Board of County Commissioners of Big Horn County v. Woods

• Decision Date: 10 February 1910
• Docket Number: 613
• Citation: 106 P. 923,18 Wyo. 316
• Parties: BOARD OF COUNTY COMMISSIONERS OF BIG HORN COUNTY v. WOODS ET AL
• Court: Wyoming Supreme Court

106 P. 923

18 Wyo. 316

BOARD OF COUNTY COMMISSIONERS OF BIG HORN COUNTY v. WOODS ET AL

No. 613

Supreme Court of Wyoming

February 10, 1910

Rehearing Denied March 29, 1910, Reported at: 18 Wyo. 316 at 338.

ON RESERVED CONSTITUTIONAL QUESTIONS from the District Court Big Horn County, HON. CARROLL H. PARMELEE, Judge.

P. W Metz, S. T. Corn and W. S. Metz, for the plaintiff.

The Act creating Park County took effect according to its terms from and after its passage, and therefore it acquired its full force and effect, whatever that is, upon its approval by the Governor, February 15, 1909. At the time the Act was approved a majority of the qualified electors of the territory proposed to be cut off had not voted in favor of the division, as they were required to do before the county could be divided under the closing sentence of Section 2 of Article XII of the Constitution. That the creation of Park County out of territory cut off from Big Horn County constitutes a division of the last named county under the Constitution seems to be plain. It is therefore a mere matter of statement requiring no argument that on the date of the approval of the Act creating Park County the Legislature was without authority to divide Big Horn County by creating the new County of Park out of a portion of its territory. Such authority had been expressly denied by the Constitution except upon the condition precedent that a majority of the electors of the territory to be cut off should vote in favor of the division. The creation of counties is a legislative function. (Com'rs v. Perkins, 5 Wyo. 166.) The Act in question recognizes this principle. It does not undertake to provide a method by which the county should be formed, but it purports to form the county by virtue of its own provision. It operates in praesenti or not at all. It may well be admitted that if the Legislature had so chosen it might have defined the boundaries and given a name to the proposed new county, have provided for a vote upon the question of division, and for taking such other or further steps as might be deemed necessary or convenient, and then have further provided, that upon the performance of such requirements the defined territory should become a county. But that is entirely aside from the question in this case for the Legislature did not undertake to so provide. We submit, therefore, that the Act is in direct violation of the Constitution and was at the time of its passage entirely void.

The second Act in question, approved February 24, 1909, which, by amending the statutes concerning the organization of counties, attempted to provide for a sumbission of the question of division to the voters, cannot be held to make the first Act creating Park County valid and operative for the purpose of dividing Big Horn County, the creation of Park County, or for any other purpose. The first Act was unconstitutional when passed, and inoperative as though it had never been passed. The invalidity dates from its enactment. (Cooley Const. Lim. 188.) The Act being void from the time of its enactment the subsequent statute could not have the effect of giving it validity. (State v. Tuffly, 20 Nev. 427, 22 P. 1054.) The last Act was not an amendment of the Park County Act and does not purport to be such an amendment, but it is independent legislation.

The Legislature cannot delegate its powers to pass laws. (Cooley Const. Lim. 117, 118; Lammert v. Lidwell, 62 Mo. 190; Home Ins. Co. v. Swigart, 104 Ill. 665; People v. Reynolds, 5 Gilm. (Ill.) 1; O'Neil v. Ins. Co., 106 Pa. 76; Locke's App., 72 Pa. St. 491; Barto v. Hinrod, 4 Seld. 483.) The Legislature may enact a law, the ultimate operation of which may be made to depend upon a contingency, but the statute must be a complete and absolute expression of the legislative will--a law in praesenti, to take effect in futuro. (26 Ency. Law, 567.) If, then, the Legislature cannot by express provision submit to the voters whether an act shall take effect, the reason is stronger that when there has been no attempt at submission no subsequent vote can give validity to an otherwise invalid act.

It is fundamental that no election can be held unless by virtue of some law in force at the time it is held, and unless the Legislature has provided the necessary machinery for holding it. (10 Ency. Law, 563.) By the statute under which it is claimed the vote on the question of division was taken, such vote is only provided for in the case of a county already created and formed, and as a part of the process of its organization. Park County had not been created or formed at the time of the appointment of the temporary Commissioners, for the reason that there had been no vote upon the question of division, and it cannot be created or formed without such vote. The act of the Governor in appointing the temporary Commissioners was premature and unauthorized by law. And such appointment gave them no legal authority for calling and holding an election. The holding of an election upon the division was a condition precedent to the appointment of such Commissioners.

The Act of February 24 is itself unconstitutional. The chapter which it attempts to amend concerns solely the organization of counties which have been created and formed but remain unorganized. The amendatory statute is open to the constitutional objection that it contains more than one subject. (Allardt v. People (Ill.), 64 N.E. 533; Grand Rapids v. Burlingame, 53 N.W. 620; Skinner v. Wilhelm, 30 N.W. 311.)

In effect the question in this case has been decided in Commr's v. Perkins, 5 Wyo. 166. In that case it is held that there is a distinction between creating and organizing a county, and it is said that the Legislature creates the county by its own enactment, and it was held in that case that Big Horn County was created by the act of the Legislature before the adoption of the Constitution, and that therefore the county could be organized after the Constitution took effect without a vote upon the question of division of the parent counties. The Legislature is required to provide by general law for organizing new counties, while the creation or formation of a new county must be by special act. The Act of February 24th is therefore clearly obnoxious to the constitutional objection that it contains more than one subject, for it provides for the creation as well as the organization of counties. (In re Werner, 125 Cal. 567; Schaffner v. Young (N. Dak.), 86 N.W. 735; State v. Merrimer, 6 Wis. 17; State v. Elwood, 11 Wis. 17; State v. Maryland, 6 Wis. 14.)

Herbert V. Lacey, John W. Lacey and C. W. Burdick, for defendants.

The difference between counsel in this case is largely one of definition. On the part of defendant it is denied that the creation of Park County by the Legislature is itself a division of Big Horn County under the Constitution. The election upon the question of division which is required by the Constitution in the case of the division of the county does not pertain to the creation or formation of the county, in the sense of the Constitution, or in the sense in which those words were used in the opinion in the case of Commissioners v. Perkins, cited by counsel for the plaintiff. We deny that the election on the question of division is an essential step or any step in the creation of the county. The vote on division is not a legislative function, but administrative, and being so it cannot be a part of the work of creating or forming the county. Reading the Constitution in the light of our history and together with the statutes here under discussion is all that is necessary to defeat the contentions of the plaintiff. Two things are mentioned in the section of the Constitution here pertinent. One is the creating or forming the county, the other organizing it. The only portion of the section which relates to the creation or formation of new counties by the Legislature is the first five lines of the second sentence of the section. The Legislature is left with full and absolute power and authority to form new counties, with the sole restriction that no new county shall be formed unless it shall contain within its limits property of a certain value, and unless the remaining portion of the old county or counties shall each contain property of a certain value. It seems to be conceded that no part of this work of creating or forming a new county can be delegated. It seems also to be conceded that the very nature of the case requires that laws passed for the creation of new counties shall be special and not general. Each new county must have a name and boundaries which apply only to itself, and therefore it is impossible to create the county by a general statute. The methods of organizing the new counties on the other hand can be the same in all, and therefore the Constitution has provided that provision shall be made by general law for organizing new counties. The section of the statute above referred to places some restrictions upon the organization of counties, which need not here be discussed. It is clear that the Constitution distinguishes between the creation on the one hand and the organization on the other of a new county. No single restriction provided for in the Constitution as to either applies to both. Several counties before the adoption of the Constitution had been created, and for some time after they were created remained a part of the counties from which they were respectively taken, and at a later period the organization was had which separated or divided the original counties. It has been a fundamental principle in Wyoming that a county can be created and remain an unorganized county without in any way affecting its relation to the parent county.

A county is not divided in a...