Perry County v. Conway County

• Decision Date: 01 February 1890
• Citation: 12 S.W. 877
• Parties: PERRY COUNTY <I>v.</I> CONWAY COUNTY.
• Court: Arkansas Supreme Court

12 S.W. 877

PERRY COUNTY

v. CONWAY COUNTY.

Supreme Court of Arkansas.

February 1, 1890.

Appeal from circuit court, Conway county; G. S. GUNNINGHAM, Judge.

Action by Perry county against Conway county. By an act of the legislature approved April 12, 1873, a large part of the territory of Perry county was detached from said county, and made a part of Conway county. There was no provision in this act by which any part of the then-existing indebtedness of Perry county should be assumed or paid by Conway county, as is usually done in such cases. In fact, there was no mention of Perry county in the title of the act, nor in that part of the body of the act by which Perry county lost about one-fifth in valuation of her taxable property. The legislature of 1885, endeavoring to remedy as far as possible the wrong inflicted upon Perry county by the act of 1873, passed an act by which Conway county was made liable to Perry county for a just pro rata of the indebtedness of Perry county existing at the time of the passage of the act by which her territory was divided; the act providing for filing a claim by Perry county in the county court of Conway county. Pursuant to the last-mentioned act, Perry county filed her claim in the county court of Conway county on the 6th day of July, 1885, for $1,100. The county court heard the claim upon the evidence, and disallowed it. An appeal was taken by Perry county to the circuit court of Conway county, and in that court a demurrer was sustained, and the case dismissed; and plaintiff appeals.

J. F Sellers, for appellant. E. B. Henry, for appellee.

SANDELS, J.

It is objected by defendant county that the claim of Perry county was not authenticated as required by the general statute in case of ordinary demands against counties. The special statute giving the right to sue upon this claim does not require it, and no principle of statutory construction makes it necessary.

The only other question presented is whether the act of 1885 is constitutional. The power of the legislature to alter and abolish counties; to erect new corporations in the place of the old; to divide and dispose of the property held by counties; to charge portions of the debt of the old county upon that receiving its detached territory, — is everywhere conceded, and nowhere more emphatically than in this state. Eagle v. Beard, 33 Ark. 497, and cases there cited. Upon general principles of law, if a part of the territory and inhabitants of a county be separated from it by annexation to another, or by the creation of a new county, the remaining part of the county retains all its property, and remains subject to all its obligations and duties. Laramie Co. v. Albany Co., 92 U. S. 307, and cases cited; Mount Pleasant v. Beckwith, 100 U. S. 514. The only debatable question is as to whether the act segregating the territory...