185 P. 147 | Mont. | 1919
delivered the opinion of the court.
On June 18, 1919, petitions for the creation of Liberty county were duly presented to the board of county commissioners of Hill county — the county from which the largest area of territory to be included in the new county was to be taken. As the territory to be detached from Chouteau county is not involved in this controversy, no further mention of it need be made.
The territory described in- the petition to be taken from Hill county included all of ranges 4, 5, 6, 7 and 8 east of the Montana principal meridian, from the south boundary line of township 29 north, to the international boundary. The matter was
Upon these facts the board first granted the prayer of the exclusion petition, withdrew the territory in range 8, reformed the boundary lines of the proposed county accordingly, then denied the petition to include range 9, made the other necessary findings, took the required additional steps, and called an election within the corrected limits of the new county, for November 4, to determine whether Liberty county should be created. This proceeding was thereupon instituted by a proponent of the inclusion petition to secure a writ of mandate directed to the board, requiring it to reconvene and include range 9 within the limits of the proposed new county. By permission of this
The subjoined diagram will serve to illustrate the contentions of the respective parties. The exterior lines represent the boundaries of Hill county. The heavy lines inclose the portion of Hill county described in the petition for the creation of Liberty county.
Primarily, the question for determination is: Does the relator
By first granting the prayer of the exclusion petition and eliminating range 8 from the boundaries of the proposed new county, the board put it beyond its power to consider favorably the petition to include range 9, for that territory was not then contiguous to any other territory w-ithin the limits of the pro
Formerly new counties were created only by direct legislative enactment. Whatever may be said of that species of legislation, the objections to it were sufficiently potent to induce the legislature in 1911 to enact a general law, by the terms of which the question whether a new county should be created was referred to the people most directly interested — the qualified electors within the proposed new county. (Chap. 112, Laws 1911.) That Act was amended in 1913 (Chap. 133, Laws 1913, p. 484), and the amended Act repealed and a new Act substituted in 1915 (Laws 1915, Chaps. 53 and 139). The Act of 1915 was repealed, and the present statute substituted for it in 1919. (Laws 1919, Chap. 226.) Throughout this legislative history the salient features of the original Act of 1911 have been retained. The principle of local self-determination has been the controlling impulse of every one of these statutes. Every one of them has provided for the initiation of the proceedings by a petition directed to the board of county commissioners. Provision has been made likewise for the opponents of a new county to be heard and for the exclusion, upon petition, of territory included within the boundaries of a proposed new county.
If two or more petitions for exclusion were presented, the law has always required that they be considered by the board in the order in which they were filed with the clerk. In other words, the principle, first in time, first in right, prevailed. Until the present statute was enacted, there has never been any provision by which territory additional to that describe^ in the petition for creation could be included within the limits of a
If it be said that there is a lapse in the legislation, it is
The creation of new counties is a subject exclusively of
It is argued that the rule, first in time, first in right, should prevail here, as it does witfy respect to the consideration of two or more exclusion petitions,, and since the petition to include range 9 was filed before the petition to exclude range 8, it should have been considered and effect given to it before the exclusion petition was passed upon. But the rule is made applicable to exclusion petitions by direct legislative enactment, whereas it is not declared applicable to the' consideration of a petition for exclusion and a petition to include new territory, and there is not anything in the statute to indicate that the legislature intended the same rule to apply, but neglected to so declare. It did not- specifically enjoin upon the board the duty to consider a petition to include new territory and a petition to exclude territory in the order in which they are filed, and the courts are without authority to read such a provision into the statute.
Ultimately, the authority to dispose of questions of this character must rest with some officer or body. The legislature has
Our conclusion is that relator has failed, to show that a clear legal duty is specifically enjoined upon the board to consider the petition to include range 9 before it passed upon the petition to exclude range 8. This proceeding is therefore dismissed.
Dismissed.