upon the Constitutionality of Legislative acts. ■
    Held, .also, that whore tho Legislature assumed an act to be in opera tivo force, and ingrafted upon it additional enactments, and thus .affirming it to bo tho law of the land, did not legalize it; and that such Legislation was, and of necessity must ho an open proposition for the adjudication of tho Judicial tribunals ; and that the decision of this Court was final and conclusivo; and to that ox-tent was to bo regarded as tho law of the land.
    The Legislativo branch of tho Government cannot, by a Statutory enaetment, declare an act of its own to bo either Constitutional or void, though it may repeal any law; subject, howovor, to the rights which may havo been acquired under it, upon the hypothesis that it was Constitutional when enacted.
    This matter came before the Court upon the certificate of the Circuit Judge of the Fifth Circuit, upon the relation of James H. Knovylton, under the.provisions of an act of the Legislature, entitled “An Act to provide for the final settlement of the location of the County Seat of the County of La Fayette, approved, January 29, 1850; and whereby it was required that the said Circuit Judge should make a statement of the votes cast at the General Annual Election, in the County, in the year 1848, upon the question of location of the County Seat, which Election was had under the provisions of an act of the Territorial Legislature, entitled “ An Act, to authorize the voters of La Fayette County to vote for locating the County Seat thereof, approved March 11th, 1848. And also requiring the said Judge, in like manner, to make a statement of the votes cast at the General Annual Election, in the year 1849, upon the question of the removal of the County Seat, under and by virtue of an act of the Legislature, entitled “ An Act, to authorize the electors of La .Fayette county to vote on the removal of the County Seat, approved March 31st, 1849. The act of January 29th, 1850, conferred jurisdiction upon this Court, and made it incumbent npon the Judges, to hear, decide, and give judgment, upon the matters in controversy, and thereby determine where the County Seat in fact was, under the various laws relating thereto, and the proceedings had under them, by the electors of the county,
    The opinion of the Court, making, as it does, a Constitutional question the basis, of decision, it is not deep-ed necessary to incorporate the voluminous case made up by the parties, and certified by the Judge to this Court.
    
      James II. Knowlton, the relator,
    made and argued ft;,o¡rn the fallowing points:
    1st. That the County Seat of La Fayette was located at Shullsburgh by .an act of the Territorial Legislature, passed March 11th, 1848, whereby it was provided that until a County Seat shall be selected and s.uitable. county buildings thereon ejected, the county seat shall be and remain at the village of Shullsburgh. That the seat having been established at that place, \yhether permanently or temporarily, but being there at the adoption of the Constitution, it could only be removed through the medium of the provisions contained in that instrument, and that it was not pretended that any such means had been essayed.
    2d. That the act of March 11th, 1848, locating the (seat at Shullsburgh was a valid law; and in support of it, cited the case of McCollum. 1st Cowen's Rap., 550,
    3d. That the act of March 31, 1849, was inoperative, unconstitutional and void. Inoperative, because it contained no provisions for canvassing the votes authorized by it to be cast, upon the question of locating tfte County Seat. That being a special Law for a special purpose, the canyassing officers of the county took no authority by implication to perform any act not specifically assigned to them. Unconstitutional, because at the time of its enactment the constitution was in full force, and that acf yyas repugnant to its provisions.
    
      4th. That there was no law locating the County Scat at any other place than at Shullsburgh, except the act of 1846; and that it had not been shown that that act has been complied with, so as to make any 'location else» where.
    • The relator also made several other points wlilch do not seem necessary to be referred to in connexion with the decision of the Court.
    
      Strong Cothren, counsel for the contestants of tho location of the County Seat, at Shullsburgh,
    rqade and argued the following points:
    That the county seat was either at Shullsbui’gh or at the centre of the county, on the land purchased by the county for the public buildings.
    That in arriving at a right conclusion as to its locality, all the Legislation, and acts of the citizens piust be considered and taken into account. That the act of 1846, established the county seat,' without qualification, on a quarter section to be selected and entered, or purchased, within an area of three and a half sections or square miles, which the counsel claimed had been done. That the response which had been made to the case made by the relator showed it had been done in accordance with the act authorizipg it; and that the Territorial, act of 1847, ro? cognized the seat as thus established, as also it was by the act of 1848 and 1849, and by the voting which occurred under the last mentioned act and the certified re-, suit of the votes cast. That by the votes cast under the the act of 1849' there was not a majority ih favor of loi eating at Shullsburgh; tpid by a resolution of the Board of Supervisors the centre was recognized as the county seat.
    
      That the act of 1848, locating temporarily the holding of the Courts atShullsburgh, did not. create a permanent location there, and that the act of 1849 and the voting under it, establishes the location at the centre*
   The Chief JusTioE.

This is a most extraordinary proceeding; and one which, in my opinion, we ought never to have entertained. The question, in the shape in which it has been presented, is'not properly before us; and even if it were, it does not appear to me to be a case of which this Court has original jurisdiction. The Legislature having, however,.in its wisdom» sent the matter to us; and- we' (whether as Judges, commissioners, or arbitrators, it would be difficult to determine,) having consented to entertain it, the parties interested aio entitled to a decision, or at least to an'expression of opinion, from us.

The question is-^where is the County Seat of La Fay-ette County?

For the proper understanding of this question, it is necessary to examine at length the various statutes, as well as the constitutional provision, on the subject.

The act of 1840, p. 41, dividing Iowa County, and establishing La Fayette, provides, Sec. 3, for the purchase by the County Commissioners of a quarter section of land in town two, range three, for the use of the County; and further provides that the place thus purchased •shall be the County Seat. The Commissioners made the purchase.

The act of 1847, p. 57, organizing the County, provides Sec. 7, “ that until suitable buildings are provided at the County seat, the Courts and public offices shall be held at such place as the commissioners shall select;'* and it seems that Shullsburgh was selected for that purpose.

The act of 1848. p. 186, authorizing the people to vote for locating the County seat, provides, Sec. 1, .for the electors, on the second Monday of May following, determining by an absolute majority, the site of the County seat; and gives them unlimited authority in selecting the place. The same section further provides, that if no place should receive a majority of all the votes, at the voting in May, the electors might continue to vote on the question, at every subsequent annual election, until a County seat should be selected and locate^. The next section provides, that until a County seat should be selected, as provided for by the first section, “ the County seat shall be and remain at Shullsburgh.” Under this act no effectual voting has been had.

Such were the laws, and state of things, when the Constitution went into operation; and which provides, Art. IS. Sec. 8, that, “no county seat shall be removed until the point to which it is proposed to be removed shall be fixed by law, and a majority of the voters of the County, voting.on the question, shall have voted in favor of its removal to such point.”

Then comes the act of March 11, 1849, p. 139, which authorizes, Sec. 1, the electors to vote at the general election, in November following, “on the question of the removal of the County seat,” and which provides, Sec. 3, that “ if a majority of the votes shall be for removal to Shullsburgh, then Shullsburgh shall be the permanent County seat; but should there not be a majority for suck removal, then the County seat shall continue to be perrna-netly located at the Centre,” A vote was had under this act; the result pf which ha§ been the subject of controversy, and was the cause of the extraordinary law of' last winter, providing for this novel proceeding.

The delator, the champion' of Shullsburgh* claims that the vote was in favor of that plan, while the other side, contends that it settled the question in favor of the Centre.

In the view we take of the constitutional provision, and of the antecedent legislation on the subject, it is not ne-cesssary for us to exerbise the powers of a board of county canvassers, which the Legislature has attempted to confer upon us;' nor to decide whether in fact Shullsburgh had a majority of the legal votes. ■

Though the Centre had been previously made the' county seat, the act of ] 848 provides, in express terms, that Shullsburgh, until Another place should be selected, and suitable public buildings provided at it, should be find remain the county seat; Thus in effect, and by necessary implication, though not in words, removing the seat frohi the Centre. No other place had been selected when the constitution went into operation; and which found Shullsburgh, for the time being at least, de facto and de jure, the county seat. And so, in our view of the constitution, it was to remain until the contingency, contemplated by the act of 1848, occurred; or until another point had been fixed by the Legislature, and approved of by the popular vote.

I cannot admit the proposition, that the county seat having been fixed at Shullsburgh but temporally, and being subject to be removed from thei'e at any time by a popular vote', it is not within the p.urview of the constitution; The constitution makes no distinction between temporary and permanent county scats. In fact up to its adoption; Ao 'county seat could be considered as permanent; the Legislature haring always, until then, had thoyower of changing a county seát at pleasure; and. having often exercised that power most capriciously and vexatiously; and it was to guard against the fiiischief and inconvenience, and perhaps the legislative immorality, gif arbitrary rerrioval} that the constitution wisely provided} that no county seat should Bo removed until another point for it should be fixed by law, and approved by the people of the county. Shullsburgh held, it is true, by a kind of de-feasible title, and at the will of the county; but, neverthe-* less, its right was oomple'te for tfie time being; and} for all we know, might never have been disturbed. The constitution found it in the possession of this right; and guaranteed to it its continued enjoyment, until deprived of it by virtue of the act under which, it hold; or by the process provided by the constitution itself.

The county seat then being at Slifillsburgli on the^ adoption of the constitution, and not having been removed from there by any legal or constitutional process, it is idle to enquire, whether, finder the law of 1849, there was a majority of votes for removing it io that place. The law assumes the false hypothesis that the county seat was •somewhere else; and no valid action could be had finder it;

It is said, however, that the act of 1849 recognizes the Centre as the county seat, and is declaratory to that effect. I answer-, with deference, that the legislative re-, cognition proves nothing; and that the Legislature had fio power to pass such a declaratory law. The judiciary alone is to determine what the law is. And I much doubt,, whether, under the American system of written constitutions, the Legislature can} in any ordinary cáse, enact whfi't is; properly, a declaratory law. We have; in geiie-ral, got our ideas of such laws from abroad, without attending to the wondrous difference there is between the legislative power in our own country and all others. The Parliament of England is said to be supreme; and having the power of passing any law it pleases, even one changing its constitution; not being restrained by any organic and paramount law, it may properly, in a political sense, be called so. In Russia and Turkey, the legislative power, being one with the judicial and executive, is purely despotic, and may, of course, enact or declare whatever law it sees fit; being liable to be called in question by God alone. But with us the case is far different. The National Congress, within the grant of powers to the General Government, and the State Legislatures, where not restrained by the federal or their own constitutions, may pass whateverjaws they think proper; but it is still, as I have already remarked, fhc judiciary only which can settle what the lav? is, or has been. And when the Legislature. National or State, undertakés to declare — in other words, to construe — the existing law, it (as a general thing) goes beyond its constitutional sphere; and usurps. powers which do not belong to it. I say as a general thing, because I admit, that there are matters of legislative cognizance which are not the subjects of judicial review; sqch as declaring war — declaring war already to exist h,y the act of another nation. And others of a like character. In these cases, the Legislature, in a political sense, is supreme; and is not to be controlled by the judi-dicial or any other human power — as in Russia and Turkey, it acts independent of everything except the Supreme Judge and Governor.

The conclusion of the Court is — that thp. County seat of La Fayette County, is now at Shullshurgh, and that it has been there since the act of.-March 11, 1848; and that it is to remain there until removed as provided by that act, or until removed under the constitutional provision on the subject; and. we direct the following minute to be entered on record.

In the matter of the County Seat of La Payette County. ex. rel. Jamss H. Knowitox.

This matter having been argued by counsel, as well on the part of the relator, as on the part of other persons interested and due deliberation being had thereon — It is ordered, adjudged, and decreed, and this Court, by virtue of the statute in this case made and provided, does order, adjudge, and decree, that the county seat of the said county now is, and has been, since, the act of the Territorial Legislature of March 11, 1848, at Shullsburgh, in the said County; and that it there remain, until another site is selected, and suitable buildings provided thereon, as provided by the said act of March 11, 1848; or until removed according to the provisions of the constitution.  