People ex rel. Attorney General v. Alturas County

• Decision Date: 14 January 1899
• Citation: People ex rel. Attorney General v. Alturas County, 55 P. 1067, 6 Idaho 418 (Idaho 1899)
• Parties: PEOPLE EX REL. ATTORNEY GENERAL v. ALTURAS COUNTY
• Court: Idaho Supreme Court

55 P. 1067

6 Idaho 418

PEOPLE EX REL. ATTORNEY GENERAL v. ALTURAS COUNTY

Supreme Court of Idaho

January 14, 1899

COUNTIES-RECOGNITION OF-ESTOPPEL.-The state, having, through each of its co-ordinate branches of government, repeatedly recognized Blaine county as a county and legal subdivision of the state is estopped, after the lapse of nearly four years, from questioning the regularity of the passage of the act creating the county.

SAME.-Act creating county will not be inquired into after recognition for four years. The legislature, by an act approved March 5 1895, established the county of Blaine; the legislature thereafter, in four different acts, recognized the existence of Blaine county as a legal subdivision of the state; the supreme court of the state held the acts creating Blaine county to be valid; its existence was repeatedly recognized by the executive department; the people residing within the territory embraced within Blaine county repeatedly recognized the existence of the county; held, general elections therein participated in by the electors, generally elected county and precinct officers, levied and collected taxes, assumed debts of its predecessors, funded a large indebtedness, brought suits as a county against other counties, and recovered large sums, and exercised all the powers and functions of a county government for a period of nearly four years. Held, that under such circumstances, the court would decline to examine into the manner of the passage of the act creating the county.

(Syllabus by the court.)

APPEAL from District Court, Bannock County.

Reversed and remanded, with instructions.

Kingsbury & Parsons and Johnson & Johnson, for Appellants.

Not only has the creation, organization and existence of Blaine county been repeatedly recognized and declared by the judiciary, but its recognition by the other co-ordinate departments of the state government has been no less unequivocal and explicit. The legislative department, by an act approved March 9, 1895, to provide for the annexation of a part of Blaine county to Custer county (Laws 1885, p. 141), a statute unimpeached and unimpeachable here, recognized Blaine county as one of the existing counties of the state, with the organization, duties and liabilities attendant upon such public quasi corporations. For nearly four years all these obligations and duties, involving the administration of justice, the levy of taxes, the collection and payment of the county's portion of the state revenue, the support of the common schools, the building and improvement of roads and bridges, the support of paupers and the various other governmental functions that our statutes impose upon the political subdivisions of the state, have been imposed upon and performed by Blaine county. (Speir v. Board of Commissioners, 88 F. 762; People v. Maynard, 15 Mich. 463; State v. City of Des Moines, 96 Iowa 521, 59 Am. St. Rep. 381, 65 N.W. 818, 822, 824; State v. Leatherman, 38 Ark. 81; Rumsey v. People, 19 N.Y. 41; Lanning v. Carpenter, 20 N.Y. 447; Van Valkenburgh v. Milwaukee, 43 Wis. 582.) In construing statutes and the constitution, the rule is almost universal to adhere to the doctrine of stare decisis. (Evans v. Job, 8 Nev. 34; Multnomah County v. Sliker, 10 Or. 66; Shreve v. Cheesman, 69 F. 791; Black on Interpretation of Laws, 34; People v. Supervisors of Benzine Co., 34 Mich. 211; People v. Treasurer of Benzine Co., 41 Mich. 6; Kneeland v. Milwaukee, 15 Wis. 522.) It is a principle of law that where a county has a de facto existence (and this fact is alleged in the complaint herein), that recognition and long acquiescence in the existence of the county estops the state from denying its de jure existence. Every branch of the government of the state has recognized Blaine as a county of Idaho: The legislature by three separate acts; the judicial by many decisions and opinions besides those above mentioned. ( Bingham Co. v. Bannock Co., 5 Idaho 627, 51 P. 769; Blaine Co. v. Lincoln Co., ante, p. 57, 52 P. 165; Blaine Co. v. Smith, 5 Idaho 255, 48 P. 286; Osborn v. Ravenscraft, 5 Idaho 612, 51 P. 618; Ravenscraft v. Board of Commrs., 5 Idaho 178, 47 P. 943.)

Arthur Brown, for Respondent.

It is undoubtedly true that mere irregularities in an organization under a valid law may possibly be cured by delay, but unconstitutionality never can. If an act is unconstitutional in its incipiency, it is null and void. It never can be made valid; each day of delay was only a fresh usurpation. (19 Am. & Eng. Ency. of Law, "Quo Warranto," p. 672; People v. Stanford, 77 Cal. 360, 18 P. 85, 19 P. 693; People v. Reclamation District No. 136, 121 Cal. 522, 50 P. 1069, 53 P. 1085; Commonwealth v. Allen, 128 Mass. 310; State v. Crow Wing Co. Commrs., 66 Minn. 519, 68 N.W. 767, 69 N.W. 925, 73 N.W. 631, 35 L. R. A. 745; Attorney General v. Marr, 55 Mich. 445, 21 N.W. 883; St. Louis etc. R. R. Co. v. Belleville, 122 Ill. 383, 12 N.E. 680; United States v. Insley, 130 U.S. 263, 9 S.Ct. 485; United States v. Beebe, 127 U.S. 338, 8 S.Ct. 1083.) To constitute res judicata there must have been a judgment of the exact issue by a court of competent jurisdiction upon the exact point involved in certain cases sought to be estopped. It must have been upon an issue found; that point must have been necessary to the decision. It must be between the same parties; in other words, to constitute an estoppel here a suit must have been between the state of Idaho on one side, as represented by its attorney general, and the county of Blaine on the other, and the question must have been involved as to the constitutionality of the creation of Blaine county, and the court must have decided that, and that must have been necessary to the decision. (Johnson v. Powers, 139 U.S. 157, 11 S.Ct. 525; Bedon v. Davie, 144 U.S. 143, 12 S.Ct. 665; Wixson v. Devine, 67 Cal. 341, 7 P. 776.)

QUARLES, J. Huston, C. J. concurs. Sullivan, J., took no part in the decision.

OPINION

QUARLES, J.

This action, in the nature of quo warranto, was commenced in the name of the state ex rel. attorney general, to recover judgment excluding the defendant, Blaine county, from exercising the rights, privileges, and powers of municipal government within the boundaries fixed by the act creating the county. The two questions raised by the record are these: Was the act of March 5, 1895, creating Blaine county, prohibited by the provisions of article 18 of the constitution? Was said act passed in the manner prescribed by the provisions of article 3 of the constitution?

The first of these questions was answered by this court in the decision in the case of Blaine Co. v. Heard, August 4, 1896, reported in 5 Idaho 6, 45 P. 890, where the court, speaking through its present chief justice, said: "Notwithstanding this case, in all its salient points, has been heretofore presented and considered by us, in view of its importance we have again gone carefully over the case as presented in the briefs and arguments of the counsel, and are convinced that the contention of the appellant cannot be sustained, and that the acts of the legislative assembly of Idaho (Sess. Laws 1895, pp. 32, 170) establishing the counties of Blaine and Lincoln are valid and constitutional laws." It will thus be seen that more than two years ago this court held said act to be constitutional. Since then the people of these two counties, doubtless relying on the judgment of both the legislative and judicial branches of government, have acted on the theory that said act was valid; and the former decision of this court, having been acted upon by the people, who have adjusted the business matters of the county, funded old indebtedness, and created new, should not be disturbed at this late day. No good would be accomplished by overruling that decision, but much evil and confusion would result therefrom. Whether that decision was right or not, public policy and sound legal principles demand that we now adhere to it, and regard that question as a sealed book, which is no longer open to public scrutiny.

But it is argued that the manner of the passage of said act was not considered by the court in Blaine Co. v. Heard supra, and that that question is now open, and should be determined in this case. If the regularity of the passage of that act had been attacked in the case of Blaine Co. v. Heard, the decision would have been upon the same lines...