McDonald V. Doust

AILSHIE, J.

— This is an original application by the plaintiff, praying for the issuance of a writ of mandate. The plaintiff alleges that at the general election held in November, 1904, the defendant, Edwin Doust, was duly elected sheriff of the county of Kootenai, and thereafter qualified and entered upon the discharge of his duties as such sheriff. That thereafter the legislature passed an act abolishing the county of Kootenai and creating the counties of Lewis and Clark, and that by the provisions of the act, the governor was authorized and directed to appoint county officers for each of the new counties, and that in accordance therewith he appointed the plaintiff as sheriff of the county of Clark, and that plaintiff immediately entered upon the discharge of his duties as such sheriff and demanded of the defendant as the former sheriff of Kootenai county that he deliver over to-plaintiff the records, money, property and prisoners within his care and custody belonging to the county of Clark, and that the defendant refuses so to do. The defendant demurred to the petition and at the same time answered, and under both his demurrer and answer urges that the act abolishing Kootenai county, and creating the counties of Lewis and Clark is unconstitutional and void. The act in question was approved on the twenty-eighth day of February, 1905, and is entitled: “An act to abolish the county of Kootenai within the state of Idaho, and create and organize the counties of Lewis and Clark within said state, define the boundaries thereof, and locate the county seats of Lewis and Clark counties, apportion the debt of Kootenai county between Lewis and Clark counties, and to provide for the appointment of officers in said Lewis and Clark counties, and for transcribing a portion of the records of Clark county, and to constitute said counties of Lewis and Clark a part of the first judicial district of the state of Idaho.” Section 1 of the act is as follows: “The county of Kootenai, in the state of Idaho, shall be and is hereby abolished, and the county of Lewis and the county of Clark in said state are hereby created, and said counties of Lewis and Clark shall embrace all the territory heretofore included within the boundary of said Kootenai county.” By the further provisions of the act the territory comprising Kootenai county is divided between the two new counties, and the county seat of Lewis county is established at Sandpoint, and that of Clark at Coeur d’Alene City. It contains an emergency clause whereby the act goes into effect immediately upon its approval, and the governor is directed to appoint officers for the two counties within ten days after the approval of the act; but there is no provision in the bill for the continuation or carrying on of county government from the time the act goes into effect until the new officers qualify.

By section 1 of this act the county of Kootenai is abolished and from the identical territory formerly constituting and comprising that county, two counties are created, to be known as Lewis and Clark, respectively. To my mind the controlling, and in fact the only serious, question in this ease is the power of the legislature to abolish and destroy a county existing at the time of the adoption of the constitution. If ■í.Tiis question be resolved in favor of the exercise of such power, then, in my judgment, the act under consideration must stand. If such power does not exist, then the act is unconstitutional and void.

Article 18 of the constitution is entitled “County Organization. ’ ’ Section 1 of that article reads: ‘ ‘ The several counties of the territory of Idaho, as they now exist, are hereby recognized as legal subdivisions of this state.” Section 2 of the same article provides that “no county seat shall be removed unless upon petition of a majority of the qualified electors of the county, voting on the proposition at a general election, shall vote in favor of such removal.” Section 3 of the same article provides that no county shall be divided and the portion cut off be attached to another county without first submitting the question to a vote of the people in the portion to be detached. By section 4 it is provided that “no new counties shall be established which shall reduce any county to an area of less than four hundred square miles.....Nor shall any new county be formed which shall have an area of less than four hundred square miles.”

The only instance in which these provisions of the constitution have been directly under consideration by this court was in People v. George, 3 Idaho, 72, 26 Pac. 983. In that ease three separate opinions were filed by the justices of this court. Mr. Justice Huston, in his concurring opinion, held that the legislature was without the power or authority under the constitution to abolish 'a county. Mr. Justice Morgan, who filed the principal majority opinion, held that the act of the legislature creating and establishing the counties of Alta and Lincoln from the identical territory formerly constituting Alturas and Logan was a palpable evasion of the constitution by doing in an indirect manner that which the constitution forbids being done directly, and that the evasion consisted in the attempt to cut off a portion of one county and attach it to another county without submitting the question to a vote of the people affected thereby. Chief Justice Sullivan, dissenting from the views announced by the majority of the court, expressed the opinion that the legislature had plenary power in both the abolition and creation of counties. It is true that several cases have been before our court involving acts abolishing old and creating new counties, but in none of those cases has the question here involved been directly in issue or squarely passed upon by our court. In Doan v. Board of Commissioners, 3 Idaho, 38, 26 Pac. 167, it was held that section 2, article 18, of the constitution does not apply to the location of a county seat consequent upon the creation of a new county. In Wright v. Kelley, 4 Idaho, 624, 43 Pac. 565, the court declined to pass upon the constitutionality of an act of the legislature creating Blaine county, on the ground that such question could not be raised upon application for writ of mandate by a private party. In Bellevue Water Co. v. Stockslager, 4 Idaho, 636, 43 Pac. 568, it was held that the constitutionality of an act creating Blaine county could not be tested upon application of a private party for a writ of prohibition. In Blaine County v. Heard, 5 Idaho, 6, 45 Pac. 890, it was held that the court could not examine the legislative journals for the purpose of ascertaining the motives of the legislature for the passage of an act. The opinion in that case concludes by saying that the act establishing Blaine county is constitutional, but that expression seems to have followed from the court’s conclusion that it could not examine into the legislative motive rather than from any other point considered. It is evident from that opinion that the court did not consider or pass upon the constitutional authority of the legislature to abolish a county. This is clearly apparent when we remember that the writer of this latter opinion had stated his position in People v. George, that a county could not be abolished by legislative act. In People v. Alturas County, 6 Idaho, 418, 55 Pac. 1067, 44 L. R. A. 122, the constitutionality of the act establishing Blaine county was sustained by reason of the application of the doctrine of estoppel, and no other point was passed upon in the ease.

From the foregoing it is fair to say that in this state there is no expression which has the approval of a majority of the court, as constituted at the time, upon the identical question under consideration. The nearest approach, as above stated, was in the George case, and there we have one of the learned justices saying the legislature could not abolish a county, and the other saying that it could do so, and the third holding that that particular question was not material to the determination of the ease under consideration. In this state of opinion, as heretofore expressed by this court, I have felt at liberty, as well as impelled by duty, to make an independent examination of this question, and in the light of our constitution to determine, if possible, the purposes of the framers of the constitution and the people in its adoption with reference to the creation, organization, dissolution and destruction of counties.

At the outset there are a few propositions which are conceded, and the statement of which will simplify the question and limit our research. Under the foregoing provisions of the constitution we find: 1. No county seat can be removed except upon a vote of the people and two-thirds of the qualified electors voting in favor of the removal; 2. No part of any county can be cut off and attached to another county without a majority of the people in the territory to be cut off voting in favor thereof; 3. No new county can be established which will reduce an old county to an area of less than four hundred square miles; i. No new county can be created which shall have an area of less than four hundred square miles; 5. The legislature may create new counties. The act under consideration, if it is valid legislation, abolished the county of Kootenai, destroyed all county government therein, and, of course, abolished the seat of county government. The same act and thé same section created two new counties out of the same territory and gave them two new names, viz., Lewis and Clark. The object to be attained was to have two counties where one formerly existed. There is no one questions in this case but that the legislature had the power to create the county of Lewis and establish the county seat thereof at Sandpoint, had they left the remainder of the territory organized as Kootenai county with the county seat at Rathdrum, as it had previously existed.

It is also admitted that had they not abolished Kootenai county and reorganized the county containing the old county seat, the legislature would have been powerless under the constitution (section 2, article 18) to establish the county seat at Coeur d’Alene for the same county in which the old county seat, Rathdrum, was located. Now, then, is it possible, by saying they abolished the county and by the same act reorganized the territory containing the old county seat under a new name, with the county seat at another town, they could accomplish the ends forbidden by the constitution and thereby circumvent its operation? The purpose of creating and organizing counties is to obtain for the people local and county government. That government is as effective and operative, we take it, under one county named as another. The constitution was adopted for the establishment and in aid and furtherance of government, and not for the disorganization and abolition of government. The supreme court of Tennessee, in James County v. Hamilton County, 89 Tenn. 237, 14 S. W. 601, in discussing somewhat similar provisions of the Tennessee constitution to those of our constitution with reference to the creation and organization of counties and the removal of county seats, said: “From it [the constitution], it is clearly manifest the authority, and only authority, conferred is to build up, and not to pull down. It is equally-apparent that it never occurred to the framers that a county could be destroyed or dissolved by an arbitrary act of the legislature. The expression of one thing is the exclusion of the other. If the constitution is so careful of the rights of old counties in taking from them fractions to form new counties; if it is so watchful of the rights of citizens in county seats, it follows that it is also jealous of any power that might utterly destroy old counties, as the passage of the act before us.”

We are cited to section 2, article 1, of the constitution, where it is recited that “no special privileges or immunities shall ever be granted that may not be altered, revoked or repealed by the legislature” as authority for the legislature abolishing a county. Now, it must be apparent at once that a county organization or county government is neither a special privilege nor special immunity. On the other hand, it is a fundamental governmental right recognized and adopted by the constitution (section 1, article 1), and rests with the people (section 2, article 1), and cannot be abrogated or alienated by legislative act. It is true the manner of organization and exercise of that power are the subjects of legislative control (section 5, article 18), but the dissolution of government does not, under our constitution, rest with the legislature. At the time of the adoption of the constitution all of the territory of the state, comprising over eighty-four thousand square miles, was then organized into eighteen counties, and those counties were recognized as legal subdivisions of the state (section 1, article 18), and by the very terms of that document it was made possible to increase the then existing number of counties, as the population and wealth of the state might increase, to the maximum number of two hundred and twelve counties. This would indicate that the constitution contemplated growth and not dissolution. The constitution was framed and adopted as the organic law on which to build a commonwealth and not as a sanction for the destruction of what we already had. The thoughts and hopes of the people who adopted that document were centered on a future filled with the progress and development time is bringing us. Not a thought was entertained of ever giving up what we then had and destroying the local county governments that were recognized by section 1 of article 18.

There is no middle ground on this proposition. The legislature either can or cannot abolish a county. If they can do so at all, they can do so unconditionally and without limitation, except as controlled by section 4, article 18. The, power vested in the legislature to create counties may be exercised or not, as they see fit — there exists no authority by which they can be compelled to exercise such power. If the power to abolish counties exists at all, it exists freed from all conditions and independent of the power to create counties. If these respective powers each exist they are absolute and independent of each other, and the legislature might abolish any one or all of the counties of the state without creating any county or counties to- take their place and thereby leave the people without any local or county government at all. The mere statement of this proposition refutes the assumption on which it rests. No such thing can be done.

It seems to me that the authority granted by the constitution to create “new counties” does not mean to reorganize an old county under a new name. It must mean a new county, an additional county, and not a reorganization, rebounding or renaming of an old county. This is the view entertained by Justice Morgan in the George case, where he said: “I think the creation of a new county under the proviso in this section must be held to be the creation of an additional county, which the legislature may take out of any territory it may see fit, without a vote of the people.” What could be the necessity for creating a new county where the people already have a county and county government, unless it be the creation of an additional county out of territory taken from one or more old counties ? No advantage can be derived to the people by the reorganization or recreation of an old county, for the reason that by section 5, article 18, county government must be uniform throughout the state, and therefore no advantage can be acquired to the people by wiping from the map one county and replacing the same county and county government by another county exercising the same powers and authority as the old. The constitution never contemplated any vain or useless thing. Acts inconsistent with the spirit of that document are as much prohibited by its terms as are acts directly enumerated and' forbidden therein. Is it possible that the framers of the constitution, and the people in its adoption meant to prohibit the removal of a county seat without a two-thirds vote of the people, and to prohibit the cutting off of territory without a vote of the people in the territory to be cut off, and to prohibit the reduction of a county below four hundred square miles, and yet intended that a county might be entirely ’destroyed and blotted out at the legislative will? I am convinced that no such proposition was ever intended or contemplated by either the framers of the constitution or the people in its adoption. If the constitution recognized the counties in the state as they existed at the time of our admission and then prohibited any of the acts enumerated above and so guarded the organization and integrity of a county, is it possible that they still meant that by a single act of the legislature a county might be wiped out of existence? Suppose some county should so far forget itself as to elect a set of officers distasteful to the powers that dictate political fortunes and the legislature should suddenly conclude that the county ought, as a matter of political expediency, to be abolished and a new county organized from the same territory, and new officers appointed, who would conform to their ideas of government, with the county seat in a neighboring town, is it possible that such an act would be within the purview of the constitution ? I think not.

The counties created and recognized by the constitution find thé authority for their existence in a higher power than the legislature — that authority comes directly from the people; from the same power that makes legislatures. A strange anomaly would exist anyway if we recognized the power of the legislature under our constitution to abolish counties. Senators and representatives are elected by counties; the people of a county may be entitled to a half dozen representatives and a senator, which they elect and send to the legislature to represent their county, not to destroy it, but as soon as they arrive they get a bill through, carrying an emergency clause, abolishing the county they represent; what, county will they represent thereafter? Can they legislate their county out of representation? Or can they by legislative dictum constitute themselves the representatives of the new counties? Or suppose they abolish their county and create none in its' stead, where will they be ? Who will they thereafter represent? These are questions which present themselves as soon as we enter this field of inquiry. And, indeed, they pass beyond the mere speculative and become actualities the moment it is admitted that the power to abolish counties exists at all.

Aside from the cases I have reviewed from our own court, I have been unable to find any decision passing upon similar constitutional provisions and a similar state of facts to those involved in the case at bar, except People v. Marshall, 12 Ill. 391, and James County v. Hamilton County, 89 Tenn. 237, 14 S. W. 601. These two cases pass upon very similar facts and constitutional provisions to those under consideration in the case at bar and sustain the conclusion at which we have arrived. Division of Howard County, 15 Kan. 194, State v. Hamilton, 40 Kan. 323, 19 Pac. 723, State v. Commissioners of Kiowa County, 41 Kan. 630, 21 Pac. 601, and Portwood v. Montgomery Co., 52 Miss. 523, cited by petitioner, are not in point in this case. Neither Kansas nor Mississippi have constitutional provisions at all similar to those sections of our article 18, which recognize the counties existing at the time of the adoption of the constitution, and the further provisions relating to the creation of new counties, division of counties and change of county seats. It will be further observed, from an examination of those authorities, that what is there said with reference to the power of the legislature to abolish a county consists principally in the mere statements of the court that such power exists without giving any reason therefor, as found within the constitutional provisions of those states.

I have considered this question somewhat at length, for the reason that as I view the matter our determination of this case may have a far-reaching effect upon the future organization of counties in this state. There is still enough territory in the state for the creation of one hundred and ninety new counties of the constitutional area. This question must necessarily agitate every succeeding legislature, and I believe the lawmakers and the people have a right to know the opinion of the court upon these various provisions of the constitution with reference to the creation of counties. A right determination of this question is of vast importance' to the people of the state and future legislation which may be had on this subject. It is always with great reluctance that the courts hold an act of the legislature void, but the constitution is neither the production of the legislature nor the courts, and is as mandatory upon the one as the other. It emanated directly from the people, and its mandates are supreme and must be obeyed by every branch of the state government. We must apply it as we find it, and not as it might have been. It follows from what has been said that I consider the act under consideration in violation of the constitution. It is so held, and the writ will be quashed and the proceeding dismissed.

Sullivan, J., concurs.