Garfield v. Brayton

33 Iowa 16 | Iowa | 1871

Day, Ch. J.

It is conceded that Crocker county has less than four hundred and thirty-two square miles of territory, and that the question of its constitutionality is involved in and properly presented by the record. Waiving, therefore, any consideration of the manner in which the subject comes before us, we proceed to the determination of -the question, an early settlement of which is probably important to those interested in it. In 1851, the territory in question was constituted a county called “Bancroft,” and the territory immediately south of it, including sixteen townships, was created into a county called “ Kossuth.” At the same time “ Humbolt” county was created, south of Kossuth, comprising sixteen townships. Ch. 9, Laws 1851, §§ 28, 37 and 16. These counties remained unorganized. East of Bancroft were Winnebago and Worth counties, and west of it were Emmett, Dickinson, Osceola and Buncombe, now Lyon. In 1855, the counties of Kossuth, Bancroft, and the north half of Humbolt county, were united into one county called Kossuth, and the remainder of Humbolt county was attached to Webster. Ch. 141, Acts 1855. The territory continued unorganized, and for election, judicial and revenue purposes was attached to Webster county. Acts 1855, ch. 112. Chapter 117 of the Acts of 1857, recreated and organized the county of Humbolt, out of townships 91, 92 and 93 of ranges 27, 28, 29 and 30, leaving north of it Kossuth county, extending to the northern boundary of the State, and comprising six full and one fractional townships from north to south, and four full townships from east to west. While matters stood thus, the constitution of 1857 took effect. Section 2 of article 11 thereof is as follows : “No new county shall be hereafter created containing less than four hundred and thirty-two square miles; nor shall the territory of any organized county be reduced below that area; except the county of Worth, and the counties west of it, along the northern boundary of this State, may be organized without additional territory.” The meaning of this provision is thus explained by a member of the committee who reported the clause to the constitutional convention : “ The section, as it now stands, is the section in the old constitution upon this subject, with the addition of the proviso, which is rendered necessary from the fact that, upon a late survey of the boundary of this State upon the Minnesota line, it was found that the county of Worth and the counties west of it contain less territory than is required to make them constitutional counties. Hence the reason for offering this proviso, so that these counties might be organized with their present territory.” Constitutional Debates, vol. 2, p. 798.

This provision of the constitution is susceptible of but one construction. The unorganized county of Worth, and the unorganized counties west of it, containing less than four hundred and thirty-twó. square miles, may be organized-without additional territory, but no new county shall . be created containing less than four hundred and thirty-two square miles. Crocker county is a new county, created by chapter 192 of the laws of the thirteenth General Assembly, and confessedly contains less than four hundred and thirty-two square miles. It seems impossible to avoid the conclusion that its creation is an infraction of the provisions of the constitution. Indeed, the proposition, like a primary truth in physics or an axiom in mathematics, seems so self-evident as not to be susceptible of proof. It is claimed by appellee that the constitution had no reference to the legislation forming this territory into unorganized counties, and that_ the words, “without additional territory,” mean without more territory than Worth county had, and not without territory additional to the territory they then had. If this was the idea intended to be conveyed by the convention, it has been most unhappy in the selection of words with which to express its meaning. Certainly, this construction can be adopted only by wresting words from their ordinary meaning, for the purpose of mitigating a supposed hardship, or of effectuating a supposed intention. Additional territory means added territory. The county of Worth and the counties west of it may be organized without added territory. It will not do to say that the counties west of Worth may be organized without territory added to Worth. This would be unmeaning.

And, when we say that the counties west of Worth may be organized without more -térritory than Worth county has, we ignore the language of the constitution, and substitute therefor that of different import. We have no authority to do this. We cannot adopt the construction contended for. It is further claimed ■ that the convention had in mind the old county of Bancroft as still existing in its territorial extent, and made provision for its organization with its original limits and area corresponding to those of the county of Worth. This may be so, but there is nothing in the instrument adopted by the convention to lead to this opinion.

The business of the advocate is to adojit a conclusion, and then sustain it by the best reasons possible; that of a court is to pursue arguments to their legitimate results. And where reason leads it is the duty of a court, however unwillingly, to follow. We have approached this case with a strong desire to sustain the constitutionality of this county, and have reluctantly yielded to the necessity of doing otherwise. In the eloquent language of appellee’s counsel, we hoped “ that Crocker county might endure as long as the name of brave men should be dear to the hearts of the people of Iowa.” But law is inexorable, and, to its stern behests, sentiment must yield.

Reversed.