210 P. 1064 | Mont. | 1922
delivered the opinion of the court.
In 1920 Judith Basin county was created under the provisions of Chapter 226, Laws of the Sixteenth Legislative Assembly. The territory incorporated in the new county was taken principally from Fergus county, and the county boundary line between the new county and the old one divided School District No. 44 in Fergus county into two parts. The portion remaining in Fergus county continued to be known as District 44, while the portion in Judith Basin county was organized into a separate district known as District 41 in Judith Basin county. More than two months after the new county was created and the organization of District 41 completed, the Seventeenth Legislative Assembly passed an Act, now seetion 1038, Revised Codes of 1921, which, if valid, became effective February 24, 1921, and which provides: “That all school districts in the state of Montana, which have heretofore, or that may be hereafter divided by the crea
The application for the writ proceeds upon the theory that at the time the order complained of was made, District 44, as constituted prior to the creation of the new county, was a joint district, and that the county superintendent of Judith Basin county acted without and in excess of her authority in changing the boundaries of the district without consulting the authorities in Fergus county. If the premise assumed is correct, the conclusion stated cannot be avoided. However, District 44 was not a joint district prior to the creation of Judith Basin county, and it was not made a joint district by virtue of the fact alone that the new county boundary line divided it into two parts, for the Act under which Judith Basin county was created commanded the county commissioners of Fergus county to divide the territory to be included in the new county into a convenient number of school districts, and to define their boundaries and designate their names (Sess. Laws 1919, p. 566), and, in the absence of any showing to the contrary, we must presume that that official duty was performed regularly (subd. 15, sec. 10606, Rev. Codes 1921), and that the territory in Judith Basin county thereto
A school district is merely a political subdivision of the state, created for the convenient dispatch of public business. In the absence of constitutional limitations, the legislature may create or abolish a district or change or rearrange the boundaries of an existing district, and by the same token it may create joint districts from territory lying in adjacent counties. It is obvious that the only purpose of section 1038 was and is to create joint school districts, and the question then presents itself: Is there any constitutional restriction upon this character of legislation?
Section 26, Article Y, of our state Constitution forbids special legislation upon some thirty-four enumerated subjects, and then concludes: “In all other cases where a general law can be made applicable, no special law shall be enacted.”
Is section 1038 a special statute? A special statute is one which relates to particular persons or things of a class (In re Church, 92 N. Y. 1), or.one made for individual eases and for less than a class (Guthrie Daily Leader v. Cameron, 3 Okl. 377, 41 Pac. 635), or one which relates and applies to particular members of a class, either particularized by the express terms of the Act or separated by any method of selection from the whole class to Avhich the law might, but for such limitation, be applicable (State v. Cooley, 56 Minn. 540, 58 N. W. 150). The test of a special law is the appropriately] ness of its provisions and the objects that it excludes. It is not, therefore, what a law includes, but what it excludes, that determines whether it is special. (Budd v. Hancock, 66 N. J. L. 133, 48 Atl. 1023.)
Applying this test to section 1038, it must be conceded that it is a special law. There is not any difference in the situation or circumstances of a school district divided by the creation of a new county under the New County Acts and one divided.by the creation of a new county by direct legislative enactment. The first is included in the operation of section
However, section 26, Article V, above, does not prohibit the enactment of special laws altogether. It only prohibits the enactment of such a law where a general law can be made applicable. For many years we have had a general statute for the creation of joint school districts (sec. 408, Chap. 76, Laws 1913; sec. 1035, Rev. Codes 1921), and that statute is still in force and effect. Circumstances may arise, however, under which a general statute cannot be made applicable to a given subject, or, if applicable when enacted, it may spend its force with the passing of time and cease to be adequate for the purpose intended. If the applicability of a general law depends upon extrinsic facts and circumstances, the question of applicability is referable to the legislature, and with its determination the courts will not interfere. (State ex rel. Ford v. Schofield, 53 Mont. 502, 165 Pac. 594.) In the present instance, however, there are not, and there cannot be, any extrinsic facts which could militate against the operation of the present general law for the creation of joint school districts, and which do operate in favor of a statute creating a joint district out of every existing district divided by the creation of the new county under the New County Acts. Our general law is applicable; hence section 1038
The judgment is affirmed.
Affirmed.