Lusher v. Scites.

• Decision Date: 31 January 1870
• Citation: 4 W.Va. 11
• Court: West Virginia Supreme Court
• Parties: Irvin Lusher v. Thomas Scites et al.

4 W.Va. 11

Irvin Lusher

v.Thomas Scites et al.

Supreme Court of Appeals of West Virginia.

January Term, 1870.

1. The subject of creating new counties belongs to the legislature alone, by the provisions of the constitution. To exercise the power thus conferred the legislature must inform itself of the existence of the facts (as to area, population, &c.,) prerequisite to enable it to act on the subject. How it shall do so, and on what evidence, the legislature alone must determine; and when so determined, it must conclude further inquiry by all other departments of the government. And the final action terminating in an, act of legislation in due form, must of necessity presuppose and determine all the facts prerequisite to the enactment.

2. The courts cannot go into an inquiry as to the truth or falsity of facts upon N which an act of the legislature is predicated, where the latter has sole jurisdiction of the subject.

This cause arose in Cabell county. The original bill was filed and injunction obtained in September, 1868; the amended bill was filed in May, 1869. The appellant, Lusher, sought to restrain the collection of taxes assessed against him by the officers of the county of Lincoln. The appellees were tax collectors. The opinion of the President contains a substantial statement of the points at issue.

Hon. James H. Ferguson, judge of the circuit court of Cabell, on the trial of the cause.

Lucien C. Richetts for the appellants.

Tomlinson and Stanton & Allison for the appellees,

3. The existence of Lincoln county held to be a fact.

Brown, President.

So much of the opinion of the circuit court as I approve, I have adopted.

This suit was brought by the plaintiff to restrain the collection of certain county and township taxes assessed and levied upon his real and personal estate, in the township of Sheridan, and county of Lincoln, upon the ground that the act creating the said county, and the subsequent acts amending the same, are unconstitutional and void, and an injunction was obtained and perfected by the plaintiff restraining the collection of these taxes until the further order of the circuit court. The county of Lincoln was created by an act of the legislature of this State, passed on the 23d day of February, 1867, out of parts of the counties of Cabell, Putnam, Kanawha and Boone; and by subsequent acts, some material changes have been made in its boundary lines, and considerable additions made to its territory and population.

It is averred, both in the original and amended bills, that at the time of the creation of the said county of Lincoln, it did not contain within its boundary lines either four hundred square miles of territory or four thousand white population; and that by its creation the county of Cabell was reduced below the area of four hundred square miles of territory. It is averred in the amended bill that by the act passed March 3d, 1868, sufficient territory was added to the county of Lincoln to give it an area of four hundred square miles, but that its white population was still below four thousand, and the county of Cabell was, by that act, still further reduced in territory. It is further averred that by the act passed February 26th, 1869," additional population and territory was added to the counties of Lincoln and Cabell, but that the said county of Cabell still contains less than four hundred square miles of territory." There are other allegations in both bills on this subject, but these are all that are necessary to be noticed in the decision of the ease.

The defendants filed a demurrer to the bill and amended bill, and asked to have the injunction dissolved and both bills dismissed, on the ground that the circuit court had no jurisdiction, either of the parties or of the subject matter of the suit.

Upon the first point raised, I am clearly of opinion that if the plaintiff is entitled to the relief prayed for in his bill and amended bill, his suit is properly brought in the circuit court of Cabell. He alleges that, at the time of the passage of the act creating the county of Lincoln, he was a resident and freeholder of that part of the county of Cabell which was included within the boundary lines of the said county of Lincoln, and that he still resides upon his freehold at the same place he then resided. If, then, the act creating the county of Lincoln, and the several acts amending the same, are all unconstitutional and void, there is no county of Lincoln, and the plaintiff is still a citizen and resident of Cabell county, and entitled to sue as such in that county. The reasons for this opinion might be amplified, but it is unnecessary.

The important question in the case is, the constitutionality of the acts in question.

The legislative power is an attribute of sovereignty, and the exercise of that attribute us vested by the people of the State in the Senate and House of Delegates. Constitution, art. 4, sec. 1.

The creation of a new county is an exercise of legislative power. It is, therefore, legitimate legislation, and within the scope of legislative power to make new counties; and the only limitation on the power in the legislature, is to be sought for in the constitution; and the only limitation there to be found, applicable to this case, is the prohibition contained in section 12 of article VII of the constitution, which provides that, "No new county shall be formed having an area of less than four hundred square miles; or, if another county be thereby reduced below that area; or, if any territory be thereby taken from a county containing less than four hundred square miles. And no new county shall be formed containing a white population of less than four thousand; or, if the white population of another county be thereby reduced below that number; or, if any county containing less than four thousand white inhabitants be thereby reduced in area," &c.

The power to form new counties, it is conceded, belongs to the legislature alone under the constitution, but before this power can be rightfully exercised, it must be made to appear affirmatively: 1. That the proposed new county does contain an area of at least four hundred square miles. 2. That no other county is thereby reduced below that area. 8. That no territory is thereby taken from any county containing less than four hundred square miles. 4. That the proposed new county contains at least four thousand white population. 5. That the white population of no other county is thereby reduced below four thousand; and 6. That no county containing less than four thousand white inhabitants is thereby reduced in area. When all these facts are made to appear to the satisfaction of the legislature, then, and not till then, an act creating the proposed new county may be passed. The legal presumption therefore is, that when the act creating the county of Lincoln was passed, all these facts had been proved to the satisfaction of the legislature, otherwise that body would not and could not have passed the act. All its members were sworn to support the constitution of the State, and it is not to be presumed that they would violate their oaths of office by passing the act in question, without the proof necessary to enable them to do so.

Not only does the subject of making new counties belong to the legislature, but it belongs to no other department of the government. To exercise the power, the legislature must inform itself of the existence of the facts prerequisite to enable it to act on the subject How it shall do so, and on what evidence, the legislature alone must determine; and when so determined, it must conclude further inquiry by all other departments of the government; and the final action terminating in an act of legislation in clue form, must of necessity presuppose and determine all the facts prerequisite to the enactment; and that too, as fully and as effectually as a final judgment of a competent judicial tribunal of general jurisdiction would do in like case.

My opinion, therefore, is, that the passage of the act creating the county of Lincoln, and the act amending the same and re-enacting the first section thereof, passed February 26th, 1869, are in law, solemn affirmations of record by the only tribunal having jurisdiction in the case; that all the constitutional requirements had been and were complied with; that the said county of Lincoln had the territory and population, required by the constitution, and that no other county was, by the creation thereof, reduced below the amount of territory or population required by the constitution. And the question now is: has this court power to go behind these acts and try the question as to whether these affirmations are true or false? In order to a right understanding of this question, it is necessary to ascertain the force and effect of an act of the legislature as evidence. Phillips, in his work on evidence, (Vol. 1, p. 316), speaking of acts of parliament, says: "Records are the memorials of the proceedings of the legislature and of the King's courts of justice, preserved in rolls of parchment; and they are considered of such authority that no evidence is allowed to...