PETITION TO REHEAR.
Upon petition to rehear,
Cooper, J.,said:
The petition for rehearing in this case calls our attention to the fact that the act of the Legislature of 1883, chapter 246, is not mentioned in the opinion heretofore delivered. And it is true that this act was overlooked by the judge who prepared the opinion of the court. That act is in these words: “Be it enacted by the General Assembly of the State of Tennessee, two-thirds of both houses concurring, that hereafter county seats of counties that have been reduced by fractions taken off to form new counties may be removed in the manner and under the provisions of law as is now provided for the removal *596of county seats in other counties of the State, except the counties of Cocke and Obion.” The manner of removing county seats had been provided for by the act of 1873, chapter 103, as to any county except a county reduced by a fraction taken off to form a new county. This act was amended by the act of 3881, chapter 98, so as to provide for the removal of the county seat of any county without exception. These acts were considered in the former opinion as providing the mauner of taking the vote of the county in question to ascertain the wishes of its qualified voters, as directed by the Constitution, for the removal of its county seat. The body of the act of 1883, is only a re-enactment of the pre-existing law, with special reference to counties reduced by fractions taken off, but does not change that law in any respect. The enacting clause shows, however, that the latter act was passed with the concurrence of two-thirds of both houses of the Legislature. Upon this clause the point might have been made oil the hearing, but was not made, that the assent of the Legislature as prescribed by the Constitution was thereby given to the removal of the county seat in this ease, without further legislation. The point was not made, nor the act itself mentioned, in the principal printed arguments submitted in the original hearing, because the Legislature had subsequently, by a special act in relation to McNairy county, b.oth houses concurring, sanctioned the removal of the county seat.
It is not necessary to determine in this case whether the constitutional assent of the Legislature may be *597given by a general law, or must be by a special act for a given county. For here the assent was given in both ways, and the decision of the court was that, although the assent was special, the individual citizens of the county might, under their bill, go behind the action of the county court in counting the vote, and announcing the result of the election held to ascertain whether two-thirds of the qualified voters of the county concurred in the removal, and this although, pending the litigation, the removal of the courts and county offices might have been consummated. It is true, that in the course of the opinion delivered it was said, arguendo, the act of 1883 being overlooked, that the bill was filed before the removal could be legally consummated, because it was filed before the cousent of the Legislature, by a vote of two-thirds of both houses, had been given. But it is also true, and the argument would have been equally good, that the bill was filed before the concurrence of the people to the removal, by a two-thirds vote of the qualified voters of the county, had been given. The Constitution requires both the assent of two-thirds of the Legislature and of two-thirds of the qualified voters, and the failure of the one is as fatal as the failure of the other. The county court did not announce that two-thirds of the qualified voters of the county had concurred in the proposed removal, but that 1,921 voters had so voted, and that this number constituted more than two-thirds of the qualified voters. And this announcement, the court held, could be shown to be untrue, and that relief would be granted, whether *598the removal were actually consummated before or after the litigation was commenced.
The argument in support of the petition for rehearing next reviews our cases, beiug the same mentioned and commented on in our former opinion, and insists that the action of the county court in counting the vote and announcing the result was legislative, and that neither these nor any other cases hold that the courts have the power to review legislative action by proof aliunde. But the counting of the vote of a popular election is merely the finding of a fact, even if done by the Legislature, and is not conclusive upon the rights of third parties. And the real question is, whether such finding and announcement, whether legislative, judicial or ministerial, are conclusive upon indiyiduals immediately affected by them in their constitutional rights, or may be reinvestigated in the courts. This court has concluded, in several of the decisions cited, that the case before us is not like the establishment of a new county by the political department of the government, in which the individual citizen has only an interest common to-all the citizens, of whom the State is the proper representative, but is more analagous to the case of the removal of county lines, in which the old county has a special interest, which may be enforced, even after the change had been consummated. The constitutional provision in regard to the removal of a county seat was intended to protect the rights of property acquired by the location of a county seat, and those property rights are analagous to the property rights of a county over *599its territory. Either for this or some other reason, this court has heretofore repeatedly recognized these rights, and allowed them to be asserted, even after an actual removal of the county seat.
The petition next comments on so much of the entry on the minutes of the county court as relates to the proposed intervention of third parties, and which was copied into the opinion of this court. The argument is that the entry was to that extent unwarranted and void. The counsel may be correct in this position, but the part of the entry thus attacked was copied into the opinion merely as a part of the history of the case. For the opinion itself shows that it cut no figure in the decision of the case, and was, in fact, never referred to. It might be stricken out without affecting the opinion in the least.
It is suggested in the petition that the acts of 1885, authorizing the holding of the chancery and circuit courts at Falcon, are valid acts of ordinary legislation, and prevent the holding of those courts at Purdy. But these acts, treated as permanent removals of the courts from the county seat, would be simply' void. For otherwise, the court might do indirectly, by ordinary legislation, what they could not do directly. These acts are precisely of the character of one of the acts held to be unconstitutional and void in Stuart v. Bair, 8 Bax., 141. The power of the Legislature to authorize the holding of courts temporarily at another place than the county seat, for good I’eason, is another question altogether.
*600While fully conscious of the gravity of the questions involved, and of the ability with which they have been presented in the petition for rehearing, we see no sufficient reason for granting a rehearing, and the petition must be dismissed.