The only Kentucky county to be abolished

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In early 1904, with the growth of the western end of Carter County, KY, residents there sought to form a new county. They broke away, along with some citizens of Rowan and Elliott counties, to form Beckham County, named for then-Governor John CW Beckham, who signed the legislative act on February 9.

GC Brooks, appointed County Judge, established formal offices, with the county seat in Olive Hill. It wasn’t long, though, before legal questions over the formation led to the county being dissolved by state action. Eighty days long, to be exact. On April 29, 1904, the Court of Appeals ruled that the new county failed to meet constitutional standards of size and population. Beckham is the only county in Kentucky to be abolished.

“The legislative act creating the county of Beckham was declared by the Court of Appeals to be unconstitutional and void in that it violates Sections 68 and 64 of that instrument, which sections prohibit the reducing of the area of the counties from which a new county is made, to less than four hundred square miles, their populations to less than 12,000 and the line within ten miles of an old county seat.

“The decision was given by the court in agreed cases of Carter County against Zimmerman and Brooks, here on appeal from the Carter Circuit Court and it is a reversal of that court, which sustained a demurrer and refused to allow the county of Carter to be heard in the matter. The court here says this was an error and remands the cases for further proceedings.

“The lower court practically admitted all the allegations of the petition as to the territory involved, but took the ground that the judicial department of the State government could not go behind the bill creating the new county proposed and inquire into the facts upon which the General Assembly acted.

“The court, in passing upon the question, says that the provisions of the Constitution are as binding upon the General Assembly as upon an individual and as mandatory and that it is proper for the courts to inquire into findings by the Legislature, and it has authority to ascertain whether the provisions of the Constitution as to area. Population and location of lines are followed by the General Assembly in the formation of a new county.

“The allegations of the petition of Zimmerman were that the county of Beckham was created out of parts of the counties of Carter, Elliott and Lewis; that the part taken from Carter county leaves it with only about 250 square miles; that the county line between Beckham and Carter counties, runs within less than two miles of the county seat of Carter county; that Elliot county, before any territory was taken from it had less than 400 square miles and was by the act reduced to far less than that; that the area of Carter County was 354 square miles, the area of Lewis county 454 square miles, and Elliott County 274 square miles; that the new county line runs within six miles of Grayson, the county seat of Carter and within seven miles of Vanceburg, the county seat of Lewis County; that the area of Beckham county does not exceed 286 square miles; that Lewis County is reduced to 300 miles, Elliott to 234 miles; that the population of Beckham county is less than 12,000 and that its establishment reduces Carter and Eliott to less than 12,000 each.

“In discussing the case, the court here in brief says…It is insisted for the appellate that the boundary of the county, as given in the act, will not close and IN FACT TAKES IN PART OF THE STATE OF OHIO…The rule is that the court will inspect the whole act, and if the actual intention of the Legislature can be thus ascertained, the false description will be rejected or words substituted in the place of these used by mistake, so as to give effect to the law. IT IS NOT PRESUMED THAT THE LEGISLATURE INTENDED TO INCLUDE IN THE COUNTY A PART OF THE STATE OF OHIO.

“The constitutional objection to the act is more serious. It is earnestly maintained for appellee that the constitutional restrictions as to area and population or location of the county line are for the guidance of the legislators, and that when the Legislature has acted it is incompetent for the courts to inquire into the correctness of the legislative…

“Carter County had by the geological survey an area of 544 square miles, Elliott County 270 and Lewis County 450; total 1, 264, as given in the official report of the Bureau of Agriculture, so that Carter County can properly contribute only 144 square miles to the formation of a new county, Elliott, nothing and Lewis only fifty square miles. We must therefore take judicial notice that only 194 square miles can on this basis be cut from these counties without infringing the mandate of the Constitution…

“If any of these conditions are wanting, the act is in violation of the Constitution and void. The Circuit Court erred in refusing to allow the petition of Carter County to be filed. He also erred in sustaining the demurrer to plaintiff’s petition. Judgment reversed and cause remanded for further proceedings not inconsistent with this opinion.”

sources: www.wgohwugo.com/cartercohistory.pdf
http://reocities.com/Heartland/park/5617/News.html
The Southwestern Reporter, Volume 80, May 4-June 22, 1904, by West Publishing Company, St Paul