Board of Commissioners v. Spitler

Davison, J.

The case made by the pleadings is as follows:

Under an act entitled “ An act to authorize the formation of new counties,” &c., approved March 7,1857, certain citizens of Jasper county, residing within a certain district in th county, presented to the board of commissioners of said county a petition wherein they set forth the boundaries of the district in which they reside, and allege that such district ought to be formed into a new county, to be called the county of Newton; that the area embraced within the boundaries, was, as near a square as may be, and would, if formed into a new county, leave four hundred square miles in the old county of Jasper, &c.

The commissioners, at their December term, 1857, proceeded to act upon the petition, and, upon final hearing, &c., appointed a committee of three freeholders, residents of said district, to lay off and establish the boundaries of the proposed new county. And the committee thus appointed having made their report, the same was, by order of the commissioners, duly filed, &c.

After the filing of the report, and before the commissioners had further acted in the matter, Spitler, the appellee, who was the plaintiff below, filed his complaint in the Jasper Circuit Court, reciting, substantially, the above proceedings, and alleging that the act of March, 1857, does not authorize the division of a single county by the act of *237 a single board of commissioners, acting through a single committee of freeholders; and further, that said act of 1857 is in conflict with the constitution. He, plaintiff, in his complaint, suggests that unless prohibited by an order of the Court, the commissioners may, at their next term, enter an order establishing the boundaries of the proposed new county, and certify their proceedings to the secretary of state, &c. He therefore prays that a writ of prohibition may issue, directed to said commissioners, commanding them not to enter upon their order book an order establishing such boundaries, &c.

The defendants demurred to the complaint; but their demurrer was overruled, and an order granted as prayed for, &c.

The act to which these proceedings refer, provides “ That whenever a majority of the legal voters to be affected thereby, in any district embracing an area of not less than four hundred square miles, shall desire the formation of a new county, and, by written request, petition the board of commissioners of the several counties to be affected by the formation of said new county, * * * the said boards shall appoint each a committee of three resident freeholders, in each county of the district embraced in such change, who shall form a board of commissioners to lay off and establish the boundaries of the proposed county, * * * and shall report the same to such boards of commissioners of .the several counties affected by the formation of said new county, at the next or some subsequent session; and upon said report being made, the boards of commissioners of said several counties aforesaid, shall enter upon their order books, respectively, an order establishing the boundaries of said new county, which shall be by them filed in the office of the secretary of state. Acts of 1857, pp. 25, 26, § 1.

Does this act conflict with the constitution?

It is insisted that the power to organize new counties, has ever been exercised by direct legislation, and cannot be delegated. The position thus assumed is not, in our opinion, well taken. The act of March, 1857, is a general law *238 of uniform operation, to be executed through the agency of the board of commissioners. And it seems to us, that the power thus conferred, so far as it relates to their duties under the act, is purely ministerial and not legislative. Indeed, the constitution itself declares that “ The General Assembly may confer upon the boards doing county business in the several counties, powers of a local, administrative character.” Art. vi., § 10. Under this provision, the legislature seems to be plainly authorized to confer the power embraced in the act before us. In cases like the present, the taking effect of the law is not the result of any action on the part of the commissioners; nor do they decide whether the act is or is not in force, but simply whether it applies to the case made by the petition, which the act prescribes. This is evidently not the exercise of delegated legislative power; but merely the application of the provisions of a general law to a given case, local in its character.

Rut it is argued that “the county boundary of Jasper county is fixed' by law (1 R. S. p. 168, § 39), and art. iv., § 21, of the constitution, having provided that ‘No act shall be revised or amended by mere reference to its title; but the act revised or section amended shall be set forth and published at full length,’ no general law can be made applicable; and § 39, defining the boundary of said county, can only be amended by an act local in its nature—the subject-matter being local.”

The answer to this is, that § 39, defining the boundaries of Jasper county, is one provision of an act entitled “ An act dividing the state into counties, and defining their boundaries,” &c., which is a general law, and that the act in question does not purport to be, nor is it, an amendment of any law; but a general, independent enactment, having for its object the formation of new counties, &c. And this Court having decided that the removal of county seats can be made the subject of a general law, there seems to be no reason why such a law cannot be applied to the case stated in the record. Thomas v. The Board of Comm’rs, &c., 5 *239 Ind. R. 4. In our judgment the act of March, 1857, is not in conflict with the constitution.

But it is argued that the act, though it be valid, “ does not authorize the division of a single county, by the act of a single board of commissioners, acting through a single committee of freeholders.” It says: “Whenever a majority of the legal voters,” &c., “in the district,” &c., “shall desire the formation of a new county,' and, by written request, petition the board of commissioners of the several counties to be affected by the formation of such new county,” &c., “the said boards shall appoint each a committee of three freeholders in each county of the district embraced in such change, who shall form a board,” &c., “to lay off and establish the boundaries of the proposed new county,” &c.

The phraseology thus used, would seem to favor the construction assumed in the complaint; but when the reason and object of the enactment is considered, the intent of the legislature evidently was, that the provisions of the act may be applied to a district existing within the bounds of a single county. Indeed, the words “several” and “each” and “county,” and the phrase, “board of commissioners,” in the connection in which they are used in the act, plainly allow the construction that a district in an old county may be formed into a new county, provided such district contains an area of four hundred square miles, and that such new county, when so formed, does not reduce the old county below that area. In this instance, we will judicially notice that the old county of Jasper contains an area of at least eight hundred square miles, and that, consequently, it may be divided so as to form two counties, each having the required area.

An inquiry is raised as to whether the plaintiff has adopted the proper remedy. The appellants contend that the case stated in the complaint is not one in which a writ of prohibition can be sustained. The statute allows such writ; but fails to point out the causes for which it may be allowed. Hence, for these causes, we must look to the common law. Blackstone says: “ A prohibition is a writ *240 issuing out of the Courts of King’s Bench, Chancery, Common Pleas, or Exchequer, directed to the judge and parties of a suit in an inferior Court, commanding them to cease from the prosecution thereof, upon the suggestion that either the cause originally, or some collateral matter arising therein, does not belong to that jurisdiction, but to the cognizance of some other Court.” This writ, says the same author, may also issue to Courts of special jurisdiction, as ecclesiastical Courts, where, “in handling of matters clearly within their cognizance, they transgress the bounds prescribed to them by the laws of England; as, where they require two witnesses to prove the payment of a legacy, a release of tithes, and the like. For as the fact of signing a release, or of actual payment, is not properly a spiritual question, but only allowed to be decided in those Courts, because incident or accessory to some original question clearly within their jurisdiction, it ought, therefore, where the two laws differ, to be decided, not according to the spiritual, but the temporal law; else the question might be decided different ways, according to the Court in which the suit is pending.” 3 Blacks. Comm. 112.—3 Toml. Law Dict. 242, et seq.—8 Bac. Abr. (Bouv. ed.) 206.—2 Bouv. Law Dict. 377,—2 Chit. Gen. Pr. 388.

This exposition of the causes for which a writ of prohibition may issue at common law, at once shows that, under our system of procedure, it can only be used for one cause, namely, “to command the judge and parties of a suit in an inferior Court, to cease the prosecution thereof, upon a suggestion that the cause originally, or some collateral matter arising therein, does not belong to that jurisdiction, but to the cognizance of some other Court.” Perk. Pr. 484. If this position be correct, and we think it is, the writ of prohibition, in this instance, was not the proper remedy, because the board of commissioners of Jasper county had, in the case pending before it, original and exclusive jurisdiction. Indeed, we perceive no reason why the party, instead of prosecuting the writ in question, did not adopt the usual remedy of appeal; because such an *241 appeal is plainly authorized by an express statutory enactment. 1 R. S. p. 229, § 31.

R. L. Hathaway, J. E. McDonald, S. A. Huff, Z. Baird, L. Barbour, J. D. Howland, and A. L. Roache, for the board (1) . R. C. Gregory, for the appellee (2) . Per Curiam.

The judgment is reversed with costs.

Cause remanded, &c.

Nov. Term,

1859.

The Boabe

OS' COHMIS-SIOHEES, &C. V.

Spil’EEK.