State ex rel. Maulsby v. Fleming

Fullerton, J.

(concurring)—I concur in the conclusion reached in the foregoing opinion, but for reasons somewhat different from those on which the conclusion is rested. If the first section cited from the constitution stood alone, I would have no difficulty in reaching the conclusion that the legislative act in question is within the constitution. The phrase “system of county government,” as I understand it, relates rather to the plan and scheme of government than to the parts and particulars of government, and that a system could be uniform even though there were officers provided for in one or more of the individual counties not provided for in the remainder. But the second section of the constitution cited (art. 11, § 5) is plainly a limitation upon the first, and, indeed, practically determines the “system of county government” the legislature is permitted to establish. It is there provided that the legislature, by general and uniform laws, shall provide for the election in the several counties of boards of county commissioners, sheriffs, county clerks, treasurers, prosecuting attorneys, and other county, township, or precinct and district officers as the public convenience may require, and shall prescribe their duties and fix their term of office. The adjective “several” is clearly here used in its collective sense. It has reference to all of the counties. Hence any “system of county government” established by the legislature must in any event provide for the election of the specially enumerated officers; it may or may not provide for the election of other county, township, precinct, or district officers, but if it does so, I can see no escape from the conclusion that the provision must include the “several” counties; *588that is to say, it must make such officers common to all of the counties of the state.

I appreciate the argument based upon the inconvenience of the rule. The varied climatic conditions of the state, and the consequent sectionizing of the principal industries of its people, have heretofore required laws for the fostering and protection of such industries and officers for the enforcement of such laws not necessary to each several county, and, manifestly, the future will call for additional legislation of the same sort. The legislature has heretofore taken care of the situation by the creation of state officers and state boards. Unquestionably, in my opinion, it could be done in a manner less burdensome to the people if the legislature were permitted to enact laws and provide for the election of officers for their enforcement applicable alone to the particular sections or to the particular counties interested, but as I read the constitution, its framers have willed otherwise. This being so, it is for the people, not the courts, to change it.