People ex rel. Lincoln County v. George

• Decision Date: 03 June 1891
• Citation: 26 P. 983,3 Idaho 72
• Parties: PEOPLE EX REL. LINCOLN COUNTY v. GEORGE
• Court: Idaho Supreme Court

26 P. 983

3 Idaho 72

PEOPLE EX REL. LINCOLN COUNTY v. GEORGE

Supreme Court of Idaho

June 3, 1891

CONSTITUTION CONSTRUED-DIVIDING COUNTY-LOCATING COUNTY SEATS-APPORTIONING DEBT OF COUNTY.-The act of March 3, 1891, entitled "An act to create and organize the counties of Alta and Lincoln to locate the county seats of said counties, and to apportion the debt of Logan county," held unconstitutional. An act to divide a county and attach the part cut off to another county, without submitting the proposition to a vote of the people in the segregated part, is in violation of section 3 of article 18 of the constitution.

(Syllabus by the court.)

PETITION by the people, on the relation of Lincoln county for a writ of mandate to compel Wesley B. George, clerk of the district court and ex-officio auditor and recorder of Logan county, to deliver to relator certain property alleged to belong to relator by virtue of an act of the legislature creating relator as a county. Petition denied.

Writ of mandate denied, with judgment for costs against the relator, and execution issued.

Lyttleton Price, George M. Parsons, Texas Angel, N. M. Ruick, and George H. Roberts, Attorney General, for Relator.

If a county is dissolved or abolished or politically annihilated before the expiration of the lawful term of an officer of the county, the office falls with the county government of which it is a part; and while the constitution (article 5, section 16) provides for a clerk of the district court of each county, and fixes the tenure of office, yet both office and tenure of the clerk of the district court in and for a particular county are dependent upon the existence of that county. (People v. Morrell, 21 Wend. 577; State v. Choate, 11 Ohio 511; Respublica v. McClean, 4 Yeates, 399; In re Hinkle, 31 Kan. 712, 3 P 531; Hagerty v. Arnold, 13 Kan. 367.) Counties and county governments may be dissolved and abolished by the legislature. (State v. McFadden, 23 Minn. 43; Opinion of Supreme Court Judges, 55 Mo. 295; Division of Howard Co., 15 Kan. 194; Opinion of the Justices, 6 Cush. 578; People v. Marshall, 12 Ill. 391.) If the legislature has power to create new counties, it has the power to locate the county seat of the new county. The people have no vested right to a county seat at any particular place; and when, by the division of a county, and the creation of a new county, the seat of government of the old county falls within the limits of the new, the county seat as it existed is abolished. (State v. Larrabee, 1 Wis. 200; Attorney General v. Fitzpatrick, 2 Wis. 542; Division of Howard Co., 15 Kan. 194.) If there is any doubt about the constitutionality of an act, it must be resolved in favor of the enactment. "To doubt is to sustain the act." (Sharpless v. Mayor etc., 21 Pa. St. 164, 59 Am. Dec. 759, and note; Hess v. Pegg, 7 Nev. 30; Township of Montclair v. Ramsdell, 107 U.S. 147, 2 S.Ct. 391; Morrison v. Springer, 15 Iowa 304; Stewart v. Supervisors, 30 Iowa 9, 1 Am. Rep. 241; Rumsey v. People, 19 N.Y. 56; Ex parte McCollum, 1 Cow. 510; National Bank of Chester v. Commissioners of Chester Co., 14 F. 240; State v. Irvin, 5 Nev. 120.)

S. B. Kingsbury, Arthur Brown, and Richard Z. Johnson, for Respondent.

Where an office is created by the constitution, and the term of the office is fixed by the constitution, any person lawfully inducted into such office can only be deprived thereof by the expiration of the constitutional term of office, or in some other manner expressly provided by the constitution. ( Commonwealth v. Gamble, 62 Pa. St. 343, 1 Am. Rep. 422; People v. Dubois, 23 Ill. 547; People v. Bangs, 24 Ill. 184; King v. Hunter, 65 N.C. 603, 6 Am. Rep. 754; State v. Brunst, 26 Wis. 412, 7 Am. Rep. 84.) No means can be constitutional which effect an unconstitutional object. (People v. Bangs, 24 Ill. 185; Marion Co. v. Grundy Co., 5 Sneed, 490, 492; Rock Island Co. v. Sage, 88 Ill. 582; Stuart v. Bair, 8 Baxt. 141-146; Gotcher v. Burrows, 9 Humph. 585, 589-591; James Co. v. Hamilton Co., 89 Tenn. 237, 14 S.W. 601; Nichols v. Walter, 37 Minn. 264, 33 N.W. 801.)

MORGAN J. HUSTON, J., Concurring. SULLIVAN, C. J., Dissenting.

OPINION

MORGAN, J.

On the 3d of March, 1891, the legislature passed an act entitled "An act to create and organize the counties of Alta and Lincoln, to locate the county seats of said counties, and to apportion the debt of Logan county." The first section establishes the county of Alta, composed of the territory of Alturas county as it then existed and about half of the contiguous territory of Logan. Section 2 establishes the county of Lincoln from the residue of the territory theretofore belonging to Logan. Section 3 makes Hailey, then the county seat of Alturas county, the county seat of Alta county. Section 4 makes Shoshone the county seat of Lincoln county. Section 5 authorizes the governor to appoint the county officers of the two counties thus established. Section 6 provides that all the county records, books, money, office furniture and fixtures, and all other personal property belonging to Logan county, and all real estate situate in the county of Lincoln, thus organized, before belonging to Logan county, shall become the property of Lincoln county, and that the commissioners of Lincoln county shall, within thirty days, cause all records, books, funds, and other personal property of said Logan county to be transferred to Shoshone. Section 7 provides that all public buildings, records, books, furniture, money, real estate and personal property theretofore belonging to Alturas county shall become the property of Alta county. Section 9 provides that all the indebtedness of Logan county shall be assumed and paid by Lincoln county, and that all the indebtedness of Alturas county shall be assumed and paid by Alta county. Under and by virtue of this act the commissioners of Lincoln county demanded the said books, records and personal property then in the custody of Wesley B. George, the duly elected and qualified clerk of the district court, and ex-officio auditor and recorder of Logan county, which being refused, the county of Lincoln, on the seventeenth day of April, 1891, filed its petition in this court for a writ of mandate to compel said George to deliver said property to Lincoln county. On the same day the said George filed his demurrer to said petition, and alleges that it does not state facts sufficient to constitute a cause of action. The issue thus formed raises the question as to the constitutionality of the act of March 3, 1891.

Considerable of the argument of the cause related to the question as to whether the counties, as recognized by the constitution in section 1, article 18, as they then existed could be abolished by act of the legislature. In the view I take of the cause it is not necessary to determine this question. It will also be apparent that it is not necessary to determine this question. It will also be apparent that it is not necessary to decide the question as to whether defendant George, being duly elected in pursuance of the provisions of the constitution, is such a constitutional officer that he cannot be deprived of his office by an act of the legislature. The question that must determine this case is, Can a portion of the territory of one county be cut off and attached to another without a vote of the people, residing in the segregated portion, consenting thereto, in the manner adopted in this act? The first paragraph of section 3 of article 18 of the constitution is as follows: "No county shall be divided unless a majority of the qualified electors of the territory proposed to be cut off, voting on the proposition at a general election, shall vote in favor of such division; provided, that this section shall not apply to the creation of new counties." What is the evident intent of the act under consideration? What was the object to be effected? What is the result accomplished? The object was not, certainly, to change the names of the two counties. If that had been desired it could have been effected by a direct act for that purpose, as the constitution does not forbid it, and the act says nothing about changing the names of the counties of Logan and Alturas. It could not have been desired to abolish the counties of Alturas and Logan. Nothing is said in the act about abolishing the counties, and they do not seem to be abolished. The same territory that before the passage of the act constituted the counties of Alturas and Logan, under this act constitutes the counties of Alta and Lincoln. No new territory is added to them; none is taken away; but the larger half of the county of Logan is cut off, and attached to the county of Alturas, and the names of the two counties changed. There were two counties before; there are but two now. It is evident that the whole intent and object of the act was to cut this body of territory from the county of Logan, and attach it to the county of Alturas. In fact, I understand the counsel did not deny that this was the sole object. But the constitution says this cannot be done except by a vote of the people. The legislature cannot do indirectly what it cannot do directly. (People v. Marshall, 12 Ill. 391; Craig v. Missouri, 4 Peters 410.) Says the court in the case first above mentioned: "No means can be constitutional which effect an unconstitutional object. While we would not extend the prohibitions of the constitution so as to embrace measures and objects not manifestly and clearly within the design of its framers, yet, where that is undeniably the case, then by no means whatever should it be allowed to be evaded." (See, also, Rock Island Co. v. Sage, 88 Ill. 582; Gotcher v. Burrows, 28 Tenn. 585, 9 Hum. 585.) It is the duty of the court to give both the...