Hamrick v. Rouse , 17 Ga. 56 ( 1855 )

By the Court.

Starnes, J.

delivering the opinion.

[1.] Plaintiffs in error allege that the Act of February 7th, 1854, repealing an Act of December 26th, 1851, declaring that the county site and public buildings of Lee County shall be made permanent at the town of Starkville, and authorizing the removal of the court house therefrom, violates the obligations of the contract between those citizens who have purchased lots in said town, and the State; that it will deprive them of vested rights, and be taking from them private property for public purposes, without just compensation.

We hesitate in saying, that when the Legislature passes an Act phrased as is the Act of 1851, which provides that “ a county seat shall he permanent at a given place,”’ it means to pledge the faith of the State, that it shall never be removed.

But if this be so, it is very certain that no Legislature has the right to bind all subsequent Legislatures, all posterity, as to any matter of mere political arrangement or expediency. The good faith of the State, or its people, under some circumstances, in a moral point of view, might become very decidedly pledged by the Legislature to such political arrangement; but still, as matter of contract, the Legislature could not bind posterity upon a subject of mere political expediency. Hence, if the Legislature of 1851 certainly intended, so far as they had any .power over the subject, to fix the seat of justice at Starkville for all time, “yet,” to use the language of Judge Ruffin, in the case of The State vs. Jones et al. (1 Iredell, 415,) “it would be entirely competent to the Legislature” (a subsequent Legislature) “to remove the seat of justice from that to any othér place.” And the reason is that which is there assigned by that distinguished Judge, “ that this is matter of political arrangement and expediency, and necessarily the subject of Legislative discretion.” This being so, when these citizens purchased in Starkville, they purchased an interest qualified by the absolute right of the State, at any time, to change the seat of justice, and must be held to have contracted subject to the law of the State in this regard.

For similar reasons, there were no vested rights divested by the removal of the court house, and no private property taken for public purposes, without compensation.

[2.] It was also maintained, that by the laying out of this village into streets and squares, the dedication of the same to the public, and the user of the same as such, for more than twenty years, these citizens could not now be deprived thereof.

This position might well be disputed, if it were necessary. If the State does not part with the right of eminent domain, when it grants its land to a private citizen, but may resume the same for public purposes, upon just compensation being made, it can hardly be said, that it has parted with its right of eminent domain, when it has dedicated land to the public, and where political expediency makes it proper; that is, cannot, for the greater good of the public, withdraw its grant to the public.

But in this case, so far as this record informs us, there has been no interference, and none is meditated, with the right of enjoyment which the public have to the streets and squares of Starkville. It is only proposed to remove the court-house.

[3.] It seems that the Act of the Legislature, which authorizes the seat of justice to be removed from Starkville, gratuitously provides that compensation shall be made to those citizens whose property may be injured, in money or in lots, to be laid off in the new town. And it is now urged that such compensation has not been tendered or given, and that the seat of . justice cannot be removed until this is done.

This compensation is not made a condition precedent. In fact, as we have said, it is but a gratuity. And upon it the political act which the commissioners are required to perform, has no dependence. If, after the seat of justice is removed, and within a fit and reasonable period, the Inferior Court of Lee County should not comply with the requirements of the Act and redeem the certificates which the commissioners of assessment are required to give to the owners of lots in Stark-ville, either “in money or in town lots of said.selected site, at such rates as may be agreed upon by the parties at the new site,” then there is an appropriate remedy, by which that Court can be required to do its duty.

It was urged that a tax of fifty per cent, on the State tax of Lee County, for the years 1854 and 1855, would not produce a sufficient amount for the liquidation of the claims for which this provision is made. We do not understand that satisfaction is to come alone out of this fund. The Inferior Court is required, by the law, to redeem these certificates, either in money or town lots, and this is a positive requisition of the Legislature. To assist them in doing this, they are authorized to levy this extra tax, “ if they deem the same necessary for the purpose of carrying out the foregoing provisions.”

[4.] It was also contended, that the commissioners should have been enjoined, because they had not selected an eligible site for the new county seat, nor one near the centre of the county.

They were made the agents of the Legislature for the purpose of doing this act of political arrangement — for the purpose of selecting and laying off this new county site; and as such, they were clothed with a portion of the sovereign power and discretion. That discretion, so far as it depends upon the exercise of their judgment, no Court has’a right to control, unless they violate private rights. The eligibility of that site, and whether or not it is near the centre of the county, are matters purely within -their discretion and by their judgment to be determined. And if they have not wisely discharged the political duty assigned them, the Legislature must apply the correction.

[5.] It was also alleged that the Court below erred in refusing to grant the supersedeas, as asked.

The order of the Court would have been no stronger than the law. And that had already granted a supersedeas. The Court could have done no more. But if this refusal had been error, it could not now avail the plaintiff in error anything to have it corrected; so that it is unnecessary to say more about it.

Judgment affirmed.