55 P. 1067 | Idaho | 1899
— This action, in the nature of quo warranto, was commenced in the name of the state ex rel. attorney general, to recover judgment excluding the defendant, Blaine county, from exercising the rights, privileges, and powers of municipal government within the boundaries fixed by the act creating the county. The two questions raised by the record are these: Was the act of March 5, 1895, creating Pdaine county, prohibited by the provisions of article 18 of the constitution? Was said act passed in the manner prescribed by the provisions of article 3 of the constitution?
The first of these questions was answered by this court in the decision in the case of Blaine Co. v. Heard, August 4, 1896, reported in 5 Idaho, 6, 45 Pac. 890, where the court, speaking through its present chief justice, said: “Notwithstanding this case, in all its salient points, has been heretofore presented and considered by us, in view of its importance we have again gone carefully over the ease as presented in the briefs and arguments of the counsel, and are convinced that the contention of the appellant cannot be sustained, and that the acts of the legislative assembly of Idaho (Sess. Laws 1895, pp. 32, 170) establishing the counties of Blaine and Lincoln are valid and constitutional laws.” It will thus be seen that more than two
But it is argued that the manner of the passage of said act was not considered by the court in Blaine Co. v. Heard, supra, and that that question is now open, and should be determined in this case. If the regularity of the passage of that act had been attacked in the case of Blaine Co. v. Heard, the decision would have been upon the same lines as the decision in Cohn v. Kingsley, 5 Idaho, 416, 49 Pac. 985. But that question was not raised in the Heard case, or in any other case that has come before this court. We feel that it is our duty, under the circumstances of this case, taking into consideration the nature of the act in question, the long-continued, acquiescence in and recognition of the validity of said act, both by the state and by the people residing in the defendant county, to hold that the state is now estopped from questioning the regularity of the passage of the act in question. The legislature has recognized the validity of the act in question in at least four different bills which have been introduced and apparently enacted into law since its passage. At the regular elections in 1896 and 1898, men have been elected by the people of Blaine county to represent "Blaine county” in both houses of our state legislature, and the senators and representatives so elected have been received and recognized in the legislature as legal representatives of Blaine county. In fact, Blaine county, through its senators and representatives, has participated in conducting and carrying on the state government itself, and has'been permitted to do so by the state government, through its different
It is unnecessary to cite further authority or adduce further argument showing why the state should be now held estopped from questioning, the legal existence of Blaine county. We do not desire to be regarded as announcing the rule that a legislative act which is void at the time of its passage, because not passed in the manner required by the constitution, can ripen into a valid act by the mere lapse of time. The conclusion in this case is based upon a rule of estoppel, demanded in this case by public policy. The act in question is different from an ordinary act of legislation, and should not be held subject to the same rules, under the conditions surrounding this case. The judgment of the district court is reversed, and the cause remanded, with instructions to sustain the defendants’ de