CONCURRING.
The question of the power of the legislature to authorize counties as well as town and city muiiicipalities “To regulate by ordinance within the limits of the county all local police, sanitary and other regulations not in conflict with the general laws of the Territory” involves consideration of important elementary principles. The maxim, Delegata potestas non potest delegari, that an “agent cannot lawfully nominate or appoint another to perform the subject matter of his agency” unless power of substitution is given, applies not only to transactions between principal and agent but to Congress and legislative bodies generally. Public attention is now directed to the question whether, assuming that Congress has constitutional power to enact laws regulating railway rates, it can delegate to an executive board the power to make rates from time to time, according to changing conditions.
*188In the present case the first thought which naturally suggests itself is whether the provision in the Organic Act “that the legislature may create counties and town and city municipalities * * * and provide for the government thereof” means that the legislature may provide for the government of counties by themselves within their county limits, as well as of town and city municipalities, in respect of “all local police, sanitary and other regulations not in conflict with the general laws of the Territory.” Delegating certain legislative powers to municipal organizations, such as towns and cities, “has been found so essential to public welfare and its delegation has been so often sustained by judicial decision as to be established beyond question.” Ingersoll, Pub. Corp., Sec. 116. Is there any valid reason why like powers may not be delegated to counties ?
Grammatically the words “provide for the government thereof” may refer to counties as well as to town and city municipalities.
“It is true that, in strict grammatical construction, the relative ought to apply to the last antecedent; but there are numerous examples in the best writers to show, that the context may often require a deviation from this rule, and that the relative may be connected with nouns which go before the last antecedent, and either take from it or give to it some qualification. * * Suppose, for example, this phrase * * ‘If there be any powers or provisions of an act of Parliament, of which the corporation are sole commissioners for executing,’ — is it not obvious here that the relative ‘which’ refers to the powers and provisions,’ and not to the ‘act of Parliament ?’ ” Abinger, C. B., Staniland v. Hopkins, 9 M. & W. 191.
It is not true that historically it is generally towns and cities rather than counties which have regulated their own affairs, although the powers of counties have more frequently been defined by general laws of the state, and restricted to administration of state laws, making them mere agencies of thp state.
The student readily ascertains that the New England town is the administrative unit, as it is called, governed by its town meeting representing an intermediate stage between the munici*189pal and public quasi corporation; and that “in the southern states the county is the unit of political organization and administration” and hence counties in those states “are charged with the supervision or performance of all functions of local government” and the same is true partially of the “amalgamated system” in the middle states. Ingersoll, Sec. 10; 1 Smith, Mun. Corp., Sec. 11. It would not be correct, therefore, to say with reference to the whole country that:
“A municipal corporation proper is created mainly for the interest, advantage and convenience of the locality and its people; a county organization is created almost exclusively with a view to the policy of the state at large, for purposes of political organization and civil administration, in matters of finance, of education, of provision for the poor, or military organization, of the means of travel and transport, and especially for the general administration of justice.” 1 Dillon, Mun. Corp., Sec. 23, citing Hamilton Co. v. Mighels, 7 Oh. St., 109.
It would also be incorrect to confine legislative power to grant local government to towns and cities by reason of their inherent powers of self control, meaning powers which, when left free to do so, they have been used to exercising.
Delegating to towns and cities a restricted and limited power to govern themselves cannot be based upon the theory that the inhabitants of those corporate bodies are merely allowed to resume original powers in that regard.
Nor can any distinction be based upon the fact that counties are usually created solely by legislative enactment with topographical limits and without consulting the wishes of those Avho dAvell within those limits Avhile toAvns and cities are a groAvth and usually are voluntary corporations requiring for their incorporation the consent of the inhabitants. History shows that these organizations are formed or come into existence in various ways.
Moreover, if counties h'ad always originated in one way and towns and cities in another, that fact Avould furnish no reason for restricting the power of local government to the latter. In any point of vieAv then, I see no reason for excluding from *190counties the power granted by the Organic Act to the legislature to authorize self government within the well defined limits of similar power when granted to town or city municipalities. The ordinance in the present case is clearly authorized by the County Act, with the exception that the authority given by the County Act to “fix a penalty for the violation of such ordinances” cannot be deemed to authorize imprisonment. The question is not presented whether the Organic Act authorizes the legislature to delegate to counties the power to prescribe the penalty of imprisonment for violation of county ordinances. Referring, however, to the intention of this provision in the County Act “unless the authority be plainly given it does not exist.” 1 Dillon, Mun. Corp., 2 Ed., Sec. 287. “In England such a power cannot be conferred by the Crown and can only exist by authority of Parliament or a special custom.” n 3, Ib.
It will be seen that the foregoing discussion assumes that providing a government for towns and cities means providing for their self government, the argument being that as counties are classed in the same sentence with town and cities the intention is to grant to them like powers, as far as by the nature of those organizations is practicable.
I fully concur in the opinion of the court and in the decision.