Ex parte Corliss

114 N.W. 962, 16 N.D. 470, 1907 N.D. LEXIS 84

• Court: North Dakota Supreme Court
• Decided: October 23, 1907
• Status: Published

Opinions

Fisk, J.

Application for writ of habeas corpus. Petitioner alleges that he is deprived of his liberty through a commitment issued by the district court of Burleigh county pursuant to a judgment of that court adjudging him in contempt for violating an order excluding' him from the grand jury room while a grand jury was in session. Petitioner admits that he willfully violated such order, but he challenges the validity of the same, claiming the right to enter such room for three reasons: (1) Because he claims to be a duly appointed and qualified assistant state’s attorney of Burleigh county: (2) because he claims to have a valid contract of employment with the board of county commissioners of said county to assist the state’s attorney in the performance of his official duties; and (3) because he is a duly appointed and qualified deputy enforcement commissioner. It is stipulated that the merits may be disposed of upon the preliminary application for the writ.

Petitioner admits that prior to such official appointments and employment he had been employed by private individuals to prosecute certain criminal cases against one Edward G. Patterson for alleged violation of the law of this state prohibiting the manufacture and sale of intoxicating liquors, and that said official appointments and official employment were made for the purpose of investing him with legal authority in said criminal prosecutions, and to authorize him to attend before said grand jury in the interest of such private employers. Petitioner concedes that his appointment as assistant state’s attorney was and is .void for the reason that he is a nonresident of Burleigh county. His employment by the board of county commissioners was concededly for a nominal-consideration. It -was not a good-faith employment for the purpose of assisting the state’s attorney in the discharge of his public duties, but was, as conceded by him, as above stated, for the purpose of gaining admission to the sessions of the grand jury for the purpose of discharging his duties under such private employment. Even if a good-faith employment by the county commissioners would legally qualify him to visit the grand jury session, which we seriously question, we are clear that he had no such right under the employment in question, as he concedes, as before stated, that it was merely to enable him to fulfill a contract of employment entered into with private individuals. Under such facts, it was manifestly improper for him to appear before such grand jury, and the district judge properly excluded him therefrom.

Petitioner’s right to enter such room, therefore, necessarily depends upon his official character of deputy enforcement commissioner. The facts are. not in dispute, but in opposition to the granting of the writ it is urged that the law -creating the offices of enforcement commissioner and deputy enforcement commissioner, being chapter 187, page 303, of the Laws of 1907 of this state, is unconstitutional and void for several reasons, only one of» which it is necessary for us to notice, as in- our opinion the same is clearly sound; and this is the fact that the statute in question violates those provisions of our state constitution by which the people reserved the right to have the public functions which are attempted to be conferred upon the officers created by said act discharged by officers of their own selection. In other words, the people in framing the constitution, were careful to safeguard this right in unmistakable language by providing, in effect, that certain public duties should be performed by persons elected by them; and among the public duties to be only thus performed are those pertaining to the offices of state’s attorneys and sheriffs. We are not unmindful of the well-established rule that the courts should uphold legislative enactments unless they are clearly violative of some provision, either expressed or -necessarily implied, of the organic law of the state. As stated by Mr. Copley in his work on Constitutional Limitations, p. 218: “The question whether a law be void for its repugnancy to the constitution is at all times a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case. The court, when impelled by duty to render such a judgment, would be unworthy of its station could it be unmindful of the solemn obligation which that station imposes; but it is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered void. The opposition between the constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.”

Keeping in mind this rule, let us examine the act in question. By section 1 the governor is authorized to appoint a capable citizen of this state to be enforcement commissioner, said enforcement commissioner to be paid a salary of $2,000 per annum, and his actual expenses, and to maintain an office at the capital. Section 2 requires that such appointee shall be an attorney at law, and he is authorized to exercise in any part of the state, with the advice and under the direction of the governor, all of the common-law and statutory powers of state’s attorneys in their respective counties in the enforcement of the law against the manufacture and sale of intoxicating liquors. Section 3' provides for the appointment of one deputy commissioner whenever the commissioner may deem such deputy necessary. Such deputy shall have the same powers as are given to the enforcement commissioner. Section é provides that “the enforcement commissioner shall appoint such number of special enforcement sheriffs as in his judgment may be necessary, who shall have throughout the state all the common law and statutory powers of sheriffs in their respective counties in the enforcement of the law against the manufacture and sale of intoxicating liquors; * * * and they shall hold office during the pleasure of said enforcement commissioner.” Section 5 provides for the giving of official bonds by these various officers. Section 6 provides that “it shall be the duty of said deputy commissioner and special sheriffs to exercise all the powers here conferred when, where and as directed by said enforcement commissioner.” The remainder of the section relates merely to the payment of the expenses of these officers, and fixes the compensation of the deputy commissioner and special sheriffs. Section 7 provides for the taxation of costs for such enforcement commissioner and deputy commissioner in all actions in which they appear, which costs shall be the same as are allowed'to be taxed for state’s attorneys under the prohibition law of this state, and also for the taxation of costs for special sheriffs, which shall be the same as are taxed for sheriffs in such cases. Section 8 is as follows: “The said enforcement commissioner, upon being satisfied that the local authorities fail to enforce the law against the manufacture and sale of intoxicating liquors in any county, city, village or town of this state, shall, subject to the limitation of section 2 hereof, with the aid, assistance and co-operation of the said deputy commissioner and one or more of such special sheriffs, enforce said laws.” The remaining sections of the law are not material to a decision of the questions here involved.

We think it clear, from the language employed, that it was the intention of the legislative assembly, in the enactment of this law, to vest in the enforcement commissioner the power, whenever he deems the exercise thereof necessary, to displace the regularly elected state’s attorney and sheriff in any county, so far as the enforcement of the so-called “Prohibition Law” is concerned in such county, and appoint in their stead a deputy enforcement commissioner and a special enforcement sheriff to discharge the duties of such regularly elected officers during the pleasure of the enforcement commissioner.

Has the legislative assembly, under the constitution of this state, the power to do this? In disposing of this important question we cannot be controlled by the desirability or seeming necessity for such a law or by the beneficial results which might be obtained thereunder. It is far more important that the integrity of the constitution should be maintained unimpaired than that any law, however desirable, which conflicts therewith, should be upheld. Whether the present laws are adequate, or whether some other remedy for the evil sought to be reached by the act in question may be lawfully provided by the legislative department of the state, is not material to this inquiry. We are to pass upon the law in' question in the light of the constitution, and if it can be sustained as a constitutional exercise of the legislative power delegated by the people in their sovereign capacity to the legislative assembly, it is our solemn duty to sustain it; but if, in our judgment, the act is clearly violative of the constitution, we should not hesitate to perform the duty of pronouncing the same unconstitutional and void.

We take it to be a self-evident proposition that if the legislative assembly had the power to pass the act in question, then they had the power to go further and provide that such special enforcement officers should have the right to permanently displace the said county officers. Not only this, but they had the power to go still further and provide for the appointment of special officers by the central authority to perform all duties pertaining to the enforcement of all criminal laws in lieu of the regularly elected county officers provided for in the constitution, and thus frustrate to this extent the evident purpose of the framers of the constitution in providing for the election by the people in each county of officers for the performance of such public functions. By the express provisions of the act in question the enforcement commissioner, a mere appointee of. the governor, may, whenever in his judgment he thinks it necessary or advisable, appoint any number of so-called “enforcement sheriffs” in any county in the state without consulting the wishes of the citizens of such county, and even against their will, and such appointed officials are clothed with all the powers and duties (in the enforcement of the prohibition law) possessed by the sheriff whom the people have, by the exercise of their sovereign right, expressly declared shall be elected by them. The same is true with reference to state’s attorneys and the performance of their duties. If the legislative assembly has the power to do this, why has -it not the power to provide for the appointment of a special enforcement governor, or a special enforcement attorney general, or a special enforcement court? The governor, attorney general and the judges are no more constitutional officers than are state’s attorneys and sheriffs. It seems too obvious for discussion that the framers of the constitution, in providing for* the election of these officers by the people, thereby reserved unto themselves the right to have the inherent functions theretofore pertaining to said offices discharged only by persons elected as therein provided. The naming of these officers amounted to an implied restriction upon legislative authority to create other and appointive officers, for the discharge of such functions. If this is not true, then of what avail are the provisions of the constitution above referred to? If these constitutional offices can be stripped of a portion of the inherent functions thereof, they can be stripped of all such functions’, and the same can be vested in newly created appointive officers, and the will of the framers of the constitution thereby thwarted. The fact that these appointive officers might or would discharge the duties better than the officers provided for in the constitution is not material. If these latter officers fail to discharge their duties, and it is desirable to provide for other officers to perform such duties, the remedy is with the people. They may amend the constitution, or, through the power delegated to the legislative -assembly, provide for their removal from office as has been done. Under the act in question the enforcement commissioner is vested with the power of determining whether the state’s attorney and sheriff of any county are discharging their duties with reference to the enforcement of the prohibition law. This is a broad discretion, and may be exercised in the interest of strict enforcement of the law or otherwise, and, therefore, what guaranty is there that such a-ppointive officers would enforce the law as well as the officers elected by the people? But this is a matter which perhaps pertains more properly to the wisdom of such an enactment rather than to the question of its constitutionality; but the point we desire to make is that the framers of the constitution evidently considered it more conducive to the public welfare to have the functions of these offices performed by officials elected by the people of the respective counties than to intrust them to officers otherwise chosen.

Section 173 of our constitution is relied upon as upholding this statute. This section, after enumerating the county officers and prescribing that they shall be elected by the electors of the county, further provides that their duties shall be prescribed by law; and it is argued that under the power to prescribe such duties the legislative assembly may take them away, or a portion thereof, and confer them upon other officers not elected by the people, just as is attempted to be done by the act in question. Such argument, carried to its logical and inevitable result, would lead to the monstrous doctrine that the constitution means nothing, and, notwithstanding its plain provisions, the legislative assembly may provide that the duties pertaining to all these offices shall be discharged by officers appointed in some manner prescribed by them. The act in question does not purport to prescribe the duties of these constitutional officers, but it attempts to vest in other persons not elected the power to perform such duties, and to this extent supplant these constitutional officers. Such legislation, in our opinion, cannot be sustained. It strikes a blow at. the very foundation principles of our form of government. During the early history of this state, Chief Justice Corliss, in State ex rel. Faussett v. Harris, 1 N. D. 194, 45 N. W. 1102, recognized the distinction in this' respect between constitutional offices and those created by the legislative assembly. Speaking of the latter kind of office he says: “The office is not imbedded in the constitution, as is the case with respect to the offices named in section 173 of the constitution. These are constitutional offices. The other offices, including that of county assessor, are offices which, under the express provisions of section 173, the legislature may abolish by creating .other offices to take their place.” In that case the court had under consideration the power of the legislature to abolish the old office of county assessor and to confer the duties upon district assessors, and the court held that, as the office was of legislative creation and therefore not “imbedded in the constitution,” the act in question was valid.

If the offices mentioned in section 173, which includes those of state’s attorney and sheriff, “are imbedded in the constitution,” it inevitably follows that they cannot be stripped by the legislature of the important duties inherently connected therewith, for if this can be done, then these offices were “imbedded in the constitution” for no purpose. We do not deny the power of the legislature to prescribe duties for these officers, which power carries with it by implication the right to change such duties from time to time as the public welfare may demand; but we deny its power to strip such offices, even temporarily, of a portion of their inherent functions and transfer them to officers appointed by central authority. This, as we view it, is a plain violation of the constitution, and is subversive of the obvious intent of its framers to reserve to the people of each county the right, through their elected officials, to enforce the criminal laws of the state, as well as to perr form other functions of government by them so long performed and so well understood. It is apparent that the framers of the constitution, by section 173 and other sections embodied in that instrument, intended to carry out a scheme of government by which the political subdivisions of the state known as “counties,” should be given the right of local self-government, which should apply not only to local affairs of government, but also to confer upon the people of each county certain governmental function in which the people of. the entire state are also interested. We do not mean by this that the people of each county had delegated to them these functions unrestricted by proper legislative regulations, for, as we said before, it is competent for the legislative assembly to provide by law for removals in case of malfeasance or misfeasance in office, and to provide a method of filling such vacancies. But it is an entirely different proposition to say that the legislative assembly may go further and create a new office to be filled by central authority, and transfer to- such appointive officer the duties essentially and constitutionally belonging to the county office.

In the argument of this case counsel called to our attention a great many cases dealing with the question of home rule or local self-government. There is much conflict of views among the courts upon this question, some holding that this right of local self-government does not extend to functions of government in which the people of the entire state are interested, while others hold to the contrary view. Most of the cases deal with the question as applied to municipalities, and not to counties or other political subdivisions of the state. Upon an analysis of the cases it will be found that most of the decisions turn upon the question as to whether the implied right of local self-government is guaranteed to municipalities under the constitution. It must not be overlooked that there is a wide distinction in this respect between counties and municipalities, the former, by express provisions of the constitution, having been made political subdivisions of the state, while cities and other municipalities, so far as this state and most other states are concerned, are mere creatures of the legislative department, and, being such, are, of course, in all respect subject to legislative regulation and control. As to county organizations see constitution, article 10.

On account of the importance of the question here involved we deem it proper to review some of the leading decisions relating to the right of local self-government. In the following cases it has been held that towns and cities are entirely subject to legislative control in the absence of a constitutional provision to the contrary: People v. Draper, 15 N. Y. 532; Mayor, etc., v. State, 15 Md. 376, 74 Am. Dec. 572; State v. County Court, 34 Mo. 546; Booth v. Town of Woodbury, 32 Conn. 118; Webster v. Town of Harwinton, 32 Conn. 131; People v. Mahaney, 13 Mich. 481; People v. Shepard, 36 N. Y. 285; Town v. Jenkins, 57 N. Y. 177; Barnes v. Dist. of Columbia, 91 U. S. 540, 23 L. Ed. 440; State v. Covington, 29 Ohio St. 102; Pumphrey v. Mayor, etc., 47 Md. 145, 28 Am. Rep. 446; Burch v. Hardwicke, 30 Grat. (Va.) 24, 32 Am. Rep. 640; Perkins v. Slack, 86 Pa. 270; Meriwether v. Garrett, 102 U. S. 472, 26 L. Ed. 197; Coyle v. McIntire, 7 Houst. (Del.) 44, 30 Atl. 728, 40 Am. St. Rep. 109; State v. Smith, 44 Ohio St. 348, 7 N. E. 447, 12 N. E. 829; State v. Hunter, 38 Kan. 578, 17 Pac. 177; Com. v. Plaisted, 148 Mass. 386, 19 N. E. 224, 2 L. R. A. 142, 12 Am. St. Rep. 566; Trimble v. People, 19 Colo. 187, 34 Pac. 981, 41 Am. St. Rep. 236; State v. Williams, 68 Conn. 131, 35 Atl. 24, 421, 48 L. R. A. 465. On the other hand, the following authorities, among others, lay down the proposition that although the constitution is silent upon the subject, the legislature cannot in any way interfere with certain powers of municipalities. In other words, they recognize the implied right of local self-government as applied to cities and towns. People v. Hurlbut, 24 Mich. 44, 9 Am. Rep. 103; People v. Albertson, 55 N. Y. 50; People v. The Common Council of Detroit, 28 Mich. 228, 15 Am. Rep. 202; Park Com’rs v. Mayor, etc., 29 Mich. 343; People v. Lynch, 51 Cal. 15, 21 Am. Rep. 677; Allor v. Wayne County, 43 Mich. 76, 4 N. W. 492; People v. Porter, 90 N. Y. 68; Robertson v. Baxter, 57 Mich. 127, 23 N. W. 711; Atty. Gen. v. Detroit, 58 Mich. 213, 24 N. W. 887; Wilcox v. Paddock, 65 Mich. 23, 31 N. W. 609; State v. Denny, 118 Ind. 382; City of Evansville v. State, 118 Ind. 426, 21 N. E. 267, 4 L. R. A. 93; Board of Metropolitan Police v. Board of Auditors, 68 Mich. 576, 36 N. W. 743; Rathbone v. Wirth, 150 N. Y. 459, 45 N. E. 15, 34 L. R. A. 408; Matter of Brenner, 170 N. Y. 185, 63 N. E. 133; People v. Tax Com'rs, 174 N. Y. 417, 67 N. E. 69. Other authorities might be cited, but the above are sufficient to show how hopelessly in conflict are the adjudications upon this question.

The question of the implied right of local self-government as to municipalities necessitates a construction of the constitution and the extent of powers conferred by said instrument upon the legislative department of the state. In Cooley’s great work on Constitutional Limitations (6th Ed.) 49, it is said that a constitution “grants no right to the people, but is the creature of their power, the instrument of their convenience. * * * A written constitution is, in every instance, a limitation upon the powers of government in the hands of agents.”

In State v. Denny, supra, it was said: “At the adoption of the state constitution all power was vested in the people of the state The people still retain all power, except such as they expressly delegated to the several departments of the state government by the adoption of the constitution. In the first section and first article of the constitution it is declared that “all power is inherent in the people.” It is contended by counsel that, as certain rights were granted and certain other rights reserved by the people, therefore all rights were granted, except such as were expressly reserved. The peculiarity of the theory is that while the people, by the constitution, made grants of power to three different departments of government, it is contended that all power that was at that time in the grantor, the people, passed to one branch of the government, viz., the political or legislative branch, and that it took all power not mentioned in the instrument, and the executive and judiciary took only such as was expressly granted to them, and the people retained such only as was specifically named and reserved. It is certainly a novel method of construction, and contrary to all rules for construing contracts, deeds, wills and other instruments, and it seems to us that the proposition need but to be stated to. prove its fallacy. In construing and giving an interpretation to the constitution, we must take into consideration the situation as it existed at the time of its adoption, the fact expressed in the instrument that all power is inherent in the people, the rights and powers vested in and then exercised by the people, the existence of cities and towns and the right of local self-government exercised by them, and the laws in force and form of government existing at the time of its adoption.”

Mr. Cooley, in speaking of the extent of powers delegated by the people to the legislature, says: “They must be understood to grant the whole legislative power which they possessed, except so far as, at the same time, they saw fit to impose restrictions. While, therefore, the Parliament of Britain possesses completely the absolute and uncontrolled power of legislation, the legislative bodies of the American states possess the same power, except, first, as it may have been limited by the constitution of the United States, and, second, as it may have been limited by the constitution of the state.” Cooley’s Const. Lim. (6th Ed.) 205.

In People v. Draper, supra, Chief Justice Denia stated the rule thus: “The people, in framing the constitution, committed to the legislature the whole lawmaking power of the state which they did not expressly or impliedly withhold. * * * The constitution was not framed for a people entering into a political society for the first time, but for a community already organized, and furnished with political and legal institutions adapted to all or nearly all the purposes of civil government; and that it was not intended to abolish these institutions, except so far as they were repugnant to the constitution then framed.”

Again, in People v. Hurlbut, supra, that eminent author and jurist, Judge Cooley, in writing the opinion, said: “If this charter of state government which we call a constitution were all there was of constitutional command; if the usages, the customs, the maxims, that have sprung* from the habits of life, modes of thought, methods of trying facts by the neighborhood and mutual responsibility in neighborhood interests; the precepts that have come from the revolutions which overturned tyrannies; the sentiments-of manly independence and self-control which impelled our ancestors to summon the local community to redress local evils, instead of relying on king or legislature at a distance to do so — if a recognition of all these were to "be stricken from the body of our constitutional law, a lifeless skeleton might remain, but the living spirit— that which gives if force and attraction, which makes it valuable, and draws to it -the affections of the people, that which distinguishes it from the numberless constitutions, so called, which in Europe have been set up and thrown down within the last hundred years, many of which, in their expressions, have seemed equally fair, and to possess equal promise with ours, and have only been wanting in the support and vitality which these alone can give — this living and breathing spirit, which supplies the interpretaton of the words of the written charter, would be utterly lost and gone.”

It is thus apparent that, in construing a constitution, the same must be construed in the light of contemporaneous history — of conditions existing at and prior to its adoption. By no other mode of construction can the intent of its framers be determined and their purpose given force and effect. In other words, the spirit, as well as the letter of the instrument, bust be given effect. It was the unwritten and necessarily implied provisions of the constitution with which the courts were dealing in the foregoing cited cases, in which the implied right of local self-government for municipalities was affirmed on the one hand and denied on the other. If the constitution had expressly created these municipalities and provided for the election of their officers by the people, as our constitution does as to counties and their officers, then we apprehend that these cases would not have arisen. We do not claim that the act in question is unconstitutional because it violates any implied constitutional restriction of legislative power to interfere with the right of local self-government, but we do assert that the people, in framing the constitution and in providing for the election of those officers, thereby expressly vested in such officers, and intended to vest in them, the function of administering the criminal laws of the state as theretofore administered by such officers; that when a method of administration of laws is provided for by the constitution, the legislative assembly cannot provide a different method. They cannot transfer the duties, of any such officers to a new office created by them. The constitutional method of local administration of .laws cannot be changed by the legislative assembly simply because they are of the opinion that the local officers wil not honestly administer such duties. In other words, in adopting the constitution the people decided that these local officers will administer the law better than any one else, and the legislative department is powerless to impeach their judgment.

A very able and exhaustive article upon the subject of “The Right to Local Self-Government” is contained in volumes 13 and 14 of the Harvard Law Review. The author of this article, Mr. Eaton, has the following to say regarding some of the leading cases upon this subject: “The People v. Draper, 15 N. Y. 532. In this case it was held that the reservation contained in section 2, article 10, of the constitution of New York of 1846, to the electors or local authorities of the right to elect or appoint county, city, town and village officers, relates only to such offices as existed when the constitution went into effect, and therefore that the legislature may create new civil divisions of the state embracing two or more existing counties, cities, towns or villages, providing the old civil divisions be not abolished. Consequently the act to establish a Metropolitan Police District, consisting of the counties of New York, Kings, Richmond and Westchester, was upheld as constitutional. * * * The pre-existing system of police was abolished, together with the control over the police by the former authorities of the towns, cities, etc., of the new district.” He refers to the dissenting opinion of Brown, J., with the statement that “the whole dissenting opinion should be carefully read, especially as his conclusions have been adopted since then, as we shall see, by the New York Court of Appeals.” This able article then continues: “The plain statement of the facts connected with this case by Prof. Goodnow (page 20) in his Municipal Home Rule, shows that the historical antecedents of- New York are such as to warrant the conclusion that the case was wrongly decided.” He then quotes from Prof. Goodnow as follows : “ ‘The City of New York received from the English kings during the colonial period a charter, which, on the declaration of independence of the colony of New York and the establishment of the new state of New York was confirmed by the first constitution of the state. Article 36. For a considerable period after the adoption of this constitution, changes in that charter were made upon the initiation of the people of the city, which initiation took place through the medium of charter conventions whose members were elected by the people of the city, and no statute which Was passed by the legislature of the state, relative to the affairs of the city of New York, took effect within the city until it had been approved by the city. About the middle of the century, the legislature was called upon to interfere in the administration by the city of certain matters which affected the state as a whole. One of the most marked examples of this central interference, made without the consent or approval of the city or its people, is to be found in the adoption of the metropolitan police bill in 1857. The administration of the police in the period immediately preceding 1857 had been accompanied by great scandal and was regarded as extremely inefficient. Partly because of this, and partly, it is believed, for reasons of partisan politics, the legislature provided for the formation of a metropolitan police district which embraced all the territory of certain outlying districts. On account of the unprecedented character of such an act, the people of New York, led by the mayor, attempted to resist the enforcement of the bill, and such resistance led to positive bloodshed. The question, however, was finally referred to the courts, and the Court of Appeals (People v. Draper, 15 N. Y. 532) held.that the action of the legislature was perfectly proper, inasmuch as the administration of the police was not a local function, but was a matter which affected the state as a whole, and might therefore be put into the hands of authorities having jurisdiction over a territory greater than that of any one city, and appointed by the central government of the state. The success of the legislature in thus interfering in what had been considered by the people of New York a branch of municipal administration led it to carry its interference into other branches where its action could not be so well justified. * * * The application of the principle thus established has been of great disadvantage to the government of the various cities within the state, and, as has been pointed out by the Hon. Seth Low in his chapter on Municipal Government, in Bryce’s American Commonwealth (1st Am. Ed.) vol. 1, p. 639, the habit of interference in city action has become to the legislature almost a second nature.’ ” Continuing, Mr. Eaton says: “The case of People v. Drayer was followed by People v. Shepard, 36 N. Y. 285, which involved the constitutionality of an act establishing a capital police district, embracing parts of Albany and Rensselaer counties, the city of Schenectady, and the lines of railroad between Albany and Schenectady. Emboldened by success, the politicians next sought to extend the field of their peculiar operations by passing an act ‘To establish the Rensselaer police district,’ to consist of the city of Troy and a contiguous strip, the principle supposed to have been established in People v. Draper being relied upon as giving color to this act. People v. Albertson, 55 N. Y. 50. The satirical statement in the opinion, last paragraph, page 67 of 55 N. Y., shows that the court well -understood the nature of the forces securing such legislation; ‘as the Capital Police District was an experiment, and, as it resulted, a successful experiment, upon the principle supposed to be established in People v. Draper, the act before us is an experiment, and in the direction of an encroachment upon the constitution, an improvement upon both acts, and marks the progressive spirit of the day.’ Cooley also well understood the nature of these forces — ‘a remarkable case of evasion to avoid the purpose of the constitution, and still keep within its terms, was considered in People v. Albertson, 55 N. Y. 50.’ (Cooley, Const. Lim. 207, note 1.) The case of People v. Draper is criticised, distinguished and regretted at pages 63, 64, 65 of 55 N. Y., of People v. Albertson; and the case of People v. Shepard is questioned at pp. 65, 66, 67 of 55 N. Y., with strong approval given to Brown, J.’s, dissenting opinion in People v. Shepard, at page 64 of 55 N. Y.: ‘That decision has now stood so long judicially uncondemned, although never, I think, satisfactory to the public or the legal profession, that it might not be proper, under any circumstances, to review or overrule it; and it is to be hoped, in the interests of constitutional government by the people, that the occasion to reaffirm its doctrines may never arise. To my mind, the dissenting opinion of Judge Brown, concurred in by Judge Comstock, presents unanswerable arguments why the decision should have been different.’ That the cases of People v. Draper and People v. Shepard are considered as overruled at the present time in New York, sufficiently appears in Rathbone v. Wirth, 6 App. Div. 277, at page 295, 40 N. Y. Supp. 535, at pages 545 and 546: ‘But neither the Draper nor Shepard Case, I think, can any longer be considered authority in this state, since the decision of the case of People v. Albertson, 55 N. Y. 50.’ Upon appeal to the Court of Appeals the judgment in the Supreme Court was affirmed. Rathbone v. Wirth, 150 N. Y. 459, 45 N. E. 15, 34 L. R. A. 408. The opinion given in both courts all deserve careful study. The result is that the doctrine laid down in People v. Draper has been successfully shaken, and is no longer the law in New York. It is no longer an authority. It may be claimed that this is largely in consequence of section 2, article 10, of the constitution of New York, 1846, re-enacted in the constitution adopted November 6, 1894, and in force January 1, 1895. But it is submitted that this section is merely declaratory of what the law would be as to the powers of cities, towns and villages to elect their own officers, even without this statement in the constitution, and therefore has no bearing on the matter at issue.”

We have quoted thus at length from this able article because its clear and forcible logic carries conviction to our minds of its absolute soundness. As late as 1903 the Court of Appeals of New York, in the case of People ex rel. Met. St. Ry. Co. v. Tax Com’rs, 174 N. Y. 417, 67 N. E. 69, 63 L. R. A. 884, 105 Am. St. Rep. 674, had under consideration the validity of a statute taxing for the first time in the history of that state special franchises, and providing for a state board of tax commissioners appointed by the governor. It was urged that the act in question violated the home-rule provisions of the constitution, for the reason that it deprived the local taxing officers of the functions of taxation. The validity of the act was upheld, but the decision was placed upon the ground that the function of assessing a special franchise did not, in its nature, belong to a county, city, town or village, as such function had never been execised by such local officers, but that the function belonged to the state, by which it was exercised for the first time. The court said: “It did not come within the experience of former times, and was not contemplated by the framers of the constitution.” The opinion was written by Judge Vann, and concurred in by all the other justices, and the same contains a very able and exhaustive treatment of the doctrine of local self-government, reviewing all the prior decisions of that court upon the subject. After reviewing the history in that state, and after referring to the provisions of the constitution of New York similar to section 173 of our constitution, the opinion reads: “These and other commands of the different constitutions, when read in the light of prior and contemporaneous history, show that the object of the people in enacting them was to prevent centralization of power in the state, and to continue, preserve and expand local self-government. This was effected through a judicious distribution of the power of selecting public officers, by assigning the choice of local officers to the people of the local divisions, and to the people generally, those belonging to the state at large. * * * The principle of home rule is preserved by continuing the right of these divisions to select their local officers, with the general functions which have always belonged to the office. Unless the office, by whatever name it is known, is protected, as the courts have uniformly held, the right to choose the officer would be lost, for with his former functions gone he would not be the officer contemplated by the constitution, even if the name were retained. Unless the office or officer is mentioned eo nomine in the constitution, the same may be changed, or the office abolished, provided the functions, if retained at all, remain in some officer chosen by the locality. Local functions, however, cannot be transferred to a state officer. The legislature has the power to regulate, increase or diminish the duties of the local officer, but it has been steadfastly held that this power is subject to the limitation that no-essential or exclusive function belonging to the office can be transferred to an officer appointed by central authority. The office may go, but the function must be exercised locally, if exercised at all. While no arbitrary line is drawn to separate the powers of local and state officers, the integrity of the local office is protected, with its original and inherent function unimpaired. It is interference, whether direct or indirect, with the vital, intrinsic and inseparable functions of the office as thus defined and understood that the constitution prohibits.”

In State v. Hastings, 11 Wis. 448, the court held unconstitutional an act passed by the legislature providing for the appointment and prescribing the duties of a state comptroller, upon the ground that the function of auditing accounts was, by the constitution, vested in the secretary of state, who was made ex offiio auditor by the constitution. The act in question did not purport to supplant the secretary of state in the performance of this function of auditing accounts, but it made it the duty of this newly created officer to audit the same after the secretary of state as such ex officio auditor had done so. The court said: “The act, taken all together, looks like a studied effort to attain indirectly what it was evident to the framers could not be accomplished directly. The result is that we have two auditors instead of one, both of whom must act in succession, before any business can be transacted. The question arises whether, under the foregoing provision of the constitution, the legislature have the power to create a second auditor or officer authorized to perform the same duties, whose concurrence is necessary before the acts of the constitutional auditor shall take effect. We think they have not, and that the functions of that officer cannot, in whole or in part, be transferred to, or be exercised concurrently or otherwise by, any other person or officer. It falls directly within the rule that the express mention of one thing implies the exclusion of another. Expressio unius est exclusio alterius. This rule applies as forcibly to the construction of written constitutions as other instruments. * * * A constitution being the paramount law of the state, designed to separate the powers of government and to define their extent and limit their exercise by the several departments, as well as to secure and protect private rights, no other instrument is of equal significance. It has been very properly defined to be a legislative act of the people themselves in their sovereign capacity; and, when the people have declared by it that certain powers shall be possessed and duties performed by a particular officer or department, their exercise and discharge by any other officer or department are forbidden by a necessary and unavoidable implication. Every positive delegation of power to one officer or department implies a negation of its exercise by any other officer, department or person. If it did not, the whole constitutional fabric might be undermined and destroyed. This result could be as effectually accomplished by the creation of new officers and departments exercising the same power and jurisdiction as by the direct and formal abrogation of those now existing. And, although the exercise of this power by the legislature is nowhere expressly prohibited, nevertheless they cannot do so. The people having in their sovereign capacity exerted the power and determined who shall be their auditor, there is nothing left for the legislature to act upon.” The court, after referring to certain New York decisions as sustaining the above rule, further says: “This rule of construction extends to every part of the instrument, and, if a violation of it is allowed in the case of the auditor, it is difficult to see why it should not be in the case of any other officer or department. Thus, the legislature might with equal propriety create new courts of justice, usurping and exercising the same power and jurisdiction as those established by the people, and a new executive, to correct the mistakes and control the action of the one chosen by them. It seems to us clear that the legislature could do neither, and that so much of the act under consideration as attempts to transfer to the so-called “Comptroller” the functions of auditor, and to clothe him with authority to control or reverse the acts of that officer, is unconstitutional and void.”

The foregoing opinion fully sustains what we have heretofore said to the effeot that, the constitution having named certain officers, the functions essentially and inherently connnected with such offices must be discharged by these constitutional officers and none others. It will be noticed that the duties to be performed by the secretary of state as ex-officio auditor were not prescribed by the constitution any more than the duties of state’s attorneys and sheriffs are prescribed in our constitution, but it was held by the Wisconsin court that by the naming of these officers in the constitution the framers thereof intended that the public functions appertaining to such offices must be performed by such constitutional officers.

In State v. Brunst, 26 Wis. 412, 7 Am. Rep. 84, the Supreme Court of that state was again called upon to pass upon a similar question. By an act of the legislature of that state passed in 1870, it was declared that the building known as the “House of Correction” of the county of Milwaukee, should constitute the county jail of the county, and making the inspector thereof ex officio the jailer of the county, giving him the exclusive charge and custody of such jail and of the prisoners therein, and making it the duty of the sheriff to deliver’ to said inspector on demand all prisoners in the old jail, etc. A writ of mandamus was applied for to compel the sheriff to comply with this statute, and he resisted the application for the writ upon the ground that the act was unconstitutional, contending that the legislature could not take from his office his public function and transfer the same to the relator. He insisted that by virtue of his office of sheriff, and as a part and parcel of the duties from time immemorial belonging to his office by law, he, as such sheriff, was entitled to the custody of the jail and the prisoners therein, and that it was no more competent for the legislature to deprive him of such duties and transfer them to another officer than to deprive him of the right to execute writs and processes or the duty of conserving the public peace. We quote from the opinion of the court. “It seems to us that this view of the question is rational, and in harmony with the spirit of the constitution. The office of sheriff, in a certain sense, is a constitutional office; that is, the constitution provides that sheriffs shall be chosen by the electors of the respective counties. * * * Now, it is quite true that the constitution nowhere defines what powers, rights and duties shall attach or belong to the office of sheriff. But there can be no doubt that the framers of the constitution had reference to the office with those generally recognized legal duties and functions belonging to it in this country; and in the territory, when the constitution was adopted. Among those duties, one of the most characteristic and well acknowledged was the custody of the common jail and of the prisoners -therein. This is apparent from the statutes and authorities cited by the counsel for the respondent. And it seems to us unreasonable to hold, under a constitution which carefully provides for the election of sheriffs, fixes the terms of the office, etc., that the legislature may detach from the office its duties and functions, and transfer those duties to another officer. * *■ * If the legislature can do .this, why may it not deprive the sheriff of all the duties and powers appertaining to his office, and transfer them to some officer not chosen by the electors? I-t would certainly be a very idle provision of the. constitution to secure to the electors the right to choose their sheriffs and at the same time leave to the legislature the power to detach from the office of sheriff all the duties and functions by law belonging to that office when the constitution was adopted, and commit those duties to some officer not elected by the people. For this would be to secure to the electors the right to choose a sheriff in name merely, while all the duties and substance of the office might be exercised by and belong to an officer appointed by some other authority.”

The court in its opinion in the foregoing case, refers to State v. Dews, R. M. Charit. (Ga.) 397, which was decided early in the history of that state, as holding to a contrary view, but cites, as sustaining its opinion, Warner v. People, 2 Denio (N. Y.) 272, 43 Am. Dec. 740; State v. Hastings, 10 Wis. 525, and McCabe v. Mazzuchelli, 13 Wis. 478. The case from Georgia was urged before us upon the argument of the cast at bar as announcing the correct rule. This case was decided in 1835 by the superior court of the Eastern district of Georgia, and in so far as the points actually raised and determined in that case were concerned was perhaps correctly decided, but we consider it of but very little, if any, weight as an authority upon the question here involved and expressly decided by the Wisconsin court.

In O’Connor v. City of Fond du Lac, 109 Wis. 253, 85 N. W. 327, 53 L. R. A. 831, the Supreme Court of Wisconsin had under consideration the home rule provision of their constitution, which is identically the same as that of New York, and the court cites and approves the construction adopted by the later New York decisions. Speaking of the constitutional provision aforesaid, the court observed: “The purpose of that is plain, and has often been declared by the courts. It was to render secure the important right of local self-government — to give to the people of each locality the power to say and determine as directly as possible who shall perform the governmental functions that concern such localities only as organized subdivisions of the state. That right, under our system of government, has from the start been regarded as the very foundation thereof, and absolutely necessary to its success.”

In the late case of State v. Anson (Wis.) 112 N. W. 475, the question of the constitutional limitation on legislative interference with local self-government for counties and municipalities is quite fully considered, and the prior adjudications of that court, as well as the courts of other states, are cited. The constitutional provision in question is as follows: “All county officers whose election or appointment is not provided for by this constitution shall be elected by the electors of the respective counties, or appointed by the boards of supervisors or other county authorities, as the legislature shall direct. * * * All officers whose offices may hereafter be created by law shall be elected by the people or appointed as the legislature may direct.” The legislature of that state created the office of jury commissioners, and provided for the appointment of such commissioners by the circuit courts or judges of the state. The functions of these newly created officers were theretofore imposed upon certain county officers, who also had various other duties, the duties pertaining to the drawing of jurors being merely incidental. It was urged that this law violated the foregoing constitutional provision, but the court sustained the validity of the law; the decision, however, being placed upon the ground that at the time of the adoption of the constitution there were no officers known as “jury commissioners,” either as county officers or otherwise. It is apparent that the decision would have been to the contrary had there existed, prior to and at the time of the adoption of the constitution, county officers charged with the performance of these functions. The court said: “It is not contended that at the time of the adoption of the constitution any officers known as ‘jury commissioners’ existed in this state, either as county officers or otherwise; but it is contended that the selection of names to go upon the jury list for the circuit courts of the state was at that time imposed upon certain county officers, who also had various other duties, and that the creation of an officer to exercise that function is but an evasion of the constitutional restriction.” After stating that the section of their constitution above quoted was taken substantially verbatim from the constitution of 1846 of New York, the opinion continues: “It had received no authoritative construction by the ultimate court of that state prior to its adoption here in 1848; 'but before serious questions arose in this state upon it, it did receive exhaustive discussion and construction in an opinion by Denio, J., in People ex rel. Wood v. Draper, 15 N. Y. 533, both the reasoning and decision in which were almost at once accepted and approved by this court. (Citing the Wisconsin authorities.) The general propositions declared in that case, and so accepted and approved, were that the purpose of this section of the constitution was to protect in a general way the policy of local self-government in cities and counties, to the extent at least that-such officers as exercised the functions of such local government at the time of the adoption of the constitution should continue to be chosen by the locality, and from this was deduced the view that ‘all other county officers’ in the first sentence of the above quotation meant those existing at the time the constitution was adopted, and that, while the constitution in express terms permitted other methods of selection of incumbents of offices thereafter to be created, it could refer in that regard only to offices and officers different in kind from any formerly existing, otherwise the effect of the last clause would be to nullify the former by the mere creation of offices new in name, but in all practical effect mere perpetuates of the old ones. Hence was declared a limitation of the meaning of the words ‘offices which may hereafter be created by law’ to such as were not mere substitutes or equivalents for pre-existing offices. * * * In State ex rel. Williams v. Samuelson (Wis.) 111 N. W., at page 716, the offices permitted to be created by the legislature were described as those the duties of which ‘are not such as were incident to some county office at the time of the formation of the constitution.’ State v. Hastings, supra; McCabe v. Mazzuchelli, 13 Wis. 478; State v. Brunst, 26 Wis. 412, 7 Am. Rep. 84; State v. Cunningham, 88 Wis. 83, 57 N. W. 1119, 59 N. W. 503, and Warner v. People, 2 Denio (N. Y.) 272, 43 Am. Dec. 740, present unconstitutional attempts to withdraw from constitutional officers portions of their powers and to confer the same on others. It will thus be observed that the courts have indicated a reasonably close discrimination in recognizing as a newly created local officer one who exercised any duties which at the time of the constitution were performed by local officers, and, while it may be that some functions were at the time of the constitution imposed upon then existing town, city or county officers, which were so entirely incidental and casual and so without relation to the characteristics of their respectve offices; or, indeed, of local government at all, that, when the legislature might deem it best to relieve such officers of such incidental duties and confer them upon one specially created to exercise them, the latter’s office may with propriety be held to be newly created, yet the line of demarcation between such a situation and that condemned by the various authorities has not as yet been drawn, and will require much nicety of discrimination in its location.”

In the light of the foregoing rule, we ask, can it be said that the duties of sheriffs, with reference to the enforcement of the criminal statutes of the state at the time of the adoption of our constitution, were merely incidental and casual, and without relation to the characteristics of their respective offices? If so, it is possible that the legislative assembly could take away such duties and confer them upon an officer to be appointed by central authority. We think it clear that these duties were not merely incidental to such office, but, on the contrary, they have from time immemorial been inseparably connected with, and in fact have constituted, the paramount functions of such office. The Wisconsin court, in the recent decision above cited, after quoting from the Draper case in 15 N. Y., and citing the later New York decisions, further says: “We can see no reason to disagree with the views thus expressed, at least as to such functions as are obviously not essential to the existence of counties, cities, villages and townsj or to their efficiency to accomplish those purposes for which the constitution employs them, or such powers as are not essentially characteristic of specific local officers named in the constitution and by it required to exist and persist.” The court then goes on to show that at the time the constitution of Wisconsin was adopted the function of drawing jurors did not belong to any particular county officer, and was merely incidental to the duties of certain county officers, and it reaches the conclusion that for this reason the legislature is at liberty to impose the duty upon newly created officers to be appointed by the circuit judges. We think the opinion fully sustains the respondent’s contention in the case at bar.

A somewhat analogous question was before the Supreme Court of Mississippi in Fant v. Gibbs, 54 Miss. 396. Thirteen district attorneys had been elected in as many judicial districts of the state, and subsequently the judicial districts were reduced to 11, and the legislature spught to confer upon the governor the power to assign the district attorneys to the respective districts. There being but eleven districts, it was provided that the governor should assign to each judicial district one of the several district attorneys theretofore elected, and in making such assignments the act provided that district attorneys shall be assigned to the respective districts in which they may reside, and that the salary of each who is not assigned by the governor shall be fixed at $100 per annum, the salary prior thereto having been $1,300 per annum. The court, in holding the law unconstitutional, among other things, said: “The proposition that the legislature cannot, directly or indirectly, remove the incumbent of an office created by the constitution during the term fixed by that instrument, needs no argument nor elucidation. If not originally self-evident, it has, by a long and unbroken series of decisions, become firmly settled. * * * But the fundamental principle which prohibits the removal by legislation of a constitutional officer during the constitutional term is that the framers of the organic law, by creating the office and specifying the term, have unmistakably indicated their will, first, that the state shall always have such an officer, and, secondly, that the duration of the term of each incumbent shall depend not on the legislative will, but on the solid basis of an ordinance that cannot be changed save by a change in the constitution itself. * * * The correctness of these views will not be questioned where only one officer of a class is prescribed by the constitution, as in the case of the governor or attorney general; nor where a fixed number is established, as is the case of the judges of this court and the supervisors of the several counties. But it is suggested that where the constitution merely directs that a suitable or competent number of a designated class of officers shall be elected or appointed, and leaves that number to be determined by the legislature, the power to establish carries with it the power to change; that, therefore, even though a fixed term is prescribed, each legislature must judge of the number needed by the state, and that the judgment of one legislature on this question cannot bind a succeeding one. * * *• It is therefore insisted that whether all the incumbents shall remain in office during the full constitutional term for which they were chosen must depend on whether the legislature deems that the state so long requires the services of the entire number. This view we deem wholly untenable, because utterly subversive of the end intended to be accomplished by the constitutional specification of terms.” The relator, Fant, was one of the district attorneys unassigned, and he applied for a writ of mandamus to compel the state auditor to issue a warrant for his salary on the basis of $100 per month. Under the act in question he was authorized to perform his duties in his district only when the district attorney who was assigned thereto was absent. The court further said, in speaking of the power of the legislature to curtail his duties: “Every inch of territory where he could do any and all duty incident by law to the office to which he was elected is taken from him, and another person, under this statute, has been designated by the governor to fill the office in that territory and do all things incident to it. That person, by the assignment of the governor, is as fully and completely district attorney of Marshall county, the place of Fant’s residence, as in any other county of the district. It is as thoroughly and completely his right and duty under the statute to do any and all things pertaining to the office in Marshall county as anywhere else in the district. Unless the right, in the absence of the assigned district attorney, to perform all the duties of district attorney during the terms of the circuit court of Marshall county leaves Fant invested with all the constitutional rights, privileges and duties, within the meaning and intendment of the constitution, of the office of a district attorney, then he is not left by this act charged with the office such as the constitution means. Plainly it was his' duty, under the general law, to represent the state in all prosecutions or infractions of the penal laws; to institute, prosecute and defend all civil suits in which the state or a county was interested or a party. * * * The single privilege left to him is to perform all the duties of district attorney during the term of the circuit court of Marshall county during the absence of the assigned attorney. If the assigned attorney is absent on the first day of the term, Fant may act. But if the assigned attorney is present on the second day, Fant’s occupation is gone. * * * He is only district attorney contingently.” The court held that the act in question amounted to an indirect ouster of Fant from his office as district attorney. “While the legislature carefully refrains from declaring outright that he shall no longer be district attorney, it accomplishes the same result by indirection; it takes from him a district and deprives him of a right to perform functions, except in an improbable and remote contingency. * * * Certainly that reading of the constitution is wholly inadmissible which subjects the right of a constitutional officer to the enjoyment of his office and the discharge of its functions to the whim, caprice or accidents that may actuate or befall some other individual.”

The foregoing language is quite applicable to the case at bar. Under the act in question, as before stated, the legislative assembly have .attempted to confer upon the enforcement commissioner the power, whenever he deems it necessary, to displace the sheriff and state’s attorney in the discharge of important functions or duties connected with their offices. The enforcement commissioner might find it necessary, in his opinion, to displace these officers by deputy commissioners and special' sheriffs in every county of the state, not only temporarily but permanently. The constitutionality of the act must be tested by what it is possible to do under its provisions, and not what it is probable may be done. Furthermore, as before stated, a law which displaces these officers by appointive officials during a portion of the time is no less open to this constitutional obj ection than it would be if it provided for their permanent displacement in such manner.

In the case of People v. Keeler, 29 Hun. 175, the Supreme Court of New York, in a well-considered opinion relative to the constitutionality of a statute of that state passed in 1882 transferring to the superintendent of the Albany county penitentiary certain functions theretofore exercised by the sheriff, had this to say: “It is claimed by the respondent that the statute is a violation of article 10, section 1, of the constitution, which provides that sheriffs shall be chosen by the electors of their respective counties; and the argument of the respondent is that the statute takes from the sheriff of Albany county and gives the superintendent of the penitentiary (an officer that is not elected) powers and duties which cannot thus be taken away. On the part of the relator, as we understand, it is not disputed that a law which should take away all or practically all the powers and duties of a sheriff and should give them to some 'officer not elected by the people would be a violation of the constitution, even though it should permit the people to elect an officer who should have the name of sheriff, though stripped of all power and duty. And we think this must be so. The constitution does not permit the legislature to evade its provisions by taking away the powers and duties of an officer made elective by that instrument and giving them to some appointee, leaving the people the poor privilege of electing an officer who is such only in name. On the other hand, it is admitted by the respondent that to some extent the legislature may modify and regulate the duties which sheriffs are or were to perform. Perhaps the legislature might even abolish the duties and powers or some of them, altogether, as obsolete and no longer needed. But the question here presented is not one of abolishing, but of transferring, powers and duties. It was even said on the argument that the legislature might require the punishment of convicts to be by confinement in penitentiaries instead of county jails, although the latter are, and the former are not, under the control of the sheriff. That would be a part of the punishment of crime as to which the sheriff’s duties might be considered to be incidental. The question then to determine is whether the present statute is a mere regulation of the sheriff’s duties and powers, permissible under the constitution, or whether it so transfers his duties and powers to an appointed officer as to infringe the meaning of that instrument.” The court then considers the effect of the statute in question, and holds that it makes the Albany county penitentiary the county jail of the county and its superintendent the jailer; it fakes ¡away the power of the sheriff to appoint a jailer, and gives the superintendent the custody and control of all prisoners confined therein, as the sheriff would have had if the law had not been enacted, taking away from the sheriff the custody of all persons arrested under civil or criminal process, and transferring the same to the superintendent of the penitentiary. The only authority left to the sheriff in regard to prisoners is to direct the superintendent to convey them to and from said jail. The court then says: “The question, then, is whether the custody and control of the prisoners arrested under civil and criminal process is such a part of the sheriff’s office, as if existed at and before the adoption of the constitution, that such control cannot be taken from him and given to an officer not elected by the people without a violation of that instrument. * * * It has been the duty of the sheriff to arrest and confine all persons charged with crime, and to execute the process of the higher courts; and to discharge this duty he may summon the power of the county. A power so great, the constitution provided should be intrusted only to an officer chosen by the people, thus returning to the old principles of English law (1 Bl. Com. 339); and those who framed that instrument may well have feared to give that power over the persons of citizens to any one not chosen by them.”

Applying the foregoing language to the case at bar, can it be said that the special enforcement sheriffs, who, under the act in question, are expressly clothed with “all the common law and statutory powers of sheriffs in their respective counties,” may, in the enforcement of the criminal statute by this act committed to their charge, summon the power of the county to their aid? Did the framers of the constitution intend to delegate such powér to officers appointed by central authority? If so, why were they so careful to provide for the election by the people of the officer who from time immemorial had been vested with such authority?

The Supreme Court of New York in the foregoing case makes use of the following very apt and significant language, which, we think, is a complete answer to some of the arguments presented by the petitioner in the case at bar: “It is not necessary to say that the legislature cannot abolish some, or per aps all, of the duties of the sheriff. For instance, the legislature might abolish all imprisonment in civil cases, as well as in cases in tort as on contract, and such legislation would destroy a part of the present duties of the sheriff. But the' question, as above remarked, is not whether the legislature can abolish, but whether it can retain, those powers and duties, and give them to an officer not elected. Upon this point the case of Warren v. People, 2 Denio (N. Y.) 272, 43 Am. Dec. 740, seems to be conclusive, and the reasoning therein is sound. It may be difficult to draw the line in regard to numerous instances which are suggested by the relator’s counsel, of talcing away from sheriffs certain special duties and giving them to an appointed officer, and to say, as to each, whether it would be a violation of the constitution, or only a permissible modification of the sheriff’s duties. If any general rule could be laid down, it would probably be that the common-law powers and duties pertaining to the office of sheriff could not be transferred to an appointed officer, whatever might be done as to powers and duties of another character.” For the general rule upon the subject the court cites People v. Albertson, 55 N. Y. 51, and People v. Raymond, 37 N. Y. 428, and in applying the rule to the facts before the court it was held that, under the doctrine announced in those cases, there can be no doubt that the custody of the jail and of the prisoners confined therein is one of those powers and duties which by common law belonged to the sheriff and which continued to belong to him at the time of the adoption of the constitution. And it w-as distinctly held that the framers of the constitution, in declaring that the sheriff should be elected, must have intended an officer who, among other things, should possess that custody, and that if it is possible to transfer to an appointive officer such power, then other powers in like manner may be transferred to other officers, the result being that the sheriff may be deprived of every power and duty which the common law gave him. The court held that the statute in question was unconstitutional in so far as it attempted to transfer the custody of the jail and of the prisoners from the sheriff to the superintendent of the penitentiary. The decision was rendered 'by a united court, and we have no doubt of the soundness of the rule therein enunciated.

The Supreme Court of New York, in re Brenner, 66 App. Div. 375, 73 N. Y. Supp. 689, which decision was affirmed by the Court of Appeals of New York in 170 N. Y. 185, 63 N. E. 133, after commenting upon the prior decisions in that state upon the home-rule provisions of their constitution, said: “From these and other authorities which might be cited, it must be regarded as well settled that the purpose of the constitutional provision in question is to secure to localities the fundamental right of self-government; that it protects all official duties existing at the time of its adoption, vested in local officers, and inhibits the transference of such duties to officers not elected by the electors of the locality or appointed by local authority; that it is not the officer, but the office, the existing duties and functions, to which the protection is extended, and which cannot be transferred to an officer elected or appointed other than in the prescribed manner. Nor can this be done by any change of name or colorable change of duties. Under this construction, it becomes necessary to ascertain the duties of the office in question, and whether substantially the same duties- were performed by -any officer at the time of the adoption of the constitution, and the particular officer on whom the same were devolved.” The court held that the act in question, which attempted to transfer functions theretofore belonging to a county officer to an officer appointed by central authority, was unconstitutional and void as being in violation of the home-rule provisions of the constitution of that state, which are substantially the same as the provisions of the constitution of this state upon that subject.

King v. Hunter, 65 N. C. 603, 6 Am. Rep. 754, is a very instructive case. There the legislature undertook to take away a portion of the duties of sheriffs, to wit, the collection of taxes, and vest such duties in a newly created officer known as “tax collect- or.” One ground of the decision is that the act is unconstitutional for the reason that it impairs the obligation of the contract between the people and the sheriffs. The decision can have no weight as an authority upon this point outside of the state of North Carolina, which is the only state holding that an office creates a contract; but the second ground of the decision we think clearly sound, the court holding that the act in question is liable “to the more serious objection that it breaks faith with the people, by taking from them the right to choose the officer who may go into every man’s house and distrain his property, or otherwise collect the taxes. Probably there is no right of which the people are more jealous, and for the infringement of which they will hold the legislature and the courts to a more rigid accountability. If the people may be deprived of the election of this officer, and if his duties and emoluments may be transferred to an appointee of an irresponsible body, of what other similar right may they not be deprived? With as much propriety every other office in the state may be cut up, and those who have been put into the office by the people may be starved out, and irresponsible persons put in. The people have secured to themselves the selection of governor because they would have the important interests of the state committed to an agent of their own choice. With. as much propriety the duties with which he has been intrusted might be transferred to others, irresponsible to the people; and so -with every other officer in the state.” In addition to the foregoing authorities, we call attention to People v. Bollam, 182 Ill. 528, 54 N. E. 1032; State v. Barker, 116 Iowa, 96, 89 N. W. 204, 57 L. R. A. 244, 93 Am. S.t. Rep. 222; State v. Arrington, 18 Nev. 412, 4 Pac. 735; Mechem on Pub. Officers, section 467: “Where a state constitution provides for the election of sheriffs and fixes the term of office, though it does not define what powers, rights and duties shall attach or belong to -the office, the legislature has no power to take from a sheriff a part of the duties and functions usually appertaining to the office, and transfer it to an officer appointed in a different manner and holding the office by a different tenure.” See, also, Black’s Const. Law, p. 373; Throop on Pub. Officers, page 19.

The argument of petitioner that the functions of these newly created officers are state functions and not local, and that therefore the legislature, under the police power of the state, had a constitutional right to pass the act in question, is fully answered by the foregoing authorities, and especially by Mr. Eaton in his article her tofore referred to. In 14 Harvard Law Review, p. 128, he states: “It will be noticed that many of the cases cited involved the question of the validity of the appointment of police commissioners by the governor for certain cities. It will be claimed that, even admitting the right to local self-government, police officers are doing a state duty, and therefore, being state officers and not town or city officers, the state has the right to appoint them. Therefore, it is claimed, the legislature, in authorizing the governor to appoint a board of police for a city, is not interfering with the right to local self-government. To this argument there is more than one reply. It is not denied that the legislature can appoint state police. It is claimed, however, that when it does so it must pay them with state money. * * * But, apart from this objection, there is no agreement among the authorities that police officers are state and not local officers. The following cases hold that they are state officers: People v. Draper, 15 N. Y. 344, at pages 362 and 373; Mayor, etc., of Baltimore v. Howard, 15 Md. 376; Cobb v. City of Portland, 55 Me. 381, 74 Am. Dec. 572; People v. Hurlbut, 24 Mich. 81-83, 9 Am. Rep. 103; Chicago v. Wright, 69 Ill. 326; Burch v. Hardwicke, 30 Grat. (Va.) 24, 32 Am. Rep. 640; State v. Hunter, 38 Kan. 581, 17 Pac. 177; Commonwealth v. Plaisted, 148 Mass. 375, 19 N. E. 224, 2 L. R. A. 142, 12 Am. St. Rep. 566; and lastly Kelley, Adm’r v. Cook 21 R. I. 29, 41 Atl. 571 (a case in which this point was conceded by the plaintiff and no authorities cited. It is at variance with the history of the subject in Rhode Island as has been shown in these articles, and may yet return to plague its inventors. * * *). The following cases hold that they are not state officers: Speed & Worthington v. Crawford, 3 Metc. (Ky.) 210; Allor v. Wayne County, 43 Mich. 76, 4 N. W. 492 (a thoroughly well-considered case, in which the brief for the relator is of great interest, and contributed materially to the decision reached); City of Evansville v. State, 118 Ind. 426, 21 N. E. 267, 4 L. R. A. 93; Rathbone v. Wirth, 150 N. Y. 459, 45 N. E. 15, 34 L. R. A. 408; State v. Moores, 55 Neb. 480, 76 N. W. 175, 41 L. R. A. 624. * * * With such confusion and conflict of view among the authorities, it is impossible to rest the right of the legislature to interfere in local self-administration of police powers upon the ground that it is the exercise of a state power and not of a town power. * * * It will be noticed that the later cases sustain the principles sought to be brought out in these papers, and are entitled to more weight than the many cases to the contrary that are largely obiter dicta. They are also later in date, and it is confidently submitted, are the better statement of the law of today.”

It will be seen from an examination of the numerous authorities that the doctrine of local self-government, as generally understood, rests upon implied restrictions found in the various constitutions, and most of the cases, as will be noticed, involve the implied rights of municipalities in this respect. Here we are dealing with express constitutional limitations upon the legislative power, and this distinction must be kept in mind. But petitioner argues that under section 217 of our constitution, being article 20, which prohibits the manufacture and sale of intoxicating liquors in this state, the legislative assembly is given express authority to enact any law looking to the enforcement of that section. 'This contention is based upon the following language contained in said article: “The legislative assembly shall by law prescribe regulations for the enforcement of the provisions of this article and shall thereby provide suitable penalties for the violation thereof.” It seems to us a strange and wholly unwarranted construction of the foregoing language to say that the framers of the constitution intended thereby to give the legislative assembly an absolutely free band in prescribing such regulations and penalties. We think article 20 must be construed in connection with and in the light of the other provisions of that instrument, and when thus construed it is apparent that all that was intended by the use of this language was that the legislative assembly shall prescribe such regulations, etc., not inconsistent with the other provisions of the constitution. To say that under the power to prescribe regulations the legislative assembly may create new offices in contravention of the whole scheme of government provided for by other provisions of the constitution is, we think, doing unwarranted violence to the obvious intent of the framers of that instrument.

Entertaining the views herein expressed, we are compelled to ■hold the act in question unconstitutional and void. The application for the writ is accordingly denied.

Morgan, C. J., concurs.