The comet. (Johnson City, Tenn.) 1884-1916, 1906-08-23
UNLAWFUL CHANGES.
County Line Legislation Mostly lInCOnSti-
tutiOnal.

tutiOnal.
Nashville, Tenn, Aug. 1S.-An ex-
animation of the acts of the last general
assembly discloses the fact that three
fourths of the bills passed to change
county lines are plainly unconstitution-
al, being in direct conflict with the
mandatory provisions of the instru-
ment. No detailed examination of the
acts for previous Legislatures has been
attempted, but a casual reference to
them makes it practically certain that
the per cent. of unconstitutional acts of
this class is as large in former years as
the acts show it to have been in the leg
islature of 1905.
The constitution OF 1879 provides that
no "old county" shall be reduced to an
area of less than 500 square miles. This
provision has been held by the supreme
court in number of reported decisions
to be mandatory, and acts which at
tempt to invade it have uniformly been
held to be nugatory. There we're forty
three acts passed by the last legislature
to change county lines by taking terri
tory from one county and attaching it
to an adjoining county. One of these
acts is ali exact duplication of another,
and thirty-two of them are in direct vi
olation of the constitutional mandate in
that it is attempted to take territory
from counties having less than the 500
square miles of territory mentioned in
the constitution.
The provision of the constitution was
construed and commented upon at
length in an especially lucid and com
prehensive decision rendered by Judge
Caldwell and reported in 90 Pickle. In
this case it was sought to detach certain
territory from the county of Cheatham
and attach the same to the county of
Dickson. 1t was insisted on the part of
Cheatham county that the act was un-
constitutional for the reason that the
territory of that county beng only $40
square miles, was below the limit pre-.
scribed by the constitution.
The court sustained this theory. In
discussing the objection the court said
cit is said in opposition to the validity
of this act that it undertakes to reduce
the area of Cheatham county below the
constitutional limit, and for that reason
it must be regarded as entirely nugato-
ry. The objection is serious one,
When originally established and at the
time of the passage of the act, the area
of Cheatham county was only $40 8-lO
square miles, and the effect of the act,
If constitutional, was to diminish the
area to the extent of the territory in
tended to be passed into Dickson coun-
ty.
"Sec. of article 10, of the constitu-
tion authorizes the legislature to form
new counties from parts of old counties,
each new county to have an area of al
least 275 square miles, and no ole
county to be reduced to less than 50l
square miles.
"rhis restriction against the reduc
tion of the area of an old county below
the minimum named applies to the
change of county lines as well as to the
formation of new counties, and legisla
ton in conflict Herewith, whether fol-
he one purpose or the other, is inevit
ably null and void.
''It avails nothing to the advantage
of Dickson county, or in favor of the
contitutionality of the enactment, tt
say that Cheatham was not by the lat
ter reduced below 500 square miles, bu
has always been so. The inhibition ha,
the same force in such case as in an!
other. larger county may be reduced
w tuhO llmlbs bul u rhhllSA OuO O"u hO
be reduced at all. f"
1t was also held by the supreme cour
ia the case of Roane county vs.. Ander
son county that the Legislature wa
without power to make any dimunitiol
of the area of a county that was alread
! below the standard. 80 Tenn, $50.
The court in the Dickson and Cheat
ham case also held that where the coun
ty from which the territory has bee
taken made no objection for Ion
term of years that in such cases th
statnte of limitations did not apply
Discussing this contention, the coul
said;
81 hese facts, though ample to pr'
clude Cheatham county from arecover
J. Of taxes, from either the complainal
r or Dickson county, are clearly not su
r ticient to work a transfer of the con
IS plainant's land from one county to al
= other. The former matter was one
a. revenue merely, which Cheatham coul
ID ty had the power, if not the legal righ
er to waive and abandon, while the latt
u N was one of territorial ownership whit
h she has neither the power nor the rig
ni to waive or abandon. She could n
~ ~ by any means contract the limits of h
tss territory below the constitutional sta
re dard."
N * 1t follows, therefore, from this dee
n sion, that the territory of no county
o's existence at the time of the adoption
ea S5 the constitution of 1870, or which W
We given its existence by virtue of that j
sts strument, can be reduced il the area
auoh counkv he helow the constitution