Noble v. Baker

Scott, J. The assignments of error in this case present several questions similar to those which arose and were determined by this court at the present term, in the case of Huston et al. v. Commissioners of Perry County. The general question arising in the case, is as to the constitutionality, of the act “To provide for the permanent location of the seát of justice of Noble county by the legal voters thereof, and for the erection of public buildings therein.” In the case above referred to, it became necessary to give a construction to a statute quite similar in many of its provisions to the act above named. Eor reasons stated in the opinion in that case, and which it is unnecessary here to repeat, we hold the true meaning of the second section of this act to be, that the act shall not take effect and be in force to accomplish its main purpose, as expressed in the first section, to wit, the permanent location of the seat of justice at Olive, until it shall be adopted by a majority of the qualified electors of Noble county, etc.; and that the subsequent sections of the act which authorize an election and prescribe the manner in which it shall be conducted and held, returns made, result recorded, etc., took effect in virtue of the enactment, and from the passage of the act. This construction, which we regard as the only sensible one, obviates the objection that there was no law authorizing the election ; and also the objection founded on the supposed conflict of the law with the first and twenty-sixth sections of the second article of the constitution. The thirtieth section of the same article requires that “ all laws removing county seats shall, before taking effect, be submitted to the electors of the county [528] affected thereby,” etc. And in the case before us, we think it was not the intention of the legislature to submit to the electors anything else than the mere question of the location of the county seat at Olive, or its retention at Sarahsville. But it seems to be supposed that the sixth section of this act contains provisions which, under the decision in the Perry county case, render the whole act unconstitutional. The act which was held unconstitutional in that case, imposed upon the county a forfeiture of contract rights, as a penalty for a majority vote against removal. This the legislature could not constitutionally do, either by the act for the removal of the county seat, or by independent legislation. But in the sixth section of the act here drawn in question, we discover nothing of that kind. It contains merely provisions for the natural and necessary exigencies arising from fixing the county seat either at Olive or Sarahsville; and these exigencies must have been in the contemplation of the voters, whether provided for in the act or not. The same provision is made for the erection of the necessary public buildings, whether the one or the other site may be selected by the majority of the electors. It surely would have been competent to provide by subsequent legislation for the erection of such buildings ; and we do not see that the provision becomes unconstitutional when made by the same act which authorized the election. Order of the common pleas affirmed.