Armstrong and Others v. The Board of Commissioners of Dearborn County, 4 Blackf. 208

M’Kinney, J. This is a petition filed by the board of commissioners of the county of Dearborn in the Circuit Court of that county. The commissioners in substance state, that by

an act of the general assembly of the state, entitled “An act providing for the re-location of the seat of justice in the county of Dearborn and for other purposes,” passed in the year 1835, certain commissioners were appointed to re-locate the ¿eat of justice of Dearborn county; that a majority of the commissioners so appointed, met at the time and place designated in the .act, and being sworn, &c., after having viewed the different sites, &c., adjourned until the 18th of May, 1835; that on that day they again convened, and proceeded from said 18th of May until the 20th of said month, to consider sites at or near the centre of said county of Dearborn, and all other situations and sites offered for their consideration, and having also taken into view and paid due regard to the present and probable future population of said county, and a more suitable situation and convenient site in the opinion of said commissioners for the seat of justice in said county not being found, they, the commissioners, did then and there re-locate the seat of justice for said county on the land, &c. adjoining the town of Wilmington in said county, to wit, on, &c.; that- the said commissioners did on said 20th of May, agreeably to the provisions of the said act of the general assembly, certify their proceedings and re-location under their hands and seals to the record-er of said county, which, together with other papers filed by commissioners, have been recorded by tlie recorder of said county; that afterwards, to wit, on the 9th of September, 1835, ^oar^ °f commissioners of Dearborn county were advised of the proceedings, report, and recording of the report of said commissioners, appointed, &c.; that the board of .commissioners of said county did enter the same on their record, and did afterwards in the said month of September, order and appoint Stephen Woods, &c. commissioners to superintend the erection and completion of a court-house and jail, on the site of the seat of justice designated in the report aforesaid of the commissioners appointed by the act, &c.; that the commissioners appointed to superintend the ejection- of the public buildings were residents and freeholders of the county, and before entering upon the duties assigned gave bond, &c., approved, &c.; that the buildings were erécted agreeably to the order of the board of commissioners, and being so erected, and completed were, on the 11th of March, 1836, examined and received by the board of. commissioners of said county, and the commissioners appointed to superintend, &c. and their sureties discharged, &c.

The petition concludes, by moving the Circuit Court to adjourn to the court-house.in Wilmington, and that it make such other and further order, &c. Walter Armstrong and others, the appellants, entered their appearance as defendants to said- motion, and pleaded actio non, because they say, that by the provisidns of

an act of the general assembly of this state, approved 26th January, 1827, entitled “An act for the re-locatiori of the seat of justice in the county of Dearborn,” certain commissioners were appointed to re-locate the seat of justice of said county; that the said commissioners were authorised to receive donations to erect the necessary public buildings at the site they should select as such seat of justice, and to take the necessary bonds and deeds from the donors so as to enforce the contracts.

They aver that a majority of said commissioners did agreeably to said act meet, &c., on, &c., and after taking the oath, &c., proceed to the discharge of their duties, and did on, &c., finally and permanently establish the seat of justice of said county in the old town of Lawrenceburgh, where the court-house now stands; that the commissioners did then and there in writing, &c., certify to the recorder of said county, to be by him recorded, that they had agreeably to the provisions of said act, met as aforesaid on, &c., at, &c., and having been duly sworn, had from day to day proceeded until the said day, &c,, to view the different sites' near the centre of said county, , i, , . . . . , , , and all other situations and sites oflered for their consideration, and had also taken into view and paid due regard to the present and future population of said county, and. that in their opinion, they could not select a site more convenient for the said county of Dearborn than the old town of Lawrence-burgh, on section, &c., and that the seat of justice was permanently located there.

They aver, that before said commissioners had finally re-located said seat of justice, to wit, on, &c. they with, &c., proposed to the said commissioners that they would pay and furnish át their own proper costs, charges, and expense, money to build a court-house for said county, equal in value and convenience to the court-house in the county of Franklin, &c., if they the said commissioners, under the said act, would make the said town of Lawrenceburgh, forever, the permanent seat of justice of said county, and that they would pay the money in instalments as follows, &c.; that the commissioners accepted said proposition, and contracted with them the said Armstrong, &c., that they would re-locate said seat of justice in the town of Lawrenceburgh, if they would pay, &c.; that the said Armstrong, &c., in consideration thereof, made their bond payable to the board doing county business, that they would pay the money to erect the proper court-house, &c., and that the said commissioners did, therefore, permanently locate said seat of justice in said town, &c.

They aver, that they did pay and furnish a sufficient sum of money to erect said court-house, of the value and convenience of the courthouse in Franklin county; that the said court-house was accordingly in due time properly erected and finished, and was and is of equal value, &c. to that in Franklin county; and that they paid a large sum of money, to wit, 2,500 dollars, for the erection and completion of the same.

They further aver, that by the provisions of said act, the said seat of justice was forever permanently located and fixed in the said town of Lawrence-burgh, where the court-house was finished in manner aforesaid, and where all Courts, were to be forever thereafter held; and that the seat of justice has ever since been there located, &c.

They aver that they have a vested interest in the said seat of justice remaining forever fixed where it now is, to wit, at the town of Lawrenceburgh; they having for a valuable consideration in manner and form aforesaid, purchased that Interest by the payment of the sum of 2,500 dollars; and that it cannot be removed or the sittings of the Court adjourned from thence, until they are paid and satisfied the said sum of money so expended.

They aver that the said sum of 2,500 dollars has not been paid to them, nor any part thereof; that there is no provision in the statute under which this motion is made, for their payment or indemnity; and that therefore the seat of justice cannot legally be moved from, nor the Court legally adjourned to, any other place than the said court-house in said town of Lawrenceburgh, &c. There was a general demurrer to this plea, and a judgment sustaining the demurrer. To reverse that judgment this appeal is prosecuted.

Together with this case, a bill in chancery praying an injunction, and filed by the appellants in the case just stated, against the appellees and others, is also submitted. The injunction was refused, and the bill on demurrer dismissed for the want of equity. The matters charged in the bill, as the ground for the injunction and for relief, ar.e the same used in the plea to the petition. The opinion we pronounce will be decisive of each case. In these cases there are presented to our consideration several important questions, which justly demand and have received the most careful and deliberate attention.

Although we regard the questions before us to be important, we are of opinion that an application of established principles to the facts disclosed, strips them of a difficulty in their settlement, with which, by the ingenious and elaborate arguments of counsel, they have been clothed. Before we proceed to the examination of the positions taken by the appellants, to reverse the judgments of the Circuit Court, wo will recur to some principles inseparably connected with a correct view of these cases, and then notice the two acts of the general assembly of the state, supposed to be in conflict with each other.

The principal question before us involves the rightful exercise, by the legislature, of the power to locate the seat of justice of a county. That power is not denied, indeed it cannot be denied; but it is contended, that it has been so exercised in Dearborn county as to create a contract, by which certain interests have acquired a vested character, and therefore no change of the seat of justice can afterwards be made which would divest those interests, without impairing the obligation of a contract.

As the power of the legislature to establish seats of justice in the several counties is conceded, that power must be founded upon the general right appertaining to that body, to promote the interests and convenience of the people. Our counties are all incorporated. They are public corporations, created for public political purposes; and the whole interest in them belongs to the public.

The legislature have, therefore, in the language of Kent, “ under proper limitations, the right to change, modify, enlarge, or restrain them; securing, however, the property for the uses of those for whom it was purchased.” He further says, “ a public corporation, instituted for purposes connected with the administration of the government, may be controlled by the legislature, because such a corporation is not a contract wdthin the purview of the constitution of the United States.” This is also the doctrine laid down by Story. 2 Kent’s Comm. 245.—3 Story’s Comm. 260.

A county, then, being a public corporation, instituted for purposes connected with the administration of the government, is properly the subject of control by the legislature. With us, the exercise of this power in changing and altering the bounds of counties, either adding to or taking from them territory, and. in re-locating seats of justice, is frequent. The right of exercising this power has never been questioned. It is a power incident to sovereignty, and secured by the constitution.

The re-location of a seat of justice in a county, when demanded by the people of such county, with a view to the advancement of public interests and convenience, is a duty from which a legislature could not shrink. If after the location of a seat of justice, and its continuanbe for many years, individual interests should become identified in its permanency, but these be opposed by the paramount interests and convenience of the public, and a re-location be made,—what is the situation of such individual interests, if deteriorated and affected in value by such re-location?

Is the public bound to repair losses and afford indemnity? This question can only be answered in the negative. Such losses would be consequential upon exercise a public right. They are in the class oí to which the maxim “ damnum sine injuria” applies. Such losses are frequently sustained, when from public convenienco an(l necessity a change of a road, a canal, or a railroad may be demanded and made. The lesser interests, those of individuals, must yield when in conflict with the greater, those of the public.

The building of a town or a village may have been superinduced by positive advantages, afforded- by a location on a canal, yet, if public convenience and necessity and the interests of the state demand a change, that change can certainly be made without liability to indemnity, however fatal and disastrous it may prove to the interests of individuals. With these remarks upon the power of the legislature over public corporations such as counties, we will proceed to the' examination of the two acts of the legislature which are brought before us.

As the act of 1827 is that on which the appellants base their claim, we will precede its examination by a general and indisputable proposition, which is, that if the act itself did not create a contract with the appellants, or empower the commissioners appointed by it to enter into such contract, in locating the seat of justice, and such contract was entered into, the commissioners transcended their powers, and the contract is invalid. We shall cite such portions of the act as may seem applicable to the question of contract. The first

section appoints the commissioners and thus defines their duties—“To locate said seat of justice for said county, as near the centre thereof as the situation of the land and the interests of the county will admit, having due regard to the present and probable future population thereof: provided, said commissioners shall have the right to view every other site equally near the geographical centre with Laiorenccburgh, the centre inclusive, and fix on the site most eligible within said bounds; and if the commissioners cannot select a site more convenient for the county* the seat shall be and remain at the town of Lawrenceburgh.” In this provision, there is no authority-given to the commissioners to make the location dependent on a contract, nor are they authorised to make a contract.

The authority to locate the seat of justice is specific, and only controlled by a discretion limited to the situation of the land, the interests of the county with reference to the present and probable future population, and to the eligibility and convenience of the various sites within the prescribed. The continuance of the seat of justice at Lawrenceburgh, depended on the contingency that the commissioncrs coüld not select a site more convenient for the county. If such be the extent of the authority given to the commissioners, it is palpable that they could not make the location the subject of contract.

If a contract had been intended by the act, we may well presume that language expressive of that intention would have been used. But it would be an insult to the legislature, to suppose that such an intention was entertained.

We cannot indulge the idea, that in a question of such moment, as the public interest and convenience of the people of that county in the place in which the Circuit Court, the Probate Court, and the sessions of the board doing county business are to be holden, and all business affecting the great interests of a county is to be transacted,—-the legislature could commit such interests to the arbitrament of dollars and cents. Such a conclusion would presume that body unfaithful to the trust confided to it by the constitution.

We think it cannot be seriously contended, that a contract is created, or authority to contract for the location of the seat of justice given, by the second section. That simply empowers the commissioners to receive all donations of land for the site of said seat of justice, and all donations which may be made to defray the expense of erecting the necessary public buildings for the use of said county, and to take all necessary public bonds and deeds to secure the faithful performance of such contracts. The commissioners are to receive all donations of land, &c. for the site of said seat of justice, &c.

This language is plain and unambiguous, and the true

interpretation of the

section will be perhaps correctly reached, by answers to a question it presents. • At what time prior or subsequent to the location, are these donations contemplated to be made? Undoubtedly after the location; for until that was made, the commissioners had no authority to accept or receive donations. To what purposes were these donations to be applied? The

section itself furnishes the answer—that of land, for the site of said seat of justice, and those of money, &c., to defray the expense of erecting the necessary public buildings for the use of said oounty. Had the location depended on donations, their extent and liberality,—without regard to the intention of the legislature as shown in the first section, and there confined to the situation of the land, interests, and convenience of the peopie,—would perhaps have determined the site. In support of this view oí the section, we will suppose that no donation had been offered.

Were the powers of the commissioners thereby arrested, and the act of the legislature a nullity? Surely not. Such a conclusion would be repugnant to the act itself, and to all the principles to which wc have adverted. The commissioners performing their duties, must have located the seat of justice; and the only consequence of the refusal of individuals to donate cither land or money, would have been that the county of Deai'born, to erect the necessary public buildings, &c., must have resorted to taxation. The distinction between a contract and a donation, is too obvious to require exposition.

This distinction was acted upon by the legislature. It would thus seem that the commissioners were not authorised to enter into a contract, nor were they authorised tb make the location of the seat of justice dependent on donations. If, however, they did enter into a contract, which is not shown, it is clear that the appellants, having a perfect knowledge from the act of the powers of the commissioners, could not, if those powers were exceeded, avail themselves of a supposed benefit or right arising from

an act by the commissioners, itself an evident excess of the powers committed to them. The fund commissioners are authorised to borrow money, and the maximum amount of interest they are to give is fixed. The act appointing the’ commissioners and defining their duties, is submitted to those from whom they wish to obtain loans, and is itself, in the event of a contract, a part of the contract. If these commissioners should contract for a loan at 6 percent., when the act only authorises them to give 5 per cent-., no one would contend that the contract at 6 per cent.was obligatory upon the state.

This case is directly parallel to that bfefore us. There remains to be noticed but one other provision of the act under review. This is found in the sixth section, and thus reads: “So soon as the public buildings shall be completed in the manner aforesaid, at the place so designated, the same shall be forever thereafter the permanent seat of justice of said county of Dearborn,” &c. Argument touching this provision is rendered unnecessary by an admission of the appellants, that a subsequent legislature is not concluded by the forever here used.

The admission is qualified by the suggestion, that if a change be made, the act authorising it must provide an indemnity to the appellants, who, it is contended, have vested rights based upon contract. This question has been discussed, and may hereafter receive additional notice. We are now arrived, pursuing the course indicated, to the consideration of the appellants’ positions. The first is, that the act of 1835 is unconstitutional, being repugnant to the constitution of the United States, as it impairs the obligation of a contract.

This position is attempted to be sustained by urging that the act of 1827, and the proceedings under it, are a contract within the meaning of the constitution.

Although it seems to have been once doubted, whether grants and contracts by a state, created directly by law, or made by some authorised agent in pursuance of a law, come within the prohibition of the constitution, yet it is settled that they are as much so as the contracts and grants of private persons; and the only question, in order to the operation of the constitutional prohibition, is, do such grants or contracts exist? 3 Story’s Comm. 257. 1 Kent’s Comm. 388.—Fletcher v. Peck, 6 Cranch, 87.

These authorities likewise establish, that where a law creates a contract, and absolute rights are vested under it, such rights cannot be divested by a repeal of that law. The judicial expositions have, however, confined the prohibition to contracts which respect property or some other object of value, and which confer rights capable of being asserted in a Court of justice; leaving the several states untrammelled in the exercise of sovereign power, in regulating their civil institutions adopted for internal government. See the above-cited authorities.—Dartmouth College v. Woodward, 4 Wheat. Rep. 518, 629. Mr.

Justice Story, treating of this distinction says, “The reason is, that it is only a mode of exercising public rights and public powers for the promotion of the general interest; and therefore it must, from its very nature, remain subject to the legislative will, so always, that private rights are not infringed or trenched upon.” 3 Story’s Comm. 361.

The law thus presented is in entire accordance with that noticed in the remarks prefatory to the examination of the act of 1827; and it is obvious, that if the appellants can show that they have rights capable of being asserted in a Court of justice, or that a contract which affected their property has been violated, they are entitled to protection.

From the construction we have given to the act oí Io¿7, and. from the conclusion to which we have come, that the act did not create a contract, nor authorise one by the agents of the state, for the location of the seat of justice, it would seem unnecessary to pursue further the investigation of the appellants’ first position. As it is, however, pressed with much zeal, and sustained at least by ingenious argument, it may demand a few additional remarks.

If the location forever of the seat of justice at Lawrence-burgh, in consideration of the appellants erecting the courthouse, is not a contract, it is urged that it is a grant, and that the constitution protects all grants, franchises, immunities, &c. The latter conclusion may be conceded; but, from it, it does not necessarily follow that the appellants have had granted to them a franchise, immunity, or any right capable of being asserted in a Court of justice. It does not follow, because certain rights are protected by the constitution, that they are invested with them.

This Court will never hesitate, when rights are shown to exist and are before it for protection, to extend that protection. We cannot, however, pass beyond the case before us, presume rights, and then afford protection. Now it is said the appellants have a right capable of being asserted in a Court of justice. What is that right? It is called a franchise. What is a franchise? They say, from the books, it is “ a right to have a fair or a market holden at a certain time and a certain place,” &c. Franchises are not only enjoyed in the instance presented, but exist in many other ways.

The law regards them as valuable rights, and they cannot be invaded by legislative enactments. 3 Story’s Comm. 260. Let us inquire to what the right or franchise claimed by the appellants attaches. To the seat of justice of the county of Dearborn and its records. If the claim be available, it clothes the appellants with the power of controlling the general policy of the state, the rights of the people of that county, and the administration of justice in it. The state itself is stripped of one of the inherent and essential attributes of sovereignty.

It is compelled,—however imposing its obligation, however changed from the present may be the future aspect of things in that county, however general and unanimous be the demand of the people for a change of the seat of justice, required equally by their convenience, necessities, and interests,"—to silence all in the recognition of a principle, not only incompatible with the spirit of the constitution, but alien to the institutions of a free people. Such a claim cannot be supported. J. Sullivan, S. C. Stevens, and G. H. Dunn, for the appellants. We will now take up the second position.

The act of 1835 is said to be unconstitutional, because it is in conflict with the 7th sect. 1st art. of the constitution of this state. That

section declares “ that no man’s particular services shall be demanded, or property taken or applied to public use, without the consent, &c., or without a just compensation being made therefor.” It is readily-admitted, that if the legislature should take or apply the property of a citizen to public use, it must make a just compensation for it, and that the act which authorises, the taking or application, should provide for the compensation.

This has been done here; it is believed to be done in every state of the Union; and is the admitted law of England, when the appropriation of private property has been necessary to the public interest. But as the appellants, as seen, have had n& private property taken, &c., we canno't discover how this provision of the constitution has been violated. If the appellants-have suffered a loss by the change of the seat' of justice, such-loss, as previously remarked, is consequential, and cle'arly not the subject of compensation under the constitutional provision-cited.

This is the proper construction of the constitution, and the only one of which it is susceptible. Callender v. Marsh, 1 Pick. R. 430. We are therefore of opinion that the Circuit Court decided correctly, in sustaining the demurrer to the plea of the appellants, as well as in sustaining the demurrer to the bill in chancery, and in refusing the injunction . Dewey, J., having, been of counsel in the cause, was absent. Per Curiam. The judgment is affirmed with costs. To, be certified, &c. J. G. Marshall, D. Kelso and W. Quarles, for the appellees. Vide Elwell v. Ticker, Vol. 1 of these Rep. 235.—Blackwell v.

The Board of Justices of L. County, 2 id. 143.