81 P. 60 | Idaho | 1905
Lead Opinion
— This is an original application by the plaintiff, praying for the issuance of a writ of mandate. The plaintiff alleges that at the general election held in November, 1904, the defendant, Edwin Doust, was duly elected sheriff of the county of Kootenai, and thereafter qualified and entered upon the discharge of his duties as such sheriff. That thereafter the legislature passed an act abolishing the county of Kootenai and creating the counties of Lewis and Clark, and that by the provisions of the act, the governor was authorized and directed to appoint county officers for each of the new counties, and that in accordance therewith he appointed the plaintiff as sheriff of the county of Clark, and that plaintiff immediately entered upon the discharge of his duties as such sheriff and demanded of the defendant as the former sheriff of Kootenai county that he deliver over to-plaintiff the records, money, property and prisoners within his care and custody belonging to the county of Clark, and that the defendant refuses so to do. The defendant demurred to the petition and at the same time answered, and under both his demurrer and answer urges that the act abolishing Kootenai county, and creating the counties of Lewis and Clark is unconstitutional and void. The act in question was approved on the twenty-eighth day of February, 1905, and is entitled: “An act to abolish the county of Kootenai within
By section 1 of this act the county of Kootenai is abolished and from the identical territory formerly constituting and comprising that county, two counties are created, to be known as Lewis and Clark, respectively. To my mind the controlling, and in fact the only serious, question in this ease is the power of the legislature to abolish and destroy a county existing at the time of the adoption of the constitution. If ■í.Tiis question be resolved in favor of the exercise of such power, then, in my judgment, the act under consideration must stand. If such power does not exist, then the act is unconstitutional and void.
Article 18 of the constitution is entitled “County Organization. ’ ’ Section 1 of that article reads: ‘ ‘ The several counties
The only instance in which these provisions of the constitution have been directly under consideration by this court was in People v. George, 3 Idaho, 72, 26 Pac. 983. In that ease three separate opinions were filed by the justices of this court. Mr. Justice Huston, in his concurring opinion, held that the legislature was without the power or authority under the constitution to abolish 'a county. Mr. Justice Morgan, who filed the principal majority opinion, held that the act of the legislature creating and establishing the counties of Alta and Lincoln from the identical territory formerly constituting Alturas and Logan was a palpable evasion of the constitution by doing in an indirect manner that which the constitution forbids being done directly, and that the evasion consisted in the attempt to cut off a portion of one county and attach it to another county without submitting the question to a vote of the people affected thereby. Chief Justice Sullivan, dissenting from the views announced by the majority of the court, expressed the opinion that the legislature had plenary power in both the abolition and creation of counties. It is true that several cases have been before our court involving acts abolishing old and creating new counties, but in none of those cases has the question here involved been directly in issue or squarely passed upon by our court. In Doan v. Board of Commissioners, 3 Idaho, 38, 26 Pac. 167, it was
From the foregoing it is fair to say that in this state there is no expression which has the approval of a majority of the court, as constituted at the time, upon the identical question under consideration. The nearest approach, as above stated, was in the George case, and there we have one of the learned justices saying the legislature could not abolish a county, and the other saying that it could do so, and the third holding that that particular question was not material to the determination of the ease under consideration. In this state of opin
At the outset there are a few propositions which are conceded, and the statement of which will simplify the question and limit our research. Under the foregoing provisions of the constitution we find: 1. No county seat can be removed except upon a vote of the people and two-thirds of the qualified electors voting in favor of the removal; 2. No part of any county can be cut off and attached to another county without a majority of the people in the territory to be cut off voting in favor thereof; 3. No new county can be established which will reduce an old county to an area of less than four hundred square miles; i. No new county can be created which shall have an area of less than four hundred square miles; 5. The legislature may create new counties. The act under consideration, if it is valid legislation, abolished the county of Kootenai, destroyed all county government therein, and, of course, abolished the seat of county government. The same act and thé same section created two new counties out of the same territory and gave them two new names, viz., Lewis and Clark. The object to be attained was to have two counties where one formerly existed. There is no one questions in this case but that the legislature had the power to create the county of Lewis and establish the county seat thereof at Sandpoint, had they left the remainder of the territory organized as Kootenai county with the county seat at Rathdrum, as it had previously existed.
It is also admitted that had they not abolished Kootenai county and reorganized the county containing the old county seat, the legislature would have been powerless under the constitution (section 2, article 18) to establish the county seat at Coeur d’Alene for the same county in which the old county seat, Rathdrum, was located. Now, then, is it possible, by
We are cited to section 2, article 1, of the constitution, where it is recited that “no special privileges or immunities shall ever be granted that may not be altered, revoked or repealed by the legislature” as authority for the legislature abolishing a county. Now, it must be apparent at once that a county organization or county government is neither a special privilege nor special immunity. On the other hand, it is a fundamental governmental right recognized and adopted by the constitution (section 1, article 1), and rests with the people (section 2, article 1), and cannot be abrogated or alienated by legislative act. It is true the manner of organ
There is no middle ground on this proposition. The legislature either can or cannot abolish a county. If they can do so at all, they can do so unconditionally and without limitation, except as controlled by section 4, article 18. The, power vested in the legislature to create counties may be exercised or not, as they see fit — there exists no authority by which they can be compelled to exercise such power. If the power to abolish counties exists at all, it exists freed from all conditions and independent of the power to create counties. If these respective powers each exist they are absolute and independent of each other, and the legislature might abolish any one or all of the counties of the state without creating any county or counties to- take their place and thereby leave the people without any local or county government at all. The mere statement of this proposition refutes the assumption on which it rests. No such thing can be done.
The counties created and recognized by the constitution find thé authority for their existence in a higher power than the legislature — that authority comes directly from the people; from the same power that makes legislatures. A strange anomaly would exist anyway if we recognized the power of the legislature under our constitution to abolish counties. Senators and representatives are elected by counties; the people of a county may be entitled to a half dozen representatives and a senator, which they elect and send to the legislature to represent their county, not to destroy it, but as soon as they arrive they get a bill through, carrying an emergency clause, abolishing the county they represent; what, county will they represent thereafter? Can they legislate their county out of representation? Or can they by legislative dictum constitute themselves the representatives of the new counties? Or suppose they abolish their county and create none in its' stead, where will they be ? Who will they thereafter represent? These are questions which present themselves as soon as we enter this field of inquiry. And, indeed, they pass beyond the mere speculative and become actualities the moment it is admitted that the power to abolish counties exists at all.
Aside from the cases I have reviewed from our own court, I have been unable to find any decision passing upon similar constitutional provisions and a similar state of facts to those involved in the case at bar, except People v. Marshall, 12 Ill. 391, and James County v. Hamilton County, 89 Tenn. 237, 14 S. W. 601. These two cases pass upon very similar facts
I have considered this question somewhat at length, for the reason that as I view the matter our determination of this case may have a far-reaching effect upon the future organization of counties in this state. There is still enough territory in the state for the creation of one hundred and ninety new counties of the constitutional area. This question must necessarily agitate every succeeding legislature, and I believe the lawmakers and the people have a right to know the opinion of the court upon these various provisions of the constitution with reference to the creation of counties. A right determination of this question is of vast importance' to the people of the state and future legislation which may be had on this subject. It is always with great reluctance that the courts hold an act of the legislature void, but the constitution is neither the production of the legislature nor the courts, and is as mandatory upon the one as the other. It emanated directly from the people, and its mandates are supreme and must be obeyed by every branch of the state government. We must apply it as we find it, and not as it might have been. It follows from what has been said that I consider the act
Dissenting Opinion
Dissenting. — The authority of the legislature to. create two new counties out of the territory comprising one county is the constitutional question before this court for determination.
There was no attempt on the part of the legislature in the act under consideration to cover up or conceal the purpose of the. act. After weeks of patient work in the committees the act creating Lewis and Clark counties out of the territory then comprising Kootenai county was reported favorably, passed both Houses by a large majority vote and was promptly signed by the chief executive of the state. It is a matter of public history shown by the map of the state that Kootenai county is larger in square miles than some of the New England states. It is also shown by the records of the state that Kootenai county has the wealth, square miles and population out of which two counties may be created with more wealth, area and population than many of the counties of the state as they now exist. It is also true that Rathdrum, the county seat of Kootenai county, is located near the Western line of the county and very inconvenient to a large majority of the taxpayers of the county. It is also true that the county buildings and property at Rathdrum are not permanent or valuable, and that the loss to the taxpayers by reason of the removal of the county seat from Rathdrum or its location elsewhere would be trifling. All these questions were before the law-making power of the state and ably presented by learned counsel for both factions to the controversy. It is evident from the act passed that the legislature believed that the better interests of all the people of Kootenai county would be best served by the division of the county and location of the county seat of Lewis county at Sandpoint and that of Clark county at Coeur d’Alene City.
Taking np and discussing the questions in the order followed by my associates, we find first article 18 of the constitution referred to. Section 1 provides that the several counties as they now exist are recognized as legal subdivisions of the state. Section 2 provides that no county seat shall be removed unless upon petition of a majority of the qualified electors of the county voting on the proposition at a general election shall vote in favor of such removal. Section 3 provides that no county shall be divided and the portion cut off be attached to another county without first submitting the question to a vote of the people in the portion to be detached. By section 4 it is provided that no new county shall be established which shall reduce any county to an area of less than four hundred square miles. Nor shall any new county be formed which shall have less than four hundred square miles. Section 1 needs neither comment nor construction. It only disposes of the counties of the state or territory as they existed at the time of the adoption of the constitution. Section 2 has no bearing on the question before us, for the reason that the act does not attempt to' remove a county seat of one of the organized counties of the State to which the constitution refers unless “a petition of the majority of the qualified electors of the county voting on the proposition at a general election shall vote in favor of such removal. ’ ’
If the legislature had attempted to remove the county seat of Kootenai county to Sandpoint, Coeur d’Alene City, or any other town in that county, then section 2 above referred to would be directly applicable. The law does no violence to section 3, as there is nothing contained in any of the provisions of the enactment that in any way attempts to cut off any portion of Kootenai county and attach it to any other county of the state “without first submitting the question to a vote of the people in the portion to be detached.” Section 4 is not violated as there is no contention that each of the new counties created by the act have not within their boundaries all the requirements of the constitution. Nor is there any at
All this being true, the language of Mr. Justice Morgan in People v. George has no application to the facts in this case. A statement of the facts in People v. George will readily disclose the reasons for the language of Justice Morgan quoted in the majority opinion — it follows: “On the 3d of March, 1891, the legislature passed an act entitled, ‘An act to create a,nd organize the counties of Alta and Lincoln, to locate the county seats of said counties and to apportion the debt of Logan county.’ The first section establishes the county of Alta composed of the territory of Alturas county as it then existed and about half of the contiguous territory of Logan. Section 2 establishes the county of Lincoln from the residue of the territory theretofore belonging to Logan.” After this statement of the facts Mr. Justice Morgan says: “The question that must determine this case is, Can a portion of the territory of one county be cut off and attached to another without a vote of the people residing in the segregated portion consenting thereto in the manner adopted in this act?” Tie further says: “It is evident that the whole intent and object of the act was to cut this body of territory from the county of Logan and attach it to the county of Alturas. In fact, I understand the counsel did not deny that this was the sole object.”
Mr. Justice Huston, in his concurring opinion in the George case, says: ‘ ‘ The obvious intent, purpose and effect of the act in question was to cut off or segregate a portion of Logan county, and attach the same to Alturas county, not for the purpose of creating a new county in the sense that term is evidently used in section 3, but solely, entirely and exelu
When the constitution of Idaho was framed it was known that the legislature had exercised the power of changing the boundaries of counties- and creating new ones and that certain consequences resulted therefrom. The framers of the constitution saw fit to prohibit the legislature from striking off a part of one county and attaching it to a county then in existence, without submitting the question to a vote of the people residing in the part to be stricken off, but expressly provide that such inhibition shall not apply to the creation of new counties. From a careful reading of the act under consideration and the three opinions filed in People v. George it occurs to me that the author had carefully studied the three opinions and attempted to so draft the bill that it would be free from objections of at least one, if not both, of the majority opinions. I am thoroughly convinced that with the same state of facts before the court in People v. George, as we have before us in this record, if a dissenting opinion had been written it would have been by Mr. Justice Huston instead of Mr. Chief Justice Sullivan.
My associates attempt to explain Doan v. Board of Commissioners, 3 Idaho, 38, 26 Pac. 167, Wright v. Kelley, 4 Idaho, 624, 43 Pac. 565, Bellevue Water Co. v. Stockslager, 4 Idaho, 636, 43 Pac. 568, Blaine Co. v. Heard, 5 Idaho, 6, 45 Pac. 890, and People v. Alturas County, 6 Idaho, 418, 55 Pac. 1067, 44 L. R. A. 122, by saying none of them have passed directly upon the question before us. Be that as it may, the fact exists, that two counties that were upon the map of our state at the time of the adoption of our constitution have been abolished, destroyed, blotted from the map of the state, to wit, Alturas and Logan, and we have in their stead
The majority opinion says: “The purpose of creating and organizing counties is to obtain for the people local and county government.....The constitution was adopted for the establishment and in aid and furtherance of government and not for the disorganization and abolition of government. ’ ’ Certainly no one will dispute that proposition, but is it not true that the bill provided for the immediate organization of government for both of the counties created out of the territory of Kootenai? And is it-not also true that the governor in compliance with the provisions of the law appointed officers for both counties, who qualified and entered upon the discharge of their several duties? In James Co. v. Hamilton Co., 89 Tenn. 237, 14 S. W. 601, cited in the majority opinion, the legislature attempted to take all the territory of one county and parcel it out to the neighboring counties, thus entirely abolishing a county and leaving nothing in its place; instead 'of dividing James county and from a portion of its territory creating a new county and leaving the remaining territory in the name of James county or giving it a new name the entire territory was given to other counties- This the Tennessee court said could not be done, and I see no objection to the decision.
It is said in the majority'opinion: “Suppose some county should so far forget itself as to elect a set of officers distasteful to the powers that dictate political fortunes and the legislature should suddenly conclude that the county ought, as a matter of political expediency, to be abolished and a new county organized from the same territory, etc.” Of course not; the supposition is violent. Legislatures are not supposed to do vain, useless or vicious things. Their acts are entitled to full faith and credit in all things. They are
Section 2 of article 1 of our constitution says: “All political power is inherent in the people. Government is instituted for their equal protection and benefit and they have the right to alter, reform or abolish the same whenever they may deem it necessary,- and no special privilege or immunities shall ever be granted that may not be altered, revoked or repealed by the legislature. ’ ’ It occurs to me that the framers of the constitution intended to clothe the legislature with large discretionary powers in the future upbuilding of the state. What government may be altered, reformed or abolished by the legislature? Does it mean state government or does it mean state and county government? Alturas and Logan counties answered by the action of the legislature and afterward by the decisions of this court that it meant county government at least. I might prolong this discussion, but it seems unnecessary; the importance of the question to the people of the state in its future legislation warned me that I should not pass the question by without recording my views. It is well known to every resident of our great and growing state that we must soon meet the demands of the people for better accommodations in our large counties, some of which are empires in area and rapidly filling up with population sufficient for two or more counties. It seems that one of the great objections to the law is that it attempts to remove the county seat from Kathdrum without a vote of the people. There is no force in this position as I view it, but if so, why could not that part of the law have been declared unconstitutional and that part creating Lewis county with the county seat at Sand-point been permitted to stand.
I am entirely satisfied that none of the provisions of the act do violence to any of the provisions of the constitution and the petition should have been granted.
Rehearing
ON PETITION FOR REHEARING.
— This is an original proceeding brought in this court to test the constitutionality of a certain act of the
A petition for rehearing has been filed herein and coúnsel for the defendant have filed their objections to the consideration of said petition by this court, and state three reasons therefor. The first is that this cause is an original proceeding, and that the rules of this court do not contemplate or provide for a rehearing in an original proceeding. 2. That on the twenty-seventh day of March, 1905, this court entered its decision in the above-entitled case, and the alternative writ of mandate was quashed, and that the petition for a rehearing was not filed within twenty days thereafter as required by rule 22 of the rules of this court; and 3. That the questions raised in the petition for rehearing were all argued at length when the cause was heard, and no new question is suggested by the petition.
In support of the first contention, the plaintiffs cite the decision of this court in Washington County Abstract Co. v. Stewart, Judge, 9 Idaho, 376, 74 Pac. 955. In that case it was held by this court “that it was not the practice in this court to consider petitions for rehearing in original proceedings, but owing to the peculiar position taken in this ease, the court concluded to pass upon that application. ” In Hill v. Morgan, 9 Idaho, 718, 76 Pac. 323, a petition for a rehearing was filed, and in disposing of that petition it is said that the provisions of rule 22 of the rules of this court do not apply to cases of original jurisdiction in this court, for if they did a writ could not be issued until the time had expired for filing such petition, and thus the very purpose of the writ would often be defeated by such delay.
Under the second point above suggested, we would say that rule 22 of this court provides that all applications for rehearing shall be upon petition and shall be presented within twenty days after the judgment or order made by the court shall be placed on file, and it is contended that as the order was made in open court on March 27, 1905, the time for filing a petition for rehearing expired on April 17, 1905, and the petition
The fact is, counsel for the petitioner were informed by some of the members of this court that they could have twenty days after the opinion in this ease was filed in which to present their petition for rehearing, provided they desired to file one, and for that reason the second point made by defendant is not well taken.
The third point suggested is that all the questions suggested in the petition for rehearing were argued at length when the cause was first heard, and that no new question is suggested in the petition. That contention is correct and nothing new is suggested, except that one authority is cited that was not cited on the original hearing, which we will refer to hereafter. While it is true the rules of this court do not authorize a rehearing, or an application therefor in original proceedings in this court, yet, owing to the importance of this case, we have gone carefully through the petition and shall proceed to make a few observations on the questions suggested or raised by it.
Counsel in their petition first contend that that part of the act creating Lewis county is constitutional and may be segregated from that part of the act which abolishes Kootenai county and creates Clark county, and be permitted to stand; and contend that where a statute attempts to accomplish two or more objects and is void in one, it may still in every respect be complete and valid as to the other, and in support of that contention quotes from Cooley’s Constitutional Limitations, fifth edition, page 209, and seventh edition, page 246, as follows: “Where, therefore, a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in subject matter, depending upon each other, operating together for the same purpose, or otherwise so connected together in meaning that it cannot be presumed that the legislature would have passed the one without the other. The constitutional and unconstitutional provisions may even be contained in the same section and yet be perfectly distinct and separable so that the first may stand though the last fall. The point is not whether they are contained in the same section, for the distribution into
We recognize the principle there laid down by Judge Cooley as a correct rule of law. The author at page 247 further states, as follows: “The difficulty is in determining whether the good and bad parts of the statute are capable of being separated within the meaning of the rule.....And if they are mutually connected with and dependent on each other, as conditions, considerations, or compensations for each other, as to warrant the belief that the legislature intended them as a whole and if all could not be carried into effect, the legislature would not pass the residue independently, then if some parts are unconstitutional all the provisions which are thus dependent, conditional, or connected must fall with them.”
It was held in Allen v. City of Louisiana, 103 U. S. 80, 26 L. ed. 318, that “where unconstitutional provisions of an act are so connected with the general scope of the law as to make it impossible, if they are stricken out, to give effect to what appears to have been the intent of the legislature, the whole law is invalid.” And in Redell v. Moores, 63 Neb. 219, 93 Am. St. Rep. 431, 88 N. W. 243, 55 L. R. A. 740, that “where it is apparent that the unconstitutional part of an act was an inducement to the adoption of the remainder, the whole act must fail.”
When measured by the well-settled rule above stated, the question arises, Can that part of the act which creates Lewis county be permitted to standi We will here make a short analysis of the bill. The first section of said act abolishes the county of Kootenai and provides that the counties of Lewis and Clark shall be created out of the territory included within the boundary lines of said Kootenai county. Section 2 describes the boundaries of Lewis county. Section 3 describes the boundaries of Clark county. By section 4 the governor is authorized and directed,-within ten days after the act shall
From the various provisions of said act it is clear to me that all the provisions thereof in regard to the creation of Clark county, and the establishment of the county seat at
This act is so connected and so related in substance, as I view it, as to preclude the supposition that the legislature would have created Lewis county without having created Clark. The act is so drawn and the section so constructed and the provisions so interdependent as to clearly indicate that the legislature intended the act to operate as a whole, and that it would not have created Lewis county alone. That being true, the entire act must be held invalid.
If you would. cut out of this act all the provisions, except those applicable to Lewis county, the remaining part would be unintelligible — would, in part, at least, be a jumble of words without meaning, “sound without sense.” In considering this question, I think the unconstitutional part of said act was an inducement to the legislature for a passage of the other portions. It may be insisted that this question must be determined solely by an inspection of the act itself. "We concede that proposition with a slight qualification, however, which qualification is referred to in Sibley v. Smith, 2 Mich. 486, where the court said: “Courts are authorized to collect the intention of the legislature from the occasion and necessity of the law — from the mischief felt, and the objects and remedy in view.”
The supreme court of the United States in United States v. Union Pac. Ry. Co., 91 U. S, 72, 23 L. ed. 224, said: “Courts, in construing a statute, may, with propriety, recur to the history of the times when it was passed, and this is frequently necessary in order to ascertain the reason, as well as the meaning, of particular provisions in it.”
In Stout v. Grant County, 107 Ind. 343, 8 N. E. 222, it was held that the history of a country, its topography and general
It is part of the legislative history of this state that a bill was introduced in the legislature for the creation of Lewis county out of substantially the same portion of Kootenai county that the Lewis county referred to in this act contains, and that said bill failed to become a law, because of the opposition of members who afterward supported the present act. And the inducement in said act to such members was no doubt the creation of Clark county and the removal of the county seat from Iiathdrum to the city of Coeur d’Alene.
Those facts are matters of common knowledge. One of the chief inducements to the passage of said act was the abolishment of Kootenai county, and the creation of Clark county with the removal of the county seat. That feature of the bill was the main inducement for its passage.
The act under consideration was approved by the governor on the twenty-eighth day of February, 1905, and contained the emergency clause, and hence became a law, if ever, on that day. As the first section abolished Kootenai county, if the act is valid, the people of that county were without county government from the twenty-eighth day of February to the seventh day of March, 1905, when the officers appointed by the governor qualified. The said act did not provide that the officers of Kootenai county should continue in office until their successors were appointed and qualified, and if the act be held valid the people of that county were without county government for a number of days. The legislature cannot deprive the people of any county of such local or self-government as the several counties of the state are entitled to under the constitution. If they can deprive a people of local government for six days, they may do so for six months or six years. The
Article 18 of our constitution, which is in regard to county organization, requires the legislature to establish a system of county governments which shall be uniform throughout the state, and prohibits the legislature from depriving the people of any county of such government. In People v. Albertson, 55 N. Y. 50, the court held that this right of self-government lies at the foundations of our institutions.
Section 2, of article 18, of the constitution, is as follows: “No county seat shall be removed unless upon petition of a majority of the qualified electors of the county, and unless two-thirds of the qualified electors of the county, voting on the proposition at a general election, shall vote in favor of such removal. A proposition of removal of the county seat shall not be submitted in the same county more than once in six years, except as provided by existing laws. No person shall vote at any county seat election who has not resided in the county six months, and in the precinct ninety days.” By the provisions of that section, the legislature is prohibited from changing a county seat, and the people themselves are prohibited from changing it, except on a two-thirds vote of the qualified electors, and under those provisions the legislature will not be permitted to change a county seat under the guise or pretense of creating a new county. They will not be permitted to do thus indirectly what they are prohibited from doing directly. In this ease, under the pretense of creating a new county the legislature has removed a county seat. They attempted to abolish Kootenai county, and attempted to create a new county out of the northern part thereof, and in the same act changed the name of the southern part of Kootenai county, and changed the county seat from Rathdrum to Coeur d’Alene City.
Judge Cooley, in his work on Constitutional Limitations, seventh edition, page 244, says: “There is no difficulty in saying that any such act, which under pretense of exercising one power is usurping another, is opposed to the constitution and void.”
Knowing the bitterness and strife engendered in county seat fights the framers of the constitution provided stringent provisions in regard to the removal of county, seats, and prohibited such removal except on a two-thirds vote of the qualified electors and also prohibited the submission of such questions to the voters oftener than once in six years. Is it possible that the framers of the constitution intended to permit the legislature to change the county seats of every county in the state at each session of the legislature thereof, by simply giving the county a new name and changing the county seat under the guise and pretense of creating a new county? I think not.
Counsel for the petitioner in' their original arguments in this case contend that under the provisions of the constitution, the legislature could abolish a county and create a new one out of identically the same territory and change the county seat. If that contention be true, the county seat of every county in the state could be changed as often as the legislature held a session. That certainly would leave the location of the county seat- of the several counties of the state to the “mutation whims” of the legislature, while by the terms of the constitution the people themselves are prohibited from removing their county seat oftener than once in six years. I am not in accord with that contention, and,» in my view of the matter, the creation of a “new county” as.contemplated by
In People v. George, supra, in a dissenting opinion, I held that the legislature had a right to abolish a county in the creation of new counties, but upon a further investigation of this question, I am not satisfied that my views in that opinion on that point were correct. However, that ease was not decided upon that point.
In addition to the cases cited on the original hearing, counsel for petitioner cited Frost v. Pfeiffer, 26 Colo. 338, 58 Pac. 157. That involved the constitutionality of an act of the general assembly of Colorado, creating the county of Teller out of portions of the counties of El Paso and Fremont. By that act no county was abolished and no county seat removed. The act, after creating Teller county, left the counties of El Paso and Fremont simply with reduced areas. We are unable to see wherein the decision in that case has any application whatever to the questions under consideration in the case at bar. I therefore hold that if this court had the authority under the law or its rules to grant a rehearing in a case originally brought in this court, the showing made by the petition for a rehearing in this case is not sufficient to warrant a rehearing. A rehearing is denied.
