66 P. 1061 | Utah | 1901
Lead Opinion
after stating the facts, delivered the opinion of the court.
The respondents contend that section 1176, Revised Statutes, 1898, as amended by chapter 47, Laws 1899, is enacted in violation of the Constitution of this State, and claims that it interferes with local self-government, which is impliedly, if not expressly, recognized by the Constitution, by vesting the power of appointment in other than 'the local authorities of the county, by taking the administrative affairs
An examination into its early history will show the existence of a system of territorial subdivisions of the State into
An examination of the Constitution will show that at least by implication local self-government to the people of each county is intended to be imposed and recognized. Section 4, article 11, of the Constitution, provides for'the establishment of a system of county governments, which shall be uniform throughout the State. Section 1, article 11, recognizes the existence of the several counties as legal subdivisions of the State. Section 5, article 13, prohibits the Legislature from imposing taxes for the purpose of any county, but may vest the corporate authorities thereof with power to assess and collect taxes for the purpose of such corporation. Section 3, article 14, prohibits any county from creating any indebtedness in excess of the taxes for the current year without a vote of the electors thereof. Section 6, article 14, prohibits the State from assuming the debt, of any county. Section 3, article 11, prohibits the Legislature from changing county lines without a vote of the electors of the counties interested. These provisions of the organic act, when read in the light of the conditions existing at the time of its adoption, when a system of county goveinments existed, have a more extended meaning than mere’ geographical subdivisions of the State. Constitutions are not to be interpreted alone by words abstractly considered, but by their words read in the light of the conditions and necessities under which the provisions originated, and in view of' the purposes sought to be attained and secured. Dill. Mun. Corp., see. 3a. As has been seen, the Constitution implies a right of local self-government to each county, and a right to establish a system of county government is expressly recognized and enjoined. The
Under the statute, the Governor appoints the state board of horticulture. Section 1176, as amended, empowers the member of the state board for the district in which a
2. Section 4, article 11, Constitution, provides that the Legislature shall establish a system of county government which shall be uniform throughout the State; and by subdivision 12, section 26, article 6, it is provided that the Legislature is prohibited from enacting any private or special law regulating county or township affairs. By section 24, article 1, Constitution, it is provided that all laws of a general nature shall have uniform operation. The first part of the section in question applies to counties having 5,000 or more
The able counsel for both of the respective parties in this case express in their briefs a desire to have the case passed upon on the merits, and therefore' both join in the request that the question as to whether the county commissioners are or are not ministerial officers and authorized to bring this action shall not be passed upon, and each expressly waive that question. Under such circumstances we refrain from discussing it. Similar questions were passed upon by this court in Thoreson v. Board, 19 Utah 18, 57 Pac. 175, and the Gilbert Case, 11 Utah 378, 40 Pac. 264.
The order of the district court, in denying the petition for a peremptory writ of mandate, and in dismissing the petition, is affirmed, with costs.
Dissenting Opinion
(dissenting). — The statute required the board of county commissioners to select one of three persons, nominated by the board of horticulture to act as county fruit tree insjoector. The duty of the board under the statute to make such selection was purely ministerial, and therefore it can not plead in justification of its refusal to act that the statute which imposed upon it that duty is unconstitutional. In Thoreson v. Board, 19 Utah 18, 57 Pac. 175, this court held that, “where the statute requires an officer to perform a ministerial act, he will not be permitted in a mandamus proceeding to plead in justification of non-performance that the act would violate the Constitution.”