Zimmerman v. Brooks

80 S.W. 443, 118 Ky. 85, 1904 Ky. LEXIS 7

• Court: Court of Appeals of Kentucky
• Decided: April 29, 1904
• Status: Published

Opinion

Opinion op the court bt

JUDGE HOBSON

Reversing.

The last General Assembly passed an act, which was approved by the Governor on February 9, 1904, entitled “An act creating the county of Beckham.” The first section of the act is in these words:

“Section 1. That the county of Beckham be, and the same is hereby, created, and the boundary lines thereof are established as follows:

“Beginning on three black oaks by the county, or old State road, the comer of John Reid’s and Wilburn Hall’s and Marion Oldfield’s lands, being ten andl one-half miles by survey from Grayson, the present county seat of Carter county, Kentucky; thence S. 12° 6' E. 36, 740 feet to a small locust; thence S. 56° W. 2,871 feet to a-black oak near the open fork of Big Gimlet; 1 lienee N. 40° 30' W. 19,860 feet to a white oak on Mauck Branch, so as to exclude William Binion’s house; thence with the act of 1869, approved January 26, 1869, making Elliott county; thence with Mauck Ridge to the corner of Rowan, Elliott and Beckham counties; then N. 70° 6' W. 14,465 feet; thence N. 26° 16' W. 70,157 to the point near Briery Creek; thence due N. 31,480 feet; thence N. 9° 15' E. 65,297 feet; thence due S. 12,238 feet to a small hickory and oak on top of Three Prong ridge; thence S. 5° 19' W. 52,528 to the point of beginning.”

The second section makes Olive Hill the county seat. The third section divides the county into five magisterial districts, and gives the boundary of each. The fourth, fifth, sixth, and seventh sections provide for the organization of the county, and make the act take effect from its passage. Appellee Brooks was appointed by the Governor county judge of Beckham county, pursuant to the act, and appellant Zimmerman, on March 4, 1904, filed this suit to test its validity. He alleged that the county of Beckham was created out of parts of the counties of Carter, Elliott, and Lewis; that the part taken from Carter county leaves it with only about 250 square miles; that the county line between Beckham county and Carter runs within less than ten miles of the county seat of Carter county; that Elliott county, before any territory was taken from it, had a less area than 400 square miles, and was by the act reduced to far less than that. He prayed judgment declaring the act void, and restraining Brooks from acting as county judge of Beckham county. Brooks demurred to the petition. The county of Carter then appeared in the action, and moved to file its petition, in which it sought the same relief as Zimmerman. It alleged that the matters involved weine of general interest to the inhabitants of Carter county, and of importance to it; that it was created in the year 1836, was authorized to sue and be sued, and had since its creation been in existence with regular county officers; that at the time the act creating Beckham county was enacted the area of Carter county was 354 square miles, the area of Lewis county 454 square miles, and Elliott county 274; that the line of Beckham county runs within six miles of Grayson, the county seat of Carter county, and within seven miles of Vanceburg, the county seat of Lewis county; that the area of Beckham county does not exceed 286 square miles, and that Lewis county is reduced by the act establishing the county of Beckham to 300 square miles, and Elliott county to 234 square miles; that the population of Beckham county is less than 12,000; that the population of Carter and Elliott is reduced by the establishment of Beckham county to less than 12,000 people, Elliott having at the time only in all 10,387 inhabitants; that the act creating Beckham county was unwarranted by the Constitution, and that thereby confusion would be caused in the affairs of Carter county, and it would be prevented from collecting its taxes, and the county officers would be obstructed in the discharge of their duties, thus disturbing the affairs of the county and producing a multiplicity of suits. It prayed that the act be declared unconstitutional, and that the defendant Brooks, who was a resident of Carter county, Olive Hill being in that county at the passage of the act) referred to, be enjoined from acting as county judge. The court sustained a demurrer to Zimmerman’s petition, refusing to allow the petition of Carter county to be tiled, or to allow it to be made a party to the action. He thereupon dismissed the petition, and the two appeals before us were taken.

In tbe brief filed by tbe counsel for appellee, it is said: “Tbe appellee does not wish to discuss or raise anjy. points of minor importance as to tbe sufficiency of appellant’s petition, but to proceed at once to tbe consideration of tbe all-important question to tbe people most interested, namely tbe constitutionality of tbe act creating tbe county of Beckbam.” We shall proceed, therefore, to settle tbe case on its merits, as it is of grave importance to all parties concerned to have tbe validity, of tbe act settled before liabilities are incurred for county .buildings, taxes are levied, or other steps taken in tbe organization of tbe proposed county. It is insisted for appellants that tbe boundary of tbe county, as given in the first section of tbe act, will not close, and in fact takes in part of tbe State of Ohio. But, taking tbe act as a whole, there seems to be enough in it to show what was meant, for tbe. third section gives minutely tbe boundary of each of tbe five magisterial districts by natural objects, and by putting these districts together tbe mistake in tbe call of one of tbe lines, if there is one, can be readily discovered and corrected. Tbe act must be treated like a patent, and will not be rejected as void because of a mistake in one of tbe calls, if from the whole act what was meant can be reasonably determined. Tbe rule is that tbe court will inspect tbe whole act, gnd, if tbe actual intention of tbe Legislature can thus be ascertained, tbe false description will be rejected, or words substituted in the place of those used by mistake,' so as to give effect to tbe law; thus “South” may be read for “North,” or “East for West,” in a call, where, from tbe act as a whole, tbe mistake is apparent; for it is a matter of common knowledge that mistakes of this character are sometimes made in transcribing. Palms v. Sbewano County, 61 Wis., 211, 21 N. W., 77; Rabun County v. Habersham .County, 79 Ga., 248, 5 S. E., 198. In the latter case the word “River” in the enrolled bill was read “Ridge,” it being manifestly a clerical error. It is not presumed that the Legislature intended to include in the county part of the State of Ohio. The calls- may be reversed, as one line in the survey is of as much dignity as another, and if, on all the facts, a mistake in one of the calls is manifest, the actual intention of the Legislature should not for this reason be disregarded. Creech v. Johnson, 75 S. W., 185, 25 Ky. Law Rep., 657.

The constitutional objection to the act is more serious. Section 63 of the Constitution, which is part of its provisions defining the powers of the legislative department, contains the following: “No new county shall be created by the General Assembly which wiill reduce the -county or counties, or either of them, from which it shall be taken, to less area than four hundred square miles; nor shall any county be formed of less area; nor shall any boundary line thei'eof pass within less than ten miles of any county seat of the county or counties proposed to be divided.” Section 64 further provides: “ . . . Nor shall any new county be established which will reduce any county to tess than twelve thousand inhabitants; nor shall any county be created containing a less population.” It is earnestly maintained for appellee that the constitutional restrictions as to area and population or location of the county line are for the guidance of the Legislature, and that, when the Legislature has determined these questions by passing the act creating the county, it is incompetent for the courts to inquire into the correctness of the legislative findings. In support of this view we are referred to a number of authorities. Thus, in De Camp v. Eveland, 19 Barb., 81, the constitutional provision was that no new county should be thereaftér erected unless its population should entitle it to a member in the Legislature. It was held that the population of the county at the time the act was passed controlled, and not its population at the last census;, that it would be presumed the Legislature had enough before it to justify its conclusion on the facts. The defendant, who had been convicted of a misdemeanor in the new .county, did not offer to show that the county did not in fact havez at the time of its creation, the requisite population. This case was. approved in Rumsey v. People, 19 N. Y., 41, which was similar in its facts, and the act was there sustained; but in the subsequent case of Lanning v. Carpenter, 20 N. Y., 447, the act was held invalid because it violated a provision of the Constitution forbidding a change in the assembly districts until after the next enumeration. In Luscher v. Scites, 4 W. Va., 11, the bill was by a taxpayer to restrain the collection of taxes' levied by the county of Lincoln to pay debts it had created, on the ground that the act forming the county was in violation of a constitutional provision much the same as ours. The bill was dismissed, although the allegations were substantially the same as in the case before us, the court holding the legal presumption was that, when the Legislature passed the act, all the necessary facts were shown to its satisfaction, and that the court could not go. behind the legislative finding. Further on in the opinion the judgment is also rested on the ground that, if the plaintiff’s action could be maintained, every other taxpayer had the same right of action, and there might be conflicting judgments, and the debts of the county created in the erection of the public buildings might be left unpaid. This case as followed in Farquharson v. Yeargin, 24 Wash., 549, 64 Pac., 717, where .the- allegation was that the new county had not the requisite population.

In re Short, 47 Kan., 250, 27 Pac., 1005, the defendant was convicted of manslaughter, and then took out a writ of habeas corpus on the ground .that the county in which he w.as convicted did not have the requisite area under the Constitution, and therefore the act creating it was void, although the county had been in existence for years. The Constitution required the county should not have less than 432 square miles, and it was alleged that the county had only 480' 1-2 spuare miles. It was held that the county was at least a de facto public corporation, that its existence could not be collaterally questioned, and that the validity of the act creating it could only be assailed in a direct proceeding. To the same effect is Ex parte Renfrow, 112 Mo., 591, 20 S. W., 682, and in that opinion other previous cases holding the same rule are referred to. On the other hand, in Tennessee, where they have a similar constitutional provision, in a number of cases it has been held that, if the act creating a county is in violation of the Constitution, it may be declared void! by the court. Thus in Bradley v. Powell County, 2 Humph., 428, 37 Am. Dec., 563, the facts being disputed,, the chancellor had a survey made to show what the truth was. Upholding its power to act in the premises, the court said: “The convention of the State which formed the Constitution thought proper to place restrictions upon the power of the Legislature to establish new counties, and, of consequence, any attempt to do so contrary to the restrictions is a void exercise of power, which can and must be stopped (by the Judicial department of the State. There is no other place to which an appeal can be made, and, if the court can not interfere, the Constitution, if violated, is a dead letter.” This case was followed in Gotcher v. Burrows, 9 Humph., 585; Maury County v. Lewis County, 1 Swan, 236; Bridgenor v. Rogers, 1 Cold., 259; Humphreys County v. Houston County, 4 Baxt., 593. In Bridgenor v. Rogers, the court’s conclusions of law were as follows: “(1) A citizen and taxpayer of a county from which a portion of its territory is taken to form a new county may file a bill to inquire into the validity of the act creating the new county, if he does so before' the new county becomes so organized as to become a political organization. (2) A county in its corporate character, whose territory has been reduced below 625 square miles, or her qualified voters below 1,000, may come into a, court of equity, even after a new county has been organized, and have her territory or voters restored to her by decree of the court; and this is so whether the territory or voters, have been reduced by the formation of a new county or by changing the line and attaching a portion of one, county to another. (3) Before a portion of ■ a new county will be restored to the county from which it was taken, it ■must clearly appear, by an actual measurement of the territory of the old county and an enumeration of its voters, that her constitutional rights have been invaded.” In Wisconsin the same rule is followed under a similar constitutional provision. In Attorney General v. Merriman, 6 Wis., 22, the court, in answer to thei argument that the legislative finding is conclusive, said: “As a general rule, courts undoubtedly always presume in favor of the constitutionality of an act of the Legislature, and in a doubtful case will sustain it. But how can that presumption be entertained in a clear case, when the act is expressly forbidden by the language of the Constitution? The reasoning, if it proves anything, proves too much. For it is manifest the saíne presumption would arise in favor of an act o'f the Legislature dividing a county of an area of four or six hundred square miles. Suppose the Legislature should! pass an act dividing Waukesha, Walworth, or Green county, each of which counties contain sixteen townships, must not the) same prejsumption arise? Must not the court presume that the Legislature, in dividing the county, passed upon the question of ■fact, and hold that the law was valid? This applies a fair test to the soundness of the argument. It places it in- a strong light to show more strikingly where it leads. Of course, it would practically abrogate a provision of the Constitution.” In State v. Dorsey County, 28 Ark., 378, a writ of quo warranto was filed by the Attorney General against the county, in answer to which the county pleaded that it was created by an act cutting off portions of Lincoln and other counties. To this the plaintiff replied that by taking off the portion of territory cut from Lincoln county by the act it was reduced to less than 600 square miles, contrary to the Constitution. The defendants demurred to the replication. The demurrer was overruled, and it was held that certain evidence may controvert a statute, but' it must be of equal grade and character with the law itself, as, for instance, some other official record or official surveys or maps of which the court should take official notice. In Woods v. Henry, 55 Mo., 560; State v. St. John, 21 Kan., 591, and Garfield v. Brayton, 33 Iowa, 16, it was held that the court'will take judicial notice of the boundaries of counties and their area, and if an act reduces a county below the constitutional limit, or creates a county having a less area than allowed by the Constitution, it is void, and will be so declared. See, also, to same effect, State v. Scott, 17 Mo., 521; Perry v. State, 9 Wis., 19. In Board of Commissioners v. Spitler, 13 Ind., ; Board of Commissioners v. State, 147 Ind., 497, 46 N. E., 908, and Wright v. Hawkins, 28 Tex., 452, it was also held that the courts will take judicial notice of the area of counties.

It will thus be seen that the conclusions reached by the courts are more harmonious than the reasons given for them. The two New York cases reported in 19 Barb., and 19 N. Y., were criminal prosecutions, in which the invalidity of the act creating the county was relied on collaterally, and in the Missouri and Kansas cases it was held that this could not be done where the county was organized in fact and was an existing corporation. In the West Yirginia and Washington cases the suits' were by the taxpayer after the liabilities were created by the county as an existing corporation de facto and it is conceded in Tennessee that' in this state of case the taxpayer can not maintain an action assailing the validity of the act creating the county; but the weight of authority is to'the effect that, when assailed in the proper way and at the proper time, the court will enter upon the inquiry as to the constitutionality of the statute, while the Arkansas case seems to limit the evidence which may be received more narrowly than the other cases.

Lafferty v. Huffman, 99 Ky., 80, 18 R., 17, 35 S. W., 123, 32 L. R. A., 203, and Taylor v. Beckham, 108 Ky., 278, 21 R., 1735, 56 S. W., 177, 49 L. R. A., 258, 94 Am. St. Rep., 357, are relied on. for appellee. It was held in the first of these cases that the enrolled bill, properly authenticated; is conclusive of the regularity of the steps taken in the, passage of the statute, and in the other case! it was held that the judgment of the Legislature, in a contest over the office of Governor, pursuant to the -Constitution, is conclusive, and that the record made by the Legislature and approved by. it can not be assailed in the courts. But neither of these cases apply here; for the question is not one of regularity of legislative proceedings', but of unauthorized legislation invading private rights under the Constitution. On the other hand, in Massengale v. Lester, 101 Ky., 191, 16 S. W., 691,. 20 R., 181, it was held that section 115 of the Constitution, allowing the Legislature to redistrict the State in appellate districts every ten years, is mandatory, and that an act changing the districts within ten years was void. It is true the court had judicial knowledge that the attempted change was made within less than ten years, but the court must have judicial knowledge also of the counties of the State and their boundaries as fixed by the statutes, and of the public surveys made by the State and published by its authority. These are matters of common knowledge within the State, contained in geographies, etc., and if the court does not remember the facts it will resort to the books to • refresh its memory. In this way we know approximately the area of the counties of the State, and know that Cartel" county had by the geological survey an area of 511 square miles, Elliott county 270, Lewis county 150, total 1,261, as given in the official report of the Bureau of Agriculture; so that Carter county can properly only contribute 114 square miles to the formation of a new county, Elliott nothing, and Lewis only 50 square miles. We must therefore take judicial notice that only 194 square miles can on this basis be cut from these counties without infringing the mandate of the Constitution. We know also judicially that,, since the geogological survey was made of Carter county, paid of it has been cut off to other counties. The State Board of Equalization is created by statute, and reports of its proceedings are published by the State, giving the number of acres of land in each county assessed for taxation. From this we know that, the land assessed for taxation in three counties, referred to is as follows: Carter 219, 686 acres; Elliott, 141, 982; and Lewis, 308, 503. It thus appears that Carter county is now in fact not as large as Lewis, and Contains less than 400 square miles, unless, which can not be presumed, a large per cent, of the county is not assessed for taxation. As shown by these figures, the actual area of both Carter and Elliott must be less than 400 square miles, and we must therefore presume that no part of the territory of either of these counties can be cut off to form a new county without a violation of the Constitution, for, as 640 acres make a square mile, 400 square miles equal 256,000 acres..

But we do not rest our judgment here, for, while the public surveys are presumptively correct, they may be shown to be incorrect, The Constitution recognizes the existing counties of the State. It confers upon them the right to remain in area not less than 400 square miles: They are quasi corporations, they may sue and be sued. They have certain public burdens to bear. When part of their territory is cut off, these burdens fall more heavily upon the remaining territory. The rights of these corporations which are guarantied them by the Constitution are as sacred as any other rights secured by that instrument to other corporations or private persons. The Legislature, in the creation of new counties, is simply an agency, with well defined restrictions upon its powers. If it acts in a case where it has no power to act, its act, like that of any other agent beyond the scope of his power, is void. The county whose rights are affected may complain, and so may any taxpayer who is prejudiced, for the taxpayers have a right to insist upon the constitutional protection Against the ¡increased burdens which the formation of the new county will entail. It is the province of the courts to protect private rights under the Constitution. Constitutional guaranties would, amount to nothing if there was. no way to protect them. The court will not adjudge bad a legislative act on doubtful evidence, but, where it is plain that the Constitution has ■been violated, it is the duty of the court to say what the law is, and protect private rights. Otherwise, the Constitution may be disregarded, and power may be exercised by the Legislature in a case where, under the Constitution, it is without power to act at all, and! those whose rights are thus destroyed will be left without remedy. This ■question was fully considered in Cheaney v. Hooser (denied in the year 1848) 48 Ky., 330, the court holding that the discretion of deciding on all legislative measures is in the Legislature itself, except where the Constitution limits the power of the Legislature, but that a statute is void if in violation of the constitutional limitation on the power of the Legislature; and in that case parol evidence was received to show that private property was taken for public purposes, under an act -of the Legislature, without just compensation. This case was followed in Covington v. Southgate, 54 Ky., 492; Elkton v. Gill’s Trustees, 94 Ky., 138, 14 R., 755, 21 S. W., 579, and a number of other cases. There can be no sound reason why the same rule should not apply in the bases of violation of any other constitutional restriction on the power of the Legislature to the prejudice of private rights. By the terms of the Constitution the following conditions must be complied with before a new county may be formed: (1) No county from which any part of the territory is taken must be reduced to less area than 400 square miles. (2) The new county must he of not less area than 400 square miles. (3). The boundary line of the new county must not pass within less than ten miles of the county seat of any county from which a portion of its territory is taken. ■ (4) No county from which any part of the territory is taken shall he reduced to less that 12,000' inhabitants. (5) The new county must contain not less than 12,000 inhabitants. If any of these conditions are wanting, the act is in violation of the Constitution, and void. The circuit court erred in refusing to allow the petition of Carter county to be filed. He also erred in sustaining the demurrer to the plaintiff’s petition.

Judgment reversed, and cause remanded: for further proceedings not inconsistent with this opinion.

Whole court sitting.

Petition for extension of opinion overruled.