State v. Schofield
| Citation | 165 P. 594,53 Mont. 502 |
| Decision Date | 15 May 1917 |
| Docket Number | 4005. |
| Parties | STATE EX REL. FORD, ATTY. GEN., v. SCHOFIELD ET AL. |
| Court | United States State Supreme Court of Montana |
Proceeding by the State of Montana, on the relation of S. C. Ford Attorney General, against T. F. Schofield, James Monroe, and George Hobbs. Demurrer to the complaint sustained, and proceeding dismissed.
S. C Ford, of Helena, Frank Woody, of Butte, Walsh, Nolan & Scallon, of Helena, and Geo. W. Farr, of Miles City, for relator.
Jones & Jones, of Harlowton, Booth & Dousman, of Baker, and Gunn, Rasch & Hall, Galen & Mettler, and E. G. Toomey, all of Helena, for respondents.
From the adoption of the Constitution in 1889 until 1911 we had no general statute for the creation of new counties, but during that period 13 new counties were created, each by special act of the Legislature. By chapter 112, Laws of 1911, there was written into the statutes of this state a general law of uniform operation, providing for the creation, organization, and classification of new counties. That act was amended in 1913, and the amended act superseded by another of the same general character, in 1915. Chapter 139, Laws 1915. Under these acts 12 counties were created, organized, classified, and are now existing political subdivisions of the state. Without expressly repealing the general law, the Fifteenth Legislative Assembly passed Senate Bill 76--a special act--creating Carter county and providing for its organization and government. This act became a law without the approval of the Governor, pursuant to section 12, article 7, of the Constitution. The present proceeding was instituted to test the validity of the act, and it is the contention of relator that it violates the provisions of section 26, article 5, of the Constitution. That section forbids special legislation upon any one of the 34 enumerated subjects, among them locating or changing county seats, regulating county or township affairs, and concludes:
"In all other cases where a general law can be made applicable, no special law shall be enacted."
Assuming the mandatory and prohibitory character of this last provision, respondents insist nevertheless that it is addressed to the Legislature exclusively; that whether a general law can be made applicable in any given case must be determined by the Legislature from facts and circumstances as they are made to appear to it, and that the courts cannot review the evidence before the Legislature, and therefore cannot overrule or reverse the legislative determination; that the enactment of a special law upon a given subject is a legislative determination that a general law cannot be made applicable to it; and that such determination must of necessity be final and conclusive. Adjudicated cases sustaining these propositions generally are cited almost without number.
The concluding sentence of section 26 above is not an absolute prohibition in the sense that the preceding section is. Section 25 is absolute in its terms. It means that under no possible set of circumstances may a law be revised or amended by reference to its title only, and any act passed in violation of its provisions is absolutely void. The concluding sentence of section 26 does not prohibit special legislation altogether, but does seek to curtail it. It forbids special laws in all cases where general laws can be made applicable. But who shall determine whether a general law can be made applicable in any given instance? Upon this question the decisions are in hopeless conflict, and no useful purpose can be served by reviewing them at length. The cases cited by respondents hold that the question is one exclusively for legislative determination, while cases cited by relator hold with equal emphasis that it is one for decision by the courts. We might relieve ourselves of much work and worry by accepting one theory or the other, and, blindly following precedent, content ourselves with merely citing the authorities. The decisions of other state courts are not binding upon us. They are useful or persuasive with us, or they are not, according to whether the reasoning appeals to our judgment or fails to do so. We are not at liberty to abdicate in favor of some other tribunal, but conceive it to be our duty to determine every controversy presented to us according to our own best judgment, enlightened to the utmost extent possible by the learning and experience of other courts and by textwriters who have specialized upon particular subjects.
In this instance we find ourselves unable to agree entirely with either theory established by the adjudications to which reference has been made. We have on our statute books a general law, of uniform operation throughout the state, which forbids gambling. If the Legislature should be unwise enough to substitute for this law another of the same character, but which by its terms applied only to certain named counties, excluding all others, we imagine no one would hesitate to pronounce such an act unconstitutional and void; and neither can we imagine that it could be urged with any semblance of reason that it was for the Legislature to determine finally that a general anti-gambling law cannot be made applicable throughout this state. It is inconceivable that there is such a different standard of morality prevailing in different sections of the state that a police regulation of this character cannot be made to operate uniformly. Examples might be multiplied to illustrate the view that it cannot be exclusively a legislative question to determine in every instance whether a general law can be made applicable.
On the other hand, we think the theory that it is a judicial question in every instance equally fallacious. To illustrate by an extreme case: Suppose there is a county in this state, no portion of which is adapted to agriculture, but which does contain extensive grazing areas; that in the remainder of the state agricultural development has progressed to that point where a herd law is imperatively demanded, and the Legislature is responsive to the demand and seeks to promote the welfare of the state by the enactment of a suitable law restraining live stock from running at large. If the Legislature ascertains that the facts are that the range county is so far bounded by mountain ranges and rivers that stock running at large therein will not jeopardize the interests of any other section, then it would seem that common sense would dictate to the lawmakers that a statute be enacted restraining live stock from running at large, but excepting from the operation of its provisions the range county. Such an act would meet the demands of every section of the state, promote the general welfare, and infringe the rights of no one; but it would be special legislation. A herd law could be passed which would be general and uniform in its operation throughout the state, and which, in addition to promoting the interests of 40 counties, would also destroy the principal industry of the one. Indeed, it is conveivable that a general law can be enacted upon any subject of legislation; but, if this be the sense in which the language is employed in the concluding sentence of section 26, then its ultimate purpose is to prohibit special legislation altogether.
We believe there are many subjects of legislation, which, from their inherent character, are subject to regulation by general laws, and that the courts are as advantageously situated as any other department of government to say so; on the other hand, there are certain subjects which may or may not lend themselves to regulation by general laws, depending upon extrinsic facts and circumstances which the Legislature is peculiarly fitted to ascertain and determine, but which the courts have no means available to ascertain. Upon the first class of subjects, the courts can and must determine the applicability of general laws; upon the second, the Legislature must be left free to act.
The creation of new counties involves a question of public policy exclusively. It would have been perfectly competent for the people, in adopting their Constitution, to have made provision that the state should be divided into the 16 counties then in existence, and prohibited the formation of any new counties thereafter. It would have been a very unwise thing to do, and it was not done. The debates of the constitutional convention disclose an attempt to write into our fundamental law a property restriction upon the creation of new counties; but the attempt failed, and the sense of the convention, so far as it is disclosed, was in favor of the widest liberality towards growing communities aspiring to local self-government. In the creation of new counties there are certain considerations which address themselves to the Legislature, common to all alike--the financial ability of the community to support county government and the effect which the withdrawal of one portion of a county may have upon the capacity of the old county to continue its organization. If these and like questions were the only ones which could arise, the applicability of a general law to the creation of new counties would seem a demonstrable fact; but they are not. In the early history of the state we had certain sections of vast territorial extent, but with small population and little taxable wealth; others with congested population and vast wealth, but with little territory tributary. In many of the states on the plains it...
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