Perry County v. Conway County , 52 Ark. 430 ( 1889 )

Sandels, J.

1. Counties: Claims against. It is objected by defendant county that the claim of Perry County was not authenticated, as required by the general statute in case of ordinary demands against counties. The special statute giving the right to sue upon this claim does not require it, and no principle of statutory construction makes it necessary. The only other question presented is-whether the act of 1885 is constitutional.

The power of the Legislature to alter and abolish counties ; to erect new corporations in the place of the old; to divide and dispose of the property held by counties; to charge portions of the debt of the old county upon that receiving its detached territory, is everywhere conceded, and nowhere more emphatically than in this State. Eagle v. Beard, 33 Ark., 497,. and cases there cited.

Upon general principles of law, if a part of the territory and inhabitants of a county be separated from it by annexation to another, or by the creation of a new county, the remaining part of the county retains all its property, and remains subject to all its obligations and duties. Laramie Co. v. Albany Co., 92 U. S., 307, and cases cited ; 100 U. S., 514.

The only debatable question is as to whether the act segregating the territory must impose such proportion of the debt of the old county upon the new one, or upon the county receiving the detached territory, as is equitable and just, or whether,, where such act is silent as to this, subsequent legislation may make the imposition. This has been ruled differently in the courts.

The earlier doctrine (still followed by some courts) was that the act detaching the territory must apportion the debt, and that it could not be subsequently taken from the old and imposed upon the new county. Hampshire v. Franklin, 16 Mass., 75; Bowdoinham v. Richmond, 6 Greenl., 112.

2. same: Apportionment of debt. The better doctrine is, that the power of the Legislature to-impose the debt of the one county upon another, depending upon the existence of a moral obligation from the new county, or the county receiving new territory, to pay part of the old debt, the Legislature may so ordain whenever it finds the moral obligation to exist. Stone v. Bird, 16 Kan., 489; Creighton v. San Francisco, 42 Cal., 446; Layton v. New Orleans, 12 La. Ann., 515; Laramie County v. Albany County, 2 Otto, 307; Ly coming v. Union, 15 Pa. St., 166; Guilford v. Supervisors, 3 Kernan, 143; New Orleans v. Clark, 95 U. S., 654; 1 Dillon Municipal Corp., sec. 189.

The act in this case is less open to objection than those usually passed, since it makes Conway County liable for only such equitable proportion of the debt as can be established by legal evidence. The field is open to show, as against a proportion of the debt, the value of county property retained by the old county, and the equity of the imposition of any burden at all.

The demurrer should have been overruled.

Reverse and remand for further proceedings.