Attorney General ex rel. Turner v. Fitzpatrick , 2 Wis. 542 ( 1853 )

By the Court,

Whitoet, O. J.

The original county of Washington comprehended the present county of that name, and the county of Ozaukee. By an act of the Legislature, passed on the 7th day of March, 1853, the county of Ozaukee was created out of territory belonging to the former county. The words of that act are, “ all that portion of the present county of Washington, lying within the following boundaries, is hereby set off and erected into a separate county, under the Dame and title of Ozaukee.” At the last term of this court, we decided that the act of the Legislature in question, was not repugnant to sec. 7, of art. 13, of the Constitution, which provides that no county with an area of nine hundred square miles or less, shall be divided, or have any part stricken therefrom, without submitting the question to a vote of the people of the county, &c. We held further, that, as after the creation of the county of Ozaukee, out of the territory belonging to Washington, the latter county had no county seat within its limits, the Legislature had authority to establish one, without a vote of electors of the county in favor of its establishment at the place fixed in the act. The relator contends that the county seat of Washington county, as it. existed before Ozaukee was set off, was established at Grafton, and that the Legislature cannot, by changing the limits of the county, deprive it of its rights as a county seat; that it must consequently be the county seat of Ozaukee county, because it is situated within the limits of that county.

It is not admitted by the respondent that Grafton was lawfully the county seat of Washington county; but the view which I have taken of the matter renders that question immaterial. By the sixth section of the act under consideration, the seat of justice of the county of Ozaukee was established at the village of Port Washington, at which place the respondent now keeps his office. As the county treasurer is by law (Rev. Stab. oh. 10, § 187) obliged to keep his office at the county seat, the question to be decided is, whether Grafton is the county seat of Ozaukee county.'5 Under the Constitution of this State, the legislature has unlimited power to divide counties whose area exceeds nine hundred square miles, and to create new counties out of territory set off from them, it has power, also, to establish county seats for counties which have none ; but it cannot remove a county seat which has been established, until a majority of the voters of the county, voting on the question, shall have voted to remove it to some particular point. (Const. Wis. art. 13, § 8.) Admitting that Grafton was the county seat of Washington county, did it be-' come the county seat of Ozaukee county ? It is within the territory set off from Washington; and as it cannot Tbe the county seat of that couní y, for the reason that it is without the limits of that county, the relator claims that it must he the county seat of Ozaukee. He contends that the attempt of the legislature to establish the county seat at Port Washington, is within the spirit of the prohibition contained in the section of our Constitution above referred to. But this must depend upon the question whether Ozaukee is a new county. If it is a new corporation, or one which never had an existence before the act of the legislature in question was passed, it seems quite clear that none of the rights, privileges, duties or bur-thens, which were peculiar to Washington county, would belong to it without legislative aid. In the case of The People vs. Morrell, 21 Wendell, 563, the court decided that a county judge appointed for a county which was divided after his appointment, and a new county formed out of a portion of the old one, was not a judge for the new county, although his residence was within its limits, and although his term of office, as fixed by law, had not expired. The question decided in the cas® referred to seems to be identical with the one involved in the case before us, if the county of Ozaukee is a new county, never, before the division of Washington county, having had an existence.

The question then recurs, is such the fact % It is certain, to my mind; that this question must be answered in the affirmative.- The act of the legislature, in terms, creates the county. The language is : “ All that portion of the present county of Washington, lying within the following boundaries, to wit: [describing tho boundaries] is hereby set off and erected into a separate county, under the name and style of Ozaukee.” The county of Washington, on the trary, is left untouched, except as to its territory. It is, in legal effect, the same county, curtailed of the territory taken off to form Ozaukee. All its rights, duties and burthens remain to it, except so far as they have been changed by legislative enactment; and there can be no doubt that if Grafton was its county seat before the division, it would have remained so afterwards, had it been retained within its limits. But the fact that it was the county seat of that county, is no good reason why it should be the county seat of another one.

Upon the whole, I think that the application for the mandamus must be denied.