
    Gotcher et als vs. Burrows et als.
    
    The Constitution of the State of Tennessee confers on the Legislature the power to establish new counties. One of the restrictions on the exercise of this power is, that “ no line of such county shall approach the court-house of any old county, from which it may be taken, nearer than twelve miles.” This is an absolute prohibition of the power, on the part of the Legislature, either in the establishment of a new county or in the taking from one county a portion of its territory and attaching it to another, or in changing the lines of adjoining counties, to approach the court-house of the county, the territory of which is taken, nearer than twelve miles. It was designed to be a perpetual guaranty against legislative encroachment in whatever mode it might be attempted.
    This is a bill which was filed by Gotcher and others, ■citizens and justices of the peace, of the county of Coffee, against Burrows and others, justices of the peace, for the county of Grundy. The following is the decree of the court:—
    “ Be it remembered, that this cause came on for hearing the 17th day of August, 1847, before the Hon. B. L. Ridley, Chancellor, &c., upon original and amended bill, answers, replications, and proof, and in the presence of counsel on both sides. And it appearing to tbe satisfaction of the court, that the complainants are citizens of Coffee county, and justices of the peace of the County Court of Coffee ■county, and that Jesse Gotcher is a citizen of that portion of Coffee county, designated as civil districts Nos. 11 and 12, which was by an act of the General Assembly of the State of Tennessee, passed on tbe 30tb day of January, 1846, attached to Grundy county, and that the defendants are citizens of Grundy county, and justices of the County Court of Grundy county, and it appearing that the General Assembly of the State of Tennessee, on the 30th day of January, 1846, passed an act, entitled an act, to attach a portion of the county of Coffee to the county of Grundy, and that the portion of the county of Grundy, which said act attached to- Grundy county, is embraced by civil districts, Nos. 11 and 12, of said Coffee county, and it further appearing that the line striking said districts Nos. 11 and 12, from Coffee county, and attaching them to Grundy county, in pursuance of said act of the General Assembly, passed 30th day of January, 1846, is within less than 12 miles of the court-house of Coffee county, erected and established by law, previous to the passage of said act of the 30th of January, 1846, the court is, therefore, of opinion, said act of the 30th of January, 1846, entitled an act, to attach a portion of the county of Coffee to the county of Grundy, is in violation of that portion of article the 10th, section the 4th of the Constitution of the State of Tennessee, which declares that no line of such county shall approach the court-house of any old county, from which it may be taken, nearer than twelve miles, and is, therefore, unconstitutional and void. And it appearing to the court that the county of Grundy, in pursuance of said act of the 30th of January, 1846, claims jurisdiction over said districts, Nos. 11 and 12, of Coffee county, as a part of Grundy county; that justices of the peace for Grundy county have been elected in said districts Nos. 11 and 12, and qualified as justices of the peace for Grundy county ; that constables have been elected in said districts, Nos. 11 and 12, and qualified by the County Court of Grundy county, as constables for said districts, being designated as civil districts Nos. 9 and 10 of Grundy county; that the justices of the peace of Grundy county, have appointed citizens residing within the limits of said districts Nos. 11 and 12, of Coffee county, to serve as jurors of the Circuit Court of Grundy county, and that the justices of Grundy county have also assesséd a county tax for Grundy county, on the citizens residing within said districts, Nos. 11 and 12. The court is of opinion that all of said acts, electing and qualifying justices of the peace, and constables, appointing jurors, assessing a county tax, as well as all other acts of jurisdiction and authority, assumed and exercised by the county of Grundy, and the justices of the County Court of Grundy county, in and over said civil districts, Nos. 11 and 12, and over the citizens residing within the limits of said districts, are null and void. And the court doth, therefore, order, adjudge, and decree, that said civil districts,'Nos. 11 and 12, are a part of and belong to the county of Coffee, as though the said act of the 30th of January, 1846, had not been passed. And it is further ordered, adjudged, and decreed, that the justices of the County Court of Grundy, the justices of the peace and constables elected for said districts as a portion of Grundy county, and all the officers, judicial and ministerial, of and for Grundy county, and all their agents, acting under their authority be, and they are hereby perpetually enjoined from exercising any authority and acts, either judicial or ministerial, over said districts, Nos. 11 and 12, and over the citizens thereof, and that they be especially enjoined from collecting and appropriating any taxes, assessed and levied on the citizens and property in said districts, Nos. 11 and 12. It is further ordered, adjudged, and decreed that the receiver appointed by an interlocutory order, pronounced in this cause at the February term, 1847, to collect the State and Comity taxes from the citizens residing in said districts, Nos. 11 and 12, pay over the State tax by him collected, to the proper officer of the State, and that he pay over to the clerk and master of this court, for the use of Coffee county, all the taxes by him collected, from the citizens of said two districts; the clerk and master being hereby directed to audit the account of said receiver and allow him the commissions allowed by law to tax collectors for his services. It is further ordered, adjudged, and decreed that the defendants pay the costs of this cause for which execution may issue as at law.”
    
      Ready, Meigs, and Hickerson, for complainants.
    
      W. E. Tenable, for defendants.
   McKinney, J.

delivered the opinion of the court.

The amended Constitution of this State, art. 10, sec. 4, confers upon the Legislature the power to establish new counties, under certain specific restrictions, one of which is, that “ no line of such county shall approach the courthouse of any old county, from which it may be taken, nearer than twelve miles.” We are called upon in this case to expound the proper meaning and construction of the foregoing clause.

The question arises upon the following state of facts. The Legislature, by the act of 1844, chap. 204, established the county of Grundy, out of parts of Warren and Coffee counties. The boundaries of the county are defined in the act: and in reference to Coffee county, it is provided, that the line shall be run, “so as not to approach Manchester (the county-seat of Coffee county) nearer than twelve miles.” The Legislature, by a subsequent act, passed in 1846, and after the organization of Grundy county, took a portion of tbe territory of Coffee county, embracing two civil districts, and annexed it to the county of Grundy, whereby the line of the latter county was made to approach within less than twelve miles of Manchester.

This bill is brought to have the act of 1846, attaching said two districts to Grundy county, declared void. And it was so declared by the Chancellor, and we think properly. It must have been foreseen by the framers of the Constitution, that unless the power to establish new counties were carefully circumscribed and guarded, great and irreparable injury might not unfrequently be done, not only to the public, but also to individual interests in the counties whose territory should be taken to establish such new counties. One of the most prominent of which perhaps was, the necessity which .might thereby be forced upon such old counties to change the location of their courthouses and county seats. To guard against so serious an evil, was unquestionably one of the principal motives which caused the restriction, contained in the clause in question, to- be incorporated into the Constitution. And we construe it to be an absolute prohibition of the power, on the' part of the Legislature, either in the establishment of a new county, or in taking from one county a portion of its territory and attaching it to another, or in changing the lines of adjoining counties, to approach the courthouse of the county, whose territory is taken for either of the foregoing purposes, nearer than twelve miles. The restriction in question was designed to be a perpetual guaranty against legislative encroachment in whatever mode it might be attempted. And it is manifest that upon any other construction, the restriction would be utterly inoperative and unmeaning.

The argument opposed to this construction, would leave it in the power of the Legislature to do that by indirection, which might not be done directly. It is admitted, that to have done by the act of 1844 by which the county of Grundy was established, what was done by the subsequent act of 1846, would have been a palpable and undisguised violation of the Constitution. And if so, by what process of reasoning can it be maintained, that a power expressly prohibited in the former instance, might be properly exercised in the latter? surely the reason of the constitutional prohibition had lost nothing of its force, much less ceased to exist. And if, in the establishment of the county, the Legislature could not have enlarged the area of the new county, so as to have approached the town of Manchester nearer than twelve miles, upon what principle of construction can it do so at a subsequent session, so as to approach the town within eight miles ? The object is to secure the counties from having their county-seats approached nearer than twelve miles; and this object can no more be defeated, upon the pretext of enlarging anew county, after its organization, than in its original establishment. The restriction upon the legislative power is alike operative and imperative in the one instance as in the other. If the reasoning on the other side were correct, it is obvious that the Legislature, by a series of aggressive enactments, from timé to time, might encroach upon any and every county, until the line of the new county should be made to approach the very limits of the county-seat of the old county; for if the court-house may be approached, upon any pretext, nearer than twelve miles, the constitutional restriction ceases to be operative, and the power to encroach is without limitation. Such an approach to the county-seat, leaving the court-house at or near the extreme verge of the county, would necessarily produce so much public inconvenience, such inequality of burden and benefit among the citizens of the county, and such deep and general discontent, as would of necessity force a change of the county-seat, and thereby bring about all the evils to the public, and the invasions of private rights, which the clause of the Constitution was intended to prevent.

A constitutional provision, so wise and salutary in itself, so indispensably necessary for the protection of important interests, public as well as private, and no less essential to the quiet and repose of local communities, cannot be disregarded or evaded in the mode attempted in this case.

We are of opinion that the act of 1846, chap. 134, is wholly unconstitutional and void, and, therefore, affirm the decree of the Chancellor.  