Pulaski County v. County Judge

Harrison, J. 1. COTTKTIES: Power of Legis 1 ature over. Counties being created by the authority of the Legislature for political and judicial purposes, and deriving all their powers, where the Constitution has not otherwise provided, from that authority, the Legislature may, according to its own views of public policy and convenience, enlarge or diminish their powers, and it may extend, limit or change their boundaries, without the consent of the inhabitants, except that, as inhibited by Section 2 of Article XITI of the Constitution, “no part of the county shall be taken off to form a new county without the consent of a majority of the voters in such part proposed to be taken off.” Eagle et al v. Beard et al, 33 Ark., 497; Loftin, Sheriff, v. Watson, 32 Ark., 422; Cole v. White county, Ib. 51; English v. Oliver, 28 Ark., 327; Pulaski county v. Irvin, 4 Ark., 489; Laramie Co. v. Albany Co., 2 Otto, 307. 2. Power partition of county, That, the Legislature may require from the county to-a part of another’s territory has been attached, payment of a portion of the latter’s indebtedness, and direct, ^at same ascertained in the manner described by the act in this case has been settled by this court. Eagle et al v. Beard et al, supra; Reynolds v. Holland, Sheriff, 35 Ark., 56; Phillips Co. v. Lee Co., 34 Ark., 243; Lee Co. v. The State ex rel, etc., 36 Ark., 276; Monroe Co. v. Lee Co., Ib., 378. In the case of Phillips county v. Lee county, in speaking, of the manner of adjustment of the portion of Phillips-county’s indebtednss, to be paid by Lee county, prescribed, by the act creating the latter county, the court say: “The proceedings are not of the nature of a suit or action, by Phillips against Lee county, to enforce an obligation, resting in contract. They were had in pursuance of legislative directions, for the purpose of so adjusting the fiscal arrangements of the new, and several old counties, as to-save the rights of citizens and creditors, and make the change in the political organization of the territory concerned harmonize with them, as far as might be possible. The Legislature had full power to make this adjustment of the burdens, and to impose on the new county of Lee all it attempted, with or without its consent.” The fourth section of the Act of December 7, 1875, is as follows : “Section 4. It shall be the duty of the County Court of Pulaski county, at the next regular term held after the-passage of this Act, to make a pro rata division of the debt of Pulaski, according to the assessed value of all the property, both real and personal, within the territory cut off and1 attached to each of the counties of Lonoke, Saline and Faulkner, said pro rata division to be determined according to the last assessment made in Pulaski county, and enter the same in full upon the records of the County Court, and cause a full, true and perfect transcript to be made, under the seal of the court, and transmitted to the clerk of each of the counties named ; and it shall be the duty of the clerk of each of the counties of Lonoke, Saline and Faulkner to lay the same before the next regular term of the County Courts of said counties held thereafter; and it shall be the duty of each of the judges of the respective counties to-cause said transcript to be spread at length on the County Court records of their respective counties, and the same shall from thence thereafter stand and become a valid indebtedness due the said Pulaski county from each of the counties herein named.” Notice to-Appeal to. ’Circuit: There was nothing in the objection that the statement— showing Saline county’s portion of the Pulaski county indebtedness — was made up by the clerk. It does not follow that because the clerk prepared it (which he might very properly do, as an auditor of the court) that it was not duly examined by the court and found to be correct. And as the term at which the adjustment was to be made fixed by the act, Saline county had notice of the proceeding, and might have insisted on its correction, if incorrect, ” ° ’ and if not done, appealed to the Circuit Court from order of adjustment. The statement is sufficiently plain to show the liability of Saline to Pulaski, and the facts upon which the pro rata division was made ; but if Saline' county desired it to be made more specific, it might readily have caused it to be done. 3. counPartition of.asaffecsenaough, by the change of the line between the counties, a part of Pulaski, which is in the Tenth Senatorial district, 77 t ■ „ , , was attached to Saline, in the Ninth, there was not, objected by the respondent, a change of those districts, trary to Section 2 of Article VIII., which prohibits any change of Senatorial districts until after the national census •of 1880. They are each still composed of the same counties as before. Counties are the constituents of the districts, not territory or inhabitants. Howard v. McDiarmid, 26 Ark., 100. The answer to the petition contained no matter of defense, ;and the demurrer to it should not have been overruled. The judgment of the court below is, therefore, reversed, •and the cause remanded to it, with instructions to sustain the demurrer, and for further proceedings.