Board of County Commissioners v. Woods

106 P. 923, 18 Wyo. 316, 1910 Wyo. LEXIS 7

• Court: Wyoming Supreme Court
• Decided: February 10, 1910
• Docket: No. 613
• Status: Published

Opinions

Scott, Justice.

This cause comes to this court on reserved questions in an action instituted in Big Horn County to enjoin the defendants from proceeding to organize Park Coupty which was formed from a part of the territory included in Big Horn County by an Act of the Legislature approved February 15, 1909, and which appears as Chapter 19, S. L. 1909. The constitutionality of that Act is assailed. The questions, are as follows:

1. The proposition to divide the County of Big Horn not having been submitted to, or voted upon by, the qualified electors of the territory proposed to be cut off, on or prior to February 15, 1909, and House Bill No. 20, approved on that date, containing no provision for such submission or vote, did such Act operate to- create the County of Park?

2. Under the circumstances recited in question 1, is the Act to create and form the County of Park unconstitutional and void for failing to comply with the requirement of Section 2 of Article XII of the Constitution that “no county shall be divided unless a majority of the qualified electors of the territory proposed to be cut off voting on the proposition shall vote in -favor of the division?”

3. Was and is said Act valid and operative to any extent in the division of the County of Big Horn or the creation of the County of Park, and if so to what extent?

4. Is House Bill No. 19, approved February 24, 1909, unconstitutional because containing more than one subject?

5. If House Bill No. 20, above referred to, was unconstitutional when approved, could and did House Bill No. 19 give validity to the same by supplying the provision for submitting the question of division to the qualified electors of the territory proposed to be cut off?

6. Is the provision of Blouse Bill No. 19 for submitting the question of division to the qualified electors unconstitutional and void for the reason that it is not germane to the subject matter of Chapter 3, Division 1, Title 10, Revised Statutes of 1899, purported to be amended by said House Bill 19?'

7. Is injunction as prayed for in this case under the facts-set out in the petition,' an admissible and proper remedy in case said Acts or either of them should be held by the Court to be unconstitutional and inoperative to- divide the County of Big Horn and create the County of Park ?

8. Is the provision of Section 1, of said House Bill No. 19, for having the electors “choose a location for a county seat for said new county” unconstitutional and void because not expressed in the title of the Act ?

9. Does the last sentence of Section 2 of Article XII of the Constitution apply to the case of the creation of Park County out of territory taken from Big Blorn County ?

10. In case the last sentence of Section 2 -of Article XII of the Constitution applies here, does it require that the vote of the electors shall be taken before the Degislature shall designate the boundaries of the proposed new county, Park County ?

11. In case the last sentence of Section 2 of Article XII of the Constitution- applies here, will it satisfy that provision if the vote of the electors as there provided for is taken at any time in the process of creating and organizing the new County of Park and separating it from Big Horn County without reference to the order of time in which the vote is taken ?

12. In case the last sentence of Section 2 of Article XII of the Constitution applies here, was it required that the statute creating the new County of Park and defining its boundaries should itself contain the provisions for submitting the question to the electors within the new County of Park -as provided in said Section 2 ?

13. In case the last sentence of Section 2 of Article XII of the Constitution applies here, was it sufficient that the provisions for submitting the question to electors as required in that sentence were, made in an act passed after the approval of the act creating Park County and defining its boundaries ?

14. Does House Bill No. 19, approved February 24, 1909, as enacted by the Legislature of Wyoming, constitutionally provide for an election by the proper electors to determine whether the new county shall be organized as applied to Park county?

15. Do House Bill No. 20, approved February 15, 1909, and House Bill No. 19, approved February 24, 1909', as enacted by the Legislature Of Wyoming, constitutionally provide for an election by the electors within Park County to determine the question whether or not the County of Park shall be organized?

16. If an election was called and held in accordance with Chapter 3 of Title 10 of Division 1 of the Revised Statutes of 1899, and with I-Iouse Bills Nos. 19 and 20 in Park County and at that election a majority of the electors of Park County lawfully cast their ballots in favor of the organization of that county and this result was duly canvassed and declared, is the creation and organization of Park County void by reason of the provisions of the last sentence of Section 2 of Article XII of the Constitution, or by reason .of any other constitutional provision or provisions?

The plaintiff on its brief has resolved all the questions into two principal ones as follows: “First, did the above mentioned ace (House Bill No.'20) upon its passage become operative to create or form the County of Park? Second, if not, did it afterwards by force of the act approved February 24, 1909 (Chap. 75, page 118, S. R. 1909), become operative to create or form such County of Park?”

It is contended that Chapter 19, S. R. 1909, is in conflict with Section 2 of Article XII of the Constitution. That section is as follows:

“Sec. 2. The Regislature shall provide by general law for organizing new counties, locating the county seats thereof temporarily and changing county lines. But no new county shall be formed unless it shall contain within the limits thereof property of the valuation of two million dollars, as shown by the last preceding tax returns, and not then unless the remaining portion of the old county or counties shall each contain property of at least three million of dollars of assessable valuation; and no new county shall be organized nor shall any organized county be so reduced as to contain a population of less than one thousand five hundred bona fide inhabitants, and in case any portion of an organized county or counties is stricken off to form a new county, the new county shall assume and be holden for an equitable proportion of the indebtedness of the county or counties so reduced. No county shall be divided unless a majority of the qualified electors of the territory' proposed to be cut off voting on the proposition shall vote in favor of the division.”

The alleged conflict is with that part of the section which provides that “no county shall be divided unless a majority of the qualified electors of the territory proposéd to be cut off voting on the proposition shall vote in favor of the division.” At the time the Act was passed no vote had been taken on the proposition to divide Big Horn County. The provision of Section 6 of the Act is that the Act shall take effect and be in force from and after its passage, and by Section 1 it is enacted “That all that portion of the State of Wyoming described and bounded as hereinafter in this section set forth is hereby created and formed a county of the State of Wyoming by the name of Park County,” and then defines the boundaries. Sections 3, 4 and 5 of the act are as follows: “Sec. 3. After said County of Park shall have organized and shall have duly chosen its county officers as provided by law, and the said county officers shall have qualified, the said county shall thereafter and until otherwise provided by law, constitute a portion of the Fourth Judicial District, and one term of court shall be held therein annually at the county seat upon such date as shall be fixed and specified by the presiding Judge of said Fourth Judicial District, proper notice thereof to be given by publication in at least one newspaper published at the said county seat of the said county, which said notice shall be published not less than thirty days before the date set for the opening of the said term of court.

“Sec. 4. After said County of Park shall have organized as provided by law, and until such time as a new census shall have been taken in the State of Wyoming by the said state, or the Federal government, and the Legislature upon the basis of such census shall have fixed the legislative representation of the several counties of the State, the said County of Park shall continue to be attached to and constitute a part of the County of Big Horn for the purpose of legislative representation.

“Sec. 5. All acts aiid parts of acts in conflict herewith are hereby repealed.”

It appears that subsequent to the passage of this act an election was held in pursuance 'of Chapter 75, S. L. 1909, a subsequent act approved February 24, 1909, entitled “An act to amend and re-enact Sections 1007 and 1008 of the Revised Statutes of Wyoming, 1899, relating to the organization of counties and providing for submitting the question of division of counties to the qualified electors of the territory proposed to be cut off, and paying the expense of such submission.” By such election a majority of the electors of the new county voted in favor of division.

The constitutionality of Chapter 19, supra, turns upon the meaning of the words “created” and “formed” as used in that act. The constitutional inhibition involved in the reserved questions is against the division of a county unless upon a majority vote of the electors of the territory proposed to be cut off. If the words “created” and “formed” as used in the act are to be construed so as to effect an immediate division of Big Horn County then the Act was unconstitutional. Those words must be construed in the light of the limitations of the Constitution and those contained in the Act itself. Sec. 2 provides that, “Until such time as the said County of Park shall have organized and elected county officers, as provided by law, and the said officers shall have qualified as such, all such portions of said county as at the time of the passage of this Act belong to or are a part of Big Horn County for judicial, revenue and election purposes, including the representation in the Legislature, shall be attached to and constitute a part of said Big Horn County”. It cannot be said upon the provisions of this section that the Legislature intended by the use of the words “created” and “formed” as used in Section 1 of the Act, to immediately divide Big Horn County. In view of the provisions of the act and the constitutional inhibition such intention is not deducible from the language of the act taken as a whole. The law is not nor does it purport to be self-enacting in that respect but was evidently intended to provide a way or method under the Constitution' whereby division of a county could be accomplished. The meaning of the words “created” and “formed” are thus limited by other provisions of the act. This court takes judicial notice' of the fact that these words or their equivalent'have been used by the Legislature before and since the adoption of the Constitution with reference to the creation of these political subdivisions. It was provided by Section 47, Chap. 80, S. L. 1888, “That all unorganized counties within this territory the boundaries-of which shall be defined at this or subsequent sessions of the legislative assembly shall be organized as provided in this act.” Section 1 of the act of the Territorial Legislature with reference to the creation of Weston County says: “All that portion of Wyoming Territory bounded and described as in this section set forth is hereby created and made a county of the Territory of Wyoming under the name of Weston County”, and then defines the boundaries. (Chap. 47, S. L. 1890.) The same language is used in Section 1, Chap. 48, S. L. 1890, with reference to the creation of Big Horn County. It was, how-' ever, provided in the act that it should not be organized prior to 1892. This act was approved March 12, 1890, and it is a matter of history that Big Horn County remained unorganized until 1896. In all the Acts where these words have been used they have been limited in their meaning in the Acts themselves and were never treated as effecting a division in presentí.

The affirmative vote required by the Constitution is upon the question of division, and is a part of the process of organization. It is not upon the question of defining the boundaries and giving a name to- an unorganized county. Indeed the latter question is one for the Legislature and cannot be delegated. • Section 1 of Chapter 48 of the Session Laws of Wyoming of 1890 reads as follows: “That all that portion of the Territory of Wyoming described and bounded as in this section hereafter set forth, is hereby created and made a county of the Territory of Wyoming by the name of Big Horn”, and then defines the boundaries. This act was construed by this Court after the adoption of the Constitution, in Commissioners v. Perkins, 5 Wyo. 166, 172, and in that case the meaning of the word “created” as used in the Act, and the word “formed” as used in the Constitution with reference to counties was also discussed. The Court said:' “Certain conditions are specified under which a new county may be ‘formed” Other and different conditions are specified under which a new county may be ‘organized.’ The Constitution thus makes a distinction between forming a county and organizing one. It is similar to the distinction made by the act of 1890 between creating and making a county and organizing one. It seems clear that both before and since the adoption of the Constitution the creation or making or formation of a county was and is a legislative function; but the organization of a county is not and never was. The Legislature can and must, when a new county is to be made, and organized, give it a name and define its boundaries. But the organization of such county is a matter of administration and can be effected only by administrative or executive officers”. The distinction between the creation as a legislative function and organization of a county as an act of administration is thus shown. The Legislature has also recognized this distinction, for Section 1, Chap. 59, S. L. 1895, provides for the organization of counties which have been or may thereafter be created and formed, but which remain unorganized. The first sentence of Section 2 of Article XII of the Constitution above quoted provides “That the Legislature shall provide by general law for organizing new counties, locating county seats temporarily and changing county lines”. There can be no new county to organize until it has been created and formed in so far as the Legislature has power to do so. The creation of an unorganized county is a legislative function. The organization is administrative. By the act in question the Legislature did exactly what it had a right to do, and if by reason of the non-existence of further statutory provisions rendering it impossible to constitutionally divide the old county by organizing the new one, that would not of itself render the act void. Park County was created by legislative enactment, that is to say, it was given a name and its boundaries were fixed to remain so until otherwise changed by law and the Act was binding on the people within its boundaries for the purpose of organizing such county, and as a condition precedent and as a step in such organization a majority vote in favor of division by the electors of such new county was required.

The act does not fall as coming within the inhibition of the Constitution as to special legislation. The. Constitution contemplates the creation of new counties. Such creation is not inhibited. The fixing of the boundaries and giving it a name is necessary to the creation of a new county. That is a legislative function (Commissioners v. Perkins, supra,) and the act of itself taken as a whole does not nor can it alone operate to divide Big Horn County. The whole Act is in the nature of an enabling act and it is left to the choice of the electors of the new county as to-whether they will avail themselves of the right to organize under the provision of the Statute relating to that subject and thereby separate from the parent county. The vote is not upon the boundary, but is upon the question of division and constitutes a step only in the matter of the organization. If a majority of the electors vote in favor of division and the other requirements of the Constitution and laws are complied with, and they proceed to organize the county government in accordance with law, then and not -until then, as stated in Commissioners v. Perkins, supra, does the creation of the county become effective for the only purpose of its creation. (Buckingham v. Gregg, 29 Ind. 401; Milk et ux. v. Kent, 60 Ind. 226; People v. McGuire, 32 Cal. 140.) It may work a division of the parent county, but such county would then be divided by virtue of a compliance with the provisions of the Constitution.

Such legislation is necessary to our form of government. No other way is pointed out whereby a county can be created, except by legislative enactment giving it a name and defining its boundaries. The Act must be upheld as being in the nature of an enabling act to the people residing within the defined boundaries of the territory therein described, to organize the County of Park under the general Statute contemplated by the Constitution. In that sense alone the Act created and formed the County of Park, but It did not of itself work a division of Big Horn County. We are of the opinion that the act is not repugnant to the provisions of the Constitution and that it took effect from and after its passage. To the reserved questions numbered respectively 1, 9, 11, 13 and 15, the answer is “Yes”. To questions numbered respectively 2, 10 and 12, the answer is “No”.

It is contended that the County of Park cannot be constitutionally organized, and in support of such contention it is claimed that there is no general law applicable to its organization. The Legislature acting under the provision of the Constitution in 1895 enacted a general law for the organization of new and unorganized counties. (Section 1002 to Section 1012 inclusive, R. S. 1899.) Section 1002 as ■originally enacted (Sec. 1, Chap. 59, S. L- 1895) reads as follows: Any county heretofore or hereafter created and formed but which remains unorganized may be organized as provided in this act.” The word “heretofore” has been omitted from the section as it appears in the revision without any apparent legislative authority. It should be read as originally enacted. Without this word, however, the word “hereafter” would necessarily be construed as applying to any county created after the passage of the act of 1895, from which the section is taken. Section 1005 provides for the appointment by the Governor upon petition of three Commissioners, to organize the county. Section 1006 relates to the oath to be taken by the persons so appointed. Section 1007 gives them authority to designate a place for the transaction of their official duties and to appoint a Clerk. Section 1008 provides that an election shall be held at the next general election in the same manner as if the county were organized, for national, state, county and precinct ■officers. Section 1009 prescribes the duties of the commissioners and clerk so appointed in conducting the election in the same manner as though they were commissioners, and county clerk, respectively of an organized county. Section 1010 provides that the county and precinct officers so elected shall qualify on the first Monday of January next following such election, and when two of the county commissioners so elected have qualified in accordance with law, the county shall be “deemed and held to be organized and vested with all the powers of an organized county under the laws of the state.” It may be conceded that this statute was inoperative with reference to the organization of a new county since the adoption of the Constitution as it did not provide for submitting the question of division to the electors of such county. There is a distinction between a statute which is inoperative and one which is repugnant to the Constitution. It is true that Section 1002 provides that a new county may be organized as in that chapter provided. It is equally true that Park County in the absence of any provision for a vote on division could not be so organized at the time it was created. The statute, however, with reference to the organization of new counties provided all the steps necessary to perfect the organization of a county created and formed except the vote on division. The statute was not wholly repugnant to the Constitution. It was constitutional as far as it went. By House Bill No. 19 (Chap. 75, S. R. 1909), Section 1007 was amended and re-enacted so as to read as follows: “Section 1007. Such Commissioners shall then appoint a clerk who shall -take an oath to the effect that he will faithfully and impartially discharge the duties of his office as prescribed by law, and also the oath required of a county clerk. The commissioners shall at the same time designate a place for the transaction of their official duties, and shall, immediately, in the manner now prescribed by the laws of Wyoming for holding special elections for county and precinct officers, call and arrange for a special election for the purpose of submitting to thé qualified electors of the territory proposed to be cut off, the question of whether said qualified electors are in favor of division. At the same time said electors shall in like manner choose a location for a county seat for said new county. Provided,however, That said Commissioners may call and arrange for such special election, coincident with any general election.”

■Section 1008 was amended and re-enacted so as- to read as follows:

“Section 1008. If a majority of the qualified electors residing in the territory proposed to be cut 'off vote in favor ■of division, then said new county shall be organized, and at the next general election, or in case said special election was called coincident with a general election, then at such general election said qualified electors residing in said new county shall in the manner provided by law, vote for a member of Congress, State and District officers, and shall at such ■election elect the members of the Senate and House of Representatives of the State to which said county is entitled, and also the county and precinct officers provided for by law.”

The amendment and re-enactment was clearly within the power of the Legislature and the Act then became operative (Lewis’ Sutherland on Stat. Const., page 437) and we think it was the intention of the Legislature that the Act .should apply to any new county which had been created and formed in so far as the Legislature could by legislative ■enactment create and form such county, and that for that reason it applied to the unorganized County of Park. It was introduced at or about the same time as H. B. No. 20 (Chap. 19, S. L. 1909), and being practically contemporaneous shows such legislative intent. Sections 1007 and 1008 were amended and re-enacted as above set forth, so as to provide for submitting to the qualified electors of the territory proposed to be cut off from the parent county the question of whether such qualified electors are in favor of division. This statute is general. ■We also think it clear that the vote upon division must be subsequent to the act of the Legislature creating and forming such county. The Constitution only provides that division shall not be accomplished in the absence of such vote.

The constitutionality of House Bill No. 19 (Chap. 75, S. L,. 1909) is also brought in question by interrogatories Nos. 4 and 6. It is urged that it contains more than one subject, and is therefore repugnant to Section 24 of Article III of the Constitution, which is as follows:

“Sec. 24. No bill, except general appropriation bills and bills for the codification and general revision of the laws,, shall be passed containing more than one subject, which shall be clearly expressed in its title; but if any subject is embraced in any act which is not expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed.”

Chapter 75, as already stated, is an amendment to Chapter 3, Division 1, Title 10, R. S. enacted in 1895 (S. L. 1895, Chap. 59), and which chapter treats solely of the organization of counties, and Section 1 of the Act (1002 R. S.) provides for the organization of a county which has theretofore or which may thereafter be created and formed but which remains, unorganized. Up to the time of the enactment of Chapter 75 (Feb. 24, 1909) no method had been provided by statute for submitting the question of the division of a county to the electors as required by the Constitution. By that chapter provision is made for holding, an election for that purpose. It is urged here again that the creation is accomplished, if at all, by the vote on division,, and upon such theory it is contended that the act provides not alone for the organization of a new county, but for its creation. We have held contrary to this contention in another part of this opinion. The vote upon division must be conducted by administrative or executive officers, and as we have already said, such elections must be held as a step precedent to and as a part of the final organization. The Act is general and the subjects embraced therein- are cognate and relate to the same general subject. The locating of the county seat temporarily is a part of the organization of the county.. The “organizing of new counties, locating the county seats therein temporarily, and changing county lines” are all included under the same general subject of organization and may, whenever thought more convenient,, be included in the same act. Such location of the county seat is temporary and for the purpose of organization and to remain until otherwise changed in accordance with law. So considered, the subject matter of the act resolves itself into one single subject with different steps provided for, and each and all leading up to one common purpose of the act, viz, organization. The amendment, so considered, is germane to the single subject of the law amended thereby. The answer to each of the questions 4 and 6 is “No”.

Without discussing the other questions at length, as we think the conclusions reached with reference to House Bills 19 and 20 (Chapters 19 and 75, S. L. 1909) are controlling as to the answers to the other questions, we will take them up and answer them as we deem proper upon'the record. To question 3 our answer is “yes”. As already stated the Act is valid to the extent of creating a new and unorganized county. To question 8 the answer is “No”.

Question No. 5. This question need not be answered as we hold that the Act is constitutional.

To question No. 7, we return no answer. The question relates to a matter of procedure and presents no constitutional question.

Our answer to question 14 is “yes”. It is a general act and relates to organization of new counties. Having held that the act creating and forming Park County is constitutional it could be organized under a subsequent general act providing a method of organization of new counties.

In answering question 16, if the election therein referred to was upon the question of a division of the county as we assume it to have been, then the creation and organization of Park County would not be void if the other steps in organization are properly taken as required by law, by reason of the last sentence of Sec. 2 of Article XII of the ■Constitution, or by reason of any other constitutional provision to which the attention of this court has been directed; and so understanding the question, we answer it "No.”

The answers to the reserved questions as herein given will be certified to the District Court of Big Horn County wherein the action is pending.

Potter, C. J., and Beard, J., concur.