James County v. Hamilton County

• Decision Date: 04 October 1890
• Citation: 14 S.W. 601
• Parties: JAMES COUNTY v. HAMILTON COUNTY.
• Court: Tennessee Supreme Court

Page 601

14 S.W. 601

JAMES COUNTY v. HAMILTON COUNTY.

Supreme Court of Tennessee.

October 4, 1890.

Appeal from chancery court, James county; W. H. DE WITT, Special Chancellor.

P. B. & J. E. Mayfield and S. P. & D. A. Gant, for plaintiff. Thomas & De Witt and Shepherd, Watkins & Bates, for defendant.

TURNEY, J.

An act of the legislature approved March 11, 1890, by its first section abolished the county of James, and restored its territory to the counties of Hamilton and Bradley, from which it had been formed in 1871. This bill is filed charging that the act of 1890 is unconstitutional and void, enjoining action under it, and asking that it be declared null. On the 9th April, 1890, notice was served on complainant that on April 12, 1890, motion would be made to dissolve the injunction. The motion was made, and the decision reserved but never rendered. On 14th May, the chancellor ordered a special term of the chancery court to be holden on 14th June "to render such decree as may be necessary in the suit of James County against Hamilton County et al., and for no other purpose." At the special term the chancellor held the act to be constitutional, and retained the injunction in force until the question could be determined by this court. It is now objected that the court was not authorized to entertain the motion to dismiss in the absence of notice of such motion to complainant. This objection is not well taken. Our statute provides: "A defendant may move to dissolve or modify an injunction in vacation before the chancellor of the division in which the bill is filed, either for want of equity in the bill or upon the coming in of the answer to be heard upon certified copies of the bill and answer, but five days' notice of such application shall be given to plaintiff or his solicitor. A motion to dissolve an injunction may be made at any time upon answer, or for want of equity on the face of the bill." Mil. & V. Code, §§ 5194, 5195. It is clear to us that the action of the chancellor in ordering a special term was induced by two considerations: First. The notice to dissolve was insufficient, and in fact no notice, the law demanding that the plaintiff shall have five days' notice, while in this case there were only about three; and therefore there was no jurisdiction in the chancellor to act out of term. Second. The matter being one of public importance, the chancellor correctly determined to pass upon it as promptly as the law would allow. No notice of motion to dismiss in term-time is necessary. The chancellor may dismiss of his own motion. The order appointing the special term called attention directly to the purpose of the court to make such decree as he thought necessary in this case, and was notice to the complainant that every step that could be taken in the cause would, or might, be asked for. This brings us to a consideration of the constitutionality of the act.

Our constitution (article 10, § 4) ordains: "New counties may be established by the legislature to consist of not less than two hundred and seventy-five (275) square miles area, which shall contain a population of seven hundred qualified voters. No line of such county shall approach the court-house of any old county, from which it may be taken, nearer than eleven miles, nor shall such old county be reduced to less than five hundred square miles. * * * No part of a county shall be taken off to form a new county, or a part thereof, without the consent of two-thirds of the qualified voters in such part taken off, and, where an old county is reduced for the purpose of forming a new one, the seat of justice in said old county shall not be removed without the concurrence of two-thirds of both branches of the legislature, nor shall the seat of justice of any county be removed without the concurrence of two-thirds of the qualified voters of the county." Article 10, § 4, contains all the provisions on the subject of counties, county lines, etc. From it, it is clearly manifest the authority, and only authority, conferred is to build up, and not to pull down. It is equally apparent that it never occurred to the framers that a county could be destroyed or dissolved by an arbitrary act of the legislature. The expression of the one thing is the exclusion of the other. If the constitution is so careful of the rights of old counties in taking from them fractions to form new counties; if it is so...