People ex rel. Lincoln County v. George

26 P. 983 | Idaho | 1891

Lead Opinion

MORGAN, J.

On the 3d of March, 1891, the legislature passed an act entitled “An act to create and organize the eounties 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. Section 3 makes Hailey, then the county seat of Alturas county, the county seat of Alta county. Section 4 makes Shoshone the county seat of Lincoln county. Section 5 authorizes the governor to appoint the county officers of the two counties thus established. Section 6 provides that all the county records, books, money, office furniture and fixtures, and all other personal property belonging to Logan county, and all real estate situate in the county of Lincoln, thus organized, before belonging to Logan county, shall become the property of Lincoln county, and that the commissioners of Lincoln county shall, within thirty days, cause all records, books, funds, and other personal property of said Logan county to be transferred to Shoshone. Section 7 provides that all public buildings, records, books, furniture, money, real estate and personal property theretofore belonging to Alturas county shall become the property of Alta county. Section 9 provides that all the indebtedness of Logan county shall be assumed and paid by Lincoln county, and that all the indebtedness of Alturas county shall be assumed and paid by Alta county. Under and by virtue of this act the commissioners of Lincoln county demanded the said books, records and personal property then in the custody of Wesley B. George, the duly elected and qualified clerk of the district court, and ex-ojjicio auditor and recorder of Logan county, which being refused, the county of Lincoln, on the seventeenth day of April, 1891, filed its petition in this court for a writ of mandate to compel said George to deliver said property to. Lincoln county. On the same day the said George filed his demurrer to said petition, and alleges that it does not state facts sufficient to constitute a cause of action. The issue thus formed raises the question as to the constitutionality of the act of March 3, 1891.

Considerable of the argument of the cause related to the question as to whether the counties, as recognized by the constitution in section 1, article 18, as they then existed, could be abolished by act of the legislature. In the view I take of the cause it is not necessary to determine this question. It will also be apparent that it is not necessary to decide the question as to whether defendant George, being duly elected in pursuance of the provisions of the constitution, is such a constitutional officer that he cannot be deprived of his office by an act of the legislature. 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? The first paragraph of section 3 of article 18 of the constitution is as follows: “No county shall be divided unless a majority of the qualified electors of the territory proposed to be cut off, voting on the proposition at a general election, shall vote in favor of such division; provided, that this section shall not apply to the creation of new counties.” What is the evident intent of the act under consideration? What was the object to be effected? What is the result accomplished? The object was not, certainly, to change the names of the two counties. If that had been desired it could have been effected by a direct act for that purpose, as the constitution does not forbid it, and the act says nothing about changing the names of the counties of Logan and Alturas. It could not have been desired to abolish the counties of Alturas and Logan. Nothing is said in the act about abolishing the counties, and they do not seem to be abolished. The same territory that before the passage of the act constituted the counties of Alturas and Logan, under this act constitutes the counties of Alta and Lincoln. No new territory is added to them; none is taken away; but the larger half of the county of Logan is cut off, and attached to the county of Alturas, and the names of the two counties changed. There were two counties before; there are but two now. 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. But the constitution says this cannot be done except by a vote of the people. The legislature cannot do indirectly what it cannot do directly. (People v. Marshall, 12 Ill. 391; Craig v. State, 4 Pet. 410.) Says the court in the case first above mentioned: “No means can be constitutional which effect an unconstitutional object. While we would not extend the prohibitions of the constitution so as to embrace measures and objects not manifestly and clearly within the design of its framers, yet, where that is undeniably the ease, then by no means whatever should it be allowed to be evaded.” (See, also, Rock Island Co. v. Sage, 88 Ill. 589; Gotcher v. Burrows, 9 Humph. 589.) It is the duty of the court to give both the statute and the constitution such construction as will give effect to both, unless the statute is se clearly repugnant to the constitution as to admit of no other reasonable construction. (Doan v. Board, ante, p. 38, 26 Pac. 167, and cases there cited.) Suppose the court should hold that this provision of the constitution could be evaded in the manner adopted by this act, then successive legislatures could go on and sever a portion of the territory of one county and attach it to another in every part of the state, and continue the work indefinitely, without the vote of the people in any case. It will be seen that it would render this provision of the constitution of no effect whatever, as the legislature and the court would have clearly pointed out a method by which it might be evaded. I think the creation of a new county under the proviso in this section must be held to be the creation of an additional county, which the legislature may do out of any territory it may see fit, and without a vote of the people. The constitution is the fundamental law of the state; must control all branches of the government. No evasion, however specious, can be permitted. No amount of circumlocution can divide a county, and attach the part cut off to another, without compliance with section 3, by submitting the proposition to a vote of the people. We are not permitted to consider the apparent necessity of the case, nor the injustice under which any county may be laboring. Wrongs, if they exist, can only be righted by constitutional means. We can only say thus it is written in the constitution. To cut off a portion of any county, and attach the part thus detached to another county, without a vote of the people in the segregated part, would be in direct violation of the clause referred to, and therefore void. The importance of the cause and the ability of the counsel engaged has induced us to examine the cases cited with more than ordinary care, but we have not been able to arrive at a different conclusion. The writ of mandate is denied, with judgment for costs against the relator, and execution may issue therefor.

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Concurrence Opinion

HUSTON, J.,

Concurring. — I approach the consideration of this case with a full recognition of the fact that, when called upon to pass upon the validity of an act of a co-ordinate branch of the government, courts have a delicate duty to perform, but it is a duty the obligation of which must not be evaded or shrunk from. I recognize further the potency of the rule which requires that, before pronouncing an act of the legislature invalid, the court should be fully satisfied that such act is clearly repugnant to some provision of the organic law of the state. In this view let us consider the questions involved in this case. Section 1, article 18, title “County Organization,” of the constitution of Idaho, reads as follows: “The several counties of the territory of Idaho, as they now exist, are hereby recognized as legal subdivisions of this state.” Section 2 of said article 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.” Section 3 of said article 18 is as follows: “No county shall be divided unless a majority of the qualified electors of the territory proposed to be cut off, voting on the proposition at a general election, shall vote in favor of such division; provided, that this section shall not apply to the creation of new counties. No person shall vote at such election who has not been ninety days a resident of the territory proposed to be annexed. When any part of a county is stricken off and attached to another county, the part stricken off shall be held to pay its relative proportion of all existing liabilities of the county from which it is taken.” Section 4 of the same article reads: “No county shall be established which shall reduce any county to an area of less than four hundred square miles, nor shall a new county be formed containing an area of less than four hundred square miles.” On the third day of March, 1891, the legislature of the state of Idaho enacted a law entitled “An act to create and. organize the counties of Alta and Lincoln, and to locate the county seats of said counties, and to apportion the debt of Logan county.” The sole purpose and effect of this act was to segregate or strike off from Logan county nearly one-half its territorial area, and attach the part so stricken off to Alturas county, and to change the name of Alturas to Alta, and that of Logan to Lincoln. The provision for the apportionment of the debt of Logan county was a necessary sequence. Was this act, so passed, repugnant to the provisions of the constitution of the state above quoted, or to any of them? We must take this constitution as we find it, as it is presented to us by its makers — the people. It is not within the purview of our authority or the limits of our jurisdiction to bate, or set aside, or treat as naught, any jot or tittle thereof, and “no accepted canon of construction can justify us in adding to the constitution qualifying words of our own, suggested only by outside considerations, which may or may not have been of weight with the convention in framing, or the people in adopting, that instrument.” (Cooley’s Constitutional Limitations.) Provisions similar to those above cited from the constitution of Idaho are found in many of the constitutions of other states, and there has been no more disturbing element in the legislation and litigation in many of the states than that which arises from the organization of counties, and the location and changing of county seats, and the changing of county boundaries. The elements of greed and self-interest enter so largely into the consideration and discussion t of .these questions' that men have been prone, as shown in the history of several' of the western states, not only to override constitutional provisions, but to set aside all legal restraints, and resort to brute-force, to carry out their purposes in this direction.' Idaho, while a territory, had some experience in this sort of legislation, of which, doubtless, the framers of our constitution were not unmindful; hence we find in our constitution a provision unknown to that of the older states, and which can only be found in the constitutions of nine states of the Union, to wit, Missouri, California, Colorado, North Dakota, South Dakota, Washington, Montana, Texas, and Idaho, to wit, section 1 of article 18. The first appearance of this provision we find in the constitution of Missouri adopted in 1875. We are not at liberty to ignore or treat as meaningless this provision of the constitution more than we could any other. Its incorporation into the organic law by the makers thereof was for a purpose. Doubtless they mean what the language of the section plainly expresses — that the existing county organizations should remain as such, subject only to such change as was permitted by the constitution. A careful examination of the authorities will fail to show a single case in which the right of the legislature to abolish a county has been recognized in any state whose constitution contained a provision like that of section 1 of article 18 of the Idaho constitution. The judges of the supreme court of the state of Missouri (55 Mo. 295) did hold that “counties are subdivisions of the state for governmental purposes, and there can be no doubt about the constitutional power of the general assembly to create, alter, abolish and regulate them as expediency may demand, so that no vested rights are interfered with.” This opinion was rendered in 1873, and it is significant that in the constitution adopted by the people of Missouri in 1875, the following provision appears for the first time in the organic law of that state: Section 1, article 9: “The several counties of this state, as they exist, are hereby recognized as legal subdivisions of the state.” I have been unable to find a single case in any of the states, whose constitutions contain this provision, where the legislative right to abolish a county has been upheld by the courts. The contention of the plaintiff would make this provision of our constitution a mere “oyez” clause, having no purpose or intention, save to give utterance to a self-evident fact. I dare not so mock the wisdom of the makers of our constitution. It may be conceded as elementary that the legislature has entire control of the questions of county organizations and county boundaries* except where limited by the inhibitions of the constitution; but the plaintiff contends that there are no inhibitions upon the power and authority of the legislature in this matter contained in the constitution; that the first clause in section 3 of article 18: “No county shall be divided unless a majority of the qualified electors of the territory proposed to be cut off, voting on the proposition at a general election, shall vote in favor of such division” — is rendered null and void by the proviso “that this section shall not apply to the creation of new counties.” Without doubt this section is unhappily constructed. Strictly read, the proviso would apply to the whole of section 3, and yet the legislature did not so construe it, for they made provision in the act under consideration for the apportionment of the debt of Logan county, as required by the closing paragraph of section 3: Surely it would require most cogent reasoning to induce any court to arbitrarily set aside a provision of the constitution so plainly and unequivocally expressed, and wthich is palpably intended to reserve to the people so valuable and important a right as that of having a voice in the decision of a question in which they are the parties most interested. I cannot believe that it was the purpose of the makers of our constitution to thus “palter in a double sense” with the people whom they were representing, to so “keep the word of promise to their ears, and break it to their hopes.” The constitution distinctly proclaims that “no county shall be divided unless a majority of the qualified electors of the territory proposed to be cut off, voting on the proposition at a general election, shall vote in favor of such division.” There is nothing equivocal, nothing ambiguous, in this language. The limitation upon the legislative power is direct, palpable and imperative. 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 exclusively for the purpose of enlarging the area of Alturas county. That this was the sole purpose of the act is so plain “that he who runs may read.” The changing of names of the two counties from Alturas to Alta, and from Logan to Lincoln, was but a weak invention, of no more operative force than Fauleonbridge’s boast: “And if his name be George I’ll call him Peter.” The makers of the constitution recognized the doctrine that even local governments, “long established, should not be changed for light and transient causes,” or be left entirely to the caprice of legislative bodies, to the exclusion of the rights, interests, and wishes of the people who are most interested therein. But we are told that this view does away entirely with the powers of the legislature, clearly allowed by the constitution, to form new counties. A mere glance at the map of Idaho will furnish a complete answer to this objection. A very wilderness of new counties can be formed out of the area of this state without the slightest impingement of any of the provisions of the constitution. But if the contention of the plaintiff is to obtain, the whole internal structure of the state, both territorial and political, will be left to the mutatious whims of each succeeding legislative assembly, and the protective provisions of the fundamental law will stand, “like counters in a barber’s shop, as much for mock as mark”; and gerrymandering will assume the position of an exact science.

No better rule, it seems to me, can be found for the guidance of courts in the decision of these cases than that expressed by Chief Justice Bronson in Oakley v. Aspinwall, 3 N. Y. 547. Says that learned jurist in his opinion in that ease: “It is highly probable that inconveniences will result from following the constitution as it is written. But that consideration can have no force with me. It is not for us,-but those who made the instrument, to supply its defects. If the legislature or the courts may take that office upon themselves, or if, under color of construction, or upon any other specious ground, they may depart from that which is plainly declared, the people may well despair of ever being able to set any boundary to the powers of the government. "Written constitutions will be more than useless. Believing, as I do, that the success of free institutions depends upon a rigid adherence to the fundamental law, I have never yielded to considerations of expediency in expounding it. There is always some plausible reason for latitudinarian constructions which are resorted to for the purpose of acquiring power; some evil to be avoided, or some good to be attained by pushing the powers of the government beyond their legitimate boundary. It is by yielding to such influence that constitutions are gradually-undermined, and finally overthrown. My rule has ever been to follow the fundamental law as it is written, regardless of consequences. If the law does not work well, the people can amend it; and inconveniences can be borne long enough to await that process. But if the legislature or the courts undertake to cure defects by forced and unnatural constructions, they inflict a wound upon the constitution which nothing can heal. One step taken by the legislature or the judiciary in enlarging the powers of the government opens the door for another, which will be sure to follow; and so the process goes on until all respect for the fundamental law is lost, and the powers of the government are just what those in authority please to call them.” Says Judge Cooley, in his work on Constitutional Limitations, fifth edition, page 86, note; “We agree with the supreme court of Indiana (Greencastle Tp. v. Black, 5 Ind. 557, 565), that in construing constitutions courts have nothing to do with the argument áb inconveniente and should not bend the constitution to suit the law of the hour.” What was intended to be done, what was done, by the passage of the act under consideration? Was any new county formed? The proposition is absurd; the position is untenable. The simply enlarging the area of one county by appropriating a portion of an adjoining county cannot, it seems to me, be seriously claimed to be the organization of a new county, even if the ceremony of rechristening of both counties is resorted to. It is suggestive of the view which the legislature had of the meaning of the provisions of section 3, article 18, of the constitution, that at the same session at which the act under consideration was passed the same body enacted a law dividing the county of Ada, and erecting from the part segregated an entirely new county to be called “Canyon county,” and submitting the adoption thereof to a vote of the people of the segregated territory. What rights have the people of Ada county, under the constitution, which are not shared equally by the people of Logan county? Is the constitution to receive one construction in behalf of the people of one county, and an entirely different interpretation when the rights and interests of the people of another county are involved? Is not this, in the language of the supreme court of Indiana, above cited, 'Tending the constitution to suit the law of the hour”? The proposition of counsel that the provisions of the constitution are only applicable when in the judgment of the legislature*it is expedient to make them so, is something more than startling, it is “monstrous and heretical.” We can find no authority in support of such a view. There would be little use for written constitutions if such a rule could obtain. Constitutional provisions cannot be regarded as directory merely, to be obeyed or not, within the discretion of either or all of the departments of government. (Hunt v. State, 22 Tex. App. 396, 3 S. W. 233.) A strained construction or astute interpretation is not to be given to relieve against local or individual hardships. (Law v. People, 87 Ill. 385.) While it is true that the constitutions of very many of the states contain clauses similar to section 4, article 18 of the Idaho constitution, it is equally true that only in the constitutions of the nine states above mentioned will a provision similar to that of section 1 of article 18 of the Idaho constitution be found; and I have been unable to find a single case in any of those nine states where the authority of the legislature to abolish existing counties has been sustained.

The case of State v. Larrabee, 1 Wis. 200, is not in point. Section 7, article 13, of the constitution of Wisconsin, provided that “no county with an area of nine hundred square miles or less shall be divided, or have any part stricken therefrom, without submitting the question to a vote of the people of the county, nor unless a majority of all the legal voters of the county voting on the question shall vote for the same.” Washington county contained less than nine hundred square miles exclusive of that part of Lake Michigan within its boundaries. It was claimed that so much of Washington county as was covered by Lake Michigan should not be included in estimating its area; and that therefore the act of the legislature segregating a portion of said county, and erecting the county Ozaukee from the territory so taken off, was in violation of said section 7, article 13, of the constitution. The court held that in estimating the area of Washington county the portion covered by Lake Michigan should be included, and this took it out of the provisions of said section 7, article 13. The other question decided by the court in that case, touching the effect of the segregation and organization of the new county upon the county seat, has no applicability here. The case of Attorney General v. Fitzpatrick, 2 Wis. 542, is only another phase of the same quesetion, arising under the same act, and upon the same facts. The other authorities cited by counsel for plaintiff in support of the proposition that the legislature is supreme in the matter of creating or abolishing counties, being all decisions from states whose constitutions have no provision in similitude with section 1, article 18, of our constitution, cannot be considered of weight herein. It seems to me that the language of Judge Catón in People v. Marshall, 12 Ill. 396, is peculiarly applicable to this case. Says that learned judge, in the closing part of his opinion: "There is, no doubt, a certain degree of plausibility in the course of argument by which this law is attempted to be sustained. It is truly said that the constitution is a restraint upon legislative powers, and there is no doubt that this law might be passed unless prohibited by the constitution.' From this it is argued that, as there is no express prohibition to abolish counties, it is within the power of the legislature to do so, and from necessity there must be authority to organize the disorganized territory. But the reasoning is more specious than sound. As we have before seen, it leads inevitably to the overthrow of the paramount law of the state. No means can be constitutional which effect an unconstitutional object. While we would not extend the prohibitions of the constitution, so as to embrace measures and objects not manifestly and clearly within the design of its framers, yet where that is undeniably the case, then by no means whatever should it be allowed to be evaded.” Suppose the legislature of Idaho, in their wisdom, had, in the language of counsel, decided that it was to the advantage of the people inhabiting that portion of the state of Idaho now known and designated as Ada county, to have that county abolished, and the territory of which it is composed-attached to Washington county, and should enact a law to that effect, without submitting the question to a vote of the people to be affected thereby, can it be seriously contended that such an act would be constitutional? Or suppose a legislature of Idaho, not actuated or prompted thereto by wisdom, or any principal of righteousness or justice, but “moved and instigated by the devil,” as it is said the legislatures of other states sometimes are, should “decide it is to the advantage” of the people inhabiting that portion of Ada county lying north of Main street in Boise city, that such territory should be attached to Boise county, and should pass an act to that effect, without submitting it to a vote of the people to be directly affected thereby, will it be claimed for a moment that such a law could be sustained as constitutional ? And yet all these consequences are involved in the acceptance of the contention of the plaintiff. Say the supreme court of Tennessee in James Co. v. Hamilton Co., 89 Tenn. 237, 14 S. W. 601: “A county is a government within a government, and its voters must be consulted in all matters pertaining to it. It is not created, nor can it be destroyed, by an arbitrary legislative breath. The county was made at the instance of the people and for its people, and can be changed or abolished only, when at all, by their consent. If the legislature may dissolve one county and divide it out among its neighbors, it may abolish all, and destroy the state”; and it must be remembered that the state constitution of Tennessee contains no such provisions as section 1, article 18 of the Idaho constitution. It is evident to my mind that section 3, article 18 of the constitution does not, as it stands, clearly express the intention of the makers of that instrument. A careful analysis of the section will, I think, make this apparent. It seems to me that the proviso is misplaced in that section. Evidently it was the intention of the makers of the constitution that so much of section 3 as required a submission to the people of any proposition for the dividing of any county should not apply to the creation of a new county, and no further. My own view, therefore, is that, to express the evident intention and meaning of the makers of the constitution, section 3, article 18, should be construed to read: “No county shall be divided unless a majority of the qualified electors of the territory proposed to be cut off, voting on the proposition at a general election, shall vote in favor of such division. No person shall vote at such election who has not been ninety days a resident of the territory proposed to be annexed, provided, that this section shall not apply to the creation of new counties. When any part of a county is stricken off and attached to another county the part stricken off shall be held to pay its relative proportion of all existing liabilities of the county from which it is taken.” I do not think it was the intention of the makers of the constitution that the proviso in section 3 should apply to the last clause of said section. There is no reason grounded in any principle of equity or justice which would make the people of a segregated portion of a county responsible for a pro rata portion of the existing liabilities of the old county in case of a division of the county, and not in a case where the same territory was segregated for the purpose of forming or creating a new county. I am unhesitatingly of the opinion that the act of the legislature of March 3, 1891, segregating a portion of Logan county therefrom, and annexing the territory so segregated to Alturas county, was not the creation of a new county in any sense, and that said act is void, as contravening the provisions of section 3, article 18 of the constitution of Idaho; that the provisions of said act abolishing the counties of Alturas and Logan are void as contravening section 1, article 18 of said constitution; and that the writ of mandate should be denied.

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Dissenting Opinion

SULLIVAN, C. J.,

Dissenting. — I am unable to concur in the opinion of the majority of the court. The question involved in this cause is whether a certain act of the legislature entitled: “An act to create and organize the counties of Alta and Lincoln, to locate the county seats and to apportion the debt of Logan county,” is in conflict with the constitution. “A state constitution is an instrument of restriction and Limitation upon powers already plenary, so far as it affects the powers of the government and the objects of legislation.” (State v. Lancaster Co., 4 Neb. 537, 19 Am Rep. 641; People v. Draper, 15 N. Y. 545; People v. Flagg, 46 N. Y. 401.) It is a well-established principle that the law-making power of the legislature is supreme, subject only to the limitations imposed by the constitution. In other words, that which the constitution prohibits from being done determines the power of the legislature under it. (McMillen v. Lee Co., 6 Iowa, 391; People v. Blodgett, 13 Mich. 127.) It is also a well-established rule that an express power to make laws is not necessary to enable the legislature to make them. The court is called upon, in this ease, to declare a solemn legislative enactment unconstitutional and void. Judge Cooley, in his work on Constitutional Limitations, page 192, says: “The power to declare a legislative enactment void is one which the judge, conscious of the fallibility of human judgment, will shrink from exercising in any case where he can conscientiously and with due regard to duty and official oath decline the responsibility.” Courts have not the power to declare acts of the legislature void simply because, in the opinion of the court, such acts are repugnant to natural justice and expediency. Mr. Cooley says on this point (Cooley’s Constitutional Limitations, 201, 202): “The rule of law upon this subject appears to be that, except when the constitution imposes limits upon the legislative power, it must be considered as practically absolute, whether it operates according to natural justice or not, in any particular case. The courts are not the guardians of the rights of the people of the state, except as those rights are secured by some constitutional provision which comes within the judicial cognizance.....It cannot run a race of opinions upon points of right, reason, and expediency with the law-making power.” Effect should be given to this act, unless it is clearly repugnant to the constitution. The rule of decision is, where the constitutionality of a statute is questioned, if there is any doubt, such doubt must be resolved in favor of the statute. “To doubt is to sustain the act.” (Sedgwick on Statutory and Constitutional Law, 409; Copley’s Constitutional Limitations, 88, 192, 222, 230; Winch v. Tobin, 107 Ill. 212; Wulff v. Aldrich, 124 Ill. 592, 16 N. E. 886; Sharpless v. Mayor etc., 21 Pa. St. 164, 59 Am. Dec. 759, and note.) “It must be clearly, plainly and palpably in violation of the- constitution.” (Hess v. Pegg, 7 Nev. 30; Township of Mountclair v. Ramsdell, 107 U. S. 147, 2 Sup. Ct. Rep. 391; Morrison v. Springer, 15 Iowa, 304; Stewart v. Supervisors, 30 Iowa, 9, 1 Am. Rep. 241, 242.)

Construed by the light of the above principles and rules, is said act unconstitutional? That is the question. Article 18 of the constitution, entitled “County Organization,” contains all of the inhibitions upon the legislature in regard to the organization of new counties. The first four sections of said article are quoted by Mr. Justice Huston, in his opinion; but he-bases his opinion upon the first and third sections thereof. The-fourth section of said article is substantially the same as section 1, article 7 of the constitution of Illinois, as to the area of counties, and is as follows: “No new county shall be established which shall reduce any county to an area of less than four hundred square miles; nor shall a new county be formed containing an area of less than four hundred square miles.” It was decided by the supreme court of illinois in People v. Marshall, 12 Ill. 392, that an act of the legislature abolishing two counties, and of their territory creating a new one, was not in conflict with said section, “either in letter or spirit.” As the people of Idaho adopted this provision of the constitution of Illinois, the rule is that they also adopted the judicial interpretation given to said section by the highest court of that state. (Hess v. Pegg, 7 Nev. 23; Leavenworth Co. v. Miller,. 7 Kan. 479, 12 Am. Rep. 425; Daily v. Swope, 47 Miss. 367.) The act in question is not repugnant to section 4. Mr. Justice Huston places great stress upon section 1 of said article 18, which section is as follows: “The several counties of this state, as they now exist, are hereby recognized as legal subdivisions of this state.” The learned justice states that he has been unable-to find a single case, in any of the states whose constitutions contain the above provision, where the legislative right to abolish a county has been upheld by the courts. I have been unable to find a single decision, from any of the states whose constitution contains said provision, where the courts have held. that said section was a prohibition upon the legislature, from abolishing a comity. If said section prohibits the legislature from abolishing a county, I submit, then, that it is a prohibition from changing the boundaries in any manner whatever, for-said section recognizes the counties of this state “as they now exist.” It is admitted by my associates that the legislature has. the power to organize new counties. If a new county is organized, it must be conceded that the boundaries of some county or counties must be changed, and that such county or counties so changed would not thereafter “exist” as it or they “existed” at the date of the adoption of the constitution. The. entire; territorial limit of the state was included in eighteen counties, and if the counties must continue as they then “existed,” no new counties could be formed, unless the state acquired territory that was not within its limits at the date of the adoption of the constitution. If this section prohibits the legislature from abolishing a county, it prohibits the change of county boundaries in any manner and for any purpose. If this position is tenable, what becomes of the proviso of section 3 ? If by said section the counties of the state are made constitutional counties, they must each continue to exist as they “existed” at the date of the adoption of the constitution, or until the constitution is amended, permitting a change in their territorial existence or boundaries. Nearly every state constitution of which I have any knowledge recognizes the counties of such states; and many, if not all, state constitutions name each and every county of their respective states. The constitution provides for county government and county organization, but this of itself is not a prohibition upon the legislature from extinguishing a county government and establishing another in its stead, over the same territory, in connection with other territory. County government cannot be abolished by the legislature, so that the state and people would be deprived of it; and no effort has been made by the legislature to do away with county government. The mere recognition of a county by the constitution should not be construed into an inhibition on the legislature from abolishing it.

Section 3, article 18, provides as follows: “No county sba.1T be divided unless a majority of the qualified electors of the territory proposed to be cut off, voting on the proposition at a general election, shall vote in favor of such proposition; provided, that this section shall not apply to the creation of new counties. No person shall vote at such election who has not been ninety days a resident of the territory proposed to be annexed. When any part of a county is stricken off and attached ' to another county, the part stricken off shall be held to pay its relative proportion of all then existing liabilities.” By the proviso in said section it is declared that in the creation of new counties said section shall not apply. When applied to the creation of new counties, the constitution should be construed as-though said section was not contained therein. The only prohibition placed upon the legislature in regard to dividing counties and changing county lines is contained in said section 3, and the prohibition therein contained does not apply to the creation of new counties. Section 3 is not to be considered, and is not applicable to the division of counties, made for the purpose of creating new ones. The power of the legislature is unrestricted, in the creation and organization of new counties, to the extent and out of such territory as it may deem best, so long as no county is created with an area of not less than four hundred square miles, which limitation is contained in section 4, article 18. It is maintained by Mr. Justice Huston that said section 3 is unhappily constructed, and that, strictly construed, the proviso would apply to the whole section. The rules of construction would need to be carried to an extreme limit to hold that said proviso does not apply to the whole section. The proviso is in very terse and plain English, and declares that “this section” shall not apply to the creation of new counties. It is too plain to require construction. It is claimed that the legislature did not construe said proviso to apply to all of said section, for the reason that “they made provision in the act under consideration for the apportionment of the debt of Logan county, as required by the clos-' ing paragraph of section 3.” Said entire section applies to the striking off of a part of one county, and attaching the part so stricken off to another county, then in existence. The effect of said section is to leave to the choice of the people, as expressed by their votes, whether they will be removed from one existing county to another. The last paragraph or sentence of said section is as follows: “When any part of a county is stricken off and attached to another county, the part stricken off shall be held to pay its relative proportion of all then existing liabilities of the county from which it is taken.” I do not understand why one of my associates claims that the legislature, by the act in question, apportioned the debt of Logan county, as required by the paragraph above quoted, when section 9 of said act is as follows: “All of the indebtedness of Logan county shall be paid by Lincoln county.” There is not an intimation in said act requiring that that part of Logan county taken, in eonnection with Alturas county, to form Alta county, shall pay its relative proportion of all then existing liabilities of Logan county, but specifically requires Lincoln county to pay all of the indebtedness of Logan county. Said last paragraph of section 3 is not a prohibition on the legislature from apportioning the debts of the counties from which territory may be taken to organize new counties as may be just and equitable.

In the opinions of the majority of this court it is held that the words “new counties,” as used in the constitution, mean “additional counties.” I do not think that construction tenable. Had it been the intention of the framers of the constitution to confine the meaning of the word “new” to an increase in the number of counties, they would have used the word “additional,” or some term that clearly expressed the idea that the new counties to be created must increase the number of counties. In the case of People v. Dubois, 23 Ill. 548, and People v. Bangs, 24 Ill. 184, it was held that the legislature could increase the number of circuits, but that it could not deprive a judge of his office by creating a “new circuit” out of the territory from which such judge was elected, when such new circuit, so created, was not an additional circuit. The provision of the Illinois constitution, permitting the legislature to increase the number of circuits, is very different from the constitution of Idaho. Section 7, article 5, provides: “The state shall be divided into nine judicial circuits, in each of which one circuit judge shall be elected by the qualified voters thereof, who shall hold his office for a term of six years, and until his successor shall be commissioned and qualified: provided, the general assembly may increase the number of circuits to meet the exigencies of the state.” It will be observed that the state of Illinois was divided, by said section of the constitution, into nine circuits, and the legislature was authorized and empowered to increase the number of circuits to meet the exigencies of the state. Section 15 of the same article provides that, “whenever ■an additional circuit is created,” etc. The word “new” is used in said decisions to designate the circuit created by said act. The court held that a “new” circuit had been created, but that such “new” circuit was not an additional circuit; that the number of circuits were not increased; hence said act was repugnant to the constitution. Had the framers of the constitution intended that the legislature should be confined to the creation of additional counties, apt words would have been used, and the proviso in section 3 would have read: “Provided, that this section shall not apply to the creation of additional counties.” Webster defines the word “new” to mean “having existed but a short time”; “recently established.” A new county does not necessarily mean ah additional county. If three of the counties of the state should decrease in population and wealth, so as not to be able to sustain a county government, or for any other reason the legislature should conclude that it was for the best interest of the people to create a new county out of the territory of the three, such county, so created, would be a new county, within the meaning of the term “new county” as used in the constitution. Only two sections of the constitution refer to the creation of new counties, to wit, sections 3, 4, article 18. In section 3 the -word “new” is used as follows: “Provided, that this section shall not apply to the creation of new counties.” And in section 4 as follows: “No new county shall be established; .... nor shall a new county be formed containing less than four hundred square miles.” Said section 3 cannot apply to a legislative act creating a new county. The constitution places but one restriction upon the legislature in the creation of new counties, and that is that no county shall be created with an area of less than four hundred square miles. Such new county need not necessarily be an additional county. Mr. Justice Morgan, in his opinion, says: “It could not have been desired to abolish'the counties of Alturas and Logan. Nothing is said in the act about abolishing the counties, and they do not seem to be abolished.” Would not said counties have been abolished, provided said act had been held constitutional, as effectually as if said act had contained a section, or several sections, directly declaring them abolished? They certainly would.

The assessment-roll of Alturas county for 1888 (before Logan and Elmore counties were created from Alturas) shows the total assessed valuation of Alturas to have been $3,837,362. A careful estimate, made by-the assessor, shows that about $975,000 of that.amount was in the present county of Alturas. .The assessment-roll of Alturas county for 1889 shows the assessed valuation to have been $814,387; assessed valuation for 1890, $649,104; being a reduction, for one year, of $165,283, and for two years a reduction of $326,896. This shows a decrease in the taxable property of Alturas county for the years 1889 and 1890 of about thirty-three per cent. . In population, the loss in Alturas county, since 1888, is about thirty-three per cgnt, as indicated by the election returns. This great decrease in population and wealth may have been one of the causes that induced the legislature to pass the act under consideration. I only state these facts, by way of reply to the proposition of the majority of the court, as to one of the causes or reasons the legislature had for passing said act. This court “cannot run a race of opinions upon points of right, reason, and expediency with the law-making power,” as stated by Judge Cooley, supra. This court has no authority to inquire into the motives of the legislature in the passage of the act under consideration. (Wright v. Defrees, 8 Ind. 298; Attorney General v. Supervisors, 33 Mich. 289; Cooley’s Constitutional Limitations, 223, and note 4.) Because the legislature passed an act dividing Ada county, and erected from the part segregated a new county, to be called “Canyon county,” and submitted the question to a vote of the people living in the segregated territory, it is suggested in the opinion of one of my associates that the legislature placed one construction upon the constitution for the people of Logan county, and a different construction for the people of Ada county. If the legislature has the power to create new counties without submitting the question to a vote of the people, the fact of having submitted the question to a vote of the people is no reason for charging the legislature with interpreting the constitution one way when applied to one county, and directly the opposite when applied to another. There is nothing in the constitution requiring the legislature to exercise all the power which it has. It is claimed that a dangerous power would be left in the hands of the legislature if it had the power to create new counties out of any territory it might deem best. Had the framers of the constitution so thought, they no doubt would have inserted in the constitution such provisions as the constitutions of Illinois or Tennessee contain, prohibiting the legislature from dividing a county, for any purpose, without a vote of the people. On the contrary, they were very careful to provide that section 3, article 18, should not apply to the creation of new counties, that being the only section that prohibits the legislature from dividing a county, without first submitting the question to a vote of the qualified electors. This court is not authorized to so interpret the constitution as to place restrictions upon the legislature which are not warranted by the plain meaning and intent of the constitution. The entire matter of the creation of new counties has been left by the people in the hands of the legislature, with but one restriction, to wit, that no county shall be made to contain an area of less than four hundred square miles. This indicates that the people were not afraid of the “mutatious whims of each succeeding legislature,” or that “gerrymandering will assume the position of an exact science.” Nor should this court “suppose” that the legislature would be “moved and instigated by the devil” to divide any county in this state, and for that reason attempt to place restrictions or inhibitions on the legislature which the constitution does not clearly warrant. Other departments of our government are, as I believe, quite as apt to be controlled by “mutatious whims” and “moved and instigated by the devil” as is the legislative branch. It has been held by the supreme court of North Carolina that the legislature had the general power to alter the boundaries of counties, to create new ones or to destroy a county altogether. (Mills v. Williams, 11 Ired. 558; Granville Co. v. Ballard, 69 N. C. 18.) The people of North Carolina have adopted a new constitution since said decisions were rendered, and did not prohibit therein the legislature from abolishing a county whenever it saw fit to do so. The people were not afraid to leave that power with the legislature. It has been held by the supreme courts of other states that the legislature, under constitutions similar to that of Idaho, had the power to abolish, alter, modify and create counties. (State v. McFadden, 23 Minn. 40; Opinion of Judges, 55 Mo. 296; Division of Howard Co., 15 Kan. 194; Respublica v. McClean, 4 Yeates, 399; State v. Choate, 11 Ohio, 511; In re Hinkle, 31 Kan. 712, 3 Pac. 531; Attorney General v. FitzPatrick, 2 Wis. 542-548; 1 Dillon on Municipal Corporations, secs. 46, 63, 65.) The constitution of Illinois, in force at the time of the rendition of the decision of People v. Marshall, supra, and the constitution of Tennessee in force at the dates of the decisions of Gotcher v. Burrows, 9 Humph. 585, Marion Co. v. Grundy Co., 5 Sneed, 492, and James Co. v. Hamilton Co., 89 Tenn. 237, 14 S. W. 601, prohibited the legislature from dividing a county for any purpose whatever, without submitting the question to a vote of the people, and are not in point. The opinion of the court in James Co. v. Hamilton Co., supra, was rendered October 4, 1890, and the court says: “The fact that the question [as to the power of the legislature to abolish a county] has only arisen in two cases (People v. ■MarshallK supra, and the case at bar) goes to show that legislatures have heretofore interpreted constitutions as giving no such power, either by implication or in terms.” This decision should be given no weight as authority in this case for the following reasons : 1. It proceeds upon the theory that a state constitution is a grant of power to the legislature, and that, unless the power to abolish a county is granted the legislature does not possess the power, when it is a well-established principle that a state constitution is an instrument 'of restriction and limitation upon powers already plenary. 2. The constitution of Tennessee prohibits the change of county lines for any purpose, •without a vote of the people, either for the creation of new counties or otherwise. 3. Prior to said decision, the point as to whether the legislature had the power to abolish a county had been decided by the supreme courts of several different states (authorities cited, supra), while the court says: “The question has arisen in but two cases,” to wit, the Illinois case, and the case then before that court. The only states whose highest courts have held that the legislature had not the power to abolish a county for the purpose of creating a new one, that 1 have any knowledge of, are Illinois and Tennessee; and the constitutions of said states prohibit, in terms, the legislature from dividing a county for the purpose of creating a new county of otherwise, without submitting the question to a vote of the people. 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. Section 2, article 7 of the Illinois constitution was incorporated into section 3, article 18 of the Idaho constitution; and the framers of the constitution knowing the construction that the supreme court of the state of Illinois had placed upon said section in People v. Marshall, supra, they inserted a proviso, thus clearly indicating that they did not intend to adopt the inter-. pretation given said section by said court.

In interpreting the constitution this court should not apply a prohibition on the legislature which the constitution itself ■declares shall not be a prohibition. .The convention that framed our constitution included some of the most eminent lawyers of the state. With the constitutions of other states be-, fore them, and the interpretations thereof as given by the courts of last resort, they did not place any restrictions on the legislature in the creation of new counties except as to area. I.est ■section 3 should be interpreted to apply to the creation of now counties, the framers of the constitution were very careful to insert a proviso, thus showing the intention to leave the entire matter of the creation of new counties with the legislature, unrestricted, except as to area. The intention of the framers of ~the constitution is manifest, from the manner in which section 3 deals with the subject, in making provision for existing liabilities of the counties, when a part of one is stricken off and attached to another. Was the creation of Alta and Lincoln ■counties a creation of new. counties, within the meaning of that term as-used in the constitution? As before shown, the creation of a new county does not necessarily mean an additional county. A "new county” is a new county organization, erected •over and upon territory which had not before comprised, in itself, a county. Alta county included a part of the territory of what was formerly Logan, and all of the territory of what was formerly Alturas. Lincoln county included a part of what was formerly Logan county, but not the whole. Hence Alta and Lincoln counties are new counties, within the meaning of that term as used in the constitution. A new county organization was by said act erected over territory, which had not before ■comprised, in itself, a county. If the legislature has not the power to create new counties by dividing a county as Logan was divided in the creation of Alta and Lincoln counties, then the proviso of section 3 is not the.controlling part of said section, ■and is given no effect whatever in the interpretation of said section; and, to apply the quotation o’f Mr. Justice Huston, it would stand in said section, “like counters in a barber’s shop, as much for mock as mark.” The act in question does unite a part of what was formerly Logan county to what was formerly Alturas, but within the meaning of section 3, article 18, it does not strike off a part of Logan county and attach it to Alturas, because Logan and Alturas counties were, by said act, extinguished. The legislature, by this act, does not undertake to do indirectly what it was prohibited from doing directly. Two new counties were created out of Logan and Alturas counties. A part of Logan county was not stricken off and attached to Alturas county; but a new county was created, and the legislature, in creating said new counties, used constitutional means, and effected a constitutional object, to wit, created two new counties.

It is contended that the office of clerk of the district court ■of the county of Logan was created, and the term of office fixed by the constitution, and that the defendant was legally ■elected to said office, and that he could not be legally deprived thereof except by the expiration of the term for which he was elected. The fact is that the defendant held his office by appointment made by the governor. From our view of this case that makes no difference. In the case of Respublica v. McClean, 4 Yeates, 399, the court held that the commission of the officer became void by the political annihilation of that part of the county for which the officer was commissioned. “Article 5, section 16, provides for a clerk of the district court for each county in the state, and fixes the tenure of office; yet both office and tenure of the clerk of the district court in and for a particular county are dependent upon the existence of such county.” If the county is extinguished by the legislature, the office fails. (People v. Morrell, 21 Wend. 577; In re Hinkle, 31 Kan. 712, 3 Pac. 531; State v. Choate, 11 Ohio, 511; Hagerty v. Arnold, 13 Kan. 367.) County officers have no such vested right to their offices as would, under the constitution of Idaho, prohibit the legislature from abolishing a county in the creation of a new county. (Laramie Co. v. Albany Co., 92 U. S. 307.) The case of Rock Island Co. v. Sage, 88 Ill. 589, is-not in point, for the reason that the constitution of Illinois prohibits the legislature from changing county lines without, submitting the question to a vote of the people. Section 2, article 7, is as follows: “No county shall be divided, or have-any part stricken therefrom, without submitting the question to a vote of the people of the county, nor unless a majority of all the legal voters of the county voting on the question shall vote for the same.” In that' case the legislature undertook to change the lines of a county without submitting the question to a vote of the people, which act was expressly prohibited by said section of the constitution. The proposition which Mr. Justice Huston mentions as having been advanced by counsel, to wit,, that the provisions of the constitution are only applicable when in the judgment of the legislature it is expedient to make them so, is a proposition that I have not been able to find advanced in any of the briefs submitted in this case, and is one that I did not hear advanced, or even intimated, in the oral argument of this cause. - The counsel on both sides of this causfr are, as I believe, too eminent and honorable to advance such an infamous proposition. In the case of Edwards v. Railway Co., 13 Colo. 59, 21 Pac. 1011, the court says: “The view that a, •solemn legislative provision is a useless and lifeless thing should be entertained -when no reasonable intendment can be fairly deduced therefrom after diligent and industrious search, aided by all pertinent rules of statutory interpretation.” A reasonable intendment can be fairly deduced from the act in question, and said act can be construed to stand without the slightest impingement on the provisions of the constitution. The act -in question is not repugnant to any provision of the constitution, and the writ should issue as prayed for by the relator.

Case Details

Case Name: People ex rel. Lincoln County v. George

Court Name: Idaho Supreme Court

Date Published: Jun 3, 1891

Citation: 26 P. 983

Court Abbreviation: Idaho