21 Kan. 591 | Ark. | 1879
The opinion of the court was delivered by
On the 4th of February, 1879, this court, upon the application of Hon. Willard Davis, the attorney genera], allowed an alternative writ of mandamus to John P. St. John, governor of the state, requiring him to appoint some competent person within the county, of Stafford "to take the census and ascertain the number of inhabitants in that county, in order that it might be organized under the provisions of chapter 63, laws of 1876.
The governor refused to make the appointment, on the ground that the act of the legislature defining the boundaaries of Barton and Pratt counties (ch. 61, Laws 1875) had reduced the area of Stafford county to less than four hundred and thirty-two square miles, and therefore the county was not entitled to be organized. The question whether this court has jurisdiction to compel the governor of the state to perform any official act, has been expressly waived by counsel at the direction of the governor, who is particularly desirous to obtain, by this proceeding, a judicial construction of chapter 61 of the laws of 1875, to determine his duty in the premises. Hence, we express no opinion as to our power to enforce action by the chief executive. The question presented to us is, ought the governor to organize the county of Stafford ? Involved in this, is the effect upon the county, of the act of the legislature approved March 5t'h, 1875, entitled “An act defining the boundaries of Barton and Pratt counties.” If this act is valid, it is conceded that it is such an impediment to the organization of the county that the governor is fully justified in refusing to appoint any person to take the census. A reference to the counties of Barton, Pratt and Stafford is necessary to fully understand the present status of the latter county. ■ These counties were created and christened by the legislature in 1867; (ch. 33, Laws of 1867, p. 51.) Their boundaries were again defined, but not changed, in 1868; (Gen. Stat. 1868, ch. 24.) With slight exceptions? their limits remained in this condition till 1875, when the legislature, by the act of March 5th, 1875, attempted to take from Stafford for Barton county, townships 21-23 of ranges 11-14, and for Pratt county, townships 24 and 25 in said ranges, leaving only townships 24 and 25, of range 15, to constitute Stafford county — an area of 72 square miles. At the passage of this act Barton contained an area of 900 square miles, Pratt 720, and .Stafford 792. If this act is a valid law, Barton has 1,332 square miles, Pratt 1,008, and Stafford 72.
On the one hand, it is contended that the said act of March 5, 1875, is void, as being in conflict with § 1, art. 9 of the state constitution. On the other, it is insisted that this provision has no application to unorganized counties; and that over them the legislature has full control, without any constitutional limitation or restriction. Section 1, art. 9, reads as follows:
“ The legislature shall provide for organizing new counties, locating county seats, and changing county lines; and no county seat shall be changed without the consent of a majority of the electors of the county, nor any county organized, or the lines of any county changed so as to include an area of less than four hundred and thirty-two square miles.”
It is manifest from an examination of this section, that if the portion thereof relating to changing county lines applies to Stafford, the claim of counsel for the state must prevail. The concluding clause contains the words “any county.” These words are broad in their signification, and primarily comprehend all counties, whether organized or unorganized. No other construction can be adopted without wresting words from their ordinary meaning. Now, at the passage of the act of March 5,1875, Stafford county was known and recognized as a county. True, it was unorganized, but it had been named, and its boundaries afterward defined by four several acts of the legislature. The express constitutional prohibition against reducing its limits below the minimum size extended to it, as much as if it had been organized. We are fortified in this opinion from the history of this section in the constitutional convention and a-perusal of the debates of the framers of that instrument. Mr. Burris, a member of the convention, who was substantially the author of this limitation on the power of the legislature over counties, used the following language in regard to it:
“I do not understand that my amendment proposes to legislate. It is merely a restriction upon the legislature, just as we have incorporated in other articles of the constitution. . . . The substance of my amendment is the same as that incorporated in the constitution of the state of Iowa, with which I am more familiar than with any other state constitution. I think there will be no necessity in any part of the territory to organize a county of less area than four hundred and thirty-two square miles.” (Kas. Const. Proceedings, 136, 137.)
Afterward, Mr. Greer offered the following substitute for the whole section: “No new county shall be laid off hereafter, nor old oownty r-educed to less contents than four hundred and thirty-two square miles,- leaving the power to change county lines and seats with the county boards.” Mr. Burris opposed such substitute, and favored the original section as amended by him, and said: “Itseems to me that the section as amended, is now extending to the legislature all the power that is proper to protect the rights and interests of the people. It is saying . . . that there shall be no new county of a less-area than four hundred and thirty-two square miles.” (Kas. Const. Proc., 138.)
Further, in the closing days of the convention, when that body was having under consideration the verification of the instrument, Mr. Preston offered an amendment to withdraw a portion of the restrictions upon the legislature, whereupon Mr. Burris replied: “The design of this amendment seems to be to strike out that part of the section which prohibits the legislature from creating a new county with less than four hundred and thirty-two square miles, or from reducing any county below that. I hope it will not prevail. That provision has been considered by the convention. I am opposed to reconsideration, unless there is a palpable necessity for amendment.” The amendment of Mr. Preston was then-ruled out of order. (Kas. Const. Proc., 419.)
At the time these proceedings were had in our constitutional convention, the constitution of Iowa expressly prohibited the creation of any new county with less than four hundred and thirty-two square miles, or the reduction of any organized county below that area, and thus by implication no new' or unorganized county could be cut down to less-than the same area. By the constitutional inhibition of our state, no county is to be organized w'ith an area of less than four hundred and thirty-two square miles, nor the lines of any county changed so as to include a less area, and thus by implication no new county is to be created with less than four hundred and thirty-two square miles. Although the wording of the two constitutional provisions is somewhat different, both effectuate substantially the same object.
Without further references or more extended argument, we-conclude that at the date of the passage of the act of March 5th, 1875, Stafford was an existing county of the state; that §1, art. 9, of the state constitution, protected it from being reduced to an area of less than four hundred and thirty-two-square miles, and we must regard said act, therefore, as void, because in conflict with the constitution. (Buncombe v. Prindie, 12 Iowa, 1; Garfield v. Bray ton, 33 Iowa, 16.)
Under these views, Stafford county still exists, with the-area and boundaries it possessed immediately prior to March 5th, 1875, and the attempt to carve it up has wholly failed from a violation, by the legislature, of the paramount law of the state.
Let a peremptory writ of mandamus issue, as prayed for, commanding the governor to appoint at once an inhabitant of Stafford county to take the census.
