21 Mont. 93 | Mont. | 1898
The material question involved in this appeal, and the one that has given us the most serious trouble and concern, is as to the power of the legislative assembly to fill the offices provisionally in a county created by that body, by naming the respective officers in the act itself. The district court did not pass upon this question, saying it was unnecessary, in its view of other legal questions involved. But the question is presented in both briefs, and we think it the pivotal one presented for determination.
The district court held, substantially, that all commissioners are required by the constitution to be elected every four years, commencing the year of the admission of the state into the Union; and that this rule applies to new counties as well as
In support of this view the district court says: “Therefore the court holds that the term for which county commissioners were elected was four years, neither more nor less; that the first term commenced on the 8th day of November, 1889, the day on which the state was admitted into the Union, and ended on the 8th day of November, 1893, and that the second term commenced on the 8th day of November, 1893, and ended on the 8th day of November, 1897; that these terms were general
The district court bases its views upon Section é, Art. 16, Section 5, Art. 16, and subdivision 9, ord. 2, of the constitution of the state. We raise no question that, as a general proposition relating to counties in existence, the legislative assembly has no power to elect or appoint county officers by an act or otherwise. To so hold would be to ignore and do violence to the theory of local self-government, which is conceded to be the fundamental principle — the corner stone— supporting our whole system of government. But we are not dealing with general principles or ordinary conditions. We are now concerned with exceptional rules and conditions. All rules and laws have their exceptions. These exceptions spring from the extraordinary facts and conditions that surround the subjects and actors involved.
Let us, then, return to the main question involved here.
But what is meant by creating a county by the legislative assembly ? It means more than forming and defining it geographically.
In People v. McGuire, 32 Cal. 141, the court says: “To constitute a county, something more is required than to define its boundaries. A local government must be provided, and the creation of the county is not accomplished until both these things have been done in the appointed mode.”
This amplification of what is meant by creating new counties is most reasonable and just. It certainly seems that something more than laying out the boundaries and naming the offices is necéssary to be done before it can be truthfully said that a county has been created. Such a creature would be a lifeless and useless thing until inspired with motion and power and means to act in fulfilling the purpose of its creation. When it is said that a county has been created, it is, and ought certainly to be, understood that a municipality has been organized with power and means to aid the state in administering its political affairs, and in promoting the welfare of the people and best interests of the commonwealth. A county cannot be said to be created by the sovereign power until it is endowed with the power and means to aid in these important matters of the state.
In People v. Hurlbut, 24 Mich. 44, 9 Amer. Rep. 103, the important question here involved was ably and
As determining this important que.-tion, we quote at length the forcible language of this great judge. He says: ££Sofar, then, as the act in question undertakes to fill the new offices with permanent appointees, it cannot be sustained} either on general principles or on the words of the constitution. It may, nevertheless, not be wholly void. I have no doubt it was entirely competent for the legislature to abolish the old boards and provide for a new one to take the place of all. That would be but the ordinary exercise of legislative supervision and control in matters of municipal regulation. I think, also, that the legislature might make provisional appointments to put the new system in operation. The right to do this appears to me to be incident to the right to confer and recall corporate power, and rests upon the same ground as the right to provide for the organization of the municipal corporation in the first place, for the apportionment of its property and debts if its territory should be divided and organized into two, or for the winding up of its concerns if the charter should betaken away. There is no doubt of the right of the state to do any of these
In Michigan the constitution provided for the election or appointment of such officers otherwise than by the legislature.
Meecham, in his work on Public Offices and Officers (Section 123), holds that for the purpose of primary organization the legislature may appoint the local officers provisionally. It has frequently been held by the courts that in creating new counties or towns, or political municipalities or boards, the legislature might elect or appoint, or provide for the election or appointment of, the officers necessary to put such governmental agencies or political municipalities in motion and operation in a manner different from that provided by the constitution for the election or appointment of such officers generally. (See, also, Attorney General v. Weimer, 59 Mich. 580, 26 N. W. 773; State v. Swift, 11 Nev. 128; State ex rel. Clarke v. Irwin, 5 Nev. 111; Sabin v. Curtis (Idaho) 32 Pac. 1131; People v. Freeman, 80 Cal. 233, 22 Pac. 173; State v. Seymour, 35 N. J. Law, 47.) These authorities proceed upon the theory that the creation of these new municipalities is more or less a matter of emergency, in which case the legislature has unlimited power to decide the propriety of action, as well as the sole power to create, and in the exercise of such power in creating such political municipalities — the creation of which is the principal object of legislation — may appoint, or provide for the election or appointment of, provisional officers, in a manner different from that provided by the constitution for the election or appointment of such officers generally, as an incident to the power .to create. We are satisfied that this view of the question is sound in law and reason, and that it will aid in the administration of the political affairs of the state if applied in all cases like the one under consideration.
We think, therefore, that the commissioners appointed by
The contention that the original commissioners of the county and their immediate successors, the defendants, were and are filling out an un expired term or vacancy is, we think, untenable. We are unable to find any support for the theory that by the terms or spirit of the constitution commissioners should always be elected in all the counties, old and new, at the same time, and that time every four years from the date of the adoption of the constitution. We see no valid reason for such construction of the constitution in this respect. What good can come to the state, or any part of it, from having commissioners elected throughout the state at the same time ? What harm can result if a new county shall elect its commissioners at a different time from that at which the old counties elect? Nor can we agree with counsel that there were vacancies in any of the county offices in the county at and immediately after the date when the act took effect creating Ravalli county. The same law that created the county and its several offices named or appointed the incumbent for each office. The moment the office was actually créated, there stood the officer to qualify and take possession. It is not reported that there were any derelicts. If any officers named had refused or failed to qualify, then there would have been a vacancy.
W e think, therefore, that the legislature had the power to fill provisionally the offices created by the act organizing Ravalli county, by naming the several officers in the act, including commissioners, and that the commissioners so named in the act held for the time prescribed in the act, and that at the end of that time, to-wit, at the next general election thereafter, it was lawful and proper, under the constitution, to elect their successors, who would be entitled to hold their offices for four years, the term for which commissioners hold office under the constitution from the time of their qualification. To hold otherwise would be to hold the act creating Ravalli county unconstitutional and void in part. We may not rightly do so if we can consistently find support in the fundamental law of
The judgment of the district court appealed from is reversed, and the cause remanded, with directions to enter judgment in favor of the defendants to the effect that they are entitled to the offices of county commissioners of Ravalli county.
Reversed and Remanded.