By fKe Court —
ElaNdbau, J.
— The question presented by this appeal is one oí very considerable importance to the State at large, and has enlisted our earnest endeavors to arrive at a correct determination. We have viewed it in all its legitimate bearings, and applied such rules of. interpretation to the provision of the Constitution involved, as are sanctioned by law and judicial decision, with a desire on our part to sustain the act of the legislature brought into question, if possible, without doing violence to the organic law.
Previous to the adoption of our Constitution, the legislative power of the Territory was vested in the Governor and the Legislative Assembly. Organic Act, sec. 4. And no law could be passed by any other authority. In the year 1853, a law was passed by the legislature of the Territory, on the subject of the manufacture and traffic in spirituous liquors, the' validity of which was left to be determined by a vote of the [434]*434people. Laws 1853, pp. 1-13, sec. 19. The people in their primary assemblies adopted or ratified the law by a majority vote, and the courts of the Territory subsequently declared it void, as having been in effect passed by the people and not the legislature. I am unable, however, to find any record or report of the decision,, and am not certain that the question was passed upon by the court of last resort. The rule is a familiar one, however, and has received the sanction of the courts of other States. Parker vs. The Commonwealth, 6 Barr. Rep. 515-16.
During the Territorial existence of Minnesota, a very great evil had grown up in the legislation of the country, consequent upon the feverish excitement that prevailed for the creation of towns and cities, and the speculation in lots and lands. It was the constant practice of the legislature to change county lines, and the county seats of counties from one town to another, at the solicitation of interested parties, without a full understanding of the wishes and interests of the people of the counties affected. Instances even occurred where such removals were carried through the legislature without the knowledge of that body, by inserting clauses in bills, surreptitiously, the title of which indicated entirely another purpose. As long as the power to change county lines, and remove county' seats resided in the legislature alone, and its authority was unrestricted, it was found that its action on the subject was liable to abuse.
When the Constitution was framed this subject received the careful consideration of the Convention, and the discussion upon what is now section. 1 of article 11 of the Constitution was based almost entirely upon the abuses that had previously existed in the legislation of the Territory, and it was the almost universally expressed opinion of the members, that some check should be imposed upon the legislature in regard to making changes in county lines and county seats ; and it was decided that the most just and practicable method would be to require the sanction of the citizens of the coxmties to be affected, to the legislation, before it could become operative. See the Debates of the Convention presided over by President Sibley, from page 467 to 480 ; also those of the Convention [435]*435presided over by President Balcombe, from page 259 to 269.
The result of these debates was the following section of the Constitution. Art. 11, sec. 1: •
“ The legislature may, from time to time, establish and organize new counties, but no new county shall contain less than four hundred square miles; nor shall any county be reduced below that amount; and all laws changing county lines in counties already organized, or for removing county seats, shall, before taking effect, be submitted to the electors of the county or counties to be affected thereby, at the next general election- after the passage thereof, and be adopted by a majority of .such electors. Counties now established may be enlarged, but not reduced below four hundred square miles.”
The legislature, at the session of 1858, passed a general law for the removal of coiinty seats, (Stats. Compel, ed. p. 111,) by which it is provided that when a number of voters in a county, equal to half the highest number of votes polled at the general election preceding, shall petition the County Commissioners for a change of the county seat, the Commissioners shall submit the question of change to the electors, &c., and a majority voting in favor of the change shall effect it, &c. This act was designed to remain in force and apply to all future cases. Now, it will be seen that by the provisions of this law, the legislature does not act directly upon the question of the change of any particular county seat at all, but the whole question is left to the people oí each county, and the county seat may be removed and the legislature know nothing about it.
Let us see whether the Constitution intended to work any such change as the legislature has introduced. In the first place;, there was no way, as we have shown, to obtain the voice of the people, directly, upon any subject of legislation, as long .as the legislative power was vested solely in the legislature. That body was not permitted to delegate its "trust to the people, or any one else. It became necessary, therefore, in order that the people might have a voice directly- in any subject, properly one of legislative cognizance, that some provision should be made for it in the Constitution. All other [436]*436subjects of legislative jurisdiction are conferred upon that body, without qualification. Art. 4 Const. But 'the people were not willing to allow the legislature absolute control over the question of county lines, in counties that were “ already organized,” nor over the removal of county seats, as had previously been the-case, and as would have yet been so, had nothing been said in the Constitution about it ? because under our system of government, State constitutions are not creative, but restrictive instruments, and the legislature of a State has as extensive powers as the Parliament of Great Britain, subject only to the restrictions imposed upon it by the Constitution of the United States, and the particular state in which it acts. Board of Supervisors of Ramsey Co. v. Heenan, 2 Minn. R. 330-2. The purpose of the Constitution was to impose a restriction upon the legislature, in acting upon a certain class of subjects. It was not to deprive that body of any participation in them whatever, and confer the jurisdiction upon some distinct tribunal. It was more in the nature of granting to the people of the several counties a veto power upon its acts, than of conferring the power in the first instance upon the people. The words are “ all laws changing county lines,” &c., “ or for removing county seats,” which must be read “ or all laws for removing county seats,” “ shall before taking effect, be submitted,” &c., “ at the next general election after the passage thereof, and be adopted,” &c.
It takes a law to change a county seat or a county line now, just as it did before the Constitution was adopted, and the people have no more power to originate laws now than they ever had, nor does the Constitution, in this particular instance, confer upon the people any power whatever over, or participation in, the passage of these laws.
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By fKe Court —
ElaNdbau, J.
— The question presented by this appeal is one oí very considerable importance to the State at large, and has enlisted our earnest endeavors to arrive at a correct determination. We have viewed it in all its legitimate bearings, and applied such rules of. interpretation to the provision of the Constitution involved, as are sanctioned by law and judicial decision, with a desire on our part to sustain the act of the legislature brought into question, if possible, without doing violence to the organic law.
Previous to the adoption of our Constitution, the legislative power of the Territory was vested in the Governor and the Legislative Assembly. Organic Act, sec. 4. And no law could be passed by any other authority. In the year 1853, a law was passed by the legislature of the Territory, on the subject of the manufacture and traffic in spirituous liquors, the' validity of which was left to be determined by a vote of the [434]*434people. Laws 1853, pp. 1-13, sec. 19. The people in their primary assemblies adopted or ratified the law by a majority vote, and the courts of the Territory subsequently declared it void, as having been in effect passed by the people and not the legislature. I am unable, however, to find any record or report of the decision,, and am not certain that the question was passed upon by the court of last resort. The rule is a familiar one, however, and has received the sanction of the courts of other States. Parker vs. The Commonwealth, 6 Barr. Rep. 515-16.
During the Territorial existence of Minnesota, a very great evil had grown up in the legislation of the country, consequent upon the feverish excitement that prevailed for the creation of towns and cities, and the speculation in lots and lands. It was the constant practice of the legislature to change county lines, and the county seats of counties from one town to another, at the solicitation of interested parties, without a full understanding of the wishes and interests of the people of the counties affected. Instances even occurred where such removals were carried through the legislature without the knowledge of that body, by inserting clauses in bills, surreptitiously, the title of which indicated entirely another purpose. As long as the power to change county lines, and remove county' seats resided in the legislature alone, and its authority was unrestricted, it was found that its action on the subject was liable to abuse.
When the Constitution was framed this subject received the careful consideration of the Convention, and the discussion upon what is now section. 1 of article 11 of the Constitution was based almost entirely upon the abuses that had previously existed in the legislation of the Territory, and it was the almost universally expressed opinion of the members, that some check should be imposed upon the legislature in regard to making changes in county lines and county seats ; and it was decided that the most just and practicable method would be to require the sanction of the citizens of the coxmties to be affected, to the legislation, before it could become operative. See the Debates of the Convention presided over by President Sibley, from page 467 to 480 ; also those of the Convention [435]*435presided over by President Balcombe, from page 259 to 269.
The result of these debates was the following section of the Constitution. Art. 11, sec. 1: •
“ The legislature may, from time to time, establish and organize new counties, but no new county shall contain less than four hundred square miles; nor shall any county be reduced below that amount; and all laws changing county lines in counties already organized, or for removing county seats, shall, before taking effect, be submitted to the electors of the county or counties to be affected thereby, at the next general election- after the passage thereof, and be adopted by a majority of .such electors. Counties now established may be enlarged, but not reduced below four hundred square miles.”
The legislature, at the session of 1858, passed a general law for the removal of coiinty seats, (Stats. Compel, ed. p. 111,) by which it is provided that when a number of voters in a county, equal to half the highest number of votes polled at the general election preceding, shall petition the County Commissioners for a change of the county seat, the Commissioners shall submit the question of change to the electors, &c., and a majority voting in favor of the change shall effect it, &c. This act was designed to remain in force and apply to all future cases. Now, it will be seen that by the provisions of this law, the legislature does not act directly upon the question of the change of any particular county seat at all, but the whole question is left to the people oí each county, and the county seat may be removed and the legislature know nothing about it.
Let us see whether the Constitution intended to work any such change as the legislature has introduced. In the first place;, there was no way, as we have shown, to obtain the voice of the people, directly, upon any subject of legislation, as long .as the legislative power was vested solely in the legislature. That body was not permitted to delegate its "trust to the people, or any one else. It became necessary, therefore, in order that the people might have a voice directly- in any subject, properly one of legislative cognizance, that some provision should be made for it in the Constitution. All other [436]*436subjects of legislative jurisdiction are conferred upon that body, without qualification. Art. 4 Const. But 'the people were not willing to allow the legislature absolute control over the question of county lines, in counties that were “ already organized,” nor over the removal of county seats, as had previously been the-case, and as would have yet been so, had nothing been said in the Constitution about it ? because under our system of government, State constitutions are not creative, but restrictive instruments, and the legislature of a State has as extensive powers as the Parliament of Great Britain, subject only to the restrictions imposed upon it by the Constitution of the United States, and the particular state in which it acts. Board of Supervisors of Ramsey Co. v. Heenan, 2 Minn. R. 330-2. The purpose of the Constitution was to impose a restriction upon the legislature, in acting upon a certain class of subjects. It was not to deprive that body of any participation in them whatever, and confer the jurisdiction upon some distinct tribunal. It was more in the nature of granting to the people of the several counties a veto power upon its acts, than of conferring the power in the first instance upon the people. The words are “ all laws changing county lines,” &c., “ or for removing county seats,” which must be read “ or all laws for removing county seats,” “ shall before taking effect, be submitted,” &c., “ at the next general election after the passage thereof, and be adopted,” &c.
It takes a law to change a county seat or a county line now, just as it did before the Constitution was adopted, and the people have no more power to originate laws now than they ever had, nor does the Constitution, in this particular instance, confer upon the people any power whatever over, or participation in, the passage of these laws. The law must be passed by the legislature making the change in the line, or the county seat, just as formerly ; and it is as perfect a law as any other when it leaves the hands of that body. It is, however, made to take effect upon the happening of a certain contingency, which contingency is an approbatory vote of the people. The law, upon the happening of the event upon which its effect depends, at once becomes operative proprio vigore. It was as much a law prior to the vote of the people as sub[437]*437sequent to that event, its operative force being suspended merely ; its vitality being dormant. It is precisely tbe same case as tbe passage oí a law by tbe legislature, made tb take effect upon tbe happening of any other event, such as a fiiture day, which is tbe most usual case. Tbe law is passed, and tbe legislature declare that it shall take effect and be in force from and after some future day ; or after it shall have received a certain notoriety by a given number of publications in a newspaper. Or suppose tbe legislature to anticipate a declaration of war by some foreign power. It passes a military bill, calling into action a vigorous militia system, incompatible with a peace establishment, but necessary as a war measure. Tbe law is made to take effect upon tbe contingency of war being declared. If war is declared, tbe law at once becomes operative, not by tbe act oí tbe foreign government in declaring war, because that can have no influence upon tbe legislation of our State, but by tbe vital force infused into the law by tbe legislature at tbe time of its passage, which force is confined and quiescent until called into life by tbe happening of tbe event upon which it is made to depend. Such laws (if I can be permitted a figure of tbe times) may be assimilated to shells, or other military projectiles, which contain within themselves all tbe forces necessary for tbe complete fulfilment of their purpose, but whose energies are latent, suspended, and remain at rest until tbe application of the match. The .event may never transpire, nor the match be applied, yet they are none the less perfect of their kind when they leave the hands of the artisan.'
We do not think the framers of the Constitution meditated any such change as the legislature has adopted. They did not mean that a county seat should he changed without the sanction of the legislature, any more than that a county line should be subject to alteration, solely at thepvill of the inhabitants of the county. They only intended to prevent the legislature from making laws of this peculiar nature, contrary to the desires and interests of the people of the locality. They have not said to the legislature — you shall change a county seat whenever the people, or a majority of them, shall desire it: but merely that you shall not make such change unless [438]*438they do approve your action. The legislature still possesses full power over the subject, in one sense, because no change can be made without that body originating the measure and sanctioning it by the passage oí an act.
The counsel for the Defendant in this case insists that the State at large have an interest in the location of county seats, as well as the local inhabitants of the county. The position is certainly true when considered either with reference to the subject matter involved, or philosophically, 'as a matter of governmental policy. The county seat is the point at which public justice is administered, and in this respect may, and constantly does, affect the rights and interests óf citizens from all parts of the State, as suitors, witnesses and otherwise. It is also the depository of all county records, involving taxes, titles, and other matters of general public interest; and in this view cannot be regarded as entirely a local matter. On the other hand experience has proven beyond doubt, that the most irresponsible and dangerous of all tribunals to invest with legislative powers, is the people in their primary action at the ballot-box. ■ They have seldom failed to burthen themselves with crushing debts for the most fantastic and speculative purposes, whenever the power has been confided to them. The history of our western cities, counties and towns, for the past ten years, is a standing monument of their willingness' to run into all kinds of excesses, in the hope of temporary relief from pressing embarrassments, generally ending in serious distress and permanent detiiment to whole communities; some-timeshn discreditable repudiations. It may be said that such matters concern themselves and they are the best judges' Such, however, is a very unwise and unstatesmanlike view of the subject, and has a tendency to subvert the advantages of a representative, and restore all the evils of a pure democracy, to our system of government. The Constitution should be very explicit in inaugurating changes of this character, to justify the courts in giving such effect to its provisions. This case is disembarrassed, however, of all real difficulties, as the words of the Constitution do not admit of any just construction that will allow the. legislature to confer the power in these cases entirely upon the people. The legislature must, [439]*439in every case of a change of county lines in counties “ already organized,” or for removing a county seat, pass a special act, to take effect upon its adoption by the electors of the county, &e., at the next general election after its passage. The act of March 18, 1858 (Comp. Stats. 111-12) is in conflict with both the spirit and letter of the Constitution, and of no, force.
The counsel for the relator insists,'however, that the Defendant is estopped from calling into question the validity of the act, because he had referred to it in his answer or return to the writ of mandamus, as an act of. the legislature, or law, and cannot now allege that it is not such; in other words, that he has adopted it. We cannot see the force of this position. It would be difficult for the Defendant to make his point upon the validity of the supposed law, unless he could call the attention of the Court to it by reference to its title, or its place-in the statute book ; and further, we do no't think it is a matter in which the Defendant could estop himself by any act of adoption. If the law is void, he may raise the question here or anywhere else, on the trial, or in arrest of judgment.
The order or j udgment making the writ of mandamus peremptory, is reversed^
Atwater, J.
füed the following dissenting opinion:
The evil which had grown up under our Territorial organization, with regard to changing county -lines, and removing county seats, has been correctly stated by my brother Elan-drau, but I cannot agree with my associates in holding that the law of 1858, above' referred to, is unconstitutional. It will be observed that the only objection urged to that statute ‘is, that it is in conflict with section 1 of article 11, of the Constitution. That the subject matter of the act of March 18, 1858, (chap. 2, p. 111, Comp. Stat.,) is within the scope of legislative action, (unless restricted by the organic law,) is conceded. And if so, then the Legislature had the same authority to pass a general act, regulating the removal of county seats, that it had to enact a special law providing for the removal of a particular county seat. And so too, is it within, the scope of legitimate legislative action, that without interfering directly as a legislative body.in the removal 'of county seats, it should provide the means whereby the people of each [440]*440county may locate tbeir county seat, without any interference by the Legislature in the matter. In other words there is nothing in the nature of the case, or of the subject matter, that renders it necessary, or even appropriate, .that the legislature should interfere directly in the removal of county seats.
On the contrary, the very evil which had grown up under legislative action on this subject, proves conclusively the propriety of removing the subject as far as possible, from legislative interference. And this unquestionably was the object, both of the provision in the constitution, and of the statute of 1858, only the latter has attained the object more completely than the former. And although previous to the adoption of the constitution the legislature had the power, and had often exercised it, of changing county seats, without regard to the wishes of the inhabitants of the county, yet the power itself is opposed to the whole theory of our republican form of government, which is, that of self government for each state and municipality — the absolute right of managing its local concerns, without interference from strangers. This principle is violated in every interference by the legislature in the removal of a county seat contrary to the wishes of the people of a county. No sound reason can be given why the people of a county have not, and should not have the right and privilege of locating their seat of government without interference by the people of other sections of the State.
It is said that the people of the State at large have an interest in the location of the respective county seats. It is true they have what may be termed an indirect interest in the question, but not such an one as takes the case out of the application of the principle above referred to. The people of the State have an interest in having competent and efficient county officers elected in each county, in having good roads maintained, in the moral and intellectual training of the people, and in numerous other matters which might be named, but all of which are left for the citizens of each county to manage for themselves, and any interference in which, by the inhabitants of other sections of the State, would justly be regarded as an infringement upon their rights, which would not for a moment be tolerated.
[441]*441Nor will it do for tbe judicial tribunals to take away these rights on the ground that the people are incompetent to exercise them. Our only business is to declare and interpret the law,- and not to limit, or render it inoperative, from fear that the people may not wisely exercise their rights under it. 'Whatever differences of opinion may exist as to the policy of allowing the people the right of self-government, or as to the extent to which the right should be allowed, the question cannot properly be here discussed, nor the law administered with reference to our own views of what is right and proper.
Let us now examine the law of 1868, and see whether it is in conflict with seo. 1 of art. 11 of the Constitution. Unless it is, it is admitted that it must be sustained. There is no provision in that act for submitting the same to the people for ratification, and from the nature of the case there is no ne--ceBsity for such submission. For it is not an act providing for the removal of any county seat, but only providing a general mode in which the people of a county may proceed to change or locate a county seat. ' Now the constitution contains no prohibition of legislation of this nature. The legislature may now, as before, enact a law changing a county seat. But if it does so, the law before taking effect, shall be submitted to the electors of the county to be affected thereby, &c.' It is an entire mistake-to suppose that this provision of the constitution requires a special act to change or locate a county seat. Neither the language or spirit of that instrument, in my judgment, can receive such a construction. And the evil which it is admitted the constitution only aimed to remedy, is even more effectually prevented by the act, than it would have been under the law as it formerly existed, with the restriction imposed by the organic law. For if it be true that the constitution is intended to forbid the removal of county seats, except by special -act of the legislature, that body-must still be subject to all the corrupt influences which were formerly brought to bear in favor of or against the removal or establishment of a county seat. It is true the people of a county are not, as before, left entirely in the power of the legislature, to suffer the evil consequences of such cor-[442]*442rapt legislation, and for that reason the motive for it may to some extent be diminished. But still it would exist, and from the nature, of the case, these corrupt influences would be brought to bear in almost every contested case of location or change of a county seat. The act of 1858 strikes at the very root of the evil. It takes the matter out of the hands of the legislature, and places it in the hands of the people of the county to be affected by it, where it properly belongs. And while it effectually bars one pregnant source of evil, it is in entire harmony with the whole theory and practice of municipal government in this country, in accordance with reason, justice, and the spirit of the organic law, and not repugnant to its letter, and I see no. tenable ground on which it can be set aside.
That an act of the legislature cannot be set aside as unconstitutional, unless its incompatibility with the constitution is clear and unequivocal, is an elementary principle, recognized by authorities so numerous that it is unnecessary to quote them. I think this principle is violated in holding the act in question unconstitutional. This must be so, unless the constitution requires a special act to change or locate a county seat. It does not in terms so require, nor in my judgment can it have such meaning by any fair construction. The legislature 'having still the power to locate or remove county seats, whenever such power is exercised, the,Constitution only requires that the law be submitted to the people before taking effect. It is at best only by doubtful implication, that it can be said that the constitution designed to take from the legislature the power, which it formerly enjoyed beyond question, of passing an act of this kind. And by another equally well settled rule of construction, clauses in the organic law, restrictive of rights before enjoyed, must be strictly construed, and cannot be extended by implication to embrace more than is covered by the exact .terms of the instrument. With how much more force does the rule apply to a case like the present, when the effect of giving an extended meaning to the clause is to nullify a law, which completely remedies the evil aimed at by the framers of the constitution, and secures to the peo-[443]*443pie the exercise of a right which is in entire accordance with the system of municipal government which prevails in this country. Eor these reasons therefore, I think the order of the District Court should be affirmed.