People ex rel. Redman v. Wren, 5 Ill. 268, 4 Scam. 268 (1843)

Dec. 1843 · Illinois Supreme Court

5 Ill. 268, 4 Scam. 268

The People of the State of Illinois, ex rel. Andrew Redman v. Nicholas Wren, Clerk of the County Commissioners’ Court of Adams County.

Application for a Writ of Mandamus.

1. Marquette County — statute construed. The county of Marquette was absolutely created by the first section of the “ act to create the county of Marquette,” etc.; and it was not left optional with’the inhabitants to organize or not; but whether or not, it is absolutely separated, forelection purposes, from the county of Adams.

2. Same.' The jurisdiction of Adams county, for the purposes of county government, did not extend over the county of Marquette on the 7th day of August, 1843.

3. Municipal corporation — legislative control. The legislature has absolute control over municipal corporations, to create, change, modify, or destroy them at pleasure.

4. SAME — non user of franchise. A public corporation, such as county or city, does not become dissolved by the neglect of the inhabitants or corporators to elect officers.

The facts of tliis case are fully stated in the opinion of the Court.

A. Williams and O. H. Browhing, for the relator. ⁽¹⁾

George C. Dixon, for the defendant:

The legislature, in February, 1843, created tlie county of Marquette out of the then county of Adams. The question is as to the legal effect of this act. Did it of itself create a new county, and substitute a new government, withoút requiring any sanction on the part of the people of Marquette ? We say it did, for the following reasons:

I. No particular form of words is necessary to create a corporation. 1 Bac. Abr. 500; 1 Blac. Com. 473 ; 2 Kent’s Com. 276; 2 Johns. Ch. R. 325. Indeed a corporation may exist by necessary implication. Wilcox on Mun. Corp. 28, § 19; 13 Mass. 199; 10 Pick 177, 188. _

_ II. Corporations are either public or private, and the legislative power over counties, being public corporations, is supreme and unlimited. 3 Story on the Const. § 1387 ; 13 Wend. 337 ; 2 Kent’s Com. 305 ; 4 Peters’ Cond. R. 559, 564 ; Breese 120-1.

III. In the creation of a private corporation and English municipal incorporations, granted by the king, we admit that an acceptance is indispensable; but we deny that acceptance is necessary in the creation of a county ; because,

1. Municipalities in England were purchased, subjects of bargain and sale, and existed in the nature of contracts. 3 Ency. Amer. 548; 1 Blac. Com. 472, note h; 2 Kent’s Com. 270-1; Ang. & Ames on Corp. Introd. 13, 14;

2. The King’s prerogative in the creation of corporations is limited, but the parliamentary power is supreme and '[*270] transcendant, and acceptance need not be. shown. 1 Blac. Com. 160-1, 473; 13 Wend. 334; 4 Peter’s Cond. R. 547,552; Wilcox on Mun. Corp. 28, §§ 10,11.

3. Acceptance is only necessary where the charter or act is or becomes by acceptance a contract, protected by the Constitution. Now it is admitted public corporations are not contracts within the constitutional provision prohibiting any state passing laws impairing the obligation of contracts. 2 Kent’s Com. 305; 4 Peters’ Cond. R. 539,546; 13 Wend. 325-38 ; 3 Story on Const. §§ 1386-7.

4. No acceptance is necessary in the creation of a county. 2 Mass. 269; 7 Mass. 169; 2 Kent’s Com. 275, note c; 1 Webster’s Speeches 116 ; Wilcox on Mun. Corp. 25, § 11; 23 Pick. 62, 68-9.

IV. If words in presentí are used, and the incorporation-goes into effect immediately, the corporation is fully created. 9 Wend. 379; 10 Wend. 266; Wilcox on Mun. Corp. 15, 27, §§ 314-16, and 326; § 852; Ang. & Ames on Corp. 3; 4 Peters’ Cond. R. 561, 575 ; 6 Ohio 63 ; 22 Pick. 127-32; 5 Peters’ Cond. R. 296-7 ; 23 Pick. 68-9; 21 Wend. 563.

Examine the constitutions of Maine, Michigan, Ohio, Indiana; Illinois, Arkansas, Mississippi, and other states. In all these states provisions are made for the existence of a provisional government until the new government under their respective constitutions could be brought into existence.

V. In the interpretation of this act the following rules of construction ought to govern:

1. The argument of inconvenience ought to be used with great circumspection. 1 Story on Const. 426.

2. No construction is admissible which tends to defeat the object of the law. Ibid. § 428.

3. The law, on the contrary, should be so constructed as to render it efficient. Vatlel’s Law of Nations 253.

4. Anything which tends to elude the law is fraudulent, and ought not to be tolerated in a court of justice. Ibid. 258.

5. If the intention of the legislature can be ascertained it ought to govern. 1 Peters’ Cond. R. 167, 425.

6. No construction is admissible which would impair the right of the county of Adams. The erection of a new town cannot impair the rights of the old one. 2 Johns. Ch. R. 336.

YI. The new county, being once existent and separated from the county of Adams, can never become reincorporate, excepting by legislative action. If the law was sufficient for separation for one moment, it was equally sufficient for a perpetual separation.

VII. The county of Marquette, if she omit to elect on her “ charter day,” may nevertheless proceed with her election. The day is only directory; the powers of the cor- [* 271] poration are only in a state of suspended animation; and a right of renovation exists by necessary implication. Its capacities to act are still there; its faculties are still inherent with the corporation, and may be brought into activity at the will of the corporators.

The English law is inapplicable. There, it was a royal grant, conferring a vested right, and the construction was in favor of the crown’s prerogative. With us, counties are created for the more effectual administration of .public justice, and the more perfect regulation of municipal government, and the presumption and the right will always be construed liberally for the accomplishment of those ends. Wilcox on Mun. Corp. 327, § 825, and 330, § 859; 7 Bac. Abr. 448 ; 2 Kent’s Com. 295, and note b; 1 U. S. Dig. 595, § 266, and 584 §§ 29, 34; 1 Eq. Dig. 320, § 12 ; Halstead’s Dig. 93, § 16; 2 Wheat. Dig. 108, § 62; 6 Cowen 23; Strange 1123.

The end being required, it has been deemed a just and necessary implication that the means to accomplish it are given also; or in other words, that the power flows as a necessary means to accomplish the cause. 16 Peters 619.

We insist that the legislative power in the creation of counties is supreme; that no particular form of words is necessary in the creation ; that, in this case, ample and sufficient words are used; that no acceptance is'required; and that the act operates by itself. We contend further, that this law, having no words of condition, precedent or postponement, went into'full effect immediately upon its passage; that there was an instantaneous substitution of a new government provided for by the law ; that all connection between the old and new county ceased, excepting so far as a provisional connection was expressly retained and authorized by the act itself, and that as a consequence resulting from these relations, this court ought to refuse granting a peremptory'mandamus, in this case, as prayed for.

(1) The reporter regrets that his minutes of the points made and authorities cited by the counsel for the relator cannot be found.

Shields, Justice,

delivered the opinion of the court: An application is made to this court for a writ of mandamus to Nicholas Wren, clerk of the county commissioners’ court of Adams county, requiring him to make out and deliver to the relator, Andrew Redman, a certificate of his election as justice of the peace of said county.

The following facts are agreed upon by the parties :

1st. That the relator was duly elected on the 7th day of August, 1843, a justice of the peace in Columbus precinct •

2d. That the Columbus precinct is situated in the county of Marquette ;

3d. That the said county of Marquette has never-yet [* 272] been organized;

4th. That if, upon a consideration of these facts, the court shall be of the opinion that the jurisdiction of Adams county extended over, the territory of Marquette, for purposes of county government, at the time of said election, then in such case a peremptory mandamus shall issue against the defendant.

In granting or refusing this application, the only question presented to this court for its consideration is, did the jurisdiction of the county of Adams extend over the county of Marquette, for the purposes of county government, on the 7th day of August, 1843 ?

To determine this question, reference must be had to an act entitled, “ an act to create the county of Marquette, and for other purposes therein mentioned,’'’ approved February 11th, 1843. The first section of this act provides, “ That all that part of the now county of Adams, lying east of range seven west of the fourth principal meridian, and also, sections one, twelve, thirteen, twenty-four, twenty-five, and thirty-six, of township one south of the base line, in the aforesaid range seven, be and the same is hereby created into a new county, to be called the ■ county of Marquette.”

The second section directed the legal voters said county to elect county officers on the first Monday of April, 1843, with the exception of school commissioners and coroner.

■ The third section required the judges of election to return the respective poll books to Wesley D. McCann, at the town of Columbus, within five days after the election, and required the said McCann, and two other justices of the peace of said county, to open the said returns, within seven days after the election, and perform such other duties in relation to them, as are required by law of clerks of the county commissioners’ courts.

The fourth section provides that as soon as county officers shall have been elected and qualified, the said county of Marquette shall be conoidered organized, that it shall form a part of the fifth judicial circuit, and have two terms of the circuit court annually. It also makes Columbus a temporary county seat.

The fifth section provides 61 That all suits and prosecutions that have been commenced or hereafter may be commenced in the circuit court of Adams county, before the organization of- said county of Marquette, shall not be affected by this act, but all suits and prosecutions, so commenced as aforesaid, shall be prosecuted to final termination in the circuit court of the said county of Adams, and the officers of the said county of Adams are hereby authorized and required to issue and execute all writs that may be necessary to the prosecution of such suits, and prosecution to final ■ termination, anywhere within the limits of [* 273] the said county of Marquette.”

The sixth section directs that all justices of the peace and constables elected in the county of Adams, who reside within the limits of the county of Marquette, shall hold their offices and have jurisdiction in the said county of Marquette, as though they had been originally elected in said county.

The seventh section directs that Daniel Harrison, school commissioner, George Smith, county commissioner, and Jonas Grubb, coroner, who had been elected for Adams county, but reside within the limits of Marquette county, should serve out their respective terms of office in Marquette, and directs that the vacancies thus occasioned in Adams should be filled in other cases.

The eighth section directs the school commissioner of Marquette to transfer the school fund to the commissioner of Adams when elected and qualified.

The ninth section provides for the election of three representatives to the general assembly from Adams, two from Marquette, and a senator by the joint vote of both counties.

' The residue of the act contains regulations relative to the records of Marquette, and the adjustment of the finances between the two counties. The last section declares the act to be in force from its passage.

The first section of this act detaches a portion of territory from the old county of Adams, and creates the same into a new county, called Marquette. The language used is susceptible of but one construction. The intention of the legislature is expressed in the most positive terms. It declares that a new county is absolutely created, and the only question that can arise, in determining the force and effect of this section, is a question of legislative power in relation to counties. As the constitution of this state contains no restriction, either expressed or implied, upon the action of the legislature in such a case, we hold that it has absolute control over municipal corporations, to create, change, modify, or destroy them at pleasure. This position will hardly be questioned. The following authorities, if authorities are necessary, may be adduced in support of it: Coles v. The County of Madison, Breese 120, 121 ; where this court says: “All public corporations, which are established as a part of the police of the State, are subject to legislative control and may be changed, modified, enlarged, restricted, or repealed, to suit the ever varying exigencies of the State. Counties are corporations of this character, and are consequently subject to legislative control. Were it otherwise, the object of their incorporation would be defeated. It cannot be doubted that Madison county, as a county, might be stricken out of existence, and her interest in a popular action thereby defeated.” This is a strong-case. The same doctrine will be found in Wilcox on ['*'274] Corporations 2G, §§ 11, 12 ; 2 Kent’s Com. 275.; The People v. Morrell, 21 Wend. 679; Story’s Com. on the Const. 260.

The county of Marquette is therefore absolutely created by the first section. The second section confirms this view of the question. Here it will be seen that a legal duty.is imposed upon the inhabitants ofjMarquette, to elect county officers on the first Monday of April, 1843. It was not left optional with them to organize or not. It was positively enjoined upon them as a specific duty, which as citizens they were called upon to perform. The third and fourth sections would seem to dispel all doubt, if doubt could exist on the subject. The fourth section declares that when the county officers shall have been elected and qualified, the county shall be considered organized; and yet previous to organization— while it is contended the two counties were still united for the purpose of county government — the third section directs the election returns to be made to Wesley D. McCann, at Columbus, and he, with two other justices of the peace of Marquette, is substituted to act as a clerk of the county commissioners’ court of said county, in relation to said returns. Here are three dis- * tinct circumstances to be noticed: first, Wesley D. McCann, a justice of the peace of Marquette county, is directed to act instead of the clerk of the county commissioners’ court; secondly, election returns are directed to be made to him at Columbus, instead of being made to the clerk of the county commissioners’ court of the old county of Adams, at Quincy ; thirdly, the whole of this regulation must precede the organization of Marquette.

Now, from these circumstances, the conclusion is irresistible, that before the organization, an absolute separation for election purposes subsisted between the two counties. The only part of the law, which qualifies or restrains the general and absolute operation of the first section, is the fifth. This extends the jurisdiction of the circuit court of Adams county over the territory of Marquette, until the organization of the latter county. Judicial jurisdiction is the exclusive subject of legislative regulation. The jurisdiction of a circuit court can be extended over a circuit or district as well as over a county. In the exercise of this acknowledged power, the legislature has extended the jurisdiction of the circuit court of Adams over Marquette, till organization. This will prevent that failure of justice, which might have otherwise occurred, in consequence of the neglect of the inhabitants to organize their county. That portion of thelaw which provides for the continuance in office of those officers, originally elected for Adams county, but residents of Marquette territory, as officers of Marquette county, for the full term of their respective offices, and which also provides for the proportion of legislative representation to which each county shall be entitled, and the adjustmentof the finances between the two counties, contemplates, unequivocally, the total and absolute separation of the two counties for those purposes. The legislature has, in many [*275] instances, left the organization of a new county to the vote of the people. In such cases an option is given the inhabitants to organize or not; but in the present case it is different. We can find no provision in this law which will even tolerate such an implication. The legislature has created a county and required the inhabitants, in express terms, to organize it. Can it be said that the neglect of the citizens, to obey the injunction of law, can defeat the law itself, and leave it a dead letter on the statute book ? To sanction such a doctrine would be to sanction anarchy, and encourage disorganization. Let this court lay down the principle, that any portion of the people can defeat the object of a public law, by disobeying its injunctions, and it would be nothing more nor less than to give judicial sanction to practical nullification. The creation of a municipal corporation depends, in no degree, upon the assent or dissent of the inhabitants of the particular locality, unless such a condition be,contained in the law of its creation. In Greenl. Ev. § 831, this doctrine is asserted. The following language is used by this perspicuous writer: “corporations, it is to be observed, are classed into public, municipal, or private corporations. The former are composed of all the inhabitants of any of the local or territorial portions into which the country is divided, in its political organization. Such are counties, towns, boroughs, local parishes, and the like. In these cases, the attribute of individuality is conferred on the entire mass ot' the inhabitants, and again is modified or taken away, at the mere will of the legislature, according to its own views of public convenience, and without any necessity for the consent of the inhabitants, though not ordinarily against it. They are termed quasi corporations, and are dependent upon the public will, the inhabitants not, in general, deriving any private or personal rights under the act of incorporation. Its office and object being, not to grant private rights, but to regulate the manner of performing-public duties.” This is the language of the author of an excellent work on evidence, and is the established doctrine on this subject. It was urged, in argument, that a corporation of this kind, becomes dissolved by the neglect of the corporators to elect officers. This principle does not apply to counties, or other public corporations. In the case of the Mayor and Commonality of Colchester v. Sealer, 3 Burr. 1866, Lord Mansfield and the other judges decided that a public corporation would not be dissolved, although its whole body of magistracy was gone, and the day of election had passed, so that they could not proceed further by their own pov/er. The corporation in such case remains dormant and quiescent.

The principal argument urged on behalf of the relator was, that to give Marquette the essential constituents of a county, [i“276] it must be organized, and that until organization, the people are deprived of the right of exercising the elective franchise, unless permitted to vote with Adams county; and it was asked whether the legislature could possibly intend to do any act that could be productive of such injustice. The whole of this argument is founded in fallacy. First, the inhabitants of Marquette have all the rights, powers, and capacities possessed by the citizens of any other county in this State, and the consequences complained of spring from neglect to exercise these capacities. Secondly, it was their duty to elect officers at the time and in the manner prescribed by law. They had the capacity to do this, and failed to exercise that capacity, so that, instead of being deprived of rights, they have neglected the performance of specific duties. Men, who neglect to vote for county officers at a general election, might as well complain of being deprived of the elective franchise. In a state of society, the exercise of rights depends upon the performance of duties,-and this constitutes one of the best securities of this form of government. It must be recollected that there are other rights than those of the inhabitants of Marquette concerned in this question. The inhabitants of Adams have their rights also. They have organized in conformity to the law, and constitute a separate community, with separate interests, subject to the control and management of a distinct corporation; and for tlie citizens of Marquette to interfere in tire municipal government of Adams county would be an invasion of the corporate rights of its citizens.

In a case like the present, the duty of the court is plain and obvious; our duty is not to declare what the legislature ought to have done, but what it actually has done; not to legislate, but simply declare what the law is. If a law operates oppressively, it is the province of the legislature to afford redress; but while it continues a law, it is the duty of the citizen to obey it, and of courts of justice to declare and enforce it. It has been urged in argument, that the inhabitants can still organize the county without the aid of the legislature. This point is not involved in the decision of this case, and we abstain from expressing an opinion in relation to it. It is the opinion of the court that the jurisdiction of Adams did not extend over the county of Marquette, for the purposes of county government, on the 7th day of August, 1843.

The application for a writ of mandamus is therefore refused, and the relator is to pay the costs of the proceeding.

Tjreat, Justice,

delivered the following dissenting opinion: I-concur in the views expressed by the majority of the-court, as to the power of the legislature. I admit that the legislature may, in the exercise of its unquestioned powers, form a new county out of any portion of the territory of the state, and at the same time, take away the jurisdiction of the county that had previously controlled and governed it. Having the [*' 277] power to do this, it may altogether omit to provide a government for the new county, or leave it temporarily without a government, by authorizing one to be formed at a future day, by the act of the inhabitants within its limits. Such, however, would be a most arbitrary and unjust exercise of power; and before a court should decide that the legislature had thus acted, its intention should clearly and expressly appear, and not be left to inference or implication. It is a well established rule in the construction of statutes, that where great inconvenience or absurd consequences are to result from a particular construction, that construction should be avoided, unless the meaning of the legislature be plain and manifest. 1 Blac. Com. 98; 2 Craneh 358. If the construction contended for by the defendant be the correct one, the territory included within the boundaries of Marquette county would be, from the passage of the act, to the time of the organization under its provisions, left wholly without any government for municipal and county purposes. The jurisdiction of Adams county being withdrawn, the people residing within this territory, except for certain judicial purposes, would be reduced to a state of anarchy, without the power or capacity to assert and exercise rights and privileges, to which they, in common with all the people of the state, are entitled. On an attentive examination of the act in question, I am impelled to the conclusion, that the legislature never intended to exercise a power liable to such mischievous and unjust consequences. There is no provision in the law expressly taking away the jurisdiction of Adams county; nor is there any provision for a new government before the organization. This consideration, alone, satisfies me, that the legislature never contemplated an exercise of its power, to the extent claimed. All of the provisions of the act, to my mind, seem to have been framed on the understanding, that the old government was to continue in force, until a new one was formed, in the manner prescribed, to take its place, and assume its functions. I cannot believe that an interregnum was intended. I am of the opinion that the jurisdiction of Adams county for all purposes continues over the new county, until its organization is complete. Entertaining these views, 1 am for allowing the application, and awarding a mandamus.

WilsoN, Chief Justice,

delivered the following dissenting opinion: It appears, from the facts in this case, that the relator, •Redman, was elected a justice of the peaee, at the August election, 1843, for the Columbus district, which district is situated within the territorial limits assigned to the proposed county of Marquette. The returns of the election were made to Wren, who is the clerk of the county commissioners’ court of [* 278] Adams county, who has refused to open the returns, and give the said Redman a certificate of his election, so as to enable him to obtain a commission as a justice of the peace of Adams country.

The application to this court for a writ of mandamus grows out of the act of the legislature passed in 1848, for the division of Adams county, and the creation of the county of Marquette, out of a portion of the territory of the former ; and, by the agreement of the parties, the allowance of the writ is made to depend upon the question, whether the jurisdiction of Adams county extended over the territory of Marquette county, in August, 1843; or in other words, whether the territory of Marquette was detached from Adams county, in August, 1843, and was a separate and distinct county at that time, for all county, and all other purposes, except judicial.

The majority of the court are of opinion that said territory of Marquette was a separate and distinct county, in August, 1843 ; and I believe it is admitted, and at any rate cannot be controverted with any show of reason, that if it was a separate county in August, it became such, upon the passage of the act in 1843, which went into immediate operation ; as there was no action or circumstance to change its character, between those periods of time. To this opinion I dissent, and will state the reasons for so doing.

The question submitted to the decision of the court depends upon the construction of the act of the legislature of 1848. By the first section of which it is provided, that a certain portion of the now county of Adams, (within the described boundaries,)'be and the same is hereby created into a new county, to be called the county of Marquette. The second section provides for the election of county officers on the first Monday of April, 1848. The fourth section declares, that as soon as the county officers shall have been elected and qualified, the said county of Marquette shall be considered organized, and notice thereof shall be given to the judge of that circuit, and circuit courts shall thereafter be held in said county. And by the fifth section, all suits and prosecutions that bave, or may hereafter be commenced in the circuit court of the county of Adams, before the organization of the county of Marquette, shall be prosecuted to final termination in the circuit court of the county of Adams.

These, 1 believe, are all the provisions of the act necessary to recite, in order to understand the question before the court. The other parts of the act relate to the court house, the revenue, and the time and manner of holding elections, etc.

In the construction of this act, it has been said tbat a large number of citizens feel a deep interest. I have, therefore, as far as in my power, given it that consideration which its importance deserves, and from the view I have taken of the subject, I am constrained to say, that in my opinion, the construction given the statute, by the majority of the court, is incom- [*279] patible with both the letter and spirit oí the statute. But before I give my views upon this point, upon which I propose to rest my opinion, it may be proper briefly to enquire, how far it is within legislative competency, to impart to this act, such an operation as it must necessarily have, under the construction it has received. If it can be made to appear, that the legislature does not possess the power, that will afford a strong objection against imputing to that body the intention of exercising it, unless the language will admit of no other interpretation.

For the more convenient government, and better administration of justice, the whole state has been laid off and organized into counties. This division and organization is sanctioned by the constitution ; and I admit the doctrine generally, that the state may create, modify, and destroy counties, and that they may carry this power into effect by any appropriate means tbat does not conflict with the constitution. But while T admit that the legislature may destroy a county, I am not to be understood as admitting tbat they can deprive any portion of the territory of the state of a county organization and government. This would be to place a portion of the citizens out of the pale of law and government, and would produce a complete state of. anarchy. Such an act of the legislature would, in my opinion, be an abandonment of its highest obligations, and an infringement of the spirit of the constitution, if not its letter. The only manner that occurs to my mind, by which a legislature can destroy a county, is, by annexing it to one' or more organized counties. No interregnum would then take place; the government of the county to which it was annexed, would be extended over and embrace it, simultaneously with its annexation; and thus no evil or inconvenience would occur.

I have said thus much upon the power of the legislature over the counties of this state, to prevent any misapprehension as to what was meant by this court in the case of Coles v. The County of Madison, Breese 120, in which it was said, by way of illustration, that the legislature has authority to destroy a county.

The authority of the legislature to pass laws for the creation of new counties, and provide for their organization, is also admitted, with the qualification, however,' growing out of the peculiar provisions of our constitution, which requires the co-operation of the people of the new county, in order to organize it. By the constitution, the qualified voters of the different counties are to elect county commissioners, a sheriff, and coroner, and by various laws, they are to elect such other county officers as are essential to an organization of the county. Had therefore any portion of the voters of Marquette held an election, and elected county officers, as the law required, and had they qualified, the county [*280] would have been duly organized, and would have been one of the counties of the state. But no such election has been had, and it is admitted that until the officers are elected and qualified, the county cannot be organized. From these considerations, then, it results, that the concurrent action of both the legislature and the people are necessary to create a new county. The legislature must pass the law defining the limits of the county, and authorizing the election of officers; then, and not until then, is the new county created. The act of the legislature only forms an inchoate county; the act of the people is necessary to ratify it, and give it vitality and being ; and until such ratification, all the corporate franchises remain in abejmnce. This view of the subject accords with the principle laid down by the supreme court of the United States, in the case of the Dartmouth College v. Woodward, 4 Peters’ Cond. R. 526, that when a corporation is to be brought into existence by some future acts of the corporators, the franchises remain in abeyance until such acts are done; and when the corporation is brought into life, the franchises instantly attach to it.

But for the provision of our constitution, I should entertain no doubt but the legislature, in virtue of its general power to pass all laws that are necessary for the promotion of the general welfare, might, if its members deemed it expedient, have constituted a new county, and organized it in any manner they thought proper. But under the provision of the constitution referred to, the right of organizing, and consequently the right of refusing to organize, seems clearly to be vested in the people, and if so, the legislature cannot divest them of it. Whether this provision, requiring the agency of the people in organizing a county, be a wise one or not, is not a question of judicial cognizance. It may however be observed, that in a government like ours, in which the sovereign power is lodged in the hands of the people, there can be no danger in allowing to the people a negative voice in the creation of a municipal corporation, which is usually granted as a boon, and in which they have the deepest interest: and it is also to be observed, that the authorities referred to in relation to the power of the legislature to create municipal corporations, without .the consent of the corporators, can have no application to this case, under the view I have taken of it, inasmuch as the objection to the exercise of this power, in the present case, grows out of the peculiar provision of our constitution. But if we concede to the legislature the power of creating a county, without organization and county government, still the additional question remains, as to whether it intended, by the act under review, to exercise it. In my opinion the legislature did not. Upon this point my conviction is so clear, that I propose resting my dissent to the opinion of the majority of the court mainly upon it, while what I have said, as to the want of power in the legislature, is, I think, entitled to serious consideration, and will afford [*281] some aid in arriving at the intention of that body. From some of the provisions of the act of 1843, it may be inferred that the legislature proceeded upon the supposition that the inhabitants of Marquette would organize by the election, of county officers; but I do not admit that that act will bear the interpretation that the legislature intended the territory of Marquette should be detached from Adams county, and be created into a separate and distinct county, upon the passage and operation of the act, (which were simultaneous,) without regard to its organization. This however is the construction contended for, and in support of it, much stress is laid upon the first section of the act, which provides that a certain portion of the now territory of the county of Adams (which is there described), be, and the same is hereby created a new county, to be called- the county of Marquette. This, it is said, is a legislative declaration of such potent energy, as, of itself, to create the county of Marquette at once, without anything more. If that be so, it settles the whole question in dispute ; but this is an assumption, not proof, and cannot therefore be admitted. The first section of the act, standing alone, and without reference to the other parts of it, would seem to countenance the conclusion drawn from it. But considered in connection with other sections, it will appear manifest that it was intended to create the county only upon the condition of its organizing.

It is an acknowledged principle, that when the legislature adopts a statute that lias received a settled construction, they are presumed to have adopted that construction also. This principle may be fairly applied in the construction of this act. By reference to the statute book, it will be found, that the legislature has, at different times, passed various acts for the creation of new counties, all of them similar to the present one; and the first section of several, identical with the first section of this, except the variance necessary to describe their respective boundaries ; yet according to the practical construction of these acts, the counties were to be created and go into operation only at a future day, and when organized [and in some instances they were to be created only upon the contingency of a ratification by a majority of the voters of the proposed county, a ratification which in some cases was never received, as was the fact with regard to the contemplated county of Milton, and it consequently never was created). This uniform operation of former statutes, passed for the creation of new counties, by which, in every instance; organization was regarded as necessary to their creation and separate existence, must have been well known to the legislature, and affords a strong presumption that it intended that this one should receive the same construction, and have the same operation. If the legislature had not intended by [*282] this act, that organization, by the election and qualification of county officers, should be necessary to the creation of the new county, it would not have adopted language and enactments so like those of other statutes, which had received that construction. Nothing would have been easier, or more probable, under such circumstances, than to have declared that the county should be created, and go into operation, upon the passage of the act, or at some other appointed time, if such had been the intention, in place of declaring what acts on the part of the inhabitants would constitute an organization. I can perceive ño object in this declaration, but to fix the epoch of the creation of the county.

In construing a statute for the purpose of ascertaining the intention of the legislature, we are not to limit our attention to a single sentence or section of a statute. We are not therefore to conclude, from the first section of this act alone, that the legislature intended that the territory of Marquette should become a county before it was organized ; but we must construe this section in connection with others, so as to arrive at a correct conclusion. The fourth section provides, that as soon as the county officers of Marquette shall be elected and qualified, the said county shall be considered organized ; and by the fifth section, all suits and prosecutions that have been commenced, or may hereafter be commenced in the circuit court of the county of Adams, before the organization of the county of Marquette, shall be prosecuted to termination in the county of Adams. These provisions, when taken in connexion with the first section, qualify its operation, and clearly indicate the intention of the legislature, that the existence of Marquette, as a distinct county, should not take place, until it was organized according to the fourth section. If this was not the intention, 'why require suits’ and prosecutions, arising within the territory of Marquette, to be commenced and prosecuted in the county of Adams, until the organization o'f the former, and no longer. In this view of the subject, the legislature will avoid the absurd incongruity of requiring the judicial proceedings of one separate and distinct county, to be carried on in another ; and in this view of the law, it will also escape the no less absurd incongruity and anomaly, of having created a mongrel half-kind of county, a county for some purposes, and for other purposes, equally legitimate, nota county.

Another rule in the construction of a statute, strikingly applicable to this case, is, that when great inconvenience or absurd consequences are to result from a particular construction, that construction should be avoided, unless the meaning of the legislature is plain and manifest. 1 Blae. Com. 98 ;■ 2 Cranch 858. This rule, which requires the court to look to the consequences of a particular construction, and if inconvenient or absurd consequences are likely to result from it, then, avoid it, does, in my opinion strongly admonish us to avoid that construction which will detach the territory of Marquette from Adams county, [* 283] and constitute it a separate county before its organization. Some of the consequences of this construction will be, that & large portion of the citizens of the State will be put out of the pale of government, and while the government will be unable to collect from them the taxes necessary for its support, they will be denied the administration of justice, within their county, and deprived of the right of their electoral franchise, a right that lies at the foundation of all our institutions, and without which there is no security to the people, against wrong and oppression, under any form of government.

Until Marquette is organized, and county officers are elected, no circuit courts can be held in it, by the express provision of the statute. But it was contended in the argument, that although Marquette was a county for internal government, and political purposes, that for all judicial purposes, Adams could exercise jurisdiction over it. This position I deem incorrect; no principle is more universally acknowledged, than that persons charged with tbe commission of crime must be indicted by a grand jury of the county in which the crime is committed. The constitution also secures to every person charged with a criminal offence, a “ speedy public trial by an impartial jury of the vicinage.” This expression, by a jury of the vicinage, is well understood to be a jury of the county where the crime is committed. This being a right, then, secured to the accused by the constitution, cannot be taken from him against his will, by the legislature. The. perpetration .of a crime therefore in the county of Marquette, however atrocious it may be, cannot be punished. The reasons that led to the adoption of this provision in the constitution of the states of the Union, is well understood. The practice of sending the accused ábroad for trial, remote from his friends and witnesses, was regarded bjr the founders of our government, as unjust and oppressive, and although the hardship in this case may be considered comparatively trifling, as the counties are adjoining, yet if the accused can be sent to the adjoining county for trial, he may, upon the' same principle, be sent to the most remote county in the state. The wrong in both cases is the same; they differ only in degree; and are both alike forbidden by the constitution.

Other injurious consequences flow from that construction of the act, which creates Marquette a county before organization. The inhabitants of that territory cannot be coerced to contribute their proportion of revenue. They have no officers to assess or collect it, and for a like reason, it is utterly impossible for these people to exercise the elective franchise in the manner prescribed by law; and it requires no comment upon the value and importance of this privilege, to prove the extent of wrong done by withholding it from a single citizen entitled to its exercise; and it is no [* 284] answer to the objection, in reference to any of these pernicious results, that they can be corrected by subsequent legislation. That is an argument that might, with equal propriety, be urged in favor of any law however unjust and unconstitutional; and is in effect saying that we should submit to wrong, because we are entitled to redress.

It was also urged by counsel, that notwithstanding the time fixed by law for organizing the county of Marquette has passed, that the people can yet organize under a proclamation of the governor. This is certainly a new doctrine, that gives to the proclamation of the governor of this state, the force and effect of law, and one which I think calls for no argument for its refutation, although urged with apparent seriousness by able counsel.

It is admitted that the recognition of Marquette as a county, in its present condition, will place the people of that county in an unfortunate situation; but it is said they have brought the evil upon themselves; by neglecting to vote for and elect county officers; that this was not merely a privilege, but a legal obligation, and that their complaints, now, are like those of a man who, having refused to vote, should complain that he was denied the exercise of the right. This I think is a misapplication of the case. I do not understand that these people complain of having been denied the privilege of voting for county officers, on the first Monday in April; but they complain, that because they omitted to vote on that occasion, they are to be denied the exercise of this right, at every subsequent election that may occur. This complaint cannot; be regarded as unreasonable, for by this construction, a statute for the creation of a new county, which is usually regarded as a favor to the inhabitants, is converted into a penal enactment, by depriving them of a cherished and valuable franchise, and that, too, without the commission of any offence known to the law. The position that a citizen is under a legal obligation to vote at an election, cannot be correct. If such an obligation existed, it could be enforced by legal process; but I presume it will not be contended that this can be done. I cheerfully admit, that every one entitled to this valuable privilege is under a moral and political obligation, to exercise it in such a manner as in his judgment is best calculated to promote the public welfare; but there is no such legal obligation; and the legislature can no more compel a man to vote, than they can say for whom he shall vote. Such a power would be subversive of the fundamental principles of the government.

The people of Marquette then have violated no legal obligation in failing to elect county officers, and organize the county, and are not, therefore, obnoxious to the charge of nullification and rebellion to the laws. I regard the act under consideration as a tender on the part of the legislature, to the people of the territory of Marquette, of the privilege of having a new county, but which was not to go into operation, until by the agency of the people it was organized by the election and [*285] qualification of the county officers, as the act requires; and that contingency not having happened, the territory of Marquette still constitutes, for every purpose, a part of the county of Adams.

This construction I believe is in harmony with the spirit of the constitution, and accords not only with all the constructions that have been given to similar-acts passed for like objects, but also with the intention of the legislature as expressed, and as ascertained by the application of well established rules of interpretation to the act itself; while so many and such serious evils must necessarily result from an opposite one, which we ought not to suppose the legislature contemplated producing, when, as in this case, such an intention is not plainly expressed, that I can not subscribe to it. I am, therefore, of opinion that the mcmdamus ought to be allowed.

Lockwood, Justice, concurred in the dissenting opinion of chief justice Wilson; and Browne, justice, said he dissented from the opinion of the majority of the court, believing that the county of Marquette was not created, until the officers were elected, and the county organized.

Judgment affirmed.