ON PETITION FOR REHEARING.
SULLIVAN, J.— This is an original proceeding brought in this court to test the constitutionality of a certain act of the *35legislature whereby it attempted to abolish the county of Kootenai, and to create out of its territory the counties of Lewis and Clark. The case was argued at the March, 1905, Lewiston term of this court, and the court held said act unconstitutional.
A petition for rehearing has been filed herein and coúnsel for the defendant have filed their objections to the consideration of said petition by this court, and state three reasons therefor. The first is that this cause is an original proceeding, and that the rules of this court do not contemplate or provide for a rehearing in an original proceeding. 2. That on the twenty-seventh day of March, 1905, this court entered its decision in the above-entitled case, and the alternative writ of mandate was quashed, and that the petition for a rehearing was not filed within twenty days thereafter as required by rule 22 of the rules of this court; and 3. That the questions raised in the petition for rehearing were all argued at length when the cause was heard, and no new question is suggested by the petition.
In support of the first contention, the plaintiffs cite the decision of this court in Washington County Abstract Co. v. Stewart, Judge, 9 Idaho, 376, 74 Pac. 955. In that case it was held by this court “that it was not the practice in this court to consider petitions for rehearing in original proceedings, but owing to the peculiar position taken in this ease, the court concluded to pass upon that application. ” In Hill v. Morgan, 9 Idaho, 718, 76 Pac. 323, a petition for a rehearing was filed, and in disposing of that petition it is said that the provisions of rule 22 of the rules of this court do not apply to cases of original jurisdiction in this court, for if they did a writ could not be issued until the time had expired for filing such petition, and thus the very purpose of the writ would often be defeated by such delay.
Under the second point above suggested, we would say that rule 22 of this court provides that all applications for rehearing shall be upon petition and shall be presented within twenty days after the judgment or order made by the court shall be placed on file, and it is contended that as the order was made in open court on March 27, 1905, the time for filing a petition for rehearing expired on April 17, 1905, and the petition *36was not filed until May 1,1905, long after the expiration of the twenty-day period.
The fact is, counsel for the petitioner were informed by some of the members of this court that they could have twenty days after the opinion in this ease was filed in which to present their petition for rehearing, provided they desired to file one, and for that reason the second point made by defendant is not well taken.
The third point suggested is that all the questions suggested in the petition for rehearing were argued at length when the cause was first heard, and that no new question is suggested in the petition. That contention is correct and nothing new is suggested, except that one authority is cited that was not cited on the original hearing, which we will refer to hereafter. While it is true the rules of this court do not authorize a rehearing, or an application therefor in original proceedings in this court, yet, owing to the importance of this case, we have gone carefully through the petition and shall proceed to make a few observations on the questions suggested or raised by it.
Counsel in their petition first contend that that part of the act creating Lewis county is constitutional and may be segregated from that part of the act which abolishes Kootenai county and creates Clark county, and be permitted to stand; and contend that where a statute attempts to accomplish two or more objects and is void in one, it may still in every respect be complete and valid as to the other, and in support of that contention quotes from Cooley’s Constitutional Limitations, fifth edition, page 209, and seventh edition, page 246, as follows: “Where, therefore, a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in subject matter, depending upon each other, operating together for the same purpose, or otherwise so connected together in meaning that it cannot be presumed that the legislature would have passed the one without the other. The constitutional and unconstitutional provisions may even be contained in the same section and yet be perfectly distinct and separable so that the first may stand though the last fall. The point is not whether they are contained in the same section, for the distribution into *37sections is purely artificial, but whether they are essentially and inseparably connected in substance. If, when the unconstitutional portion is stricken out] that which remains is complete in itself and capable of being executed in accordance with the apparent legislative intent wholly independent of that which is rejected, it must be sustained.”
We recognize the principle there laid down by Judge Cooley as a correct rule of law. The author at page 247 further states, as follows: “The difficulty is in determining whether the good and bad parts of the statute are capable of being separated within the meaning of the rule.....And if they are mutually connected with and dependent on each other, as conditions, considerations, or compensations for each other, as to warrant the belief that the legislature intended them as a whole and if all could not be carried into effect, the legislature would not pass the residue independently, then if some parts are unconstitutional all the provisions which are thus dependent, conditional, or connected must fall with them.”
It was held in Allen v. City of Louisiana, 103 U. S. 80, 26 L. ed. 318, that “where unconstitutional provisions of an act are so connected with the general scope of the law as to make it impossible, if they are stricken out, to give effect to what appears to have been the intent of the legislature, the whole law is invalid.” And in Redell v. Moores, 63 Neb. 219, 93 Am. St. Rep. 431, 88 N. W. 243, 55 L. R. A. 740, that “where it is apparent that the unconstitutional part of an act was an inducement to the adoption of the remainder, the whole act must fail.”
When measured by the well-settled rule above stated, the question arises, Can that part of the act which creates Lewis county be permitted to standi We will here make a short analysis of the bill. The first section of said act abolishes the county of Kootenai and provides that the counties of Lewis and Clark shall be created out of the territory included within the boundary lines of said Kootenai county. Section 2 describes the boundaries of Lewis county. Section 3 describes the boundaries of Clark county. By section 4 the governor is authorized and directed,-within ten days after the act shall *38become a law, to appoint county officers for each of said counties, designating them; and also provides that such officers shall qualify within ten days from the date of their appointment. Section 5 establishes the county seat of Lewis county at the town of Sandpoint, and also provides that the question of the permanent location of the county seat of said county shall be submitted to the voters of said county at the next general election. Section 6 of said act establishes the county seat of Clark county at Cceur d’Alene City, and provides that the question of the permanent location of the county seat of said county shall be submitted to the voters of said county at the next general election. The seventh section provides that all of the personal property, county records, books, papers, money, credits, furniture and fixtures belonging to the former county of Kootenai shall become the property of Clark county; and further provides that after the proper officers of Clark county shall have been appointed and qualified, all such books, papers, etc., belonging to the former Kootenai county shall, by the custodian of the same, be. immediately delivered to the proper officers of Clark county, and provides that the county commissioners of Clark county shall provide suitable offices within the corporate limits of Cmur d’Alene City for the accommodation of such records and the county officers of said Clark county. The eighth section provides that the indebtedness of Kootenai county at the date this act takes effect shall be apportioned between the counties of Lewis and Clark, and goes into detail of the way in which such indebtedness shall be apportioned between said counties, and also provides the manner that all property belonging to Kootenai county shall be divided between said Lewis and Clark counties. Section 9 provides for the appointment of competent accountants to ascertain the amount of indebtedness of the former Kootenai county, and directs such accountants to proceed and ascertain from the books and records of the auditor and recorder’s and treasurer’s offices the whole amount of the indebtedness of Kootenai county, and to compute from the assessment-roll for the year 1904, the total taxable property of each of the counties of Lewis and Clark; and directs them to make a list of all *39county property and report the same in writing to the judge of the district court of the first judicial district, which judge is directed to fix the reasonable cash value of such property and apportion said indebtedness according to section 6 of said act, and to ascertain other things not necessary to mention here. Section 10 directs the recorder of Clark county within ninety days after the establishment of such counties of transcribe all matters of record from the record books of Clark county that should be recorded in Lewis county, and deliver the same to the recorder of Lewis county. Section 11 provides for a disposition of the school money in the hands of the treasurer of Clark county. Section 12 provides that said counties of Lewis and Clark shall form a part of the first judicial district of the state, and provides for the holding of terms of court in such counties. Section 13 provides that the judge of the probate court of Clark county shall proceed at once to transfer all civil and criminal actions and unsettled estates of deceased persons, and all other business required to be transferred to the probate court of Lewis county. Section 14 provides that the county commissioners of said Clark and Lewis counties shall, within five days after receiving notice of their appointment, meet at their respective county seats and organize for the transaction of county business, and shall establish precincts in their respective counties and appoint precinct officers thereof. Section 15 provides that said counties of Lewis and Clark shall constitute the thirteenth senatorial district, and that each of said counties shall elect one member of the House of Representatives. Section 16 provides that all laws of a general nature applicable to the several counties of this state and the officers thereof are made applicable to said counties. Section 17 repeals all acts and parts of acts inconsistent with said act. Section 18 declares that an emergency exists therefor, and that this act shall take effect and be in force from and after its passage and approval. Said act was approved on the twenty-eighth day of February, 1905.
From the various provisions of said act it is clear to me that all the provisions thereof in regard to the creation of Clark county, and the establishment of the county seat at *40Coeur d’Alene City were the main inducement for the adoption of the remaining part of said act. The very first section of said act abolishes Kootenai county, and the abolishment of that county was, no doubt, an inducement for the passage of said act. That being true, the part of said act creating Lewis county eannot stand when tested by the rule above laid down by Judge Cooley, the supreme court of the United States and the supreme court of Nebraska.
This act is so connected and so related in substance, as I view it, as to preclude the supposition that the legislature would have created Lewis county without having created Clark. The act is so drawn and the section so constructed and the provisions so interdependent as to clearly indicate that the legislature intended the act to operate as a whole, and that it would not have created Lewis county alone. That being true, the entire act must be held invalid.
If you would. cut out of this act all the provisions, except those applicable to Lewis county, the remaining part would be unintelligible — would, in part, at least, be a jumble of words without meaning, “sound without sense.” In considering this question, I think the unconstitutional part of said act was an inducement to the legislature for a passage of the other portions. It may be insisted that this question must be determined solely by an inspection of the act itself. "We concede that proposition with a slight qualification, however, which qualification is referred to in Sibley v. Smith, 2 Mich. 486, where the court said: “Courts are authorized to collect the intention of the legislature from the occasion and necessity of the law — from the mischief felt, and the objects and remedy in view.”
The supreme court of the United States in United States v. Union Pac. Ry. Co., 91 U. S, 72, 23 L. ed. 224, said: “Courts, in construing a statute, may, with propriety, recur to the history of the times when it was passed, and this is frequently necessary in order to ascertain the reason, as well as the meaning, of particular provisions in it.”
In Stout v. Grant County, 107 Ind. 343, 8 N. E. 222, it was held that the history of a country, its topography and general *41conditions, are elements which enter into the construction of the laws made to govern it, and are matters of which the court will take judicial notice, and it has been held that the general state of opinion, public, judicial and legislative, at the time of an enactment of a measure may be considered by the courts in construing it. (See Redell v. Moores, supra, and authorities there cited.)
It is part of the legislative history of this state that a bill was introduced in the legislature for the creation of Lewis county out of substantially the same portion of Kootenai county that the Lewis county referred to in this act contains, and that said bill failed to become a law, because of the opposition of members who afterward supported the present act. And the inducement in said act to such members was no doubt the creation of Clark county and the removal of the county seat from Iiathdrum to the city of Coeur d’Alene.
Those facts are matters of common knowledge. One of the chief inducements to the passage of said act was the abolishment of Kootenai county, and the creation of Clark county with the removal of the county seat. That feature of the bill was the main inducement for its passage.
The act under consideration was approved by the governor on the twenty-eighth day of February, 1905, and contained the emergency clause, and hence became a law, if ever, on that day. As the first section abolished Kootenai county, if the act is valid, the people of that county were without county government from the twenty-eighth day of February to the seventh day of March, 1905, when the officers appointed by the governor qualified. The said act did not provide that the officers of Kootenai county should continue in office until their successors were appointed and qualified, and if the act be held valid the people of that county were without county government for a number of days. The legislature cannot deprive the people of any county of such local or self-government as the several counties of the state are entitled to under the constitution. If they can deprive a people of local government for six days, they may do so for six months or six years. The *42legislature is prohibited from depriving the people of any county of local self-government.
Article 18 of our constitution, which is in regard to county organization, requires the legislature to establish a system of county governments which shall be uniform throughout the state, and prohibits the legislature from depriving the people of any county of such government. In People v. Albertson, 55 N. Y. 50, the court held that this right of self-government lies at the foundations of our institutions.
Section 2, of article 18, of the constitution, is as follows: “No county seat shall be removed unless upon petition of a majority of the qualified electors of the county, and unless two-thirds of the qualified electors of the county, voting on the proposition at a general election, shall vote in favor of such removal. A proposition of removal of the county seat shall not be submitted in the same county more than once in six years, except as provided by existing laws. No person shall vote at any county seat election who has not resided in the county six months, and in the precinct ninety days.” By the provisions of that section, the legislature is prohibited from changing a county seat, and the people themselves are prohibited from changing it, except on a two-thirds vote of the qualified electors, and under those provisions the legislature will not be permitted to change a county seat under the guise or pretense of creating a new county. They will not be permitted to do thus indirectly what they are prohibited from doing directly. In this ease, under the pretense of creating a new county the legislature has removed a county seat. They attempted to abolish Kootenai county, and attempted to create a new county out of the northern part thereof, and in the same act changed the name of the southern part of Kootenai county, and changed the county seat from Rathdrum to Coeur d’Alene City.
Judge Cooley, in his work on Constitutional Limitations, seventh edition, page 244, says: “There is no difficulty in saying that any such act, which under pretense of exercising one power is usurping another, is opposed to the constitution and void.”
*43The case of People v. Albertson, 55 N. Y. 50, is a remarkable one of the intention of the legislature to avoid and evade the provisions of the constitution and still keep within its terms. I think the principle laid down there is applicable to the case at bar. It is there held that a legislative enactment evading the terms and frustrating the general and clearly expressed or necessarily implied purposes of the constitution, is as clearly void as if in express terms forbidden. And in Taylor v. Commissioners, 23 Ohio St. 22, the supreme court of Ohio found itself under the necessity of declaring that that which was forbidden by the constitution could no more be done indirectly than directly, which has now become a well-recognized rule of law.
Knowing the bitterness and strife engendered in county seat fights the framers of the constitution provided stringent provisions in regard to the removal of county, seats, and prohibited such removal except on a two-thirds vote of the qualified electors and also prohibited the submission of such questions to the voters oftener than once in six years. Is it possible that the framers of the constitution intended to permit the legislature to change the county seats of every county in the state at each session of the legislature thereof, by simply giving the county a new name and changing the county seat under the guise and pretense of creating a new county? I think not.
Counsel for the petitioner in' their original arguments in this case contend that under the provisions of the constitution, the legislature could abolish a county and create a new one out of identically the same territory and change the county seat. If that contention be true, the county seat of every county in the state could be changed as often as the legislature held a session. That certainly would leave the location of the county seat- of the several counties of the state to the “mutation whims” of the legislature, while by the terms of the constitution the people themselves are prohibited from removing their county seat oftener than once in six years. I am not in accord with that contention, and,» in my view of the matter, the creation of a “new county” as.contemplated by *44onr constitution requires something more than the change of the name of a county and the change of its county seat. Under the pretense of exercising the power to create a new county the legislature has usurped the power reserved by the people to change a county seat.
In People v. George, supra, in a dissenting opinion, I held that the legislature had a right to abolish a county in the creation of new counties, but upon a further investigation of this question, I am not satisfied that my views in that opinion on that point were correct. However, that ease was not decided upon that point.
In addition to the cases cited on the original hearing, counsel for petitioner cited Frost v. Pfeiffer, 26 Colo. 338, 58 Pac. 157. That involved the constitutionality of an act of the general assembly of Colorado, creating the county of Teller out of portions of the counties of El Paso and Fremont. By that act no county was abolished and no county seat removed. The act, after creating Teller county, left the counties of El Paso and Fremont simply with reduced areas. We are unable to see wherein the decision in that case has any application whatever to the questions under consideration in the case at bar. I therefore hold that if this court had the authority under the law or its rules to grant a rehearing in a case originally brought in this court, the showing made by the petition for a rehearing in this case is not sufficient to warrant a rehearing. A rehearing is denied.
Ailshie, J., concurs. Stockslager, C. J., dissents from the conclusion reached.