McDonald v. Doust

• Decision Date: 12 May 1905
• Parties: MCDONALD v. DOUST
• Court: Idaho Supreme Court

81 P. 60

11 Idaho 14

MCDONALD v. DOUST

Supreme Court of Idaho

May 12, 1905

CONSTITUTIONAL LAW-ACT ABOLISHING A COUNTY-POWER OF LEGISLATURE OVER COUNTIES.

1. Section 1 of article 18 of the constitution recognizes the counties organized and existing at the date of its adoption and it is not within the power of the legislature to destroy or abolish such governmental organizations.

2. Acts inconsistent with the spirit of the constitution are as much prohibited by its terms as are acts specifically enumerated and forbidden therein.

3. Act of the legislature approved February 28, 1905, 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," is unconstitutional and void in that it attempts to abolish and destroy an organized county of the state.

(Syllabus by the court.)

ORIGINAL application for a writ of mandate. Alternative writ issued and upon hearing writ quashed and action dismissed.

Writ quashed and proceeding dismissed.

Edwin McBee, Ezra Whitla, C. W. Beale, Herman H. Taylor and McClear & Burgan, for Plaintiff.

In this matter the defendant has filed a demurrer to the petition of the petitioner and attacked the constitutionality of the act of the legislature under which he is acting as sheriff of the county of Clark, state of Idaho. In our judgment there is but one question for determination in this matter and that is, Has the legislature of the state of Idaho, under the constitution of our state, the right to abolish a county and create and organize others from such territory? The right of the legislature to abolish a county has been upheld by this court and by nearly all other courts of the Union. (Blaine County v. Heard, 5 Idaho 6, 45 P. 890; People v. Alturas Co., 6 Idaho 418, 55 P. 1067, 44 L. R. A. 122; Wright v. Kelly, 4 Idaho 624, 43 P. 565; Division of Howard County, 15 Kan. 194; State v. Hamilton, 40 Kan. 323, 19 P. 723; State v. Commrs. of Kiowa Co., 41 Kan. 630, 21 P. 601. Portwood v. Board of Supervisors, 52 Miss. 523; Coles v. Madison County, 1 Ill. (Breese) 154, 12 Am. Dec. 161.) Section 2 of article 1 of our constitution also authorizes the abolition of a county and is in language as follows: "All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform or abolish the same, whenever they may deem it necessary; and no special privilege or immunity shall ever be granted, and may not be altered, revoked, or repealed by the legislature." (State Bank v. Knopp, 16 How. (U.S.) 369-380, 14 L.Ed. 977.) In the case of Division of Howard County, 15 Kan. 215, the supreme court of that state took occasion to say: "In the case of Hunt v. Meadows, 1 Kan. 90, it was held that an act of the territorial legislature, passed after the state was admitted into the Union, destroying the county of Madison, was invalid." In Iowa, in the case of Duncombe v. Prindle, 12 Iowa 1, it was held that an act destroying the county of Humboldt was valid. And we think such acts are valid. Of course, when a county is destroyed, the county seat must go with it. The county seat of an old county need not be made the county seat of any new county, or indeed of any county, new or old, into which such county seat may be placed by a change of county lines, or by the creation of a new county. Where a new county, formed out of territory taken from an old county, includes within its limits the county seat of the old county, such place ceases to be the county seat of the old county, and does not become the county seat of the new county. (7 Am. & Eng. Ency. of Law, 2d ed., p. 1045, subd. 4; Attorney General v. Fitzpatrick, 2 Wis. 542.) The power to locate a county seat, in the first instance, belongs to the legislature, and it is not necessary that there should be any vote of the electors of the county upon the question. (7 Am. & Eng. Ency. of Law, 2d ed., 1013-1015; Doane v. Logan County, 3 Idaho 38, 26 P. 167; Attorney General v. Iron County, 64 Mich. 607, 31 N.W. 539.) In County of Cherokee v. State, 36 Kan. 337, 13 P. 558, the supreme court of Kansas laid down the rule that in determining whether an act of the legislature is unconstitutional it is the duty of the courts to give such a construction to it, if possible, as will uphold the act. See, also, upon this branch of the case, Wright v. Kelly, 4 Idaho 624, 43 P. 565; Bonhomme County v. Berndt, 15 S. Dak. 494, 90 N.W. 147; Cook v. Port of Portland, 20 Or. 580, 27 P. 263, 13 L. R. A. 533; Santo v. State, 2 Iowa 165, 63 Am. Dec. 487; Town of McGregor v. Baylies, 19 Iowa 43.

Fremont Wood, Edgar Wilson and Charles L. Heitman, for Defendant.

The legislature cannot abolish a county or a county government. Section 1, article 18, of our state constitution provides: "The several counties of the territory of Idaho as they now exist are hereby recognized as legal subdivisions of this state." (Lincoln Co. v. George, 3 Idaho 108, 26 P. 983.) We are aware that the decisions of some of the states hold in direct terms that counties may be abolished at the legislative will. We have examined many of these cases and in no instance do we find a constitutional inhibition against such legislative abolition of counties similar to the one in our constitution. The legislature cannot remove the county seat from Rathdrum to Coeur d'Alene, as provided in this act, without a compliance with the requirements of section 2 of article 18 of the state constitution. The legislature cannot do indirectly that which it is forbidden to do directly. This is a rule dictated by reason, and supported by the highest authority. (Craig v. State, 4 Pet. 410, 7 L.Ed. 903.) It will be noted that the constitutional inhibition against a legislative removal of the county seat without a vote of the people in Illinois is not nearly so exacting as section 2 of article 18 of our constitution. (See, also, James Co. v. Hamilton Co., 89 Tenn. 237, 14 S.W. 601, before cited.) The act in question is void and unconstitutional, because it does not lie within the power of the legislature to abolish a county organization or a county government. (James Co. v. Hamilton Co., 89 Tenn. 237, 14 S.W. 601; People v. Marshall, 12 Ill. 391.)

AILSHIE J., SULLIVAN, J. Sullivan, J., Ailshie, J., concurring. STOCKSLAGER, C. J., Dissenting.

OPINION

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...