Portwood v. Board of Supervisors

Simkall, C. J.,

delivered the opinion of the court.

Portwood, the relator, was teacher of a public school in the year 1871, in that portion of the county of Choctaw which was cut off from it and constituted a part of the county off Montgomery, organized under the act o'f May 13, 1871.

*526 The 6th section of this act requires the new county of Montgomery to pay its proportion of the county debt of Choctaw, to be ascertained from the assessed value of the taxable property of Choctaw comity.

• By the subsequent act of March 22, 1872, the treasurer of Choctaw county is directed to pay over to the treasurer of Montgomery county all moneys collected on account of the .public schools, for the year 1871, from that territory which was cut off from Choctaw county to form Montgomery county, which has uot already been paid to teachers of that section and the treasurer of Montgomery comity is required to pay warrants issued by the authorities of Choctaw comity for services in the district taken off from it.

Warrants issued since the creation of Montgomery comity, by the school directors of Choctaw comity, to teachers teaching in the district which was excised, are required to be presented to the clerk of the board of school directors of Choctaw comity, to be by him retained and filed, and in lieu thereof he shall issue a certificate, which shall be presented to the clerk .of the board of school directors, who shall, with the approval of said board, issue in lieu thereof a warrant for the amount.

The relator says that the school trustees issued warrants of date the 8th of August, which, under this act, he gave up to their clerk, and received a certificate, which he had presented to the clerk of the school trustees of Montgomery, and also application to the trustees for its approval. The trustees held this under advisement, without final decision, until the board of trustees was abolished by the act of April 17, 1873, and all of its duties and powers were devolved on the board of supervisors.

On the 7th of October, 1873, the certificate was presented to the board of supervisors ; he presented his certificate to that board for approval and a warrant on the county treasurer.

This application was under the act of March 22, 1872. This was refused.

*527 On these facts the relator prayed for the rvrit of mandamus to compel the board of supervisors to pass an order to approve the certificate and to issue to him a warrant.

On this petition the alternative writ was issued and served, to which the respondents demurred.

The object intended to be accomplished by the act of 1872 was to give to the county of Montgomery the benefit of all taxes collected for schools in that portion of Choctaw which was made part of the territory of Montgomery, and that all the debts incurred to teachers in the excised territory, evidenced by certificates, since the creation of Montgomery county, should be paid by that county.

The relator alleges that he rendered the service, has obtained the certificate of the proper authorfiy in Choctaw county, and had submitted his claim to the school trustees of Montgomery for approval, but before they came to any definite conclusion their offices were abolished. He then laid it before the board of supervisors, who rejected it; for what reason wo are not informed.

The relator has conformed to the act of 1872 in every respect. There has been no default on his part. His final application was to the successors of the school trustees, and it is not questioned that he has applied to the proper authority, unless some of the objections taken to the act of 1872 are fatal to it.

The 1st assignment of cause of demurrer is that the act is obnoxious to two constitutional provisions, viz. : 1st. No state shall pass any ex post facto law, or law impairing the obligation of contracts. 2d. Private property shall not be taken for public use, except on compensation first made, etc.

The constitution enables the legislature to create new counties and alter the boundaries of existing ones. New counties -cannot be created except by subtracting territory from others. The power implies a right to do all those things necessary and proper to the accomplishment of the principal object. The power has not been exhausted by defining the boundaries and *528 tbe location of a seat of justice ; provision must be made for its civil organization and filling its several offices. Nor may it stop here. If the territory has been taken from counties burdened with debt, in the form of bonds or otherwise, legislative duty would not have been completely performed unless the new county was required to assume or pay a just proportion of the debt of the county from which it has derived territory. The adjustment ought to be made on the basis of' the tax-producing resources of the property and population excised, compared with the property and population of the entire county. Without an. express grant of power in the constitution it would have been entirely competent for the legislature to form new counties and alter the boundaries off others at its pleasure. The section in the constitution on this subject really has no other effect, .practically, than to limit the-legislative discretion as to the area of new counties.

The acts of 1871 and 1872 might well be vindicated on the single ground of the right of the legislature to create new counties and, as incident to that, do all those things which equity and justice demand in making, as far as may be, an equal distribution of the debts of those counties from whom taxable property and population have been taken, by a transfer of a just part to the now county. In making such apportionment nothing more is attainable than approximate equality.

It is hardly the province of a court to review the calculation with a view of determining whether the equality has been reached. That subject more appropriately belongs to the legislative department.

These principles, in themselves so reasonable and just, have had frequent recognition.

Thus, in People v. Alameda County, 26 Cal., 646 , one Gilman had built a bridge in 1852 by contract with Contra Costa county.

The next year the county of Alameda was created, in part out of the territory of Contra Costa. In 1858 the legislature passed an act appointing commissioners to adjust the amounts- *529 to be paid by Alameda to Contra Costa, as her portion of the debt before her territory was divided.

The commissioners fixed the sum at $3,944.66. This did not include interest on the debt. By subsequent act passed in 1862, reciting all the anterior proceedings, other commissioners were appointed, who reported the sum due at over $11,000. The court sustained this legislation. In Iowa County v. Green County, 1 Wis., 519 (by Pinney), two counties were made out of what constituted Iowa county, and the county of Green (the new county) was required to pay a just proportion of the debts of the old county. It was rather taken for granted than reasoned out that the legislation was proper. To the same effect is State ex rel. St. Louis Police Commissioners v. St. Louis County, 34 Mo., 569 .

The authorities to which we have been referred by the counsel for the plaintiff in error go .to the point that the legislature did not exceed or abuse its powerñn the adjustment which it made of the indebtedness to school teachers for services rendered in the ceded territory. No objection is made to the statute for that reason.

But has the relator shown that mandamus is the only complete and adequate remedy for him ? The petition and alternative writ contain the allegation that he presented his claim to the board of supervisors, who rejected it. As we have held at this term, the relator had two remedies open to him. He might have embodied all the evidence in a bill of exceptions and have appealed to the circuit court, or he might have brought an original suit in the circuit court. Lawrence County v. City of Brookhaven (MSS.). The board of supervisors took the claim into consideration and acted upon it. That was all that they could have been compelled to do by mandamus. The court would not have gone further, and dictated what should be the judgment.

The relator, according to his statement of his claim, had a meritorious demand against the county of Montgomery. But to get payment it must be approved by the board of super *530 visors and a wax-rant issue therefor.. If it be rejected he must establish it by judgment, either on appeal or by original suit.

The real object sought by this proceeding was to review aixd reverse the decision of the board of supervisors. The mandamus shit cannot perform that office. For this -reason the demurrer ought to have been sustained. • .

Judgment is affirmed.