Board of Commissioners of Jasper County v. Spitler

• Decision Date: 02 December 1859
• Citation: 13 Ind. 235
• Parties: The Board of Commissioners of Jasper County v. Spitler
• Court: Indiana Supreme Court

13 Ind. 235

The Board of Commissioners of Jasper County v. Spitler

Supreme Court of Indiana

December 2, 1859

From the Jasper Circuit Court.

The judgment is reversed with costs. Cause remanded.

R. S Hathaway, J. E. McDonald, S. A. Huff, Z. Baird, L. Barbour J. D. Howland and A. L. Roache, for the board.

Counsel for the appellant submitted the following argument:

We object, first, that the proceeding is irregular. The boards of commissioners perform judicial functions, and from their decisions an appeal lies to the Common Pleas or Circuit Court of the county. 1 R. S. p. 229, § 31. The statute makes ample provision for such appeals, not merely in favor of persons who are parties to the record in the commissioners' Court, but in favor of all persons aggrieved who will make an affidavit, showing explicitly the nature of their interest. And such appeals are allowed, not only from judgments, or acts of a purely judicial character but from "all decisions of such commissioners." So we find reports of cases in the Supreme Court, where appeals have been prosecuted from decisions of the commissioners, in matters rather of a ministerial than a judicial nature.

In this instance, the petition shows that the proceeding was grounded upon an act of the legislature, conferring an express power on the commissioners, and making them the tribunal of original, exclusive jurisdiction in forming new counties. Of whatever character these functions are held to be, whether ministerial or judicial, their exercise is subject to review on the appeal of any party aggrieved. Under such conditions can the extraordinary remedy of a prohibition be resorted to? We are very confident it cannot.

The 2 R. S. 1852, art. 43, p. 167, provides for the allowance of the writ of prohibition, without any enumeration of the causes for which it shall be allowed. We are, therefore remitted to the common law for these causes.

The doctrine is, perhaps, as clearly stated in Chitty's General Practice as elsewhere: "With respect to any controlling jurisdiction over inferior Courts, it was determined by all the judges, that this Court (the Common Pleas), as well as the King's Bench, has jurisdiction, by prohibition, to confine temporal as well as ecclesiastical Courts within their proper jurisdiction; but it is more usual to apply to the Court of King's Bench for that writ in term, or to the chancellor in vacation, if an inferior Court should then press forward in a suit over which it has not proper jurisdiction." 2 Chit. Gen. Pr., p. 388. The same application of this extraordinary mode of legal redress is pointed out by Blackstone, book 3, p. 112. This author alludes to another class of cases in which a prohibition will lie as where, in Courts of special jurisdiction, as the ecclesiastical Courts, in a question not properly spiritual, a rule of evidence different from the common law is enforced; so that, if such a Court should require two witnesses to the fact of the signing of a release, or of payment, it might be restrained by prohibition. "Such a fact is not properly a spiritual question, but only allowed to be decided in these Courts because incident or accessory to some original question clearly within their jurisdiction; it ought, therefore, when the two laws differ, to be decided, not according to the spiritual, but the temporal law--else the same question might be determined different ways."

It may be observed that this is an incongruity, which could only happen where there was no final Court of appeals, in which all these different tribunals could be brought into harmonious action; under our system, and in the case under discussion, the inconvenience thus made the reason for a prohibition, does not apply. It is submitted that no case can be found in which an appellate Court has the power to interfere with the proceedings of the inferior Court, in the trial of a cause, by prohibition, unless where the latter is clearly transcending its jurisdiction. If the ground assumed in this cause is a proper one for allowing a prohibition, parties need not any longer resort to the usual course of appeal, but may set the Supreme and Circuit Courts to work with prohibitions, to test the constitutionality of acts which the other Courts of the state are disposed to obey--and, indeed, to control, in any question, the decisions of inferior tribunals.

R. C. Gregory, for appellee.

The unwarranted employment of the writ of prohibition, is conceded in the brief of the appellee.

It is urged, in objection to the proceedings of the commissioners, that the act of 1857 does not contemplate the organization of a new county out of the territory of a single county, but that the boards of commissioners of at least two coterminous counties must appoint each a committee, who shall lay off and establish the new county out of the territory of the two counties so represented. But nothing in the act warrants this interpretation. It is an unreasonable interpretation in every point of view, and so not to be favored. The object of the law is, to permit the majority of voters, in any district of not less than four hundred square miles, to adopt measures to organize that district into a new county. The only restriction imposed by the law, is one copied from the constitution, forbidding the reduction of a county having an area of four hundred square miles, below that area, and any further reduction of a county having already less than that area. There is no other express restriction in the act. The restriction sought to be imposed is by implication. It is not urged, that the territory which the board of commissioners are asked to form into a new county is of less area than four hundred square miles; nor is it pretended that the separation of this territory from Jasper county will reduce that county below the area prescribed by the constitution.

The object of the law has been alluded to. It is quite plain. It offers to the inhabitants of any district of an area not less than four hundred square miles, the privilege of forming out of that district a new county, providing that thereby no county already organized shall be reduced below the limits fixed by the constitution. The reason of the law is as adplicable to the case of such a district when it exists entirely within the bounds of a single county, as where it is distributed over several contiguous counties. The phrasealogy might have been somewhat more copious than the legislature has employed in this act, but hardly clearer. The use of the phrases "several" and "each," in connection with the word "county," and the words "board of commissioners," whenever they appear in the act, evidences the intent of the legislature. That intent, as expressed in the act, clearly conforms to the reason of the law. In this case the law is literally complied with; each board of commissioners, of the several counties to be effected, has been petitioned, and has acted in the matter Smith's Comm., § 472, et seq.

It is further objected, that because the subject-matter embraced in an act for the formation of a new county is of a local character, it is the proper subject of a local act, and a general law is unconstitutional. This objection has been sufficiently refuted by this Court in the case of Thomas v. The Board of Comm'rs, &c., 5 Ind. 4. We content ourselves with a reference to it.

It is urged by counsel for the appellee, that the power to organize new counties is an act of legislation, and cannot be delegated. The answer to this objection is, in a good degree anticipated above; for if a general law is applicable, some provisions must be made for giving effect to the law. If the legislature must intervene for the purpose of forming new counties, in each instance, by direct legislation, it can only be by means of a local act, that had been shown not to be necessary. A general law can be made; and to give such a law effect, intermediate agents must be called in with powers sufficient for the proposed object. This is precisely what the legislature has done in this instance. There certainly is nothing in the argument, that because the legislature has heretofore uniformly changed county boundaries, and formed new counties, that body alone can perfect such change. The legislature has heretofore always changed names of citizens, on their petition, by a direct act for the purpose. Does that fact render unconstitutional the provision of the statute which refers such matters to the Courts of justice? Is such power conferred on the Courts, a delegation of legislative functions? It certainly is not. It is only necessary, however, to refer to analogous cases, to show the fallacy of this objection. It is an act of legislation to establish highways. May not the legislature, by general laws, prescribe the terms upon which county and township boards may fix the courses and termini of roads? It is an act of legislation to fix the place of a county seat, and to re-locate a county seat. May not these powers be properly referred to commissioners? It is an act of legislation to name the place at which a state prison shall be constructed. May not a board be organized with powers to select the place, and determine finally the site for such an object. It is the exercise of one of the highest functions of a legislative body, to levy and assess taxes. May not that power be delegated to municipal bodies, without violation of law? These illustrations might be extended much further. They suffice to show that no principle of the constitution is violated by the enactment of a general law for forming new counties, and referring to a board of commissioners that jurisdiction over the subject which authorizes them to determine when the circumstances exist, that the legislature considered...