State ex rel. Chehalis County v. Superior Court

Root, J.

At the last session of the legislature a bill was passed looking to the creation of a county to be known as Grays Harbor county, and to be composed of territory taken from the present county of Chehalis. Laws 1907, p. 62. This is an application for writs of prohibition against the superior court in and for the counties of Lewis, Pacific, and Wahkiakum, and the Honorable A. E. Rice, judge of said court, to prohibit him and them from exercising any of the functions alleged to be imposed upon him or them by said act. The first section of said act employs the following language:

“All that part of Chehalis county lying and being west and north of the following described line [here follows the entire description] shall be and is hereby created and established as the county of Grays Harbor: Provided, however, That the said Grays Harbor county is hereby created as aforesaid subject to the requirements of the constitution of the state of Washington in the respect to the establishment of new counties, and subject to an ascertainment of the fact of such compliance as hereinafter provided, and that the creation of Grays Harbor county hereby shall not become operative to establish said county until such compliance shall have been so had and the fact of such compliance so ascertained.”

Section 2 provides that any qualified voter within the territory of the proposed new county may, within three months, present to the governor a petition showing that it is signed by a majority of the voters within said proposed new county, and praying that the creation of the new county may be deemed fully established when the constitutional provisions are complied with; further providing that said petition shall be accompanied by a bond in the sum of $1,000 to cover costs of proceedings in case the county should not be established.

Section 3 provides :

■ “The governor shall forthwith transmit said petition to the superior judge of the next nearest judicial district adjoining the judicial district in which said county of Chehalis is now situate,”

and said judge is required to examine the petition and ascertain if it contains a sufficient number of signatures, and as to whether the striking of the territory will leave Chehalis countv with a population of less than 4,000, and whether the territory of the proposed new county contains a population of 2.000 or more; and provides that said judge may, in his discretion, appoint an elector and freeholder, or electors and freeholders, residing in the territory of the proposed new county, to enumerate the population of Chehalis county, or any part thereof, so as to show the number of people living in each portion; and the duties of said enumerator or enumerators are prescribed.

■ Section 4 provides that, if the judge finds that there are 2.000 or more inhabitants within the boundaries of the proposed new county, and that there shall remain 4,000 or more inhabitants in the remaining portion of Chehalis county, he shall thereupon make a decree setting forth that the provisions of the constitution have been complied with. Upon the filing of such decree, the clerk of the court is to transmit certified copies thereof to the county commissioners of Chehalis county, to the governor, and to the secretary of state. Section 5 provides that the governor, on receipt of said certified copy, shall make a proclamation declaring Grays Harbor county to be established. Other sections of the act provide for the organization of the new county, the apportionment of its indebtedness, etc.

Petitioners assert that the act is unconstitutional or otherwise void, and assign many reasons .for this contention. It will be unnecessary to pass upon more than one. Article 11, section 3, of the state constitution, reads as follows:

“No new county shall be established which shall reduce any county to a population less than four thousand (4,000), nor shall a new county be formed containing a less population than two thousand (2,000). There shall be no territory stricken from any county unless a majority of the voters living in such territory shall petition therefor, and then only under such other conditions as may be prescribed by a general law applicable to the whole state.”

It is urged by petitioners that the bill could not be passed until the legislature had ascertained the population of the proposed new county and of that portion which would remain in the old county after the creation of the new. It must, of course, be conceded that the constitutional provision is a limitation upon the power of the legislature to create a county. Respondents contend, however, that the county is not “established” by the mere passing of the bill, but that the legislature expressly provided a means by which all the constitutional requirements should be met; that it must be presumed that the legislature complied with all the requisites of the constitution, and ascertained the population of these portions of the territory into which the old county was to be divided. In the case of Farquharson v. Yeargin, 24 Wash. 549, 64 Pac. 717, this court held that, where the record was silent as to what the legislature had done in the premises, it would be presumed that that body had informed itself as to those matters which the constitution required it to have knowledge of, before passing the law.

It is urged by the petitioners that such presumption cannot be indulged in this case, for the reason that the provisions of the act itself show that the legislature had not informed itself as to the population of the two portions into which the territory of the former county was to be divided. We think this contention must be upheld. The act makes express provision for the ascertainment of these matters by another authority, and goes into detail as to how this shall be accomplished. It cannot be supposed that the legislature would do an idle thing. If it had already ascertained these matters, the ascertainment of which was essential-to the formation and establishment of a new county, it cannot be thought that provisions would be placed in the bill for the subsequent ascertainment thereof by another body, officer, or person. It is strenuously urged by petitioners that the legislature was obliged to ascertain the population of these portions of the county before it passed the bill, and that as it affirmatively appears that it did not do so, the act must fall; that the attempted submission of this matter to the court or to a judge of a court was an attempted delegation of legislative power that was not delegable, and that it was an imposition upon the court and the judge thereof of non judicial duties which could not be legally exercised by a court or judge. In the case of Farquharson v. Yeargin, supra, this court said:

“The creation of a new county is an exercise of legislative power subject to the limitations referred to [the constitutional provisions above quoted]. Before this power can be rightfully exercised, ,i¡t must be made to appear to the legislature affirmatively thaj: the new county contains a population of not less than two thousand, and that by the creation of the new county the population of the county from which the new county is taken is not reduced to less than four thousand. When these facts are made to appear to the satisfaction of the legislature, then the' act creating the proposed new county may be passed.”

If this be the law of the state, and if a new county can be at all legally created of territory stricken from an existing county, except under the provisions of a general law therefor, it must clearly appear that the act in question is obnoxious to the constitution. But it is insistently urged by respondents that this portion of the. opinion is obiter dictum. Without passing upon this, but for the moment assuming that it is not controlling in this case, let us examine the provisions whereby the legislature sought to have an ascertainment made of the facts which the constitution makes a prerequisite to the establishment of a new county. This act sought to provide for the ascertainment of these facts by “the superior judge of the next nearest judicial district in which said county of Chehalis is now situate.” Petitioners contend that this is absolutely indefinite and uncertain; that it cannot be ascertained from this or any other language of the statute who was the judge intended to be indicated by the legislature. Respondents answer this by saying that it was incumbent upon the governor to ascertain which was the “next nearest judicial district,” and that his decision must be unquestionable and final.

We cannot bring ourselves to agree with this contention. We think the language shows that the legislature intended one of the three judges who preside respectively over the three districts adjoining Chehalis county. . The question is, which one of these three did it have in mind and intend to designate P When the legislature itself did not determine essential facts, and sought to have them determined by some other authority, if it had the power at all to so have them ascertained, it was certainly incumbent upon it to clearly indicate what court, judge, official, or person should make such ascertainment. The creation of a new coimty from the territory of another is an important political event, and of special interest to all of the inhabitants of that territory, and each and all have the right to insist that, in the exercise of its power in that direction, the legislature shall comply with the mandates of the people as given in the constitution; and where it seeks to make a law contingent upon the ascertainment of a certain fact required by the constitution to exist before the law can become effective, its language must be such as to indicate clearly whom it intends as that court, judge, official, or person. Responsibility must be fixed and definite.

In this case there are three judicial districts (if there be any such thing as “judicial districts” in this state), each of which adjoins the judicial district in which Chehalis county is situated. Bounding Chehalis county upon a considerable portion of its north line is Jefferson county, which, with other counties, has a judge presiding over its superior court. Bounding Chehalis county on the east and partly on the north are-Mason and Thurston counties, which for judicial purposes are combined, having a superior court judge presiding over the court in each county. Upon the south it is bounded by Lewis and Pacific counties, both of which are, together with Wahkiakum, in a judicial district presided over by the respondent, Honorable A. E. Rice. As a mathematical and geographical proposition, and consequently as an accepted legal fact, it is impossible to say that any one of these districts is nearer to Chehalis county than either of the other two. It was therefore impossible for the governor, or any court, officers, or person, to know from the language of the act what judge was intended by the legislature. In the exercise of any public function, the person, board, court, or other body seeking to exercise such power must, if his act is to be valid, be able to point to the legal authority justifying, requiring, or permitting such act. In this case there can be no such authority shown. Could a writ a mandamus run against Judge Rice if he had refused to act? We apprehend not. His name is not used. He is in no manner described or indicated. Uls judicial district is not mentioned. Nor is anything said whereby it can be supposed that the legislature was speaking with reference to the judge of such district. Under the writs in this case, it is incumbent upon the respondents to show that Judge Rice is the person authorized by this act to ascertain the facts and do the other things referred to therein. This has not been done. It cannot be done. The act is entirely indefinite and uncertain. Judge Still of the district including Jefferson county, or Judge Linn of the district comprising Mason and Thurston, is as fully and definitely indicated as Judge Rice. The statute, being thus indefinite and uncertain, is incapable of enforcement; and no jurisdiction being shown in Judge Rice, the writs must issue, and it is so ordered.

Hadley, C. J., Dunbak, Chow, and Rudkin, JJ., concur.