
    The Inhabitants of the County of Hampshire versus the Inhabitants of the County of Franklin.
    The Court of Sessions are to be considered as the agents and representatives of the county, in all matters touching its finances and general prudential concerns ; and their acts and admissions are binding upon the inhabitants.
    This action was assumpsit, for money expended by the plaintiffs for the use of the defendants; and it was referred to the decision of the Court, upon the following case stated by the parties.
    By an act entitled “ An act to divide the county of Hampshire, and to constitute the northerly part thereof into a county by the name of the county of Franklin,” passed on the 24th of June, 1811, the county of Franklin was created, with all the powers, rights and immunities of other counties of this commonwealth; the said act to take effect from and after the second day of December then next.
    
      In and by the said act, it was enacted that the Supreme Judicial Court, to be holden at Northampton in the county of Hampshi-e, should be holden for the counties of Hampshire and Franklin, and from time to time have the same jurisdiction, power and authority, for the trial of all actions, civil and criminal, arising within the county of Franklin, as if the same had arisen in the county of Hampshire; and that the grand and traverse jurors for the [ * 77 ] said * Supreme Judicial Court should be drawn from the said two counties, as before the passing of the said act.
    After the said act took effect, and until the 14th day of February, 1816, all such actions, arising in the county of Franklin, were proceeded upon and tried in the Supreme Judicial Court, holden in the county of Hampshire as aforesaid ; and the grand and traverse jurors for the said Court were drawn as aforesaid, and were paid for their travel and attendance out of the treasury of the county of Hampshire. The proportion of the amount thus paid, and chargeable upon the county of Franklin, in case said county is by law liable to pay the same, after deducting the fees paid by suitors in said Court, is the sum of 803 dollars, 24 cents; a part of which, viz. the sum of 313 dollars, has been paid by the treasurer of the county of Franklin, leaving a balance of 490 dollars, 24 cents ; for the recovery of which, and the interest thereon, this action was commenced.
    On the 2d of December, 1811, when the said act went into operation, the money in the treasury of the county of Hampshire, with the outstanding debts and taxes, which have since been paid into the said treasury, after deducting the demands then existing against the county, and the disbursements for the support of prisoners then in confinement, and for completing the business then depending in the Courts of the county, amounted to the sum of 3758 dollars, 2 cents; which sum was levied by assessment upon the towns in the county of Hampshire, while the towns in the county of Franklin constituted a part thereof. The proportion of the said sum, paid by the towns in the county of Franklin, was 1311 dollars, 84 cents. There was no provision in the said act, requiring a division of the said money, or the payment of any part thereof to the county of Franklin.
    
    By an act passed on the 25th of February, 1812, entitled “A? act for dividing the county of Hampshire, and erecting and [ * 78 ] forming the southerly part thereof into a separate * county by the name of Hampden,” the county of Hampden was created; and it was therein provided that the said county of Hampden should be entitled to a share of all moneys in the hands of the treasurer of the county of Hampshire, and of all sums of money due on taxes, or other debts due to the said county of Hampshire, 
      according to the taxes paid in the then last county tax for said county, by the towns in the county of Hampden, in proportion to the whole tax then last assessed, and of other movable property belonging to the said county of Hampshire; deducting therefrom all sums due from said county when the said last-mentioned act took effect.
    Pursuant to an adjustment made in November, 1812, according to the provision of the said act, the county of Hampshire had paid over to the county of Hampden the sum of 1132 dollars, 38 cents, before the act herein after mentioned was passed, as the balance then due to the said county of Hampden; and there was then a balance of outstanding taxes, debts and demands, which have since been received by the county of Hampshire, of which the proportion of the county of Hampden is 340 dollars, 11 cents, making in the whole, paid and to be paid, the sum of 1472 dollars, 49 cents.
    By an act passed on the 27 th of February, 1813, entitled “An act in further addition to an act, entitled an act, to divide the county of Hampshire, and to constitute the northerly part thereof into a county by the name of the county of Franklin,” it was enacted that the county of Franklin should be entitled to such proportion of all the moneys and credits of the county of Hampshire, at the time the act first above-mentioned took effect, which remained after payment of the debts, then due and owing from the county of Hampshire, as thé amount assessed upon the several towns in the county of Franklin bore to the whole assessments; and the treasurer of the county of Hampshire was by the said act authorized and required to pay the same over to the treasurer of the county of Franklin. * It was also therein further provided that the [ * 79 ] several Courts of Sessions for the counties of Hampshire, Franklin, and Hampden should appoint one commissioner each, who should meet at Northampton, examine the accounts of the treasurer of the county of Hampshire, and compute and adjust the equitable share of each of said counties in said moneys and credits, according to the proportion aforesaid ; and if it should appear, upon such examination and adjustment, that more than the equitable proportion of the county of Hampden in the said moneys and credits had been paid into the treasury thereof, the same should be reimbursed to the county of Hampshire; and that so long as the Supreme Judicial Court should be holden at Northampton for the three counties, each of the said counties should be holden to bear one third part of the expense of the grand and traverse jurors for said Court, to be paid out of their respective treasuries.
    Pursuant to the act last aforesaid, the several Courts of Sessions aforesaid appointed commissioners, who met at Northampton, and examined the said accounts of the treasurer of the county of Hampshire, and computed the share of the county of Franklin according to the said proportion, in the said money and credits; and the sum to be refunded to the county of Hampshire by the county of Hampden, in case they were liable in law to refund ; and they found the proportion due from the county of Hampshire to the county of Franklin, if by law they had a right to demand and receive the same, to be the aforesaid sum of 1311 dollars, 4 cents ; and the sum to be reimbursed by the county of Hampden to the county of Hampshire, if liable to reimburse the same, the sum of 309 dollars, 86 cents. And the said commissioners made report of their doings to the several Courts of Common Pleas for the said counties acting as Courts of Sessions ; and they also reported that they were unable to agree upon the right of the county of Franklin to demand and receive any part of said money from the county of Hamp- [ * 80 J shire, or upon the liability of the * county of Hampden to refund any part of the said money received from the county of Hampshire; but recommended that proceedings be had, to obtain the judgment of this Court, as to the said right and liability ; which report was accepted by the said several Courts of Common Pleas.
    It is agreed that the demand of the county of Franklin for the said sum of 1311 dollars, 84 cents, and the interest thereon since August, 1813, when a demand of payment w'as duly made, or for any sum of money due from the plaintiffs to the defendants, arising out of the facts and laws herein before stated and referred to, be allowed and considered as a demand duly filed by way of set-off in this action ; and that the Court render judgment in this case, as if the facts aforesaid had been found by a special verdict of a jury; or in such other form as they shall determine.
    
      Bliss and Mills, for the plaintiffs.
    We contend that the act of February, 1813, was beyond the constitutional authority of the legislature. When Franklin was constituted a county, they claimed nothing but the common rights and powers of a county. They asked no part of the property or credits then belonging to the county of Hampshire, nor was any assigned to them. From that time, then, all that property and those credits remained vested in the county of Hampshire, under its then limits, as absolutely as they had belonged to it before its territory had been reduced. After this state of things had continued eighteen months, the legislature undertake by an act, which partakes more of the nature of a judicial order or decree than of a legislative act, to declare that the county of Franklin shall be entitled to a part of such moneys and credits, and to require the treasurer to pay the same over accordingly. If the same thing had been attempted with reference to property in the possession of an individual, the case might have been a little more striking; but it would not have been less justifiable than what was undertaken in the present case. There is no occasion to refer * to Magna Charta, to the declaration of rights pre- [ * §1 ] fixed to the constitution of this state, to the provisions of the constitution of the United States, or to any written or positive institutions on a question like this. The right of individuals or corporate societies to the protection of their property, is interwoven in the principles of every state pretending to the shadow of freedom. It is a principle of universal jurisprudence, that laws, civil or criminal, must be prospective, and cannot have a retro-active effect .
    We do not contest the legitimate authority of the legislature, in their acts for the division of towns or counties, to make any reasonable conditions. Without doubt the parties would be bound by such conditions. So in the act creating the county of Hampden, it was provided that the new county should be entitled to a share of all the moneys and credits of the old county; and this provision was acquiesced in, and has been fulfilled. Equitable considerations can have no application to the present question ; and if they were to be gone into, it would be impossible to ascertain what equity would require .
    
      Allen and Alvord, for the defendants.
    The county of Hampshire, previous to the separation of Franklin, was possessed of certain property in cash and credits. A certain proportion of this property belonged to that part of the old county, which afterwards became the county of Franklin. It is not questioned that the legislature had the right originally to have divided this fund, and to have appropriated a part of it to the newly-created county. By accident this provision was omitted. Shall not the sovereign power have a right to correct its own errors, a power not denied to any individual ? The same thing has been frequently done in regard to towns, and the right or authority of the legislature not questioned . The public statutes of 1808, c. 92, and 1809, c. 33, are both more liable to the constitutional objection raised in this case, than the act now in question. Yet both these statutes * have [ * §2 ] received the solemn sanction of this Court , notwithstanding the objection of affecting vested rights. The same observatians apply to the statute of 1807, c. 74, for the limitation of certain real actions, and for the equitable settlement of certain claims arising in real actions, by which an estate in fee is taken from the acknowledged owner, and vested, against his will, in another. And so early after the adoption of our constitution as March, 1784, authority was given by statute to the justices of the Courts of common law, to permit executors and administrators to divest heirs of their vested inheritance, not merely for the payment of the debts of the deceased, but in conformity to an agreement made by him in his lifetime 
    
    In the case of Barnes vs. First Parish in Falmouth 
      , the Court said, “ the object of the constitution was to settle general principles, and to secure general rights, and not to legislate in all cases. If particular cases should arise, which might claim relief, consistently with the constitution, those cases were left to the discretion of the legislature, to whom the interests of the citizens are committed.” And in Adams vs. Howe & Al. 
       it is said that, “ so much respect is due to any legislative act, solemnly passed, and admitted into the statute book, that a Court of law, which may be called upon to decide its validity, will piesume it to be constitutional, until the contrary clearly appears. So that in any case of the kind substantially doubtful, the law would have its force. The legislature is, in the first instance, the judge of its own constitutional powers ; and it is only when manifest assumption of authority, or misapprehension of it shall appear, that the judicial power will refuse to execute it.” And again, “ subsequent legislatures may correct the proceedings of their predecessors, which may be found to have been improvident or pernicious.”
    The legislature has authority to pass all acts not prohibited by the "constitution, or by the first principles of justice and right. [ * 83 ] They have always exercised the right * of creating and controlling corporations; and in this and many other ways, they have frequently affected vested rights, in cases where ..heir authority has never been called into question. Thus the statute of 1817, c. 87, for giving further remedies in equity, affect ed important rights before vested in trustees.
    The county of Hampshire held the money now in question, in trust for all the inhabitants of the county. The act creating the county of Franklin had no effect to divest the inhabitants of that territory of their portion of the money; and the legislature had authority to provide the means, by which they might obtain possession <)f what before belonged to them. The act for this purpose, then, was not a grant to one county, of money belonging to another; but a declaration that the money belonged to that other county. And if this could have been constitutionally done in the original act, there can be no good reason why the omission to do it might not be corrected by a posterior act.
    
      
       7 Johns 477, Dash vs. Van Kleeck. —2 Gall. Rep. 103.
    
    
      
       Vide 4 Mass. Rep. 384, Windham vs. Portland. —10 Mass. Rep. 430, Eager & Al. vs. Marlborough. —7 Mass. Rep. 445, First Parish in Brunswick vs. Dunning & Al. —9 Cranch, 52. —6 Cranch, 87.
    
    
      
       See Mass. Special Laws, vol. 1, pages 169, 189, 457.
    
    
      
       8 Mass. Rep. 468, Walter vs. Bacon & Al. —9 Mass. Rep. 151, Patterson vs Philbrook & Al. —Ibid. 360, Locke, Adm., vs. Dane & Al.
      
    
    
      
      
        Stat. 1783, c. 33. § 4.
    
    
      
       6 Mass. Rep. 416.
    
    
      
       14 Mass. Rep. 345.
    
   Parker, C. J.

Three several questions are presented to us m this case, arising out of the several statutes, which have been cited; two of which come regularly before us in this action; and the third, respecting the claim by Hampshire against Hampden for reimbursement, arising incidentally, no opinion which we shall give can be enforced by judgment, as there is no action between those two counties before us.

The inhabitants of the county of Hampshire are the plaintiffs in the suit, claiming one third of the expenses of grand and traverse juries, for all the terms of the Supreme Judicial Court, from the time of passing the act of 1812, c. 124, to the time when a term of the said Court was established by law within the county of Frank lin. This they claim by virtue of the express provision of the third section of that statute. The defendant county has interposed its claim, which is to be considered as filed according to law, for a due proportion of the balance in the * treasury of [ * 84 ] Hampshire, arising from funds to which Franklin had contributed while a part of Hampshire, by virtue of the first section of the same statute. This claim of the defendants is resisted, on the ground that the provision of the statute, under which it is claimed, cannot have the force of law, or create any obligation upon the plaintiffs; because it is in the nature of a retrospective act, purporting to create a liability, where none existed before.

It certainly must be admitted that, by the principles of every free government, and of our constitution in particular, it is not in the power of the legislature to create a debt from one person to another, or from one corporation to another, without the consent, express or implied, of the party to be charged. If nothing was due from Hampshire to Franklin before the passing of the act, which requires the former to pay to the latter a proportion of money in the treasury belonging to Hampshire, it w;ould be evident, that such a requisi tian must have been made by the legislature through mistake; and it would not be within the constitutional power of any judicial Court to enforce- such an act.

But it is supposed that, in the act incorporating the county of Franklin, the legislature omitted, by accident, the provision, which was afterwards intended to be supplied by the statute of 1812, c. 124, which purports to be suppletory to the incorporating act; and ■his suggestion is rendered probable by the fact, that a similar provision was introduced into the statute incorporating the county of Hamp den, which was enacted at the next session of the same Genera Court, which passed the act incorporating the county of Hampden. As both the new counties of Franklin and Hampden were taken from the county of Hampshire, and as no evidence exists of any circumstances, entitling Hampden to this apparently equitable provision, which did not apply, with equal force, to Franklin, it is not improbable that the legislature acted upon the belief that, through the inattention of those who represented the towns in the [ * 85 ] * county of Franklin, the omission to place that county upon the same footing with Hampden occurred;' and that it was just and reasonable to apply a remedy for the evil.

But there are difficulties in the way of enforcing this intended remedy, which we do not find it easy to overcome, without resorting to some other principles, than any which are discovered in the statute alone, or in the probable circumstances which induced the legislature to enact it.

For any thing apparent from the act itself, it may have been the intention of the legislature to pass it in the form in which it appears, and without making the provision afterwards thought to be reasonable. When a part of a county or town claims to be set off and erected into a new corporation, it does not necessarily follow, that it is equitable for it to carry with it any portion of the property which belongs to the body from which it separates. The expenses of maintaining a large and small institution are nearly the same; and it is frequently injurious to the members of the corporation, which is diminished for the convenience of some of its parts, that it should be cut up and divided, thus increasing the burdens of supporting it upon those who remain. Whether, when incorporating Franklin, the legislature was governed by this consideration, cannot now be ascertained; nor could it have been ascertained by a succeeding legislature. It may be that the provision in fa%oi of Hampden, in the act incorporating that county, was improvidently enacted, and that the omission to make a similar provision for Frank lin was deliberate and designed.

Had the same legislature which passed the incorporating act, at the same or perhaps at the next session, passed an additional act, ike that which their successors passed, the evidence of improvidence or mistake, in the incorporating act, might be considered as proved. But the legislature of the succeeding year could not judge of the motives and reasons, upon which their predecessors [ * 86 ] * had performed their legislative functions in this respect ; and, we apprehend, would predicate no act, affecting lights established by the former act, upon a supposed mistake of those who had before them, at the time they acted, the means of judging what was fit and proper to be done.

We think, therefore, that the statute of 1812, ex vigore suo, had no operation as law ; because the object and effect of it was to require the county of Hampshire to pay out of its treasury, money which, by the preceding laws, belonged to that county, to the coun ty of Franklin; which latter county, before the passing of this statute, had no legal right to that money.

By general principles of law, as well as by judicial construction of statutes, if a part of the territory and inhabitants of a town are separated from it, by annexation to another, or by the erection of a new corporation, the remaining part of the town, or the former corporation, retains all its property, powers, rights and privileges, and remains subject to all its obligations and duties ; unless some express provision to the contrary should be made, by the act authorizing the separation .

The same principles will apply with equal force, when a county is divided. By the act, then, separating Franklin from Hampshire, all the property and credits remained to the latter county, as well as all the obligations and duties, which had accrued before the division. The additional act, then, deprived them of rights which had before become vested, and, for the reasons before stated, could not have any binding force.

But it is a just principle of the common law, and of sound reason, that parties, whose interests are attempted to be affected by the acts of others, which acts they have a right to oppose, may become bound by such acts, if they consent thereto; and especially if any thing is offered as a consideration, however inadequate, they accepting it as such, and having a fair view of the terms upon which it* is offered. This principle applies with [ * 87 ] peculiar force to legislative acts, as there is always a presumption in such cases, that the interests of all parties have been considered and duly attended to. Thus no man can be compelled by the legislature to become a member of a corporation without his consent; yet if he do consent, and even not expressly but by im plication, he cannot afterwards deny his liability to the lawful exac tians of the corporation, on the ground that he did not solicit the privilege, and was no party to it'when granted .

If, then, the inhabitants of the county of Hampshire may be legally considered as having assented to this act of- the legislature, which provides for the restitution to the county of Franklin, of so much money in the treasury as had been received from the towns com posing the new county, after paying the debts due from the old county, then the present claim of Franklin may be maintained. And here it may be said that the equitable nature of that claim is strong enough to raise a presumption, that the inhabitants of Hampshire would, if the question was formally submitted to them, acquiesce in the demand made upon them. For the facts agreed show that they thought it just and right that the measure now claimed by Franklin should be meted to Hampden; between which counties there seems to be no discernible variance of circumstances. For the act incorporating Hampden must be presumed to have been assented to by Hampshire. We must, however, look for an actual assent, express or implied, and not rely upon the mere presumption that such an assent would be given.

How, then, are the inhabitants of a county to assent to any act, which is to bind them in their corporate capacity ? They are a corporation, so far as to be capable of suing and being sued ; but the inhabitants cannot, like the inhabitants of towns and ^parishes, assemble together and by vote declare their will upon any subject. The law has made no provisions for such meetings. But there must be some mode, in which their assent may be ex [ * 88 ] pressed; or * else, according to the principles of the constitution, no tax could be assessed upon the inhabitants for defraying expenses, which are by law imposed upon counties. For the inhabitants of counties, as such, are not represented in either branch of the legislature ; and so cannot, like towns,., which may be represented in both branches, or plantations which may be represented in the senate, be presumed to have assented to the taxes imposed by the legislature. There must then be some representative body in the county, whose acts and admissions must be considered as binding upon the inhabitants; and that body is, by our laws, the Court of Sessions, which has been immemorially considered as the agents and representatives of the county, in all matters touching its finances and general prudential concerns. This Court, although varying in its form, has always been composed of substantial inhabitants of the county, selected for their knowledge of its interests, and their ability to attend to its concerns.

It is the Court of Sessions only, which can authorize any suit in favor of the county, or provide for the defence of a suit. Iff upon a report of the commissioners, ascertaining the balance and proportion, an order had passed the Courts of Sessions of Hampshire and Hampden, to pay out of the respective county treasuries the sums due from each of those counties, such orders would have been conclusive, and must have been obeyed. If, during the pendency of this suit, a compromise had been made by the agents appointed by the Courts of Sessions, that compromise would have been binding ; or if the agent, acting under instructions of the Sessions, had suffered a default, judgment would have been rendered. The Court of Sessions, then, is the representative body of the inhabitants of the county ; and their acts, in all matters falling within the scope of their authority, are binding upon the county; and with respect to demands upon the treasury, they have this authority.

* Now, the second section of the statute of 1812, c. 124, [ * 89 J provides that the Court of Sessions of each of the counties of Hampshire, Franklin, and Hampden should appoint one commissioner, with authority to adjust their equitable claims upon each other; and those Courts did, pursuant to that act, appoint such commissioners, who entered upon the duties of their office. This we consider as an assent of those Courts to the act, by which the several counties were bound ; especially when we advert to certain privileges, secured by the same act to the county of Hampshire, which might be deemed by the people of that county an equivalent for any liability they might incur, by the adoption of the provision in favor of Franklin.

By the act incorporating the county of Franklin, the Supreme Judicial Court was to be holden at Northampton in the county of Hampshire, until other provision should be made by law. Grand and traverse jurors were to be summoned from both these counties, and the expense was to be borne by Hampshire alone ; there being no provision to the contrary in the act.. At the time the statute of 1812, c. 124, passed, it was unknown how long this arrangement might continue. Possibly it might have continued long enough to absorb all the claim which Franklin had upon the treasury of Hampshire, or even to exceed that sum. We do not see that Hampshire would have had any legal claim upon Franklin for a share of these expenses; for the act was silent about them, and for aught which would appear, it was intended by the legislature, and agreed to by the parties, that the county of Hampshire should bear all this expense, in consideration of the inconveniences the inhabitants of Franklin would be subjected to, in attending the Court at such a distance from their homes; and the advantages which Hampshire might derive from being the judicial centre of the three counties.

The statute of 1812 provided, however, that this expense should thereafter be borne by the three counties. Possibly this provision would not have been made in favor * of Hamp- [ * 90 ] shire, but for the supposed equitable provision in" favor of Franklin. To reject one therefore, and adopt the other, would be highly inequitable. Both provisions ought to stand or fall together; as one was, without doubt, the consideration for the other.

Further, the inhabitants of Hampshire must be considered as having adopted the act of 1812; for by their Court of Sessions they have appointed their agent to bring this action; which they can maintain only by virtue of the very statute, the operation of which .against themselves they resist.

Upori these principles, we are satisfied that the claim of Franlclin is made out; and judgment must be rendered for the sum due. deducting the amount of the demand in favor of Hampshire. 
      
       4 Mass. Rep. 389.
     
      
       9 Mass. Rep. 269.
     