On PETITION TO R-EHEAR.
Two petitions to rehear, one in the name of Polk County, as such, and the other in the name of the Oommis-*496sioners of Polk County, as such, have been filed. Both petitions present the same two questions.
In the opinion announced by this Court on May 3,1948, we sustained the action of the Chancellor in holding that the Quarterly Court of Polk County had authority to employ lawyers for the purpose of challenging the constitutionality of Chapter 367 of the Private Acts of 1947 applicable to Polk County and in allowing these lawyers a fee for their services to be paid by Polk County. Both petitions insist that this Court is in error in so holding.
(Perhaps a statement of the legal situation existing up to the time of the enactment of Chapter 367 and of the factual situation existing thereafter by reason of the enactment of this statute will very materially aid in making clear the principle which controls the question as to whether the Quarterly Court had the authority to employ counsel for the purpose of attacking the validity of this act and make these lawyers’ fees a legal charge against Polk County.
Until the enactment of Chapter 367 the status of the Quarterly Court of Polk County with reference to the affairs of that county and of their duties with reference thereto is restated by this Court in State ex rel. v. Read, 152 Tenn. 442, 446, 447, 278 S. W. 71, 72, thus:
• “The justices of the county court, assembled in quarterly session, are the representatives of the county, and are authorized to act for it. Shannon’s Code, sec. 493. They are charged with the duties appertaining to and annexed by law to their assembled organization, commonly called the quarterly court. . . . The county is idealized as a corporate body, represented by the justices, who occupy the relation of directors, exercising powers regulated by law. . . . Through the county court thus constituted the county, in its municipal cha,winter as a *497corporation, acts and is acted upon. It cannot act otherwise than through the justices in respect to many important matters of public concern.”
It must be conceded that one of the duties of this Quarterly Court prior to the enactment of Chapter 367 was to prevent the illegal expenditure of the funds of the county.
Until the passage of Chapter 367 it was only through this Quarterly Court that Polk County as a corporation' could act to prevent the illegal expenditure of its funds. Until the passage of that act, the Quarterly Court of Polk County, acting through its justices, would have been legally and morally derelict in its duty if it had witnessed or had had brought to its attention as a fact that the money of Polk County was being illegally expended, and having so witnessed or being informed thereof had failed to .institute suit, if necessary, to prevent such illegal expenditure.
The expenditure of the funds of Polk County by virtue of an unconstitutional statute is an illegal expenditure of those funds. Until the passage of Chapter 367 the Quarterly Court would have been derelict in its duty had it failed to institute proceedings for the purpose of having judicially declared void a statute which it knew to be unconstitutional and by virtue of which unconstitutional statute the funds of Polk County were being expended.
Often it cannot be known with certainty whether a particular statute is unconstitutional until the Court of last resort having jurisdiction has ruled upon it.
So, the law does not require the Quarterly Court, before instituting suit for the purpose of procuring a decree declaring a statute unconstitutional, to have absolute knowledge that the act is unconstitutional. Such a requirement would be absurd. The extent of the re*498quirement is that the Quarterly Court institute that suit in good faith. If it honestly believes a statute which is causing- an expenditure of the county’s money to he unconstitutional, it not only has the right but it is its duty to institute suit. It does not file that suit at its peril. In the case of Crockett County v. Waters, 170 Tenn. 337, 95 S. W. (2d) 305, 306, this Court speaking through Chief Justice Green said:
“The defendant's’ first contention is that complainants (Crockett County) have no right to bring this suit. We do not find merit in this. There was a bona fide controversy between the county, as represented by the quarterly county court, and the defendant officials as to the constitutionality and effect of chapter 26 of the Private Acts of 1933; the controversy was real; and the parties had a real interest in the determination of the question. ’ ’
Chapter 367, Private Acts of 1947, proposed to make very substantial changes in the governmental affairs of Polk County, and proposed the expenditure of necessarily large sums of its money in the administration of those affairs. If Chapter 367 had been unconstitutional, and if the Quarterly Court had known that, it would have failed in its duty, had it not instituted suit for the purpose of procuring a decree to that effect. Of course, the' members of the Quarterly Court of Polk County did not-' know that the act was unconstitutional; but they in good faith believed that it was. This being their belief, thfese justices speaking as a Quarterly Court not only had the-right, but it was their duty, to' ascertain by this suit' whether their belief honestly entertained was in fact the truth. If its attack had been successful its authority would not be questioned. To so question because the attack honestly believed was unsuccessful is to say that it *499acts in such instances at its peril. We do not understand this to be the law.
Chapter 367 transferred from the Quarterly County Court to a Board of County Commissioners all governmental affairs of Polk County, except those duties and rights conferred upon that court by the Constitution. This act if valid relieved the Quarterly Court of its power and duty to institute suits for the protection of the county to employ attorneys in connection therewith. This Court has held the act to be valid. Therefore, the petitioners say the Quarterly Court was without such authority. As previously noted, had it been held invalid, as the Quarterly Court thought it would be, the authority of. the Quarterly Court to institute this suit and employ these attorneys could not be questioned.
So, the solution of this question gets down to this: Until the passage of Chapter 367 it was the duty of the Quarterly Court to institute suit for the purpose of testing the validity of any statute affecting the affairs of Polk County which it in good faith thought to be unconstitutional. Chapter 367 did vitally affect the affairs of Polk County and this Quarterly Court thought in good' faith that the act was unconstitutional. It was, therefore, as much its duty to' institute this suit for the protection of Polk County as it would have been to institute suit to protect Polk County against the effect of any other act wheh it deemed to be unconstitutional. As the situation arose, its duty could not be completed until' the Court had determined whether its belief that the act was unconstitutional was correct. That being true, we are of the opinion that the Quarterly Court under the very peculiar facts of- this case did have the authority and was under the duty to institute this suit and to employ law*500yers to represent it in this matter, and make their reasonable fees a legal charge against the county.
We think the error into which- the petitioners have fallen is in failing to take note of the fact that this is a bona fide controversy between two sets of-county officials as to which is vested with the authority to do certain acts under the law.
In the case of County Board of Highway Comr’s v. Wilde, 179 Tenn. 141, 163 S. W. (2d) 329, 332, there was a disagreement between the highway commissioners of Madison County and the Quarterly Court as to which of these two boards had certain authority under a specified statute. The highway commissioners instituted suit against the county but were unsuccessful in their suit. So, the question was made as to whether Madison County should be charged with the costs of that suit. Chief Justice Ceeen writing the opinion for the Court said:
“Some question is made by the defendants as to the right of complainants to maintain this suit. In so far as the bill sought a declaratory judgment, we think it was properly brought. There was a bona fide controversy between two sets of county officials. . . .
“This being, a bona fide controversy between county officials as to their respective rights, we think the entire costs should be paid by Madison County.”
-The costs referred to were, as we understand the. opinion, court costs, but the principal is the same. In this case, there was a bona fide controversy between county officials as to their respective rights by reason of Chapter 367. Whether the three commissioners had the authority to manage the governmental affairs of Polk County and expend its funds depended upon whether Chapter 367 is valid. The Quarterly Court did *501not tMnk the act valid. If not valid, it was the duty of the Quarterly Court to prevent what would have then been an illegal expenditure. The duties imposed upon the Quarterly Court before the enactment of Chapter 367 could not be completed until it ascertained whether such enactment was valid, since it believed otherwise. The only way it could complete that duty was by instituting this suit. In so doing, it was necessary to employ these lawyers. The reasonable fee for their services is, therefore, a liability of Polk County.
Petitioners are mistaken in their conclusion that the Court is in error in thinking that Polk County is a complainant instead of a defendant. The Court understands and understood the situation. The Quarterly Court called itself Polk County and was given permission to intervene as a complainant. The three commissioners created by the act in question called themselves Polk County and as such a defendant. This anomalous situation was a part of the same contest between these two sets of officials, each set honestly thinking its position to be correct. The situation is quite similar to that which existed in Croclcett County v. Walters, supra.
In the opinion heretofore announced in this Case we held invalid so much of Chapter 671 of the Private Acts of 1947 as undertook to authorize the issuance of bonds for the purpose of erecting a courthouse at Duck-town because such provision arbitrarily suspended the general law forbidding the issuance of such bonds without a referendum except in instances “in which courthouses has been destroyed.” Code sec. 10248.
The petition to rehear states that as a matter of fact the courthouse at Ducktown was burned and the proceeds of these bonds are intended for the pur*502.pose of rebuilding it. We are requested either to take judicial knowledge of the fact just stated or remand this Case to the Chancery Court for the purpose of haying proof taken- to establish that fact. It is said that the matter is urgent.
Notwithstanding the fact that the Court would like to assist in any way it properly can in overcoming this unfortunate situation which apparently has been brought about by an inadvertance, we are unable to find any way out of the difficulty. The sole question which we can determine is the validity of the above mentioned provision as that provision appears in the statute. In order to make that provision valid it would be necessary for us to add to the statute a recital that these bonds were for a courthouse- that had been destroyed. We are not permitted to do that. No doubt it was left out of the statute by oversight. “Such an oversight is termed in law a ‘casus omissus’ In the case of Hickman v. Wright, 141 Tenn. 412, 418, 210 S. W. 447, 448, this Court held:
“A pure ‘casus omissus’ occuring in a statute can never be supplied or relieved against by the court under any rule or canon of. construction or interpretation.”
This holding of our Court is consistent with the general rule “that nothing may be read into a statute which is not within the manifest intention of the Legislature as gathered from the act itself”. 50 A. J. page 214, 215.
Uuder these authorities by which we are bound the question is foreclosed. The petitions to rehear are denied.
All concur.