
    *Wade & als. v. The City of Richmond. Thomas & als. v. The Same.
    April Term, 1868,
    Richmond.
    ,. Statute — Extending Boundaries of Richmond City— Constitutional. — The act, Sess. Acts 1866-67, p. 635, extending the boundaries of the city of Richmond, is not unconstitutional in any of its provisions.
    2. Same — Same—Effect on Inhabitants of Annexed Territory. — The act operates upon the municipal relations of the inhabitants of the territory annexed to the city, hut in political elections they are still to vote as part of the county of Henrico,
    3. Same — Same—Jurisdiction of Courts as to Justice of Statute- — The General Assembly having the authority to extend the boundaries of the city, the justice or expediency of it is not a question of which the courts can take jurisdiction.
    4. Same — Same—Constitutional.—That the tax-payers of the county may have the burthen of taxation increased, or the creditors may have their security lessened by the reduction of the value of the subjects of taxation, or that the inhabitants in the annexed district may be subjected to heavier taxation, does not affect the constitutionality of the act.
    The first of these eases is a bill for an injunction by William R. Wade and others, in which they allege that they are citizens, tax-payers, property-holders, and voters in the county of Henrico, beyond the proposed boundary of the city of Richmond; and that they are also creditors of the county. That the General Assembly, by an act passed on the 13th of February, 1867, entitled an act to extend and define the boundaries of the city of Richmond, ^propose to take from the county of Henrico and add to the city of Richmond a large portion of the territory, and about half the population and taxable wealth of the county of Henrico. That as taxpayers, property-holders and creditors of the county, they will be greatly injured by this act, by the increase of taxation which they will be required to pay, and the diminution of their security as creditors of the county.
    They insist that the boundaries of the county of Henrico and the city of Richmond are fixed "in the constitution of the State, and cannot be changed by law; and that the act of the 13th .of Rebruarj, 1867, is an assumption of power unauthorized by the constitution of the State, in derogation of the rights of the people, and therefore null and void. And they pray for an injunction to restrain the city of Richmond, its officers and agents, from carrying into effect the said act of Assembly, and that the act may be declared unconstitutional and void.
    The second case is a bill by George W. Thomas and others residing in that part of the county proposed to be included within the city of Richmond, in which they allege that they will be subjected to heavier taxation in the city than they would be in the county. They insist that the act is unconstitutional and void, on the grounds stated in the first bill; and they pray for a similar injunction and relief.
    The Circuit Court of the city of Richmond overruled the motions for injunctions in the cases; and the plaintiffs thereupon applied to this court for appeals, which were allowed.
    In this court it was agreed by the counsel In the causes, that the act took from the county of Henrico and added to the city of Richmond about fifteen hundred .acres of territory, that had been already laid off, built up, and densely populated as suburbs of the city, and took within *these limits a population of about fourteen thousand ; and there was cut off from the city about one acre.
    S. McRae, for the appellants.
    The act of the General Assembly, passed the 13th day of February, 1867, entitled an act to extend and define the boundaries of the city of Richmond, the effect of which is to exscind and annex a large part of the territory and population of Henrico to the •city of Richmond, it is submitted, is unconstitutional.
    1st. The constitutions of 1851 and 1864 specifically recognize and establish certain counties and cities as distinct constitutional divisions, and distribute and apportion representation to each. Art. 4, sect. 2. They are divisions fixed in the constitution as firmly as the House of Delegates or ‘Senate. When the city of Richmond and county of Henrico were fixed by name as distinct constitutional divisions, their territory and boundaries as then existing, were also fixed. Name, territory and boundary are essential to the existence of a city or county. The name implies territory and boundary, and being fixed in and by the constitution, are permanent and unchangeable.
    The constitution of 1851, 4th art., 2d sec., provides that the city of Richmond shall •elect three delegates, , and the county of Henrico shall elect one delegate. Here the boundary between Henrico and the city of Richmond is fixed; their territory separated, and separate and independent elections by separate and independent constituencies ordained. The same article, third section, provides that the city of Richmond shall be another district (Senatorial), and that the counties of Henrico and Hanover shall form another district (Senatorial), recognizing and establishing distinct communities, distinct political rights (elective and representative), and separate and distinct territory, on which these rights are to to be enjoyed.
    *Art. 6, sect. 2, makes Henrico a part of the sixth circuit (judicial), and the city of Richmond the seventh circuit (judicial). Here again we have the recognition of the city of Richmond and the county of Henrico as distinct territorial divisions.
    Neither of these articles of the constitution can be operative unless Henrico and Richmond comprise separate and independent territories, inhabited by separate and independent populations. The 27th section of the same article provides that each county shall be laid off into districts, as nearly equal as may be in territory and population. Under this section, the entire territory of Henrico is required to be laid off; but Richmond is not laid off as a part of this territory, because the city of Richmond and the county of Henrico are territorially separate and distinct. All land within the boundaries of Henrico must be part of its territory, and is required ,to be included in the county districts. All not included must be without its territorial limits. In this section, which relates specifically to territory, we have a clear warrant for the position, that the countj' of Henrico and city of Richmond are territorially separate and distinct. What the constitution has separated, the law cannot unite. In the language of the Massachusetts judges, 6 Cush. p. 580, on the subject of change of boundaries, “the counties were made senatorial districts; the effect of which was to make the counties, with their then actual limits, permanent senatorial districts. That which is made permanent by the constitution cannot be changed by law.” Henrico and the city of Richmond, by their then actual limits, having been made separate constitutional divisions for the election of delegates, and separate permanent senatorial districts, and separate individual districts and separate municipal districts, by parity of reasoning, their boundaries cannot be changed by law.
    *Public corporations created and existing only by law, may be changed, and, if purely public, even destroyed by law. Thus all the counties, cities and towns of the State, not specifically mentioned, nor having a shai;e of separate representation, in and by the constitution, may have their boundaries changed. They are subject to the law, being but creatures of the law. They have no place in the constitution ; they have no political status; they exist only on the statute book; their organization is purely municipal. Their boundaries, as well as their names, are unknown to the constitution. They obliterate no boundary, and create no new one, for the county within which they may exist. Their vote is that of the constitutional county within which they may be. Thus the vote of Lynchburg is the vote of Campbell; the vote of Manchester is the vote of Chesterfield; the vote of Tucker is the vote of Randolph. Certain counties and the cities of Richmond, Norfolk and Petersburg, named in’the constitution, and to which separate representation is apportioned, are not only constitutional counties and cities, but they are a part of the structure of the constitution itself; all other counties, cities and towns are public corporations, or quasi corporations, unknown to the constitution, creatures of the law only, and of course changeable by law.
    Under the first constitution of Virginia, the counties were not named, and there was no apportionment. No county had a status in that instrument, fixing it in its structure, distinguishing it from other counties, and imparting to it peculiar political and other rights. Name, territory and boundary were all the endowments of law, and could therefore be changed bj' law. Giving to each county two representatives fulfilled that constitution on the subject of representation, although the name and boundaries of each county in the State had been changed. Loudoun and Warwick had equal shares of representation, not as *Loudoun and Warwick, (for these names were unknown to the constitution), but as counties which the law could name, enlarge and diminish, at pleasure. But Loudoun and Warwick now have each a name, territory and boundary fixed in the constitution, which the law cannot change, because the constitution is paramount to the law. Thus, in some,, of the other States of the Union, where counties,' cities and towns were mere civil divisions — the creatures of the law, and no part of the constitution— their boundaries were changed by law; but when by amendment they were fixed in the constitution by name, it was held their boundaries could no longer be changed by law. 30 Barb. pp. 36S, 366; 2 Gray, p. 104; 6 Cush. 578.
    However it may be held as to the separation of Richmond and Henrico by an absolute boundary fixed in the constitution, it will not be denied that they are separated politically, judicially and municipally, under the 3d, 4th and 6th articles of the constitution, as has already been shown; and the unconditional transfer of the territory, population and property of the county of Henrico to the city of Richmond, is a violation of the rights secured by these articles of the constitution. The mandates of the constitution must be fulfilled by Richmond and Henrico as existing at the adoption of the constitution ; that is to say, with their territory and boundary as then existing.
    The 3d article of the constitution authorizes every male citizen who has resided in the State two years, and in the county, cit3’’ or town where he offers to vote twelve months, to vo,te. This is the most sacred of rights, of which the citizen cannot be deprived but by his consent, or 'by some voluntary act of his own. The voters in the annexed territory cannot vote in Richmond, because they have not resided there twelve months; they cannot vote in Henrico, because they no longer reside in that county. Thus a right conferred by the constitution, to be enjoyed at any *and every instant of time, is destroyed by an act of Assembly. That an act of Assembly impairing, suspending, or destroying the right of voting, is unconstitutional, is admitted by all. 6 Cush. 578; 2 Gray 103, 105; 30 Barb. 365, 366.
    The 4th article of the constitution provides that Henrico shall elect one delegate. Henrico, deprived of much of her territory and one-half of her population, is deprived of one-half of her elective and representative intelligence and strength. Henrico | and Hanover form a senatorial district. In this case Henrico is not only deprived of one-half of its elective and representative intelligence and strength, but its relation to Hanover as an elective and representative body is injuriously changed. The 6th article of the constitution makes Henrico a part of the sixth judicial circuit, and provides for the election of a judge by the voters therein. The same consequences ensue here as in the election of delegate and senator.
    The 27th section, same article, provides that each county shall be laid off into districts as nearly equal as may be in territorj and population, and that in each district there shall be elected by the voters thereof four justices of the peace, who shall reside in their respective districts, and hold their offices for the term of four years.
    The 30th section, same article, provides that the voters of each county shall elect a Clerk of the County Court, Surveyor, Commonwealth’s Attorney, Sheriff, &c., for certain terms. The 31st section provides that these officers, except the Attorneys, shall reside in the counties or districts for which they were respectively elected. Now if the county districts cannot embrace any part of the territory of the city of Richmond, the city of Richmond cannot embrace any part of the countj' districts of Henrico. Under these sections of the constitution, Richmond and Henrico are distinct and separate municipalities, as to territory, *population, and. elective representative rights. The annexed territory and population must constitutionally be either in Richmond or Henrico. If in Henrico, they cannot be comprised within the boundaries of the city of Richmond. The act of Assembly in question assumes to exscind and annex to the city of Richmond at least fifteen hundred acres of land and fourteen thousand people, including a portion of all the magisterial districts, nearly one-half of the magistrates, the clerk, deputy clerk, and other county officers, in violation, it is submitted, of the 27th, 30th and 31st sections of the 6th article of the constitution.
    2d. Representation is distributed and apportioned, by the 4th article of the constitution, amongst certain counties and cities by name. To the city of Richmond, the counties of Augusta and Rockingham each, three delegates are apportioned. To another class of counties, two delegates each are apportioned; to another class, one delegate each is apportioned; to another class, forming districts by the union of two or more counties, one delegate is apportioned. Apportionment was made to each count3r by its limits, as existing at the adoption of the constitution. The General Assembly is directed to re-apportion at certain periods; and has no other authorit3r on the subject of apportionment. It has no power to disproportion at any time. An act of Assembly apportioning representation, or' re-apportioning it, at a time other than a decennial period, would be clearly unconstitutional; an act of Assembly dispropor-tioning representation, all will admit, would be unconstitutional; an act which, if done directly, is unconstitutional, is equally so if accomplished by indirection. Kinney v. The City of Syracuse, 30 Barb. R. 349. The annexation of any part of the territory and population of Henrico, much more the annexation of fifteen hundred acres of land and fourteen thousand people, disproportions *'the existing apportionment, and alters the basis of the present apportionment, and of future re-apportionment. This could not be done directly by act of Assembly declaring such purpose and object, and cannot be done indirectly by change of boundaries. 30 Barb. R. 349. The apportionment made by the constitution establishes a proportionate representation. This proportion is destroyed by diminishing the constituency, while the representative or representatives remain as before; or by diminishing- or enlarging the basis while the representation is unaltered. Re-apportionment is designed to correct the departure from a proportionate representation which time or accident may have produced. Rxscision and annexation, by change of boundaries, disproportion what the constitution has proportioned.
    The power in question might be exercised so as to change the whole map of the State, and systematically disproportion the basis of representation. To Bath and Highland, together, is apportioned one delegate; to Augusta, three delegates. Annex three-fourths of the territory and population of Augusta to Bath, and Bath becomes the large and populous county, possessing three-fourths of the elements on which the representation of Augusta is based, and yet, with Highland, continues to have but one representative; Augusta, with three-fourths of her territory, population and property exscinded, retains her three delegates. The case of Bath and Augusta is the case of every contiguous large and small county in the State, and the case of Richmond and every contiguous county. If the power is possessed at all, there is no limitation in the constitution on its exercise. Then any part, or the whole, of Henrico, may be exscinded and annexed. In that case, are her delegates exscinded and annexed? and if not, how can the territory, population and taxable wealth which they represent be annexed? If a part of the county can *be exscinded and annexed, what part will of right remain? A fourth, a half, an acre, or one man? Where does the constitution draw the line? In a similar case, Judge Bacon says: If twelve hundred acres of land and two hundred and fifty persons can be cut off from the city of Syracuse, and annexed to the city of Dewitt, why may not one-half or any other portion of the city be annexed? In constitutional questions, the inquiry is not what will probably be done, but what it is possible to do under the assumed power. 16 Gratt. 489 ; 30 Penn. R. 27. The act of Assembly, by its extended boundary, annexes a small part of the city of Richmond to the county of Henrico. If the power exists, crowded streets, populous squares with spacious buildings, public and private, may be exscinded from Richmond and annexed to Henrico. What becomes of her chartered boundary? Before 1849, the boundaries of counties in Massachusetts were changeable by law ; an amendment of the constitution made these counties permanent senatorial districts. The judges then say : ‘ ‘The boundaries of the senatorial districts having been made permanent by the constitution, cannot be changed by law. Our constitutional counties and cities are not only made senatorial districts, and parts of districts, but they are made districts or divisions by the constitution for the election of delegates, senators, judges and county officers, and separate territorial divisions for municipal purposes. These being constitutional provisions, are necessarily permanent, and cannot be changed by law. Art. 3, II; Art. 4, II 2. 3, 5; Art. 6, II 2, 6, 27, 30, 31, Con. 1851; 30 Barb. R. 365, 366; 6 Cush. R. 575, 578, 580; 2 Gray’s R. 104. The same judges say that where the boundaries of counties can constitutionally be changed, the law must provide that the annexed voters must vote in the county from which they were exscinded; and if this cannot be done, or is not provided for by the Legislature, *the law will be null and void. The ex-scinded voters of Henrico are not provided for in the act of Assembly in question ; and the provision above indicated would violate the 3d article, 1st section of the constitution. The citizen must vote where he resides. If he resides in Richmond, he cannot vote in Henrico. Under the ruling of' the above cases, the boundaries of Henrico cannot be changed. The counties and cities of the constitution are a part of its structure ; they are the basis of the legislative department, and necessary to the existence of the General Assembly. They are the instruments through which the most valued constitutional rights of the people are exercised and secured.
    The power to form new counties, recognized in the 34th section of the 3d article of the constitution, and the power to create new towns and cities, heretofore, stated as legislative powers, may be thought to imply the power to change the boundaries of the counties and cities named in the constitution. No such result follows. The creation of a new county, or city, or town, has not the slightest effect on the boundary of the constitutional county or city from which they may be formed. The new county, city or town is a component part of the constitutional county within which they may be situated; their existence and boundaries are statutory, not fixed in and by the constitution, as the counties and cities named in the constitution are. A town or city incorporated within the boundary of Henrico would be a part of the county, its existence and boundary unknown to the constitution, and having no effect- on the boundary of Henrico as existing at the adoption of the constitution. All the cities and towns, not entitled to separate representation, vote as competent parts of the . counties within which thejr are situated; and the new counties vote as competent parts of the counties from which they are formed. See acts of Assembly 1855, 1856, *p. 914. In a word, their creation and existence are consistent with the apportionment of representation, and the structure and mandates of the constitution. The exscision of territory and population from Henrico, and annexation to Richmond, produces consequences altogether different. The effect is to increase the territory and population of Richmond, and to diminish the territory and population of Henrico, thereby disarranging the apportionment made by the 4th article of the constitution.
    This difficulty cannot be obviated by leaving the voters, for political purposes, in the county of Henrico. 'VVhen the law went into operation, the annexed territory instantly became a part of the city of Richmond, and the voters therein residents of the city; and by virtue of such residence, and the 3d article of the constitution, voters of the city. The voter must not only vote in the county or city in which he resides, but must also vote in the ward in which he resides. The voter must reside either in Richmond or Henrico; if in Henrico, then he is not amenable to the municipal jurisdiction of Richmond; if ill Richmond, then he must vote in Richmond, and nowhere else. Art. 3, U 1, 2, constitution. Our acts . of Assembly, annexing portions of counties to others, incorporates the ex-scinded population and territory with the counties to which they are annexed, and thus merges territory and population for all purposes; and herein is a marked difference in our acts of Assembly between annexation of territory and the formation of new counties. In the case of the new .county, town or city, there is no merger and no effect on the boundary of the county as fixed in the constitution at the adoption of that instrument. This was well understood by the Legislature, as shown by the acts of Assembly referred to.
    . But an act of Assembly annexing a portion of the territory and population of Hen-rico to the city of Richmond, and merging the same in the city for all purposes, violates *the apportionment of representation and other provisions of the 4th article of the constitution. Such an act of Assembly, requiring the voters in the annexed territory to vote in the county of Henrico after annexation to the city of Richmond, would be in conflict with the 3d article 1st and 2d sections of the constitution, which requires the voter to vote in the county or city in which he may reside at the time of offering to vote.
    And if such last mentioned act were otherwise constitutional, according to the authorities heretofore cited, the failure to insert in the act of Assembly a provision to secure to the exscinded people their constitutional rights, will make the act unconstitutional. Silence is as unconstitutional as an open invasion of the constitution. Kinney v. City of Syracuse, 30 Barb. R. 349. In all three of these aspects, the act of Assembly in question is unconstitutional.
    The proceedings of the convention in relation to the concluding clause of the 34th section of the 4th article of the constitution furnish the fullest evidence that the manner of voting required by that clause does not apply to voters residing on annexed territory. That clause requires the voters of • any new county, ‘ ‘in all general elections,” to vote as a part of the constitutional. county from which it is formed. It was proposed to apply the same requirement to the annexation of part of one county to another, and negatived, showing conclusively that the effect of annexation, if constitutional, is to merge the annexed territory and voters, municipally and politically, in the citj' of Richmond. We have already shown that such merger is in conflict with the 4th article 2d section of the constitution. (See Legislative Report of Convention, pp. 2, 4.) - And the conclusion seems inevitable, that the absence of this requirement in relation to voters, on annexed territory, results from the absence of legislative power to annex.
    *If the power of annexation existed, the reasons for such requirement as to voting, and for limitations on the exercise of such power, applies with more force to the annexation of territory than to the formation of new counties. The absence of such wholesome provisions argues the absence of the power. The act of Assembly in question, extending the boundary of the city of . Richmond, is necessarily an act of annexation. Richmond and Henrico are distinct municipalities, separated in the constitution by their boundaries as existing at the adoption of the constitution. They have coterminous boundaries. The extension of the boundary of Richmond over any part of the county of Henrico exscinds such part of Henrico, and annexes it to the city of Richmond, with the inhabitants thereon, as effectually as if the word annex had been used.
    Previous acts of Assembly, annexing parts of one county to another, effected their object by extending the boundary of one county over another. Acts ’55-6, p. 97, several cases. In all such cases the territory and inhabitants exscinded, with the political rights of the latter, have been considered as merged in the county to which they have been annexed. The act of Asr sembly in question bears on its face such object and purpose. If a merger of the annexed territory and inhabitants, municipally and politically, had not been intended, (with previous acts of Assembly before it on this subject,) the Legislature would have felt itself constrained to guard its own act against such an inevitable effect. This they have not done. It~ is against reason and authority to imply any such purpose. 30 Barb. R. 349.
    It is contrary to the recognized rule for the construction of written constitutions and statutes to expound a law in opposition to its plain meaning, in order to obviate its unconstitutionality. Judge Shaw says: “The act within itself should make provision for all the changes which it *seeks to effect in the rights and conditions of the inhabitants; otherwise, the act is unconstitutional.” Judge Bacon similiter, supra, 30 Barb. R. 349. The implied prohibitions of the constitution, forbidding the change of the boundaries of the constitutional counties and cities, and certain limitations being imposed on the formation of new counties, power is given in the 34th section, 4th article of the constitution, under certain conditions, to divide a county. Under these limitations and conditions, no new county can be formed from Henrico, nor can it be divided. Can it be exscinded at the pleasure of the General Assembly, and annexed to Richmond? Excision is a mode of division which may lead to the destruction of a county; this is not the division intended in the constitution. It would be inconsistent in the constitution to give a qualified and conditional power to divide a county, and leave in the same instrument a power to exscind and divide without qualification or condition. But the county of Henrico, by the foregoing clause and the necessary implication arising under it, is protected from any division of her territory. And the spirit and purpose of this clause protect from excision and annexation, which is the most enlarged use of the power of division.
    The county of Campbell is entitled to two representatives. The 4'th article, 2d section, last clause, provides that the General Assembly shall have power, upon application of a majority of the voters of the county of Campbell, to provide that instead of the two delegates to be elected by the said county, the town of Lynchburg shall elect one delegate, and the residue of the county of Campbell shall elect one delegate. The legislature, then, had no power to make this arrangement without specific authority, although under this arrangement the county of Campbell still possessed her two representatives (Lynchburg being a component part of the county of Campbell), *and such arrangement not affecting in the slightest degree the distribution and apportionment of representation between the counties and cities named in the constitution. If the countjr of Henrico contained a town numbering about half of her population, the Legislature would have no authority to transfer half of the representation, or one delegate, (Henrico not having two delegates), to such town; much less could the town and inhabitants be transferred to the city of Richmond, which ■ possesses its apportioned share of representation. Nor could such town, or any part of the county, be transferred municipally to Richmond, leaving the inhabitants of the annexed territory to exercise their political rights in Henrico. As before said, residence follows the municipality. After annexation, the voter resides in Richmond, and must vote there, or nowhere else. The case of Campbell shows that the vote of Henrico cannot be severed. It is fair to infer that the voters cannot be severed— some voting in Henrico and some in Richmond — a county and city having separate representation. This case also shows that the implied prohibition of the constitution restrains the Legislature in a case affecting the rights of a county in a much less degree than the case at bar affects the rights of Henrico. It also shows that when the voters of a county are authorized by the constitution to be separated, the voters of the entire county should be consulted. Neither the voters of Henrico nor Richmond have ever been consulted in the form of a vote, but Henrico has constantly protested against this change of boundary.
    Taxes are the food of counties, as a necessary part of the government. The destruction or diminution of the resources of taxation destroys, or tends to destroy, the county or city within which they may be situated. Every citizen, as liable to pay his share of the public tax,. State and county, is interested in every act and question which ^diminishes the resources of taxation, or in any manner affects his interests as a tax-payer. 30 Penn. R. 24, 35. Every citizen is interested in his fellow-citizen, as under obligation to share the burthen of taxation. Vattel, B. 1; ch. 20. The excision from Henrico of fifteen hundred acres of land and fourteen thousand people, with all their taxable wealth, seriously affects the tax-payers wdio remain in Henrico. The tax-payers in the annexed territory are injuriously affected by forcible removal into a foreign jurisdiction, and the imposition of heavier taxes than those imposed in Henrico. These consequences can never be justly and constitutionally produced, unless by voluntary removal. Voluntary residence and removal ate attributes of personal liberty, and secured by the first article of the Bill of Rights. If annexation in any way is constitutional, provision must certainly be made by the law enacting it, for the protection1 of these rights. If otherwise constitutional, the law should make provision to secure the rights of the county to all public property included within the annexed territory.
    This act of Assembly impairs the security of every county creditor’s debt; and therefore violates that provision of the constitution of the State and the United States which forbids the impairing the obligation of contracts. 30 Penn. R. 36. That this is a judicial question, reason and authority declare. 30 Penn.,R. 24; Kinney v. City of Syracuse, supra; Crenshaw v. Slate River Co., 6 Rand. 645.
    The people and property-holders in the annexed territory cannot be held responsible for the city debt existing at the time of annexation, they not incurring such obli- • gation by voluntary removal; yet the law makes them so.
    Daniel, for the appellee.
    The boundaries of the city of Richmond were fixed by *a committee before the year 1805; and these boundaries had continued unchanged until 1867, when the act which is the subject of consideration in these cases, was passed. In the meantime, a large population had grown up around the city, enjoying its benefits without its burthens; and the General Assembly looking at the condition of things as it existed, deemed it just and expedient to extend the boundaries of the city, so as to include that population; and the question now before this court is the constitutionality of this law.
    The first thing to be done in order to ascertain whether this act is unconstitutional, is to look at its provisions. It will be found in the sessions acts of 1866-67, p. 635. The first and second sections merely extend the limits of the city; the third section exempts the persons and property within the district added to the city from liability for the then existing city debt for five years; and the fourth section provides that the taxes levied upon persons and property within this district shall for three years be applied to the improvement, protection and police of the district so annexed; the fifth and sixth sections only refer to the collection of unpaid dues, and the county ■levy- of the year; and the seventh section provides for the representation of the inhabitants of this district in the Council of the city. In all the act there is not a word about voting, or the political relations of this annexed district; but the act simply extends over it the corporate franchises of the city; and this is a power exercised ab urbe condita unchallenged until now.
    A subject like this purely political, affecting the General Assembly itself, which has been- acted on under all .constitutions, and through every period of our history, both .as a colony and a State, has obtained something like judicial construction. Rven in ordinary cases the courts will be slow to pronounce an act of the legislative department *of the government ufi-constitutional. Fletcher v. Peck, 6 Cranch’s R. 87. And how much more cautious will they be in such a case as this, which involves the constitution of a co-ordinate department of the government; if, indeed, it may not be considered as beyond the jurisdiction of judicial tribunals.
    It is only necessary to examine this act to see that it does not attempt to disturb any political relations. As to voters and voting, it is perfectly silent; and it has effected no change in-this respect, unless it is a legal constitutional sequitur from what it does. What then is the complaint? It is said it was against the consent of the people of Henrico, and the district annexed. Does the validity of a law depend upon the consent of the people of a county, or of a small part of a county? If it does, then what law in the statute book is valid? How many of the acts found there were passed by a unanimous vote?
    But it is said that it violates certain mandates ' of the constitution; that when the city of Richmond and the county of Henrico were put into the constitution, they were fixed beyond the power of change, either as to names or boundaries. If the counsel for the appellants is correct, there is no power that can alter, by a hair’s breadth, the line which divides the city and the county, though it may be the wish of everybody that the change should be made. And yet it has been the practice of the legislature, from the year in which the colony became a State, and even before that day, to make these changes. And this restriction upon a power which has been at all times recognized, and at all times acted upon, is to be effected not by any express prohibition, not even by any provision of the constitution having reference to the subject, but is to be implied from provisions relating to entirely different subjects, and having entirely different objects in view. Such a conclusion is at war with every sound principle of ^construction ; and is expressly condemned by the Court of Appeals in the case of the County Bevy, 5 Call 139.
    ■ The counsel for the appellants insists that a strict rule of construction is to be applied to the constitution, both to its grants and its prohibitions. Apply the rule, and it will scarcely effect his object. The State constitutions are not grants of power, but restrictions upon power. The State governments have all the political power not taken from them by the constitution of the State, or of the United States. The constitution of the United States does not affect this question; and it certainly is a sound rule that to restrict a power which has existed and has been acted on from the foundation of the government, the intention to do so must be clearly expressed.
    The constitution does put a restriction on the power to divide counties. To the extent of that restriction the power is now taken away; but within it the power exists, and has been frequently exercised; not by virtue of a grant of the power, but because of its previous existence. Now the power to change county lines, and to establish cities and towns, and extend their limits, has always existed, and the constitution puts no restriction upon that power. If it was intended to take away this power from the General Assembly, or to restrict it, would it not have been done expressly, as was done in relation to the formation of counties.
    ' But it is said that the cities and counties to which representation has been given by the constitution, constitutes them an essential part of the fabric of government; and the3r must remain in all respects of name and boundary as they then existed; and this, it is said, distinguishes the present constitution from its predecessors.
    It is only necessary to look at a map of the State to be satisfied that representation was not based upon territory. It is only necessary to examine the census of 1850, to be ^satisfied that it was not based upon population ; and it is only necessary to examine the returns in the Auditor’s office, tobe convinced that it was not based upon taxation. And it is most obvious that the representation was distributed among- the cities and counties, because we had always been accustomed to it, and it was most convenient to be done in that way; and it was distributed not with reference to any precise boundaries of the cities or counties, or to their population or taxation, but with the purpose to give a fair representation to the different sections of the State.
    If there is any ground for the assumption, that under the constitution of 1851 and 1864 the boundaries of the counties are unchangeable, it equally applies to all the previous constitutions. The first provided generally for count}' representation, and gave to West Augusta two delegates. When that constitution was adopted, the boundaries of West Augusta were as certainly defined as were those of Henrico in 1851 or 1864; and yet forty counties or more were carved out of West Augusta, on each occasion changing its boundaries; and still it was West Augusta, until it became simply Augusta. By the constitution of 1831, the State was divided into four districts, and the representation apportioned among these districts; and these distributed among the counties and cities of the districts respectively — to each county a certain number of delegates, i. And although there was a provision for representation when a new county was formed, nothing is said about changing the boundary lines of counties; and yet there were numerous instances of such changes between 1831 and 1851. And since the adoption of the constitution of 1851, there have been some six or eight instances of the kind; nobody ever doubting the power, or supposing that such changes violated the mandates of the constitution. *This idea of the sanctity of county boundaries seems to be based upon the notion that a county loses its identity by the change of its boundaries. But a county is no such rickety bantling. The State of Virginia, as a political entity, of April 17th, 1861, was the State of Virginia of the 4th of July, 1776; though she had, in the meantime, given the northwest to the Union, and had established her daughter Kentucky as an independent State. North Carolina is North Carolina still, though she no longer embraces Tennessee within her borders ; and Alabama and Mississippi have not been brought into existence at the expense of the political being of their mother Georgia; Maine is Maine still, though she lost a part of her territory under the Ash-burton treaty. And so it is with counties. Kanawha, as a political entity, is Kanawha still, though a dozen counties have been taken off from her; and certainly Tazewell, and Giles, and Kandolph, and Preston, and Monroe, and Craig have none of them lost their being because some change has been made in their boundary lines. This question has been strikingly illustrated in the case of The Harrison Justices v. Holland, 3 Gratt. 247. The General Assembly passed an act requiring the owners of mill dams on Simpson’s creek, in the county of Harrison, to put sluices in their dams, for the benefit of navigation ; and providing that, when the work was done, the county court of Harrison should lay a levy and pay the expenses incurred by the different owners of the dams. Before the work was completed, two counties had been taken off from Harrison. And yet the court held that the county of Harrison was still' the county of Harrison, and must lay the levy and pay the expenses.
    The counsel for the appellants has great apprehensions of the abuse of this power; and argues, from the possibility of its abuse, against its existence. The same argument may apply to all other powers. The power of taxation *may be greatly abused; the taxation by license has been most grossly abused, as may be seen by turning to the tax laws of 1852, and of subsequent date; and yet nobody has ventured to question their constitutionality. The reply to all such arguments is, that free institutions are based upon the axiom of the capacity of man for self-government ; and that rests upon his intelligence and virtue. If these are not sufficient to direct the government aright, and to restrain it from the perpetration of wrong, then the whole system is a failure, and we must resort to a master to protect us from ourselves.
    As to the cases which have been cited by the counsel for the appellants, from Massachusetts and New York, an examination of them will show that they are based upon the peculiar provisions of the constitutions of these States, and are wholly inapplicable in Virginia. And if this were not so, then they are utterly inconsistent with the principles which have been recognized and acted on in Virginia during the whole period of our political existence. But even these cases are authority, if authority were wanting, for every thing that has been done by the act now under consideration; and fully justify the addition of the territory and people of the annexed district to the city of Eichmond for all municipal purposes. And I will add, in conclusion, what I should have said before, that the mandates of the constitution, on which the counsel for the appellants relies, all of them, have reference to the political and judicial departments of the government, and can in no wise apply to restrain the legislative control over the counties and cities in their municipal concerns.
    
      
      In Dinwiddie County v. Stuart, 28 Gratt. 519, the principal case and Harrison v. Holland, 3 Gratt. 217, are cited as authority for the proposition that not even an excision of a part of its territory and incorporation of a part of its inhabitants with another county or municipality destroys the identity of a county.
    
    
      
       See principal case cited and approved in Slack v. Jacob, 8 W. Va. 639; Board of Education v. Board of Education, 30 W. Va. 424, 4 S. E. Rep. 640.
      See generally, monographic note on “Municipal Corporations” appended to Danville v. Pace, 25 Gratt. 1.
    
   El VES, J.

These cases present for consideration, in two aspects, the constitutionality of the act of Assembly, passed 13th February, 1867, extending the limits of the city of Eichmond. In the first, the plaintiffs in error, as residents, *voters, tax-payers and property-holders in the county of Henrico, and creditors of the same, complain that this act violates their constitutional rights in these several capacities by the withdrawal of population and the resources of taxation from the county, . the disturbance of their rights of representation, the augmentation of their county levies, and the diminution of county receipts. In the second, the plaintiffs in error are within the annexed territory, and as such object to the competency of the Assembly, by this act, to disturb their electoral privileges and relations, and to subject them to the increased bur-thens of the city government.

It is agreed by the counsel here, that the effect of this act is to annex to the city about fifteen hundred acres of territory that had been already laid off, built up and densely populated as suburbs of the city, and to take within these new limits a population of about fourteen thousand. The new boundary also cuts off from the city and adds to the county about one acre. There was no vote taken at any time in these separate communities upon the question of annexation; so that, from all that appears in this case, it may be assumed as done in invitos. These, therefore, are the principal and material results of this act of Assembly, and the facts of this case.

The act, the constitutionality of which is questioned in these cases, was passed February 13, 1867, and is entitled “an act to extend and define the boundaries of the city of Richmond.” Sess. Acts 1866-7, p. 63S. The first and second sections prescribe the new boundaries of the city, as extended, without any mention of the parts of Henrico thereby annexed to the city, or of the small part exscinded from the city and added to the county. For such facts, as already stated, we have the authority only of the agreed statement of the counsel here. The third section exempts the inhabitants of the annexed territory for the period of *five years from liability for the anterior city debt, or its interest; the fourth appropriates the taxes of such inhabitants, for three years, to the improvement, protection and police of their district; the fifth empowers the sheriff and other collectors of the county of Henrico to collect public dues or officers’ fees unpaid at the commencement of the act; the sixth provides for the collection by the authorities of Henrico county, within the annexed territory, of the county levy for the year 1867, and exempts the persons and property therein from city taxes for that year; the seventh directs the City Council to provide for the representation in that body of the inhabitants thus added to the city; finally, the eighth section, which is the commencing clause of the act, gives it effect from the 1st July, .1867. This is literally the whole of the act.

The questions growing out of it, now presented for our consideration, may be resolved into three classes: first, those affecting the political state of the inhabitants of the county transferred to the city; secondly, the allegations of permanency and unchangeableness of the counties and cities named in the constitution; and thirdly, those relating to the power of the Assembly, by any process of annexation, to render the citizen liable to other and greater taxes than those incident to the local administration under which, it is assumed, he was permanently placed by the constitution. Great latitude has been allowed to the discussion of these questions; the counsel for the plaintiff in error has been twice heard at great length; and his views pressed with an earnestness that attested the strength of his convictions. We are also told that the same arguments were addressed to both branches of the General Assembly; so that this act was not passed without controversy, nor without the fullest consideration of its merits. The magnitude of the interests involved, the nature of the rights affected, and the natural excitement *of i-nterested speculations on the subject, have imposed upon us the duties of careful deliberation and patient investigation. If we do not experience the difficulties and doubts that have been expressed upon this subject, it does not arise from inattention to the arguments adduced, or the authorities cited. We have given to these full consideration. We do not propose to review them at length, or in detail; but a concise statement of the results at which we have arrived, and our reasons therefor, will suffice to show that they have not been pretermitted in our examination of these cases.

1. Our first enquiry is into the effect of this act upon the right of voting and of representation pertaining under the constitution to the inhabitants of the annexed territory. It has been seen that the act is wholly silent upon this subject. If, therefore, their rights and duties in this respect are at all disturbed, it is due to this silence, and not to any enactment of the law. But can such an effect legitimately ensue from such a .cause? We find opposed to it, the practice of the General Assembly — see note to Code of 1860, p. 39, where instances are given, in the formation of new counties under the constitution of 1851, of acts failing to prescribe how the people should vote; and where, as a consequence thereof, they were left to vote with the counties from which they were taken. If it be conceded, as perhaps it ought to be, that voting and representation are rights territorially ordained'and adjusted by the constitution, and as such, cannot be altered by the Assembly, it would be a violent presumption to infer from the silence of the act, that it designed to interfere with these rights. The reasonable inference is directly contrary. They were left where the constitution placed them; there was no necessity to indicate by law, upon such an event, where the people were to vote, or how they were to be represented. The constitution was the only *rule upon that head; and however or wherever the boundaries of ’ the city might be extended, the citizens of Henrico on the one hand, and of Richmond on the other, were to vote and to be represented as the constitution appointed. Instead of making, as we are plainly required to do, all reasonable presumptions and fair inferences to sustain the constitutionality of a law, we should disregard the obvious import of the act, and the respect we owe a co-ordinate branch of the government, by attributing- to this silence an implied direction, in derogation of the constitution, to vote and be represented along with the new communities thus created. A decent respect for the Assembly, that passed this act upon full advisement, forbids us to suppose that they thereby intended to incorporate with the city and county respectively the added inhabitants, for the purposes of voting and representation, as well as municipal government. The latter was the object of the law; the former, apart from it and beyond it. What reason can be given that the political status of these citizens should not remain the same after as before the act? True, their municipal government was changed; citizens of Henrico ceased to be such, and became citizens of Richmond to that end alone, and vice versa; but constitutional limits still remained for the exercise of constitutional rights, and the enjoyment of constitutional privileges. If it could be said that this act did anything to obstruct these rights, or in any way render them impracticable, the case would be different; but inasmuch as these people can, without difficulty or uncertainty, vote and be represented as the constitution ordains, it is fair to say that their rights in this respect are not disturbed by this act, but, as in other cases, remain the same. I cannot believe that this act would have been assailed in this particular, if it were not for the authority of adjudged cases in Massachusetts and ISIew York, that are earnestly claimed to be decisive upon *this point. Accustomed, as we are, to pay great respect to the decisions of courts of sister States, we of course incur the obligation of making proper discriminations, and avoiding the too common danger of a wrong application of the rulings. Keeping in view this obvious duty, let us first examine the case of Warren and others v. The Mayor and Aldermen of Charlestown, 2 Gray’s R. 84. In this case, the act for the annexation of Charlestown to Boston was held to be unconstitutional, because it undertook to erect the territory of Charlestown until the next decennial census, into a representative district, which is neither a town nor a city, and contains no adequate provisions to secure to the inhabitants of Charlestown their rights to elect representatives and senators in the general court and representatives in Congress. This act, while it merged the city of Charlestown into the city of Boston, purported to reserve the electoral rights of the former, as if the law had not been passed; but this reservation was alleged to be futile, because no provision was or could be made under the constitution to give it validity. Chief Justice Shaw, in his opinion, p. 99, stated the principal ground on which the constitutionality of the act was assailed, to be “that the main scope and object of the act is to annex the city of Charlestown, with its territory, property and inhabitants, to the city of Boston; and to annul the charter of the city of Charlestown; whereas Boston and Charlestown are now separate municipal corporations, constitute several representative districts for the election of separate representatives to the general court, belong to distinct counties, constitute parts of distinct representative districts for the choice of representatives in the Congress of the United States, and yet no adequate provision is made, in the act in question, for the exercise and security of the political and constitutional rights of the citizens of Charlestown, after the merger, which, by *the act, is to take effect immediately on the issue and publication of the certificate of the Secretary of the Commonwealth that the act has been accepted.” This objection was sustained, and for reasons peculiar to Massachusetts, and inapplicable to us. They were predicated of the peculiar provisions of the Massachusetts constitution upon the subject of representation. Representation was declared to be a corporate right attached to the town as a corporation, and not to any inhabitants or territory, and can only be exercised in a corporate capacity. 7 Mass. R. 526; 15 Mass. R. 537; and 3 Pick. R. 519. To this corporate right of representation was annexed the corporate privilege of determining whether the town will send any, and how many representatives. Under the constitution, the representative must be an inhabitant of the town for which he is chosen; the voter must vote in the town within which he resides; the town may be fined for neglect to send representatives, &c., &c. All these requirements of the constitution, it will be seen, were distinctly contravened by the annihilation of the city of Charles-town, and its merger in the city of Boston. The inhabitants of the city of Boston could not decide for the extinct city of Charles-town, how many representatives the latter should send to the general court; nor be fined for neglect of the latter to send any; nor could it be held that a resident of Boston was a voter in Charlestown, or eligible as a representative therefor. It seems to me, therefore, to have been properly ruled in this case, that while the rights of voting and representation were nominally reserved as they formerly stood, they were in truth abrogated, or, at least, incapable of being enforced according to the constitution. The opinion of the Judges, 6 Cush. R. 578, was distinctly approved, whereby it was declared competent by the Legislature to change the boundaries of towns for general municipal ^purposes, provided the territory thus set off from one town to another, or the different portions of territory of which any new town was composed, should, by proper provisions in the act, until the next decennial census and apportionment of representatives, be and remain a part of the town from which they were respectively taken, for the purpose of electing' representatives.

A further objection to the constitutionality of the act arose from its failure to provide any means by which the inhabitants of Charlestown, after the annexation, could participate at all in the election of representatives to Congress. Charlestown was in District No. 7, and the city of Boston divided, with six wards in one district, and six in another. The difficulty attributable to this failure or silence of the law is thus stated by Chief Justice Shaw, p. 10S: “After the annexation, the inhabitants of the territory, now Charlestown, although it might still be considered as part of District No. 7, would have no right and no power to vote in that district, because the town of Charlestown, as an organized body, with its officers, would no longer exist to call meetings and receive and certify votes; and no authority is conferred on the mayor and aldermen of Boston, or any other officer, to perform these duties. They could not vote with Boston, because Boston, as a municipal corporation, does not form a representative district, audits twelve wards are distributed and appropriated in other districts. No provision is made for the uniting of the two Charlestown wards with any corporation or organized body for electing members of Congress; the inhabitants, therefore, for the time being, and for an indefinite term of time, would in this respect be wholly disfranchised. It is no answer to say, that this is a defect which may be amended by the legislature; it would depend wholly on the will of a future legislature whether to *amend it or not, whereas the act within itself should make provisions for all the changes which it effects in the rights and condition of the inhabitants.”

The case of Kinney v. City of Syracuse, 30 Barb. R. 349, is, in like manner, founded on a special provision of the constitution of New York, declaring that the Assembly districts, when once fixed and determined by the Board of Supervisors, shall remain unaltered until the next decennial enumeration. In consequence thereof, it was held, that the annexation of a part of the city of Syracuse to the adjoining town of Dewitt, whereby two Assembly districts were altered without any provision being made in respect to the political status of the inhabitants of the exscinded and annexed territory, or defining their rights in reference to the Assembly districts, or the manner in which they should participate in the election of representatives from the several districts, was unconstitutional .and void. Judge Bacon, in delivering the opinion of the court, admitted that the power to create towns or to change their boundaries is legislative in its character, and, irrespective of any provision which would control or circumscribe it, must rest in the discretion of the Legislature as to the time and manner of its exercise; but held that this power was, in this instance, restricted by the precise constitutional provision already quoted.

I have thus stated at some length the grounds and principles of these decisions,' that it might be apparent how inapplicable they are to the case at bar. The cases are wholly dissimilar. The Massachusetts case, which was the leading one, rests on the practical inadequacy of the provisions made by the law for the fulfilment of the constitutional rights nominally saved by it, and its total failure to secure the means or appoint the mode of electing representatives to Congress in the districts thus confounded; and the New York case on an express prohibition of the *constitution. But no such difficulties, obstructions or prohibitions exist here. It cannot be said, that the voters of Henrico are prevented by this act of annexation from participating in the same elections, and having the same rights of representation as appertained to them before. The silence of the act is as potential to leave them in possession of these rights as a special and express enactment that it was not thereby designed to i change the constitutional arrangements for voting, representation and courts. Had such an express enactment been made in this statute, no exception, I presume, would have been made to its constitutionality on this score;- but, I confi-dentlj' submit, its silence is of equivalent import and force, because the inference is irresistible, that these rights, not being amenable to legislation, were left to exist under the constitution as they did, more especially as under our polity no new provisions of law were required to meet and adjust these changes of boundaries and municipalities. But does not the'history of the times furnish an explanation and excuse for the silence of the act in this respect? The State had not as yet been recognized by the authorities of the United States since the overthrow of the Confederacy, to which it had attached itself. A general expectation existed of the necessity of a speedy change of its constitution; and before the passage of this act, the agitation commenced in Congress, which resulted in the passage of the act of Congress of March 2, 1867, ‘to provide for the more efficient government of the rebel States.” This act proceeded upon the recital that “no legal governments” existed in these States, Virginia included, and as a means of ‘ ‘preserving peace and good order in said States until loyal and republican State governments can be legally established,” erected them into military districts, and subordinated the existing governments to military authority. The fifth section of this act ^contemplated the formation of new constitutions for these States, and ordained the mode and conditions of framing and ratifying them. The Governor of this State immediately communicated this act to the Assembly, which, after the expiration of its constitutional term, had just been recalled, and urged them to provide for the call of a convention in conformity therewith. A bill to this end passed the Senate, but its further progress was arrested by the act of Congress of the 23d March, 1867, which, by establishing all the agencies necessary to the call of this convention under the superintendence and management of the military commanders, wholly superseded the functions of such a bill. From this contemporaneous history, it is reasonable to infer that the General Assembly then regarded the existing government of the State as provisional and temporary, and did not recognize (as it otherwise might have done under a greater prospect of permanency) the necessity or propriety of making express provision for the short period preceding a new organization of the State. The absence, therefore, of these provisions is sufficiently accounted for by the remarkable circumstances under which the Assembly was legislating; and it seems to me to militate against the deference we are accustomed to pay to our law-makers, to construe such an omission, under such circumstances, into a violation of their constitutional obligations. I conclude, therefore, that this first and most serious constitutional objection is not tenable.

II. We are next to consider, whether the counties and cities of the Commonwealth, as is strenuously contended, are such component and structural parts of the body politic as to be incapable of alteration for municipal purposes by the General Assembly? This remarkable attribute of permanency is predicated chiefly, if not solely, of the fact that they are named in the constitution, and thereby so *incorporated, as it is urged, in its fabric as to be incapable of legislative change in name or boundaries. The statement of this pretension would seem to be sufficient to mark its extravagance, if not to carry with it its own refutation. The counsel who advanced it was confronted by his own authorities (cited, however, for a different purpose), from 6 Cush. 575, 578; 2 Gray 84, and 30 Barb. 349. These cases conceded an inherent legislative power to change, for municipal purposes, the boundaries of towns, either by the erection of new ones out of parts of others, or by setting off to one portions of another; but the main point of them consisted in this, namely, that such changes could not be made so as to affect the constitutional rights of suffrage and representation by rendering their observance or enforcement impracticable. The principle is freely admitted by counsel for the appellants, that the plenary grant of legislative power embraces this control over the division and limits of counties, unless, indeed, the mention of1 them in the constitution so made them parts thereof as to make their continued and unchangeable existence vitally necessary to its integrity. Bet us, therefore, examine the constitution to see how and for what purpose the counties and cities are named therein, and what foundation exists for the proposition that they are integral parts of the governmental fabric, and therefore as permanent and unchangeable as the constitution itself. In the fourth article, the legislative power of the Commonwealth is vested in a General Assembly, consisting of a Senate and House of Delegates. There is no limitation upon this grant; and it will be important to another part of our inquiry to remember that it is ample enough to carry with it such legislative control over persons and property, for the purposes of general and local government, as is asserted and exercised by the sovereignty of a State. The third section of this article simply declares, that the ‘House of Delegates shall be elected biennially by the voters of the cities of Norfolk and Richmond, and the several counties on the fourth Thursday in May.” The phrase, “distributed and apportioned,” employed in the correlative passage of the constitution of 1851 is omitted here; but I presume there is no significance in this, for the representatives are not the less clearly “distributed and apportioned” thereby among the said cities and counties. The fourth section arranges the counties and cities into classes: first, those to elect three delegates; secondly, those to elect two delegates; thirdly, those to elect one delegate; and fourthly, those to compose election districts, and as such to elect one delegate. Again, these counties and cities appear in the fifth section as arranged in thirty-four districts for the election of senators, wherein the county of Henrico, with Louisa and Hanover, forms the sixth district, and the city of Richmond the tenth. The sixth section directs in the year 1870, and in every tenth year thereafter, a re-apportionment of representation among the cities and counties, from “an enumeration of the inhabitants of the State.” In article six, respecting the judiciary department, the cities and counties are again enumerated and arranged into judicial circuits and districts.

These are the only instances in which the counties and cities are enumerated in the constitution; and the enquiry recurs, whether this enumeration can have the magical effect of exempting them from all legislative change. To determine this, we must settle in our minds the purpose for which these existing territorial divisions were referred to, and the sense in which they were employed by the constitution. Unlike the towns of Massachusetts, our counties possess no corporate right of representation ; their well known bounds and population afforded to the framers of the constitution the readiest, if not the only, mode of ^designating the apportionment of representation in the two Houses of Assembly, and appointing the jurisdiction of circuit and district courts. Nor was it a representation of territory; but rather of the persons and property comprised in these local departments. If this were not manifest from the republican theory of representation, it would be inferable from requiring future apportionments to proceed from “an enumeration of the inhabitants.” It is presumed that the framers of the constitution, haying before them the census returns of the various counties and cities, could not, without the greatest inconvenience and a resort to a future cumbrous machinery, ignore these divisions, and fail to adopt them as'the basis for the construction of the legislative and judicial departments. That they did so, resulted, in my view, from convenience and the fitness of things, rather than from the imputed design to fix these divisions unalterably in the framework of the government. While representatives were nominally appointed for these counties and cities, it was merely meant thereby to indicate that the people residing within these defined boundaries should severally choose such representatives; and their rights in this respect would be as certain and as defined, no matter what changes might be made by law in their names, shapes or boundaries. It is the city of Richmond and the county of Henrico, as they existed at the formation of the constitution, that must be looked to in the ascertainment of these electoral rights; and no matter how their names or limits may be altered, such changes cannot be allowed to interfere with constitutional rights which are fixed by and referred to these divisions as they were designated in the constitution, and just as easily ^nd conveniently settled as if no such changes had occurred in their names or limits.

It is conceded by the ingenious counsel who has pressed upon us these subtle refinements upon the letter of the ^constitution, that towns might be erected within the existing boundaries of counties, because such boundaries would not thereby be altered or affected; and as a consequence thereof, I presume he would not question the competency of the Assembly to create, out of the population and territory of Henrico, wherever it thought proper, a new town, and provide for it a municipal government. Hence, if these suburbs, so far as they were included within the county of Henrico, had been incorporated as an independent municipality, these constitutional cavils would not apply; nevertheless, the same public evils, the same social mischiefs, the same individual grievances, would ensue. But now that the Assembly has concluded, and as it seems to me with great good judgment, that by extending over these settlements the corporate authority of the city of Richmond, the needed organization of these suburban communities might be had at less cost and inconvenience, and more conformably to the obvious proprieties of the situation, it would not comport, in my view, with that broad and liberal spirit of enquiry which should control judicial interpretations of the constitution, to decry the latter measure as unconstitutional, and sustain the former as constitutional. It would be, in my opinion, to attribute to count}" lines and divisions a constitutional fixity, which, however ingeniously advocated, they do not in fact possess by prescription, reason, authority or precedent.

The practice of the Assembly, under the constitution of 1851, in the change of county lines and the formation of new counties, (to numerous instances of which we have been referred in the argument,) taken in connection with the constitutional restriction upon the formation of new counties, strikingly corroborates the views I have presented against this broad and novel challenge of the legislative power, under the constitution, to change, in any ^'particular, even in name, what the counsel is pleased to term constitutional counties and cities, because of their names appearing in that instrument.

As to county districts or city wards, and the election of local officers therein, the former are subject to changes by the General Assembly, under the 26th clause of the-4th article, under the head of “County Courts;’’ so that there is no difficulty nor inconvenience in the re-adjustment or transfer of them, and in the matter of new regulations for municipal government, and local elections in pursuance of law.

III. The third .and last enquiry is into-the alleged grievances of the plaintiffs in error, resulting from the withdrawal of population, territory and taxable wealth from the county of Henrico, and the subjection of the annexed inhabitants to liabilities for the .city debt and the city taxes, which thej" would have escaped without this, act of annexation. The resources of the county are greatly depleted by this measure, so that its remaining citizens and creditors may well object to the loss of the accustomed contributions; . and the abstracted citizens may revolt at the prospect of city burthens.' But provided the General Assembly has the right thus to change and shift these municipalities, as I have endeavored to show, these consequences, however grievous, are addressed to the legislative will and discretion, and cannot legitimately undergo judicial supervision, or challenge judicial redress. Some violation of the constitution, State or Federal, must lurk in these results, in order to place the measure without the category of those that may be characterized as the abuse rather than the transgression of power. Accordingly, it is urged that this measure is violative of the obligation of contracts, and, in the form of public contributions, takes, without consent, private property for public purposes, without-*just compensation. It is also contended that it is by means of a voluntary removal only, as contra-distinguished from a legislative act, that a citizen previously without the city, can be brought within its authority and subjected to its charges. But it should be remembered that the expediency, if not the necessity, of this incorporation has grown out of the voluntary acts of this suburban population in making these thick settlements, and projecting them upon the prolongation of the streets, so as to make them conform to the plan of the city. It is not doubted, however, that these exterior settlements were, in no small measure, dictated by the expectation of escaping city taxes, at the same time that the facilities of doing business, the chances of lucrative employment, and other advantages in the city, were secured to the inhabitants by their position on its outskirts. Yet, they must be presumed to know, that their establishment of an actual town might eventually expose them to the liability of being put under a municipal charter, at the pleasure of the General Assembly. No one has ever yet doubted the supreme authority of that body to grant charters to towns. It is an attribute of that sovereignty which, in its unrestricted functions of taxation and legislation, regulates the affairs of the people, and carries on their, government, local and general, under the constitution; and whatever irregularities may arise from the grant of such charters, they are to be taken as the incidents of this governmental will, and rest in the discretion of the Assembly, without appeal to the courts or other arbiter. The necessity or propriety of granting such charters implies the power to defray local expenditures out of local contributions to be levied by the corporation, although such local impositions are in addition to the State taxes. It would not do to throw the local charges of such incorporated communities upon the general *treasury of the whole people; therefore, the provision that the taxation of the State shall be “equal and uniform throughout the Commonwealth,” absolutely requires that these local charges should fall exclusively upon the local communities; and the compensation and justification for it must be sought in the chartered privileges, and the uncontrollable discretion of the Assembly. Had it pleased- the Assembly to grant an independent charter to this exterior town, it is admitted by the appellants’ counsel that no constitutional exceptions could have been taken to the measure, although the grievances now complained of would doubtless have been aggravated by such a separate corporate existence. How, then, shall the extension of the charter of the interior town over the exterior one, which, in the progress of time and the pursuit of private interests, had grown up on its borders, be deemed unconstitutional, while all the city privileges of police, gas, water, &c., were obtainable at far less cost and inconvenience? It seems to me, therefore, that if any wrong has been done to the appellants by this extension of the city limits, it has not been owing to any violation of the constitution, but to the lack of discretion and precaution on the part of the Assembly, upon which we have neither the right nor the disposition to sit in judgment, nor the materials, in this case, to form or express an opinion.

I am indebted to the remarkable familiarity of my brother Joynes with adjudged cases in this country, as well as abroad, for a reference to a most apposite case, before the Court of Appeals of Kentucky. It is the case of Cheaney v. Hooser, 9 B. Monr. R. 330, which brought up for consideration all these and other constitutional exceptions to the extension of the limits of the town of Hopkinsville. The opinion of the court was delivered by Chief Justice Marshall, of that State, and is so elaborate, ^exhaustive and conclusive, that I may be well permitted to close my investigations by a reference to that authority, and the luminous reasoning of the court.

The decrees of the court below are, therefore, affirmed.

The other judges concurred in'the opinion of Rives, J.

Decrees affirmed.  