165 P. 594 | Mont. | 1917
Lead Opinion
delivered the opinion of the court.
Assuming the mandatory and prohibitory character of this last provision, respondents insist nevertheless that it is addressed to the legislature exclusively; that whether a general law can be made' applicable to any given case must be determined by the legislature from facts and circumstances as they are made to appear to it, and that the courts cannot review the evidence before the legislature, and therefore cannot overrule or reverse the legislative determination; that the enactment of a special law upon a given subject is a legislative determination that a general law cannot be made applicable to it; and that such determination must of necessity be final and conclusive. Adjudicated eases sustaining these propositions generally are cited almost without number.
In this instance we find ourselves unable to agree entirely with either theory established by the adjudications to which reference has been made. We have on our statute books a general law, of uniform operation throughout the state, which forbids gambling. If the legislature should be unwise enough to substitute for this law another of the same character, but which by its terms applied only to certain named counties, excluding all others, we imagine no one would hesitate to pronounce such an Act unconstitutional and void; and neither can we imagine that it could be urged with any semblance of reason that it was for the legislature to determine finally that a general anti-gambling law cannot be made applicable throughout this state. It is inconceivable that there is such a different standard of morality prevailing in different sections of the state that a police regulation of this character cannot be made to operate uniformly. Examples might be multiplied to illustrate the view that it cannot be exclusively a legislative question to determine in every instance whether a general law can be made applicable.
We believe there are many subjects of legislation, which, from their inherent character, are subject to regulation by general laws, and that the courts are as advantageously situated as any other department of government to say so; on the other hand, there are certain subjects which may or may not lend themselves to regulation by general laws, depending upon extrinsic facts and circumstances which the Legislature is peculiarly fitted to ascertain and determine, but which the courts have no means
Our conclusion upon this branch of the case is that with respect to the particular subject — the creation of new counties—
But it is said that our experience under the general law has demonstrated its applicability, and that a decision of the question has been set at rest by the legislature itself. At first blush this suggestion seems to afford a solution for the problem presented ; but no Act of a legislative assembly is irrepealable, and though the general law may have served the purpose intended during the six years succeeding its enactment in 1911, it was altogether competent for the last legislative assembly to determine that it has spent its force and is no longer adequate to the purpose for which it was enacted. It might have determined that with the creation of the twelve new counties, the physical and topographical conditions of the state no longer admit of its practical application, and that at the present state of our history and development no general law upon that subject can be made to serve the best interests of the commonwealth. Had it so declared by repealing the general law, we should not deem it within the province of this court to attempt to interfere, and if, with the general law repealed, it had then passed the special act creating Carter county, we should have accepted its determination that a general law could not be made applicable as conclusive upon us.
But it is insisted that the general law was not repealed, and that under its provisions new counties may now be created, if they can meet the requirements which its terms impose. But if no community in the state can now or hereafter meet those requirements, instead of being a law for the creation of new counties, it becomes a law prohibiting the formation of new counties. In other words, it has ceased to fulfill the purpose for which it was enacted. It has ceased to be applicable to the subject in the constitutional sense.
If the legislature possessed the power and authority, by repealing the general law, to say that a general statute cannot
In passing, we may observe that there are certain provisions contained in the Act creating Carter county which are clearly invalid; but they refer to incidental matters, and may be eliminated without impairing the Act as a whole. It is inconceivable that they could have operated as inducements to the passage of the Act, or that without them the measure would not have received favorable consideration at the hands of the legislature.
The demurrer to the complaint is sustained, and the proceeding is dismissed.
Dismissed.
Concurrence Opinion
I concur in the conclusion reached by Mr. Justice Holloway, but do so on the ground that I am not satisfied that the injunction found in section 26, Article Y, of the Constitution, is addressed to the judicial department of the government. The creation of new counties is a matter of public policy. The propriety of creating one at any time depends upon fact conditions as they exist at that time. These the legislature can more readily ascertain and weigh than the courts. I therefore incline to the opinion that the injunction is addressed exclusively to the legislature, and hence that the Act in question must be upheld.
Heartily subscribing to the doctrine, so often announced by this court, that in testing the constitutionality of an Act of the legislature the question is not whether it is possible to condemn, but whether it is possible to uphold, and accepting, for the most part, the reasoning of Mr. Justice Holloway in the above opinion, I am nevertheless unable to assent to all of it or to the conclusions announced. Briefly stated, my reasons are these:
The injunction expressed in the final clause of section 26, Article Y, is prohibitory (Const., see. 29, Art. Ill) and — if the Constitution is to have any forcé at all — is binding upon the legislature, the courts and every other agency engaged in the government of this state. The language of section 26, Article Y, is simple, direct and plain; no resort to authority for its interpretation is required; he who runs may read it. Its purport is that in certain enumerated cases no special Act-shall ever be passed, nor shall such Act be passed in any other ease to which a general law can be made applicable; in other words, the prohibition is absolute as to the thirty-four enumerated cases and conditioned in every other only upon the fact that a general law can be made applicable to the subject matter. Why the prohibition was inserted is perfectly clear. To pass an Act for a given case is easy; to frame general legislation, which shall operate justly upon divergent conditions, requires time and thought; unchecked legislation has always tended to degenerate into the easier courses of specialism, log-rolling, action upon the theory that the legislators have favors to exchange, instead of duties to perform; and the purpose of the prohibition is to furnish the cheek necessary to prevent just this sort of degeneration.
Confessedly, the Act creating Carter county is a special one. When it was passed we had, and I think still have, a general law upon the statute books relative to the creation of new counties; so “applicable” to the subject has that law been that twelve new counties have been created under it. Its enactment and successful operation furnish proof that the subject is one
A study of the authorities cited by the respondents discloses much blind following of precedents which take no account of the “mandatory and prohibitory” character of constitutional provisions such as ours are declared to be; and these authorities lead logically to -the result, which many of them express, that in every instance the applicability of a general law is a legislative question — a proposition that cannot be maintained. Then, too, some of these authorities go to the length of saying that the criterion, which is to be applied exclusively by the legis
Respondents lay emphasis on the propositions that this court has decided the creation of new counties by special Act to be permissible under the Constitution, that by the rule of ejusdem generis the concluding clause of section 26, Article Y, can have no application to the subject of new counties, and that this section came to our Constitution from the Act of Congress approved July 30, 1886 (24'Stat. 170, Chap. 818), with interpretations, judicial and congressional, which permit the creation of new counties by special Act. The decisions of this court, to which appeal is made, were rendered before any general law for the creation of new counties was passed, before it was known that such a law could be made applicable. So far as these utterances are not pure dicta, they are justified by the knowledge then possessed upon the subject; possibilities, considered with reference to human action, are always conditioned upon human capacity, and this in turn upon knowledge; what is not known to be possible is, for the time being, impossible; and if, as the above opinion asserts, and as I believe, the question of the applicability of a general law to the subject of new counties was in the first instance for the legislature, the fact could not be known to the court until the experiment was tried. The rule of ejusdem, generis cannot be applied to the provision in question, for the reason that the preceding clauses of the section refer to many subjects of legislative action, some of which belong to the same general class as the creation of new counties. The argument, whatever its sanction, based upon the source of section 26, is answered by the fact that section 26 did not come
To my mind, the opinion written by Mr. Justice Holloway correctly assumes that the Act creating Carter county cannot be upheld on any theory other than that adopted in the opinion; and, as I think it cannot be so upheld, I must conclude that it cannot be upheld at all.