On Motion for Rehearing. The appellant excepts to the conclusion of the majority of the court that article 1400, being a curative act entirely, could be made applicable to the facts of the present case without violating the terms of the present constitutional provision. It is not insisted that the act is prospective in effect, or that it is not a curative act entirely, or that the Constitution forbids or denies the power to the Legislature to pass the curative act altogether. The precise contention is that there is no present power in the Legislature to pass a curative act that could be made applicable to the facts of this case, and therefore article 1400 could not be applicable. Necessarily any legal objection, as urged, to the application of the article to the facts must rest, we think, upon the ground that the act of the commissioners in establishing the lines was of absolute invalidity, and not an act imperfectly done under authority. For, if the act of the commissioners in establishing the lines, as done, was merely an irregularity or imperfectness in executing the previous legislative authority to lay out "the lines of said county," then, in that case, the application of the curative statute would not be of the same import as conferring original authority upon the commissioners, never granted in the first instance. It is only in case the act of the commissioners could be said to be of absolute invalidity that the application of the curative statute, although relating to the time of doing the act, would be of the same import as conferring original authority upon the commissioner, having origin at the time of the passage of the curative law. In the latter case only would the limitation upon the present power of the Legislature to change county lines be applicable. Sykes v. Mayor and Aldermen of Columbus, 55 Miss. 115; Swartz v. Borough of Carlisle, 237 Pa. 473, 85 A. 847, Ann.Cas. 1914B, 458; Katzenberger v. City of Aberdeen, 121 U.S. 172, 7 S. Ct. 947, 30 L. Ed. 911. See 15 C.J. § 28, p. 405. As determined in the original opinion, the article would be applicable to the present case and would not be subject to the constitutional objection, "since the act of the commissioners in fixing the particular line on the ground, as done, was a mere irregularity in executing the powers conferred, and not of absolute invalidity, as independent of any legislative authority to lay out `the lines of said county.'" The commissioners appointed in 1870 had express legislative authority to "divide the county into five precincts" and to run out on the ground "the lines of said county." In so executing the command of the Legislature the commissioners actually surveyed out the boundary lines on the ground and established them, but fixed the corner of the third call in the "Win. P. Buzan survey," actually measuring, as later developed, "4.94 miles," instead of "four miles," west of the southwest corner of Hopkins county. This particular error of distance was occasioned, as we must assume, merely by mismeasurement *Page 657 on the ground. A mistake did not occur in the first and second calls, nor in the fourth call except so far as the consequence of beginning that call in the "Wm. P. Buzan survey." Therefore, although the location of the corner of the third call at that point was erroneous in fact, yet it was purely the result of measurement on the ground, imperfectly done under authority to establish on the ground "the lines of said county." The lines so "established" in 1870 were "recognized" as the county boundaries for years afterwards, not as established independent of any legislative authority, but as established in pursuance of legislative authority conferred upon the commissioners to do so in the manner done. According to the terms of article 1400, the "act" creating the county in the first instance is "continued in force" without redefining the boundaries.
A majority of the court is of the opinion that the motion should be overruled, but a final ruling thereon is withheld until the question in issue can be certified to the Supreme Court. It is accordingly ordered that the proper certificate be made to the Supreme Court in compliance with the motion of appellee.