Edmonds v. Herbrandson

• Decision Date: 05 December 1891
• Parties: Edmonds et al. v. Herbrandson et al.
• Court: North Dakota Supreme Court

2 N.D. 270

50 N.W. 970

Edmonds et al.

v.Herbrandson et al.

Supreme Court of North Dakota.

Dec. 5, 1891.

Syllabus by the Court.

1. Chapter 56 of the Laws of 1890, regulating the relocation of county-seats, is unconstitutional, as being repugnant to section 69 of article 2 of the state constitution, prohibiting special legislation locating or changing county-seats, because it arbitrarily classifies counties, putting into one class all counties wherein at the date of the act the court-house and jail were worth the sum of $35,000, and forever excluding from this class all counties coming within its description in the future, placing all such counties permanently in a separate class.

2. The constitutional inhibition against special legislation does not prevent classification, but such classification must be natural, not arbitrary; it must stand upon some reason, having regard to the character of the legislation of which it is a feature.

3. It is not the form, but the effect, of a statute which determines its special character.

4. An act relating to all the objects to which it should relate, except one, is as much special legislation as if it had embraced only the object excluded.

5. It is purely a legislative question, subject to no review by the courts, whether in a given case a general or special law should be enacted under section 70 of article 2 of the state constitution, which provides that “in all other cases where a general law can be made applicable no special law shall be enacted.”

Appeal from district court, Traill county; William B. McConnell, Judge.

Action by Arthur Edmonds and others against Peter Herbrandson and others, officers of Traill county, to restrain them from removing the county records from Caledonia to Hillsboro. Judgment for defendants. Plaintiffs appeal. Reversed.A. B. Levisee, Ball & Smith, and Taylor Crum, for appellants. F. W. Ames and J. F. Selby, for respondents. Joslin & Ryan and Carmody & Leslie, for respondents on rehearing.

Corliss, C. J.

The plaintiffs, as tax-payers of Traill county, in this state, instituted this action against the members of the board of county commissioners and the other officers of that county to secure an injunction perpetually restraining them, their successors in office, clerks, deputies, agents, and servants, from removing, or attempting to remove, the books, papers, records, etc., belonging at the county-seat of such county, from such county-seat at Caledonia to the city of Hillsboro, in said county, and from locating or establishing, or attempting to locate or establish, the respective offices of such county, or any of the same, at such city of Hillsboro, under and in pursuance of the votes cast at a certain election held for that purpose under the provisions of chapter 56 of the Laws of 1890. It is undisputed that at this election all the requirements of this statute were fully complied with. In fact no question upon this appeal is presented, except the single one of the constitutionality of this act. By it a radical change in the manner of relocating county-seats was made. Before its enactment, section 565, Comp. Laws, gave the rule. It required a petition of two-thirds of the qualified voters of the county as a condition precedent to the ordering and holding of an election, and two-thirds of the votes actually cast at such election were essential to choice. The act of 1890 requires a petition signed by only one-third of the qualified voters of such county, as shown by the vote cast at the last preceding election for state officers holden in such county, to compel the ordering of an election to relocate the county-seat, and three-fifths of the votes actually cast will transfer the county-seat to the place having such three-fifths vote. The county-seat in Traill county before the election under this statute was located at Caledonia. The proceedings taken under the act were regular, and the vote in favor of a relocation at Hillsboro was sufficient to work a relocation of the county-seat at that place, if the law in question is valid.

It is undisputed that the proceedings were not efficacious to transfer the county-seat, under section 565, Comp. Laws; the petition not being signed by two-thirds of the qualified voters, and the vote in favor of Hillsboro not being equal to two-thirds of the votes cast. The sole inquiry on this appeal, therefore, is respecting the constitutionality of chapter 56 of the Laws of 1890. It is challenged as unconstitutional because of its alleged conflict with section 69 of article 2 of the state constitution, which provides that “the legislative assembly shall not pass local or special laws in any of the following enumerated cases, that is to say: * * * (3) Locating or changing county-seats.” The provision of chapter 56 which it is claimed renders that act obnoxious to this constitutional inhibition is the proviso which reads as follows: “Provided, that nothing in this act shall permit the removal to or locating of the county-seat of any county at a place not located upon a line of railroad, nor wherein the court-house and jail now erected exceed in value the sum of $35,000.” It is undisputed that some of the counties of the state fall within the proviso, and that some of them fall without it, and within the regulation of the act. It is therefore apparent that by this proviso the legislature has classified counties for the purpose of determining under what law a relocation of the county-seat can be obtained. The proviso excepts from the provision of chapter 56, counties with respect to which the circumstances are peculiar. These counties are either left under the provisions of section 565 of the Compiled Laws, or there is no statutory rule regulating or permitting the relocation of county-seats therein. Whichever of these two views we take, these counties are placed in a separate class by themselves; and the question which naturally suggests itself is whether this particular classification can be sustained under the authorities and the spirit of the constitutional prohibition against special legislation. This section of the constitution must have a reasonable construction. To say that no classification can be made under such an article would make it one of the most pernicious provisions ever embodied in the fundamental law of a state. It would paralyze the legislative will. It would beget a worse evil than unlimited special legislation,-the grouping together without homogeneity of the most incongruous subjects under the scope of an all-embracing law. On the other hand, the classification may not be arbitrary. The legislature cannot finally settle the boundaries to be drawn. Such a view of the organic law would bring upon this court the just reproach that it had suffered the legislature to disregard a constitutional barrier by relegating to it the question where that barrier should be set up. See Pell v. Newark, 40 N. J. Law, 71-80; Appeal of Ayars, 122 Pa. St. 266, 16 Atl. Rep. 356. Where shall the line properly be traced? We believe that in testing this question these inquiries should be made: Would it be unjust to include the classes of objects or persons excluded? Would it be unnatural? Would such legislation be appropriate to them? Could it properly be made applicable? Is there any reasonable ground for excluding them? It is impossible, from the very nature of the case, to state with precision the true doctrine. But it is our opinion that every law is special which does not embrace every class of objects or persons within the reach of statutory law, with the single exception that the legislature may exclude from the provisions of a statute such classes of objects or persons as are not similarly situated with those included therein, in respect to the nature of the legislation. The classification must be natural, not artificial. It must stand upon some reason, having regard to the character of the legislation.

We find in the adjudications no more felicitousstatement of the true doctrine than that of Chief Justice Beasley in State v. Hammer, 42 N. J. Law, 439: “But the true principle requires something more than a mere designation by such characteristics as will serve to classify; for the characteristics which thus serve as a basis for classification must be of such a nature as to mark the object so designated as peculiarly requiring exclusive legislation. There must be a substantial distinction, having reference to the subject-matter of the proposed legislation, between the objects or places embraced in such legislation and the objects or places excluded. The marks of distinction on which the classification is founded must be such, in the nature of things, as will in some reasonable degree, at least, account for or justify the restriction of the legislation.” The whole trend of the authorities is in this line. See Nichols v. Walter, (Minn.) 33 N. W. Rep. 800;Appeal of Ayars, 122 Pa. St. 266, 16 Atl. Rep. 356;People v. Railroad Co., (Cal.) 23 Pac. Rep. 303;In re Washington St., (Pa. Sup.) 19 Atl. Rep. 219;State v. Boyd, 19 Nev. 43, 5 Pac. Rep. 735;Closson v. Trenton, 48 N. J. Law, 438, 5 Atl. Rep. 323;Bray v. Hudson Co., 50 N. J. Law, 82, 11 Atl. Rep. 135;Township of Lodi v. State, (N. J. Sup.) 18 Atl. Rep. 749;Utsy v. Hiott, (S. C.) 9 S. E. Rep. 338;State v. Somers' Point, (N. J. Sup.) 18 Atl. Rep. 694;Clark v. City of Cape May, (N. J. Sup.) 14 Atl. Rep. 581;Trust Co. v. Whithed, (N. D.) 49 N. W. Rep. 318. This list might be greatly enlarged. We are inclined to the view that under the authorities, had the legislature not closed the door against accessions to the class of counties having a court-house and jail exceeding $35,000 in value, the classification would have been proper. But an arbitrary time is fixed, after which no county coming within the same conditions which characterize the class can gain admittance to such class. “Provided, that nothing in this act shall permit the removal to or...