Gallatin-Saline County IL Archives Court.....People, V Marshall 1850
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 25, 2008, 11:47 am

Source: Records Of Cases Illinois
Written: 1850

The People, ex relatione William K. Stephenson, v. Samuel S. Marshall, Judge 
of the Twelfth Judicial Circuit.

Application for Mandamus.

The lelslature cannot abolish counties, and form the territory of which they 
were composed into one or more counties, without submitting the act to a vote 
of the inhabitants affected by the change.

A county seat cannot be removed without the affirmative vote of the 
inhabitants of the county.

Territory cannot be taken from one county and added to another, except by the 
vote of a majority of the inhabitants of the counties to be changed.

This was an application to the Supreme Court for a peremptory mandamus. The 
petition of William K. Stephenson, sets out: That by act of the general 
assembly, approved February 25, 1847, the county of Gallatin was divided, and 
that the county of Saline, forming a part of it, was organized, and a county 
seat established at Raleigh, in said county. That the petitioner was a 
resident of, and voter in, the county of Saline. That said county of Saline 
has been recognized as a county, and that by law, Circuit Courts were held in 
Saline county, on the next Monday after they were held in Gallatin county; the 
county of Saline, being one of the counties composing the third judicial 
circuit. That afterwards by virtue of an act of the general assembly, the 
county of Saline was made a part of the twelfth judicial circuit, the courts 
therein, to be held at Raleigh, on the Mondays following the sitting of the 
courts in Hamilton county. That by virtue of an act of the general assembly, 
entitled "An act to create the county of Gallatin out of the counties of 
Gallatin and Saline," approved February 11, 1851, it was enacted, that the 
said counties of Gallatin and Saline be abolished, and that all the territory 
therein embraced, should compose one new county, to be styled and known as the 
county of Gallatin, and that the county seat of the said new county of 
Gallatin should be permanently located at Equality. That said act further 
provided for the election of county officers for said new county of Gallatin, 
and the permanent organization thereof, which said elections have been held, 
and the officers have been elected, qualified and commissioned, and are 
discharging their duties. That Samuel S. Marshall, presiding judge of the said 
twelfth judicial circuit, has organized his court in Gallatin, pursuant to the 
last above mentioned law, and is proceeding with the business thereof, in 
violation of the constitution of the state. That there is criminal and civil 
business pending, and undetermined, in the Circuit Court, in Saline county, 
and that the time for holding the Circuit Court therein has arrived. That the 
County Court of Saline county, regarding the last named law as 
unconstitutional and void, have notified and requested the judge, to hold and 
convene a regular term of the Circuit Court, at Raleigh, in Saline county, 
without regard to the last named law, which the judge has refused to do. 
Praying a mandamus ordering the judge to hold the court in Saline county, etc. 
To this petition, Judge Marshall answers, that it had been presented to him on 
the twenty-sixth day of May, 1851, at the sitting of the Gallatin Circuit 
Court, at Equality, and with a view to a speedy adjudication of the question, 
enters his appearance thereto, waives an alternative mandamus, or other 
process, and all technical objection. That he does not deny any matters of 
fact alleged in the petition, but admits them to be true. That he has refused 
to hold court at Raleigh, in Saline county. That he will regard the provisions 
of the law, uniting the two counties of Gallatin and Saline, as constitutional 
and directory to him, until, by the order and judgment of the Supreme Court, 
he should be otherwise commanded.

After  hearing  of the cause, a peremptory mandamus was awarded.

A. Lincoln and R. Wingate, for the relator.

A. G. Caldwell and H. B. Montgomery, for the respondent.

Caton, J. The legislature, undoubtedly, was competent to pass this law, unless 
the exercise of such a power is clearly inhibited by the constitution. The 
first section of the seventh article of the constitution, provides, that "No 
new county shall be formed or established by the general assembly, which will 
reduce the county or counties, or either of them, from which it shall be taken 
to less contents than four hundred square miles, nor shall any county be 
formed of less contents; nor shall any line thereof pass within less than ten 
miles of any county seat of the county or counties proposed to be divided." 
The second section provides, that "No county shall be divided, or have any 
part stricken therefrom, without submitting the question to a vote of the 
people of the county, nor unless a majority of all the legal voters of a 
county voting on the question, shall vote for the same." The fourth section 
provides that "There shall be no territory stricken from any county, unless a 
majority of the voters living in such territory shall petition for such 
division; and no territory shall be added to any county without the consent of 
the majority of the voters of the county to which it is proposed to be added." 
Section five provides that, "No county seat shall be removed until the point 
to which it is proposed to be removed shall be fixed by law, and a majority of 
the voters of the county shall have voted in favor of its removal to such 
point." These are all the provisions of the constitution which, it is 
supposed, inhibited the passage of the law under consideration. The first 
section quoted certainly is not offended by the passage of this law, either in 
letter or spirit. The object of that section is to prevent the reduction of 
large counties to small ones, or the creation of small counties, and also to 
prevent the running of new county lines too near county seats, already 
established. The effect of the law in question would be to secure a larger 
county, instead of smaller counties, and hence the design of the convention in 
framing the first section is not disappointed. That section makes no provision 
for a vote of the people on the subject, and but for subsequent provisions, we 
think no question could be made as to the validity of this law. This element, 
however, is introduced into the next section. That section expressly inhibits 
the division of a county, or the taking any part therefrom, without an 
affirmative vote of the people of the county. The fourth section forbids, 
substantially, the same thing, unless a majority of the voters in the 
territory which it is proposed shall be detached from one county and added to 
another, petition for the change; and then before the act can take effect, a 
majority of the voters of the county to which the territory is proposed to be 
attached, must consent thereto. By force of these two sections, territory 
cannot be changed from one county to another, without in the first place a 
petition of a majority of voters in the territory, and then the separate 
affirmative vote of both counties to be affected by the change. No rational 
mind can doubt, after the perusal of these provisions, that it was the 
unequivocal intention of the convention that county lines already established 
should not he changed, except by the deliberate vote of the people who might 
be affected thereby. To secure this right, and to prohibit all such changes of 
county lines, against the wishes of the people, was manifestly a cherished 
object of the convention in framing the constitution, and of the people in 
adopting it.

What, then, are the provisions, what the object, and what the effect of the 
law under consideration? It provides for the abolition of the counties of 
Gallatin and Saline, and for the creation from their territory of the county 
of Gallatin. Its object and effect was to unite the two counties into one—to 
attach one county to the other, without the approbation of the people of the 
two counties. The design of the constitution is to prohibit things, not names. 
It is to forbid results and effects, and not the form of expression to be used 
in accomplishing them. A substance was sought after, and not a shadow. A real 
power was designed to be reserved to the people, and not the mere hope of a 
right.

We were asked if the legislature may not abolish a county organization, and 
then, from very necessity, attach the disorganized territory to another 
county, or form a new one? We answer unhesitatingly that the legislature may 
not destroy a county, if the object or necessary result is to accomplish an 
unconstitutional purpose. Should the time ever arrive when any county in this 
state becomes entirely depopulated, then the legislature might repeal the law 
of its organization; or, should we acquire new territory, from that a new 
county might well be organized by the legislature alone, but to disturb county 
lines, already established, without a vote of the people, would be doing that 
which the constitution has forbidden in terms which, it seems to us, cannot be 
mistaken. The legislature cannot do indirectly that which it is forbidden to 
do directly. This is a rule dictated by reason, and supported by the highest 
authority: Craig v. The State of Missouri, 4 Peters, 410. To be sure, it 
should not be applied, unless the end proposed to be accomplished is 
manifestly the very thing forbidden, but when that is clearly the case, no 
circumlocution can give validity to the forbidden act. Should this act be 
sustained, let it once be established that the legislature may destroy old 
counties as it pleases, and from their territory create new ones, and every 
conceivable change of county lines may be effected, and that, too, without any 
reference to a vote of the people, if the new county is of the requisite size.

The same legislature which passed this act, also passed an act creating the 
county of Kankakee, out of territory to be taken from the counties of Will and 
Iroquois, and whence the necessity of submitting that act to a vote of the 
people of those counties, when, if this act is constitutional, the same thing 
could have been accomplished by abolishing the counties of Will and Iroquois, 
and then from their territory organizing three new counties, giving to each 
precisely the same boundaries which they now have. So, too, in the same way 
might the county of Oregon have been created out of territory taken from the 
counties of Morgan, Sangamon and Macoupin, without a vote of the people of 
those counties. Nothing was requisite but to abolish those three counties and 
to create four new ones, and the desired end would be accomplished at once, 
and yet this same legislature, no doubt, in obedience to the provisions of the 
constitution, thought proper to submit the act creating the county of Oregon 
to a separate vote of the people of the three counties, from which the 
territory of the new county was taken. Suppose the legislature had passed an 
act simply providing that the territory of the county of Saline should 
thereafter be attached to, and form a part of, the county of Gallatin. Would 
it be pretended that such a law would be valid, without a vote of the people, 
simply because it transferred the whole county instead of a part of it?

The object and effect of the law under consideration, is precisely the same as 
the one supposed. What possible difference is there, whether the two counties 
be abolished or annihilated, and of the same territory a new one formed, or 
one county is attached to the other? If the legislature cannot do the one, 
then it is prohibited from doing the other. No change of county lines can be 
made without, in effect, abolishing the old county organization, and creating 
a new one, so far as the territory transferred is concerned; and no additional 
authority is acquired, by affecting to do, indirectly, what they must of 
necessity do, substantially, in all cases of the kind. This right of abolition 
or annihilation of county organizations, and the consequent results, if 
admitted as claimed in this case, would utterly destroy every provision of the 
constitution, the object of which is to secure to the people interested a 
direct control over legislative action affecting existing county 
organizations. If the constitution is still to be regarded as an instrument of 
that sacred character which has hitherto always been attributed to all 
American constitutions,—if it is still to be considered as a law to the law 
makers, as well as to the citizens, a law which cannot be compassed or evaded, 
then it is our duty to see that its material and substantial provisions are 
not frittered away, by establishing a rule which will, in every instance, 
allow its provisions to be disregarded, which will permit the legislature to 
do the precise and identical thing which the constitution, in most express and 
unequivocal terms, has declared shall not be done, without the vote of the 
people interested.

There is, no doubt, a certain degree of plausibility in the course of 
argument, by which this law is attempted to be sustained. It is truly said 
that the constitution is a restraint upon legislative powers, and there is no 
doubt but this law might be passed, unless prohibited by the constitution. 
From this it is argued that, as there is no express prohibition to abolish 
counties, it is within the power of the legislature to do so, and, from 
necessity, there must be authority to organize the disorganized territory. But 
this reasoning is more specious than sound. As we have before seen, it leads 
inevitably to the overthrow of the paramount law of the state. No means can be 
constitutional which effect an unconstitutional object. While we would not 
extend the prohibitions of the constitution, so as to embrace measures and 
objects not manifestly and clearly within the design of its framers, yet where 
that is undeniably the case, then, by no means whatever, should it be allowed 
to be evaded. We cannot doubt that the objects designed to be accomplished by 
this act, cannot be effected without the affirmative vote of the people of the 
counties of Saline and Gallatin; and for the reason that no provision is made 
for such a vote, we think it is in derogation of the constitution, and that it 
must continue inoperative, till an election shall have been provided for by 
law, and an affirmative vote obtained from the voters of each of the counties 
affected by the law.

The act in question, not only attempts to unite the county of Saline with the 
county of Gallatin, without the constitutional sanction of the people, but, in 
effect, it also provides for the change of the county seat of Gallatin county, 
without the vote provided for in the fifth section of the seventh article of 
the constitution. This section, which I have quoted, forbids the removal of a 
county seat without a vote of the people of the county. This law practically 
undertakes to remove a county seat by legislative action alone. 

For the reason, then, that no provision is made for taking a vote of the 
people upon the removal of the county seat from Shawneetown to Equality, the 
law is also incomplete. The act in question, remaining inoperative as it does, 
the old county organizations continue, and it is the duty of the circuit judge 
to hold circuit courts in both counties, the same as if it had not been 
passed, and a peremptory mandamus must be awarded according to the agreed 
case. 

Mandamus awarded.

Additional Comments:
Reports of Cases Determined in the Supreme Court of the State of Illinois from 
November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor 
at Law. Volume XII. Reprinted from the Original Edition, with Annotations by 
William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill. 
1881.

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