Bradley v. Commissioners

• Decision Date: 31 July 1841
• Citation: 21 Tenn. 428
• Parties: BRADLEY v. COMMISSIONERS, ETC.
• Court: Tennessee Supreme Court

21 Tenn. 428

BRADLEY

v.COMMISSIONERS, ETC.

Supreme Court of Tennessee.

July, 1841.

The 4th section of the 10th article of the amended constitution of the State of Tennessee, adopted in convention on the 30th of August, 1834, and by the voters in 1835, provides as follows:

“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 such county shall approach the court-house of any old county from which it may be taken nearer than twelve miles. No part of a county shall be taken off to form a new county, or a part thereof, without the consent of a majority of the qualified voters in such part taken off.”

In the year 1839 the legislature passed an act (see Pamphlet Acts, ch. 15) entitled “An act to establish the county of Powell.”

The 1st section provides that “a new county be, and the same is hereby, established, to be composed of fractions taken from the counties of Sullivan, Hawkins, Washington, and Green, to be known and designated as the county of Powell, in honor of Samuel Powell, one of the judges of the circuit court of the state of Tennessee.”

The 2d section gives the boundaries of the county, without specifying the number of square miles contained therein.

The 3d section appoints commissioners for the purpose of organizing the county, who were required to take an oath and give bond for the performance of the duties enjoined upon them by the act.

The 4th section declares that it shall be the duty of said commissioners, first giving notice in one or more public places, to open and hold an election at once or more places in each of the fractions proposed to be stricken off from the counties of Washington, Green, Hawkins, and Sullivan, respectively, for the purpose of ascertaining whether a majority of the voters residing in the several fractions were in favor of, or opposed to, the establishment of the county of Powell.

The act proceeds to provide for the laying off the county into civil districts, the location of the seat of justice, the erection of public buildings, the election of civil and military officers, and the administration of justice.

The commissioners, to wit, Smith, Ball, Hulse, Shipley, Peoples, White, Gilman, Hendrick, England, and Shanks, proceeded to the performance of the duties enjoined upon them by the act, held elections, and returned to the county court that the decision of the voters had been favorable to the establishment of the county.

On the 29th day of January, 1840, Orville Bradley and Samuel McPheters filed their bill in the chancery court at Rogersville, Hawkins county, praying a prepetual injunction against the organization of the county of Powell. This bill charges--

1st. That a majority of all the qualified voters residing in the several fractions did not vote in favor of the establishment of the county of Powell, though a majority of those who did vote were favorable to its establishment, and that the establishment of it would, therefore, be in opposition to the intent and letter of the constitution.

2d. That there are not within the boundaries of said county of Powell, as described by the 2d section of the act of 1839, more than 260 square miles of territory, and that the 4th section of the 10th article of the constitution of 1835 provides that “no new county shall be established containing less territory than three hundred and sixty square miles.”

3d. That the boundaries of the county of Powell, as laid down in the act of 1839, approached within less than eleven miles of the court-house of Green county, within about eleven miles of the court-house of Hawkins county, within less than ten miles of the court-house of Sullivan county, and so they charge that said county cannot be constitutionally established.

4th. That they believe that the establishment of the new county as laid off would reduce the county of Green below the number of 625 square miles of territory, contrary to the 4th section of the 10th article of the amended constitution.

5th. That the complainants resided in, and were citizens of, that portion of Hawkins county which had been proposed to be stricken off and attached to the proposed county of Powell, and that they were about to be aggrieved thereby.

The bill, upon the premises aforesaid, prays “that said defendants may be restrained by injunction from taking any further steps towards the organization of said county of Powell; that they be prohibited from holding any further elections or doing any further act whatever under the authority vested in them by virtue of the act of 1839, establishing the county of Powell;” and that, inasmuch as the complainants had been informed and believed the defendants had threatened to cause the election of county officers to be made in defiance on any injunction that might be issued against their proceeding, they prayed that J. S. Young, secretary of state, might be enjoined from issuing any commission or commissions whatever to any officer elected by virtue of the act of 1839 establishing the county of Powell. The bill further prays that all persons who had been elected or who might be elected officers under the provisions of said act might be enjoined from the performance of any of the duties thereof, and that the contents of said county, as bounded in said act, might be more accurately and unquestionably ascertained. It also prays that a survey be ordered, and that on final hearing a decree awarding a...