Ford v. Farmer
28 Tenn. 152
Tenn. 1848.
September Term, 1848. (Approx. 4 pages)
9 Hum. 152
    Although a court of chancery will, upon a proper application, restrain the commissioners from organizing a county created by an act that is unconstitutional and void, yet, after the county has been organized, the court of chancery has no power to abolish it, or to restrain existing officers from executing their several functions.
When a county is directed by the General Assembly to be established, and commissioners appointed for that purpose, and it appear that the act, directing the establishment of the county, is unconstitutional and void, a court of Chancery will restrain, by injunction, the commissioners from organizing the county. It will, however go no further. After a county has been organized, a court of Chancery has no power to abolish it, or to restrain existing officers from executing their several functions.
    *1 This bill was filed in the chancery court at Rogersville by Ford, a resident of that portion of Hancock county which was taken from the county of Hawkins, against the commissioners appointed by act of the legislature to organize the county of Hancock.
    The bill charges that in 1844 an act was passed by the legislature, directing the establishment of Hancock county, defining its boundaries, and appointing commissioners to organize it; that a bill was filed in the chancery court at Rogersville, by certain inhabitants of Hawkins, against the commissioners, who were enjoined from proceeding to organize such county, on the ground that the county, as established by the act, did not contain the number of square miles required by the Constitution, and that the Constitution was in other respects violated; that in 1846 another act was passed, directing the establishment of said county, and appointing commissioners, who were authorized to survey said county, and to make all necessary alterations in the original lines of said county, so as to "avoid constitutional objections," and should proceed to organize the county as required by the act of 1844.
    The bill charges that the county of Hancock was surveyed by the commissioners, and boundaries established, but that said boundaries ran within twelve miles of the county seat of Hawkins, and did not include 350 square miles.
    It prays that the commissioners should be enjoined from proceeding further to organize the county, and that the sheriff, clerk, and other officers elected in the county should be enjoined from execution of their several functions.
    This bill was answered, and, amongst other defenses, it was averred that, prior to the filing of the bill, the county was completely organized by the commissioners, and the functions of the commissioners had been executed; that civil districts had been regularly laid off, justices of the peace, a sheriff, coroner, clerks, constables, and all other officers had been elected, and were in the regular discharge of their duties, according to law, before the filing of the bill.
The case was tried on bill, answers, replications, and proof, by Chancellor Williams, at the May term, 1848.
The decree recites that the boundaries of Hancock county, as surveyed by the commissioners, approached nearer than twelve miles of the county seats of the counties of Hawkins and Claibourne, from which the territory was taken, and it was, therefore, unconstitutionally established. The defendants were perpetually "enjoined from the organization of the county," and the county declared "unconstitutional and void."
>From this decree the defendants appealed.
Heiskell, for complainants.
1. This case involves the legality and constitutionality of the establishment of Hancock county. Defendants insist that the chancery court has no jurisdiction to enjoin the proceedings of the officers of a county after its organization.
*2 2. That the legislature had power to delegate the authority conferred upon it by the Constitution, to establish new counties, to commissioners.
On the first position. It would seem strange, indeed, if the Constitution could be infringed by the permission or negligence or delay of a few private persons, and that then there should be no remedy. Where would this rule carry us? Is there any person exempt from the operation of this new limitation?
In cases where the law provides preventive and remedial means the failure to adopt the first does not bar the other.
    This proceeding is in the nature of a quo warranto, which has always been brought at any time when corporations have been found acting illegally.
    It is decided in Tennessee that the writ of quo warranto and the information in the nature thereof are not in force (Turk's Case, M. & Y. 287), and the information in the nature of quo warranto it would be impracticable to use, for want of a court of general, original jurisdiction extending over the whole state. So that there remains no remedy in fact but the bill in chancery--the most convenient, proper, and efficient means for the regulation of such subjects that can be conceived.
    But the argument is that, the mischief being done, the remedy by injunction, which is the ground of chancery jurisdiction, is no longer proper. Every act of the officers of the county is an illegal act and a mischief which no other judicial power can remedy; and this is equally so whether the acts of the officers be void or not. But their acts are not on the footing of ordinary acts of officers de facto. The act of the legislature is a nullity and void, and every act done in pursuance of it is void, and not merely voidable; an act which they have no right to pass, an authority which they could not delegate, and the acts of the commissioners stand just as though they were self- constituted authorities, and the officers and others as usurpers without color of authority. This brings me to the second position.
    That the legislature can delegate the authority to make new counties. The Constitution gives the power to the legislature, not to its commissioners; the power thereby is expressly limited. It is further essentially legislative. It involves the exercise of a discretion which, as the wisdom and disinterestedness of the representative body could not be delegated, ought not to be committed to bodies without those qualities.
    The ascertainment and preservation of the evidences of boundary of the great governmental divisions of the state ought not to be left to the custody and control of private bodies, but should be preserved in the statute book; and this is another reason that the Constitution probably had in view in constituting the legislature as the authority to establish new counties. If this reasoning be correct, and the whole act be utterly void, then the position above assumed is true that every act of each officer would be a nullity, and, if that be so, the proceeding by writ of injunction would apply in this case just as much as it did to the case of Bradley v. The       Commissioners of Powel County. Because, if the acts of the county officers are void, each one works an injury which is of such a nature as ought to be the subject of an injunction; and, if I am wrong in this position, and if these acts be legal, still the oppressive taxes and additional burthens illegally to be imposed are injuries to be prevented by the writ of injunction. Besides, the acts of these officers, after a judicial decision that they were not legally constituted authorities, could, at any rate, be avoided, though, perhaps, they could not until then.
Sneed, for defendants.
    *3 The original bill is filed to enjoin and vacate the county of Hancock. It is against the commissioners appointed to organize the county, under the act of legislature directing the county to be so laid off as to "avoid constitutional objections," and was filed after the complete organization of the county.
    The county not having its limits and boundaries defined by the legislature, but the commissioners being directed to run the lines so as to "avoid constitutional objections," it was error to enjoin and vacate the county, but the commissioners should have been directed to conform to the provisions of the law.
    But a court of chancery, at the instance of a private individual, has no jurisdiction to enjoin or vacate a county. A county is a public corporation, created for governmental purposes only. 4 Wheat. 629, 659, 668. The government is the only proper party, in the case of a public corporation, to vacate, annul, or dissolve it, and all the reasons why the government should be the party actor exist with the increased force in mere governmental regulations, such as counties, etc. 5 Wheat. 291; 6 Cranch, 129 et seq. The case of Bradley v. Powel County, 2 Humph. 428, the court is respectfully asked to review, so far as it conflicts with the above view. It is directly against the case in 5 Wheat., which is believed to be sustained by all authority, and no case has been found to the reverse. It is not contended that the chancery jurisdiction is improper; that, it is conceded, was correctly held in Bradley's Case, and is confirmed by act of 1845, Nich. Sup. 106, 107, secs. 5, 7; but that chancery should act at the suit of an individual is the point opposed in that case, and for stronger reason in this.
    The case of Bradley was to inhibit the doing of the thing; now the act is done. The action there was prevented and prohibited; now it is sought to undo simply.
    This bill is only against the commissioners of the county when their office has been exhausted in its complete organization. They are not representatives by law of the organized county. Their duties were to organize.
R. M. Barton, for complainant.
    The court of chancery has power to enjoin illegal acts; and the officers of the county being made defendants, the writ of injunction is the proper remedy. Story's Eq. Jur. 906, 955; 2 Humph. 428.

TURLEY, J., delivered the opinion of the court.
    In the case of Bradley v. The Commissioners of Powel County, heard and determined by this court, at Knoxville, in the year 1841 and reported in 2 Humph. 428, it was held that commissioners appointed to organize a county, under an act of the legislature establishing it, should be enjoined from the performance of that duty where the county had been established by the legislature in violation of the 4th section of 10th article of the amended Constitution of the state, which provides that "new counties may be established by the legislature, to consist of not less than three hundred and fifty square miles, and which shall contain a population of four hundred and fifty qualified voters; no line of which county shall approach the court-house of any old county from which it may be taken nearer than twelve miles."
    *4 In that case it clearly appeared that the area contained within the lines of the county, as defined by the act establishing it, was not equal to 350 square miles, and that one of the lines approached the court-house of Hawkins (from which a part of said county had been taken,) nearer than twelve miles; wherefore it was considered that the act had been passed in direct contravention of the specified clause of the Constitution, which was construed to be a prohibition upon the legislature in exercising the sovereign power of making counties or municipal corporations, for the proper protection and government of the citizens of the state, and therefore conferred no authority upon the commissioners appointed to organize the county, and that a court of chancery had the legitimate power to enjoin them from the exercise of the power thus illegally delegated to them. In the opinion then delivered by this court it is said: "It is the inability of courts of law to operate prospectively by prohibition, for the prevention of mischief, that has established upon clear and definite grounds that portion of chancery jurisdiction which rests upon the doctrine of quia timet. It embraces a great variety of interests which we need not and do not design to investigate here. It sufficeth for this case to say that it always applies where great and irreparable mischief may be the consequence of illegal action, which the common-law courts, from their mode of proceeding, cannot stay; such we think this to be. If the establishment of the county be unauthorized its organization ought to be prohibited, and this no court but one of chancery can do."
Upon a review of this case we are satisfied of the correctness of its doctrine, and reaffirm it. The act of the legislature having been passed in violation of the Constitution, had no validity, and of course conferred no power upon the commissioners appointed by it, who were, therefore, proceeding in violation of law, to mark and lay off a new county and to organize a police government for it, by the election of a sheriff, justices of the peace, clerks of the courts, etc.; the consequence of all which would necessarily be the production of confusion and uncertainty in the administration of justice, and of inconvenience and mischief to the inhabitants, not only of the proposed new county, but of those from which it was to be taken, by a necessary increase of taxation for public buildings and police expenditures. These evils, the result of unauthorized and illegal action by these pretended commisioners, a court of chancery has power to prohibit, upon the application of any person liable to be injured thereby.
    But in the case now under consideration we are asked to go a step further and abolish a county after it has been organized and put into operation under an act of the legislature establishing it. This is presenting the question in a very different aspect, indeed, and we know of no principle of chancery jurisprudence upon which the jurisdiction thus invoked can be exercised. The prohibition of an act and the undoing of it after it has been performed are very different things, and the jurisdiction of a court of chancery can be maintained in many instances for the one, while the person aggrieved is left solely to his remedy at law for the other and such, we think, most clearly to be the case now under consideration; as long as the organization of the county is in fieri, the court has power over the commissioners appointed by the invalid act establishing it, and may prohibit them from the exercise of the authority illegally imposed upon them by it; but the moment the power is executed, and the county organized in pursuance of the statute, that moment the connection of the commissioners with the transaction ceases; they become, if the expression be legitimate functi officio; and the county becomes under the statute, a political corporation of the state, and a court of chancery has no power to enquire into the validity of the act, and, as we apprehend, a court of law neither. The power of courts to declare acts of legislation unconstitutional only exists where they are called upon to enforce them, or declare under them some right affecting life, liberty or property. The courts have no power to prohibit the legislature from the exercise of unconstitutional power in legislation; they can only refuse to carry into execution such unconstitutional legislation. There are many provisions of the Constitution directory, mandatory, and prohibitory to the legislature, against the violation of which there is and can be no legal protection; such are the clauses requiring the performance of duties imposed upon the legislature itself, and the restriction in the performance of those duties; in all these, and the like cases, the only security is to be found in the obligation of the members to support the Constitution, and in the ballotbox. If the legislature, in violation of the provisions of the Constitution, refuse to perform a duty imposed upon it--if it perform its duty, without regard to the non-existence of a given state of facts required--in all these cases there is no remedy. A court of justice cannot compel action, it cannot prohibit action, it cannot undo action. Such, in our opinion, is the case of a county established and organized by an act of legislature in disregard of the provisions of the article of the Constitution which makes it the duty of the legislature not to establish a new county unless it contain within its limits a given number of square miles and a given number of voters. Every member is bound by its oath not to violate this clause of the Constitution, but the courts have no power to prohibit such violation, nor to undo an action which may be the result of it; and the only ground upon which the organization of a county by commissioners, under a law so passed, may be prohibited, results from the fact that they are individuals amenable to a court of chancery; that the law communicates to them no power, and that they are, in consequence thereof, in the performance of an illegal act, calculated to produce mischief if it be not restrained; but when it is once organized, though it be by commissioners, it is as if it had been organized by the legislature without a commissioner, and is beyond the control of the courts.
    *5 As to the question made upon the boundary lines of this county, it being alleged that they are run within a distance of other county seats, prohibited by the Constitution, or twelve miles, it is to be observed that this prohibition is made in favor of the counties, and a violation of it violates rights secured by the Constitution to them, which cannot be permitted, as it would be an unconstitutional divestment of a vested right; the consequence of which is the adjoining counties are not bound by the running of those lines, if they trench upon the limits thus secured to them--that is, the twelve miles from the seat of jutice; but they may force these lines back to the required distance if they see proper so to do.
    Then, upon the whole view of this case, we reverse the decree of the chancellor, and dismiss the complainant's bill with costs.
Tenn. 1848.
FORD v. FARMER et al.
28 Tenn. 152, 1848 WL 1837 (Tenn.), 9 Hum. 152