Dissenting. — The authority of the legislature to. create two new counties out of the territory comprising one county is the constitutional question before this court for determination.
There was no attempt on the part of the legislature in the act under consideration to cover up or conceal the purpose of the. act. After weeks of patient work in the committees the act creating Lewis and Clark counties out of the territory then comprising Kootenai county was reported favorably, passed both Houses by a large majority vote and was promptly signed by the chief executive of the state. It is a matter of public history shown by the map of the state that Kootenai county is larger in square miles than some of the New England states. It is also shown by the records of the state that Kootenai county has the wealth, square miles and population out of which two counties may be created with more wealth, area and population than many of the counties of the state as they now exist. It is also true that Rathdrum, the county seat of Kootenai county, is located near the Western line of the county and very inconvenient to a large majority of the taxpayers of the county. It is also true that the county buildings and property at Rathdrum are not permanent or valuable, and that the loss to the taxpayers by reason of the removal of the county seat from Rathdrum or its location elsewhere would be trifling. All these questions were before the law-making power of the state and ably presented by learned counsel for both factions to the controversy. It is evident from the act passed that the legislature believed that the better interests of all the people of Kootenai county would be best served by the division of the county and location of the county seat of Lewis county at Sandpoint and that of Clark county at Coeur d’Alene City.
*28Unless the legislature has exceeded its powers in the passage of this act, it should stand as the law of the state, and this seems to be the only question in the case. It must be conceded that the constitution of this state, as well as that of every state in the Union, vests large discriminating powers in the legislature, and unless there is a direct and positive prohibition in the constitution, the acts of the legislature should be upheld by the courts. As I view the constitution, there is nothing that prohibits the legislature from doing jqst what is shown by this act, and as I read the decisions of this court in the numerous cases that have been before it since the adoption of our constitution, directly bearing on the constitutionality of an act creating new counties, I am unable to find any of them that would not have upheld a law similar to the one under consideration. I cannot see the force of the plea of saeredness in the name of “Kootenai” county or “Rathdrum” as its county seat. The same plea was entered for old Alturas county, and Hailey as the county seat, in People v. George, 3 Idaho, 72, 26 Pac. 983, referred to in the majority opinion, and whilst the writer of this opinion was a resident of Hailey, Alturas county, at the time of the litigation above referred to, has never changed his residence. He now lives at Hailey, Blaine county. Alturas county was cut up and parceled out to Elmore and Logan counties and one portion left with the name of Blaine county, with Hailey as the county seat. Tet my associates say that this court has never passed upon the question now before .the court. If the entire importance of the question before us is involved in the location of the county seat, then People v. George gives us no light, as less than half of the territory formerly belonging to Alturas county remains in Blaine with Hailey as the eounty .seat. I do not attach so much importance to the sacredness of the name for a county seat, nor do I believe that any town has 'a vested right to remain the county seat of a county when conditions have so changed that the interests of a large majority of the people demand a change. I also believe that it was the intention of the framers of the constitution to vest the legislature with power to *29meet and provide the people with such changes as might seem best for their interests.
Taking np and discussing the questions in the order followed by my associates, we find first article 18 of the constitution referred to. Section 1 provides that the several counties as they now exist are recognized as legal subdivisions of the state. Section 2 provides that no county seat shall be removed unless upon petition of a majority of the qualified electors of the county voting on the proposition at a general election shall vote in favor of such removal. Section 3 provides that no county shall be divided and the portion cut off be attached to another county without first submitting the question to a vote of the people in the portion to be detached. By section 4 it is provided that no new county shall be established which shall reduce any county to an area of less than four hundred square miles. Nor shall any new county be formed which shall have less than four hundred square miles. Section 1 needs neither comment nor construction. It only disposes of the counties of the state or territory as they existed at the time of the adoption of the constitution. Section 2 has no bearing on the question before us, for the reason that the act does not attempt to' remove a county seat of one of the organized counties of the State to which the constitution refers unless “a petition of the majority of the qualified electors of the county voting on the proposition at a general election shall vote in favor of such removal. ’ ’
If the legislature had attempted to remove the county seat of Kootenai county to Sandpoint, Coeur d’Alene City, or any other town in that county, then section 2 above referred to would be directly applicable. The law does no violence to section 3, as there is nothing contained in any of the provisions of the enactment that in any way attempts to cut off any portion of Kootenai county and attach it to any other county of the state “without first submitting the question to a vote of the people in the portion to be detached.” Section 4 is not violated as there is no contention that each of the new counties created by the act have not within their boundaries all the requirements of the constitution. Nor is there any at*30tempt to reduce any county of the state to an area of less than four hundred square miles. The attempt was to abolish, destroy or wipe from the map of the state Kootenai county, and create out of the territory comprising that county the counties of Lewis and Clark. No attempt to do indirectly that which was prohibited from being done directly. No attempt to take territory from one county and add it to another without submitting the question to a vote of the people in the territory affected.
All this being true, the language of Mr. Justice Morgan in People v. George has no application to the facts in this case. A statement of the facts in People v. George will readily disclose the reasons for the language of Justice Morgan quoted in the majority opinion — it follows: “On the 3d of March, 1891, the legislature passed an act entitled, ‘An act to create a,nd organize the counties of Alta and Lincoln, to locate the county seats of said counties and to apportion the debt of Logan county.’ The first section establishes the county of Alta composed of the territory of Alturas county as it then existed and about half of the contiguous territory of Logan. Section 2 establishes the county of Lincoln from the residue of the territory theretofore belonging to Logan.” After this statement of the facts Mr. Justice Morgan says: “The question that must determine this case is, Can a portion of the territory of one county be cut off and attached to another without a vote of the people residing in the segregated portion consenting thereto in the manner adopted in this act?” Tie further says: “It is evident that the whole intent and object of the act was to cut this body of territory from the county of Logan and attach it to the county of Alturas. In fact, I understand the counsel did not deny that this was the sole object.”
Mr. Justice Huston, in his concurring opinion in the George case, says: ‘ ‘ The obvious intent, purpose and effect of the act in question was to cut off or segregate a portion of Logan county, and attach the same to Alturas county, not for the purpose of creating a new county in the sense that term is evidently used in section 3, but solely, entirely and exelu*31sively for the purpose of enlarging the area of Alturas county.” Mr. Chief Justice Sullivan, who dissented in the George case, quoted a number of authorities in support of his views, and whilst the facts in the ease at bar differ very materially from the George'case yet some quotations from his opinion will not be inappropriate. A careful reading of the three opinions in the George case discloses that Mr. Justice Morgan declined to pass upon the question of the right of the legislature to abolish a county, asserting it was not necessary to determine the question, Mr. Justice Huston holding that no such power was given- to the legislature by the constitution, whilst Mr. Chief Justice Sullivan took the broad, and I think, more liberal view that after the adoption of the constitution the creation of new counties and abolishment of old ones was entirely within the legislative power of the state. I do not wish to be understood as agreeing entirely with the views expressed by Mr. Chief Justice Sullivan in the George case. I am more inclined to agree with the position of Mr. Justice Morgan — that is, that the legislature attempted to do something indirectly which was prohibited by the constitution from being done directly. In other words, when they attempted to take half of the territory of Logan county and give it to Alturas county by merely changing the name of Alturas to Alta, and Logan to Lincoln, and without submitting the question to a vote of the people affected by the change, it was an infringement upon the constitutional rights of the people residing within the boundaries of such territory. No such condition arises in the case at bar. It is purely and simply an attempt to make two counties out of one evidently in the view of the legislature to better accommodate the people of the territory comprising Kootenai county. In the George case Mr. Chief Justice Sullivan says: "It is also a well-established rule that an express power to make laws is not necessary to enable the legislature to make them. The court is called upon in this ease to declare a solemn legislative enactment unconstitutional and void.” Then quoting from Judge Cooley in his work on Constitutional Limitations, page 192, says: "The power to declare a *32legislative enactment void is one which the judge, conscious of the fallibility of human judgment, will shrink from exercising in any ease where he can conscientiously and with due regard to duty and official oath decline the responsibility.” Quoting further from the opinion: “Courts have not the power to declare acts of the legislature void simply because in the opinion of the court such acts are repugnant to natural justice and expediency.”
When the constitution of Idaho was framed it was known that the legislature had exercised the power of changing the boundaries of counties- and creating new ones and that certain consequences resulted therefrom. The framers of the constitution saw fit to prohibit the legislature from striking off a part of one county and attaching it to a county then in existence, without submitting the question to a vote of the people residing in the part to be stricken off, but expressly provide that such inhibition shall not apply to the creation of new counties. From a careful reading of the act under consideration and the three opinions filed in People v. George it occurs to me that the author had carefully studied the three opinions and attempted to so draft the bill that it would be free from objections of at least one, if not both, of the majority opinions. I am thoroughly convinced that with the same state of facts before the court in People v. George, as we have before us in this record, if a dissenting opinion had been written it would have been by Mr. Justice Huston instead of Mr. Chief Justice Sullivan.
My associates attempt to explain Doan v. Board of Commissioners, 3 Idaho, 38, 26 Pac. 167, Wright v. Kelley, 4 Idaho, 624, 43 Pac. 565, Bellevue Water Co. v. Stockslager, 4 Idaho, 636, 43 Pac. 568, Blaine Co. v. Heard, 5 Idaho, 6, 45 Pac. 890, and People v. Alturas County, 6 Idaho, 418, 55 Pac. 1067, 44 L. R. A. 122, by saying none of them have passed directly upon the question before us. Be that as it may, the fact exists, that two counties that were upon the map of our state at the time of the adoption of our constitution have been abolished, destroyed, blotted from the map of the state, to wit, Alturas and Logan, and we have in their stead *33Blaine and Lincoln. Every step looking toward the destruction of these two counties was vigorously resisted, and learned counsel from Salt Lake, Boise and elsewhere were employed to guard the interests and existence of the two old counties, but history speaks for itself- — this court did uphold the legislature and the two counties were abolished.
The majority opinion says: “The purpose of creating and organizing counties is to obtain for the people local and county government.....The constitution was adopted for the establishment and in aid and furtherance of government and not for the disorganization and abolition of government. ’ ’ Certainly no one will dispute that proposition, but is it not true that the bill provided for the immediate organization of government for both of the counties created out of the territory of Kootenai? And is it-not also true that the governor in compliance with the provisions of the law appointed officers for both counties, who qualified and entered upon the discharge of their several duties? In James Co. v. Hamilton Co., 89 Tenn. 237, 14 S. W. 601, cited in the majority opinion, the legislature attempted to take all the territory of one county and parcel it out to the neighboring counties, thus entirely abolishing a county and leaving nothing in its place; instead 'of dividing James county and from a portion of its territory creating a new county and leaving the remaining territory in the name of James county or giving it a new name the entire territory was given to other counties- This the Tennessee court said could not be done, and I see no objection to the decision.
It is said in the majority'opinion: “Suppose some county should so far forget itself as to elect a set of officers distasteful to the powers that dictate political fortunes and the legislature should suddenly conclude that the county ought, as a matter of political expediency, to be abolished and a new county organized from the same territory, etc.” Of course not; the supposition is violent. Legislatures are not supposed to do vain, useless or vicious things. Their acts are entitled to full faith and credit in all things. They are *34elected by the people and are responsible to the people for their every act.
(May 26, 1905.)Section 2 of article 1 of our constitution says: “All political power is inherent in the people. Government is instituted for their equal protection and benefit and they have the right to alter, reform or abolish the same whenever they may deem it necessary,- and no special privilege or immunities shall ever be granted that may not be altered, revoked or repealed by the legislature. ’ ’ It occurs to me that the framers of the constitution intended to clothe the legislature with large discretionary powers in the future upbuilding of the state. What government may be altered, reformed or abolished by the legislature? Does it mean state government or does it mean state and county government? Alturas and Logan counties answered by the action of the legislature and afterward by the decisions of this court that it meant county government at least. I might prolong this discussion, but it seems unnecessary; the importance of the question to the people of the state in its future legislation warned me that I should not pass the question by without recording my views. It is well known to every resident of our great and growing state that we must soon meet the demands of the people for better accommodations in our large counties, some of which are empires in area and rapidly filling up with population sufficient for two or more counties. It seems that one of the great objections to the law is that it attempts to remove the county seat from Kathdrum without a vote of the people. There is no force in this position as I view it, but if so, why could not that part of the law have been declared unconstitutional and that part creating Lewis county with the county seat at Sand-point been permitted to stand.
I am entirely satisfied that none of the provisions of the act do violence to any of the provisions of the constitution and the petition should have been granted.