Sabin v. Curtis

32 P. 1130, 3 Idaho 662, 3 Hasb. 662, 1893 Ida. LEXIS 17

Opinion

SULLIVAN, J.

This is an application made by the plaintiff for a writ of mandate to compel the defendant, as treasurer of Bingham county, to pay over to the treasurer of Bannock county certain school money which is admitted to be in the hands of the defendant, as treasurer of Bingham county, and which, plaintiff claims, has been apportioned to certain school districts in Bannock county. The defendant denies the existence of Bannock county. The plaintiff contends that Bannock county was created by an act of the second legislature of Idaho, entitled “An act to create and organize the county of Bannock; to fix the county seat of said county; to provide for the apportionment of the indebtedness of Bingham county between Bingham county and Bannock county; and to provide for the apportionment of officers in said county, and for transcribing a portion of the records of Bingham county; and for other purposes.” (2d Sess. Laws, p. 170.) It is contended that the act creating Bannock county is in conflict with certain provisions of the constitution, and that said county has no legal existence, for that reason. The rules by which we are guided in the determination of this case are well settled. The conflict or repugnancy between the statute and the constitutional provisions must be clear, and so contrary to each other that they cannot be reconciled. Only when the court is clearly satisfied that such conflict exists will they declare the statute unconstitutional. In cases of doubt as to the constitutionality of a statute, the statute is sustained. Courts interfere only in cases of unquestioned violation of the constitution. With these principles to guide us, we will proceed to determine the three points urged by the defendant against the constitutionality of said act.

The first point is that section 4 of said act provides that the governor, by and with the consent of the Senate, shall appoint the officers of said Bannock county. It is contended that said section 4 of said act is special legislation) and in conflict with the following provisions of section 19, article 3, of the constitution, to wit: “The legislature shall not pass local or special laws in any of the following cases, that is to say: .... Regulating county business, or the election of county or township officers; .... creating offices, or prescribing the powers and duties of officers, in counties, cities, townships, election districts, or school districts, except as in this constitution otherwise provided.” The act in question does not regulate county business, nor does it regulate the election of county or township officers, nor create any officers in addition to those prescribed by the constitution, and designated as “county officers,” nor does it prescribe the powers and duties of county officers. The constitution does not prohibit the creation of new counties by the legislature. The power of the legislature to create new counties is recognized by sections 3 and 4 of article 18 of the constitution. Section 6, article 18, of the constitution, pro vides that the legislature shall, by general and uniform laws, provide for the election, biennially, in each of the several counties of the state, of the county officers to fill the county offices named in said section. The legislature has complied with that provision. (See 1st Sess. Laws, p. 59.) Section 12 •of the act creating Bannock county places said county under the general and uniform laws provided for the biennial election of county officers; and, as no biennial election would occur in this state prior to the fall of 1894, the legislature is not prohibited by the constitution from making provision for the appointment of the county officers of said county by the governor, to hold their offices until the first biennial election after the creation of said county. The provisions of said section 6, so far as they apply to the election of county officers under general and uniform laws, do not require the election of the officers of a new county prior to the first biennial election held after the creation of such county. (State v. Irwin, 5 Nev. 111.)

The second contention is that said act fails to provide Bannock county with any representation in the lower house of the legislature. Said act is not an apportionment act, and neither grants nor refuses representation to Bannock county. By the provisions of article 19 of the constitution, the state was divided into senatorial and representative districts, and by the provisions of section 4, article 3, of the constitution, the legislature may redistrict the state, and reapportion the legislative representation of the state, whenever it may deem it advisable to do so. The legislature has made no apportionment since that made by the provisions of said article 19 of the constitution. The constitutional apportionment was made on the basis ■of the votes cast for delegate to Congress at the election next preceding the adoption of the constitution. The basis of representation was the voting population. Electors, alone, are represented. A given number in one county exercises the same political power as a like- number in any other. Some departure, however, is made from said basis of representation by the proviso of section 4, -article 3, of the constitution, which provides that each county shall have at least one representative, in all future apportionments. But this does not change the basis of representation from the voting population to the county itself. The voting .population was the basis of representation under the constitutional apportionment — not the county, as a county. Article 19 of the constitution fixes the representative districts, and declares the representation- that each district is entitled to until the same is changed as provided by law. The legislature may enact an apportionment law whenever it may deem proper to do so, but until the legislature passes an apportionment law the constitutional apportionment stands. Under the proviso of section 4, article 3, of the constitution, each county in existence at the date of the enactment of an apportionment law is entitled to one representative, at least. The real contention is that the act creating Bannock county deprives the electors of that county of any voice whatever in electing members to the House of Representatives, and is for that reason unconstitutional. By the constitutional apportionment, Bingham county — the county out of a part of which said Bannock county was created — is given three members of the House of Representatives, and a joint member with Logan and Alturas counties. Thus the electors of Bingham county were empowered to participate in the election of four representafives. The representative district composed of Bingham county included all territory within its boundaries, and the act creating Bannock county out of a part of Bingham county leaves Bannock county still a part of said district. The boundaries of said Bingham county representative district remain as fixed by the constitutional apportionment . until changed by a new apportionment, regardless of the creation of new counties out of a portion of the county composing such district. (Ohio v. Dudley, 1 Ohio St. 437; County of Bay v. Bullock, 51 Mich. 544, 16 N. W. 896.) The electors of Bannock county have not been deprived of representation. They may participate in the election of four representatives, the same as they did prior to the creation of Bannock county. In support of the last-mentioned contention, McCrary on Elections, 2d ed. sec. 191, Paine on Elections, sec. 331, and Cooley’s Constitutional Limitations, 5th ed., side p. 616, are cited. These authorities would be in point if this court took the view that the act creating Bannock county deprived the electors of the right .of voting for representatives, but are not applicable, in our view of this case, above set forth. The authorities above cited rely for support on the cases of People v. Maynard, 15 Mich. 463, and Panning v. Carpenter, 20 N. Y. 447. The latter case holds as follows: “The legislature cannot form any part of the existing territory of the state into a county, except at a time when it has the power to provide for its taking its place, as an entirety, in the political and judicial divisions of the state, without the aid of any further enactment of a future legislature” — and is not in point. The tenth section of the act in question declares Bannock county to be a part of the fifth judicial district of the state; and the eleventh section declares said Bannock county to be within, and a part of, the tenth senatorial district of the state. In People v. Maynard, supra, it was held as follows: “An act purporting to organize a new county out of territory detached from an old one, but which contains no organized townships, and makes provisions for none, is inoperative and void, as without such townships there can be no legal elections.” This case is not in point, for the reason that the electors of Bannock county have not been deprived of any rights whatever by reason of said act. Section 5, article 3, of the constitution, provides, among other things, that, in the formation of senatorial or representative districts, no county shall be divided. Bannock county, as created, is wholly within the same senatorial and representative districts in which its territory was situated before the creation of Bannock county. Said act does not divide either of said counties, leaving a part in one senatorial or representative district, and a part thereof in another; hence, is not obnoxious to that provision of the constitution providing that no county shall be divided in the creation of senatorial or, representative districts. Said section, however, applies to an apportionment law, and not to an act creating a new county.

The third contention of defendant is that said act segregates the eleventh senatorial district, and is void for that reason. In our view of the case, said act does not segregate the eleventh senatorial district. The tenth senatorial district was composed of Bingham county as it existed at the date of the constitu tional apportionment. The eleventh district consists of Bingham as it existed at the date of the constitutional apportionment, and Bear Lake and Oneida counties. The act creating Bannock county declares that it shall remain a part of the tenth senatorial district. The tenth district, in connection with Bear Lake and Oneida counties, forms the eleventh senatorial district. There is no change in districts by reason of the act creating Bannock county. As the matter now stands,, Fremont county, a new county created out of the northerly part of Bingham county, and Bannock county, a new- county created out of the southern portion of said Bingham county, and Bingham county as changed by the creation of said two new counties, now compose the tenth senatorial district. The three last-mentioned counties include the exact territory included within the boundaries of Bingham county at the date of the formation of the tenth senatorial district under the constitutional apportionment. The same territory now comprises the tenth senatorial district. No change has been made in said district since the constitutional apportionment. The eleventh senatorial district was composed of Bingham county as it existed at the date of the constitutional apportionment, and Bear Lake and Oneida counties, and is now composed of Fremont, Bannock, Bingham, Bear Lake, and Oneida counties. The boundaries of the tenth and eleventh senatorial districts have not been changed by the creation of said new counties. Bannock, Fremont, and Bingham counties, composing the tenth senatorial district, are empowered to elect one senator at the next biennial or regular election, and may assist in the election of a joint senator, with Bear Lake and Oneida counties, provided no new apportionment law is enacted before said election takes place.

We hold the act creating the county of Bannock to be constitutional and valid. The prayer of the plaintiff is granted, and the writ will issue as prayed for in the petition, costs in favor of the plaintiff.

Huston, C. J., and Morgan, J., concur.