134 P. 291 | Mont. | 1913
delivered the opinion of the court.
Certiorari to review the action of the board of county commissioners of Teton county. This proceeding was instituted by Henry Jacobson, a taxpayer and qualified elector within that portion of Teton county which was sought to be organized into., a new county to be known as Toole county. On May 22, 1912, certain residents of the western portion of Hill county and the northern portion of Teton county presented to the county commissioners of Teton county petitions, in due form and subscribed by the requisite number of qualified electors, praying for the creation of a new county to be called Toole county, to comprise twenty-nine townships in the western portion of Hill county and substantially all of the northern half of Teton county, excepting about seven townships — the lines being drawn so as to exclude the town of Cut Bank from the proposed county. The petition recites that the assessed valuation of the property within the proposed new county is $4,122,357. Notice was. thereupon given for a hearing for June 21. Adjournments were taken from day to day to July 5, on which last-named date a final hearing was had; twelve requests for withdrawals; were denied, the prayer of the petitions granted, the proper resolution adopted, and the board determined the boundaries of the proposed new county as described in the petitions; that the petitions contained the requisite number of genuine signatures; that no lines of the proposed new county would pass within eighteen miles of the county seat, of Hill county or the county seat of Teton county; that within the boundaries of the proposed new county was property of the assessed valuation of more than four million dollars as shown by the last as
1. Is the remedy by certiorari available? Section 7203,
Nothing that is said in State ex rel. Arthurs v. Board of County Commrs., 44 Mont. 51, 118 Pac. 804, can be construed as conflicting with these views. In that case we assumed that the board of county commissioners was acting as a quasi-judicial body, but held that even so its refusal to take jurisdiction of a matter properly before it, or, after having acquired jurisdiction, its refusal to proceed, or its erroneous determination of a preliminary question of law upon which it refused to
2. In proceedings for the organization of a new county, the
3. A valid petition describing the territory to be included
4. While authority is conferred upon the board to exclude territory “upon petition of not less than fifty per cent of the
5. That the board of county commissioners did not have any jurisdiction to make the order granting the petition for the creation of Toole county on March 26, 1913, or to issue the proclamation of March 27, is apparent. At the time the
But the board apparently assumed that its action was to be governed by the amendatory statute which had been approved and went into effect five days before the meeting of March 26 was held. The amendatory Act follows the original Act in enumerating the prohibitions 1, 2 and 3, but amends the original Act by substituting “three millions” for “four millions” as the minimum assessed valuation of the proposed new county. The board’s determination is justified if the proceedings had been taken under the amendatory Act, but is not justified under the original Act. And this brings us to a consideration of the question: What was the effect upon the pending proceedings of the amendments to Chapter 112, there being no saving clause in the amendatory Act?
Section 119, Revised Codes, provides: “Where a section or a part of a statute is amended, it is not to be considered as having-been repealed and re-enacted in the amended form, but the portions which are not altered are to be considered as having been the law from the time when they were enacted, and the new provisions are to be considered as having been enacted at the time of the amendment.”' This merely states a general rule as it was recognized by the authorities at the time our Codes were adopted. (Black on Interpretations of the Laws, sec. 133; 36 Cyc. 1083; Ely v. Holton, 15 N. Y. 595; Moore v. Mausert, 49 N. Y. 332.) In City of Helena v. Rogan, 27 Mont. 135, 69 Pac. 709, this court said: “Where a provision is amended by an Act using the words ‘to read as follows,’ it must be the intention of the lawmakers to make the amendment a substitute for the old provision, and to have it take its place exclusively.” The same rule is stated in 1 Lewis’ Sutherland on Statutory Construction, second edition, section 237, as follows:
Every elector who signed a petition for the creation of Toole county did so with the knowledge and understanding that whatever withdrawals of territory might be had, the remaining property within the new county must have a valuation of at least four million dollars, or the proceedings for its creation would fail. It would be absurd to say that the men who signed a petition under those circumstances consented to the creation of a new county with property of an assessed valuation of only three million dollars. The rate of taxation in a county having only three millions might be very much greater than in a county with four millions; but whether it would be or not, the statute does not authorize the board to. substitute for the petition which the electors have presented, a- petition based upon an entirely different set of circumstances or to act without any petition at all. There never was a petition presented to the board for the creation of Toole county with an assessed valuation less than four millions, and therefore the order of March 26, calling an election for the creation of a new county with property of the assessed value of only three millions or thereabouts, and much less than four millions of dollars, was without jurisdiction' and void.
It is ordered that the proceedings of the board of county commissioners taken on March 26, 1913, including within the boundaries of the proposed Toole county certain territory not theretofore petitioned for, and in excluding from the boundaries