State ex rel. Geiger v. Long

117 P. 104, 43 Mont. 401, 1911 Mont. LEXIS 49

• Court: Montana Supreme Court
• Decided: April 22, 1911
• Docket: No. 2,992
• Status: Published

Opinions

MR. JUSTICE SMITH

delivered the opinion of the court.

By an Act entitled “An Act to create the county of Lincoln, designate its boundaries and provide for its organization and government,” being Chapter 133 of the Laws of 1909, the legislative assembly erected a certain portion of Flathead county into the county of Lincoln. Section 3 of the Act reads as follows:

“That the town of Libby, situate within the boundaries above mentioned, shall be the county seat of said county of Lincoln, until the county seat of said county shall be designated as hereinafter provided. And for the purpose of definitely fixing and creating the county seat of the county hereby created, the board of county commissioners of Lincoln .county shall cause to be inserted in the official ballots, when printed for the general election held the first Tuesday after the first Monday in November A. D. 1910, at the foot of the names of the candidates, or nominees thereon, the following: ‘For the county seat of Lincoln county-,’ and the electors, when voting at the said general election at the time hereinbefore mentioned shall declare their vote upon said proposition by inserting in the blank space upon their ballots herein provided for, the name of some one town within said county of Lincoln, and when the name of a town shall be so inserted in the space by an elector, and the ballots have been cast as provided by law, the name shall be deemed a vote for the designated town as the place of the permanent county seat of Lincoln county, and upon a canvass of the said ballots the town having the highest number of ballots shall be declared by the canvassing board the county seat of Lincoln county, which result shall be entered in the office of the county clerk and recorder of said Lincoln county, and from the date of such declaration of result, the town selected shall be and remain, until lawfully changed, the county seat of Lincoln county. All laws' of a general nature applicable to the several counties of the state of Montana, and the officers thereof, shall be made applicable to said county of Lincoln, and the officers who may hereafter be elected, or appointed, therein, except as otherwise provided in this Act.”

At the general election held in November, 1910, the town of Eureka received 653 votes for the county seat, and the town of Libby received 638 votes; and thereupon the board of county commissioners, sitting as a board of canvassers, found and declared that the town of Eureka was the permanent county seat of Lincoln county. The respondent, who is the clerk of the district court of the county, refused to remove his office from Libby to Eureka and this proceeding in mandamus was instituted to compel him to do so. He has filed a motion to quash an alternative writ heretofore issued, and also a general demurrer to relator’s affidavit for the writ, and the matter has been submitted for final decision.

It is contended that that portion of the Act providing for an election to determine the location of the permanent county seat is unconstitutional, for the reason that it conflicts in its provisions with section 26 of Article Y of the Constitution. That section, in so far as it is invoked, reads thus: “The legislative assembly shall not pass local or special laws * * * locating or changing county seats.” It is said that that portion of the Act providing for an election is both local and special in its provisions, and we could readily agree with the conclusion, if the provisions referred to related to a county seat already located or to a county fully created. As will hereafter be shown, however, being a part of the Act creating the county, they cannot be regarded as local or special within the meaning of those terms as employed in thd Constitution, if it be admitted that the legislative assembly has the power to create a county by special Act. In the ease of Holliday v. Sweet Grass County, 19 Mont. 364, 48 Pae. 553, this court, through Mr. Justice Buck, said: “Creating a new county by a special Act is not forbidden by the state Constitution, and matters necessarily incidental to the creation of a new county, which are provided for in the Act creating it, solely for the purpose of organizing the new county and setting it in motion as one of the governmental subdivisions of the state, do not come within either the letter or the spirit of the inhibitions of section 26, Article Y, of the Constitution.” In the case of State ex rel. Sackett v. Thomas, 25 Mont. 226, 64 Pac. 503, this court again recognized the power of the legislative assembly to create a county by special Act, in the following language: ‘ ‘ The Constitution recognizes the power of the legislature to create new counties, to change those already established, and to alter théir boundaries, * * * and this power has been heretofore exercised in many instances. It has been recognized and affirmed by this court, in Holliday v. Sweet Grass County, where a special Act creating the defendant county was upheld; and this power to create necessarily implies the power to destroy, so that, in the exercise of it, the legislature may abolish a county organization, and incorporate its territory within another county. It may also at the same time exercise any other power incidental to a complete exercise of the principal one; but this power does not necessarily carry with it the right to interfere by special enactment in the internal affairs of the county, even though a majority of the people do not object. The whole spirit of the Constitution is opposed to this species of interference, and it seems clear to us that the prohibition in question was designed to prevent just such interference as has been attempted in the present instance [changing the name of a county already created]. The power to create counties and give them names, or to destroy them, is unquestioned; but after they are created they may not be disturbed by special or local legislation, except incidentally, in the exercise of the creative power, or in cases where a general law cannot be made applicable.” (See, also, State ex rel. Williams v. Mayhew, 21 Mont. 93, 52 Pac. 981.)

It will be noted that the assertion in Sackett v. Thomas, to the effect that the legislature has the undoubted right to create new counties by special Act, is based upon tbe former decision in Holliday v. Sweet Grass County. In that case the opinion does not disclose any examination of constitutional provisions or a citation of authorities. The decision, however, is not without authority to uphold it. It might perhaps have been urged that the legislature has no authority to create a new county by special [1] Act, for the reason that it has no power to locate a county seat, a necessary institution in every county. Nevertheless, it is settled law in this state that the legislature has such power, and that holding ought not to be changed at this time. Until the last session of the legislative assembly (1911), we had no general law providing for the creation of new counties, but notwithstanding this, the legislature has created, since the adoption of the Constitution, the following counties, viz.: Flathead, Valley, Teton, Ravalli,'Granite, Carbon, Sweet Grass, Broadwater, Powell, Rosebud, Sanders, Lincoln and Musselshell. If we should now hold that the legislature was without power or authority to create these counties, the result would be most disastrous. The legislature has, then, such power. And the possession of this power necessarily implies authority to “exercise every other power incidental to a complete exercise of the principal one.” (State ex rel. Sackett v. Thomas, supra.) One of the necessarily [2] incidental powers is that of designating a place for the transaction of the business of the county, and this power may be exercised by locating a permanent county seat in the Act creating the county, or by naming a temporary or provisional place for the transaction of business and leaving the question of the permanent location of the county seat to the people of the county for decision. In either case the act of creation is not complete until the county seat is definitely and permanently located. In State ex rel. Williams v. Mayhew, supra, the question was raised as to the power of the legislature to appoint commissioners for Ravalli county. This court, among other things, said: “We raise no question that, as a general proposition relating to counties in existence, the legislative' assembly has no power to elect or appoint county officers by an Act or otherwise. To so hold would be to ignore and do violence to the theory of local self-government, which is conceded to be the fundamental principle— the corner-stone — supporting our whole system of government. * * * Did the legislative assembly have the power to appoint or name provisionally the county officers of the county, including county commissioners, in and by the Act creating Bavalli county ? It is and must be conceded that the legislative assembly has the power to create new counties. # * * But what is meant by creating a county by the legislative assembly? It means more than forming and defining it geographically. * * * It certainly seems that something more than laying out the boundaries and naming the offices is necessary to be done before it can be truthfully said that a county has been created. Such a creature would be a lifeless and useless thing, until inspired with motion and power and means to act in fulfilling the purpose of its creation. When it is said that a county has been created, it is, and ought certainly to be, understood that a municipality has been organized, with power and means to aid the state in administering its political affairs, and promoting the welfare of the people and best interests of the commonwealth. A county cannot be said to be created by the sovereign power, until it is endowed with power and means to aid in these important matters of the state.”

The courts have met with no little difficulty .in' dealing with questions kindred to that which we are considering. While recognizing the principle of local self-government, some courts have placed their decisions on the ground that in creating a municipal subdivision of the state, an emergency arises which must be met by the legislature in order to fully exercise its undoubted sovereign power of creation. They have therefore designated county officers first appointed as temporary or provisional officers, as distinguished from permanent officers, who may only be selected by the people themselves. But it is simply begging the question to say that; the legislature has power to name “temporary” officers, but no power to name “permanent” officers. In our judgment, however, the particular designation is immaterial. The fact remains that a so-called temporary officer can hold until the next general election, and while he is in office his status is in no way distinguishable from that of' an elected officer. Such officers are, in fact, permanent (although the expression is paradoxical) until the next general election. After an officer of a new county, named by the legislature, has qualified, he is as firmly fixed in his office as he would be had he been elected, so that, however we may quibble about terms, an officer appointed by the legislature is as nearly permanent in his position as are public officers generally. In his case, however, the Constitution and general election laws intervene and provide for the selection of his successor. Not so with the so-called temporary county seat.

The last legislative assembly passed a general law (House Bill No. 12, approved March 9, 1911) providing “for the designation of temporary county seats and for the location of permanent county seats in new counties or in counties in which the permanent county seat has not been located.” Prior to the passage of this measure, there was no general law by which a so-called temporary eouifty seat could be located, changed, or removed. Consequently, if the legislature had exhausted its power in naming one place, even though it was designated as only temporary, it became in fact permanent. While it is argued by respondent’s counsel that the act of fixing a county seat at a permanent place (the legislature having designated a temporary place) amounts to “changing” or “removing” the county seat, we are not able to agree with the suggestion. The words [3] “changing” and “removing” found in the Constitution and the statute laws refer to the act of changing or removing a county seat that has been definitely located, and have no reference to a so-called temporary or provisional county seat. (Doan v. Board of Commissioners, 2 Idaho, 781, 26 Pac. 167; Attorney General v. Board, 64 Mich. 607, 31 N. W. 539; County Commissioners v. State, 24 Fla. 263, 4 South. 795.) There is but one logical conclusion from this argument, and that is that a county is not fully created until its county seat has been definitely fixed and located. The legislative authority to create has not been exhausted, and, in fact, has not been exercised, until such time as a county seat shall be definitely located, either by the Act itself, or by operation of the machinery provided in the Act. The legislative assembly of 1909 did not locate the county seat of Lincoln county, but did provide that the people of that county should select and locate their own county seat. This it had authority to do. (Territory v. Board of Supervisors, 2 Ariz. 248, 12 Pac. 730; Rice v. Shay, 43 Mich. 380, 5 N. W. 435; Upham v. Supervisors, 8 Cal. 379.) The result is that the [4] constitutional scheme of local self-government has not been violated, the people of Lincoln county have selected their own county seat, and the county is now fully created and established as one of the governmental subdivisions of the state.

The motion to quash the alternative writ is denied, the general demurrer to the relator’s affidavit is overruled, and it is ordered that a peremptory writ of mandate issue, commanding the respondent to remove his office to the town of Eureka, and there maintain the same-.

Writ granted.

Mb. Chief Justice Bbantlv concurs.