Mr. Justice Jones,
7 dissenting. I am unable to concur in the opinion of the Chief Justice in this case. It is grounded on the proposition that the legislature must accept as final and conclusive the result of an election upon the question of creating a new county as certified by the returns of the commissioners of elections. If, therefore, the result as returned by such commissioners is against the formation of Lee County, then the act establishing Lee County is absolutely void, no matter how incorrect, false or fraudulent such return may have been, and no matter if in fact the requisite number of electors did really vote for the formation of such new county. The theory is that if such returns are incorrect, false or fraudulent, the decision of the legislature thereon goes for naught, but an appeal might lie to the State board of canvassers, or certiorari might lie to correct mere error of law, or possibly an action might be sustained in the courts to set aside such returns for fraud; but until reversed according to law by some tribunal other than the legislature, the legislature must accept such returns as final and conclusive, and is powerless to determine for itself whether in fact the requisite number of legal voters voted in favor of the establishment of the new county. This view, it seems to me, is clearly erroneous. By article VII. of the Constitution, it is provided, among other things, that if two-thirds of the qual*32ified electors voting at an election upon the question of the formation of a new county shall vote “Yes” upon such question, then the General Assembly at the next session shall establish such new county. This article provides for other requisites for the formation of new counties not necessary to be mentioned here. It is manifest from this article of the Constitution that the legislature not only has the power, but it is its duty to ascertain for itself the existence of the conditions upon which it is required to establish a new county. The power to ascertain for itself the existence of conditions is necessarily implied from the power and duty to act when such conditions exist.
It is argued that it is a judicial function to ascertain the result of an election, and that, therefore, under sec. 14, art. 1, of the Constitution, which provides for the separation of the legislative, executive, and judicial powers of the government, and forbids any person exercising the functions of one of said departments to discharge the duties of any other, the legislature has no power to determine for itself the result of such election, that such determination would be an usurpation of judicial power. This argument, it will be readily seen, ignores the principle that the Constitution must be read as a whole. It may be granted that it is in some respects a judicial function to ascertain the result of an election, yet it does not follow that it is beyond legislative power to ascertain the true result of an election upon the formation of a new county, for the reason that the same Constitution which forbids encroachment by one department on the powers of another, also makes it the duty of the legislature to ascertain the existence of all conditions preliminary and requisite for the creation of a new county; because, as said, the power to create new counties on specified conditions, by implication, carries the power to ascertain for itself whether the necessary conditions exist. Therefore, you may call the exercise of such power a judicial function, it is nevertheless a legislative power under the Constitution. This is made very clear when considered in reference to other constitu*33tional conditions necessary for the formation of a new county, whether the proposed new county contains the necessary population, the necessary taxable property, the necessary area, whether the proposed new county line runs within eight miles of the court house of any old county, whether the formation of the proposed new county would reduce any old county to less than 500 square miles in area, or less than 2,000,000 taxable property, or less than 15,000 of population. Must not the legislature ascertain for itself whether these conditions exist ? It can in ascertaining the facts use its agents and committees, but as the creature is not superior to its creator, no report of an agent or committee on these facts is final and conclusive as to the legislature. Why should the report of commissioners of election in the matter of the condition as to the requisite two-thirds vote be final and conclusive ? It is conceded that it is essential to have a special election to ascertain the existence of the requisite vote, but the power to ascertain the result of the election according to the truth, must still be in the legislature as a preliminary to its action. But it is argued that in the “Act to provide for the formation of new counties, &c.,” approved March 9th, 1896, 22 Stat., 64 — the legislature had manifested an intent that the return of the commissioners of elections shall be final and conclusive. It is extremely doubtful whether the legislature could abrogate its duty to ascertain for itself the existence of conditions preliminary to the formation of new counties, but pass that by. I contend that in the act supra, the legislature clearly meant to reserve to itself the ascertainment whether the requisite vote was had in the steps to form a new county. The requirement in section 3 that “such election shall be conducted in the same manner as general elections in this State,” may fairly be construed as relating solely to the manner of conducting elections as ■provided in sections 166 to 173 inclusive of the Revised Statutes, such as the regulations for opening and closing the polls, the administering of oaths, the keeping of poll lists, ■.the counting of the ballots by the managers, the statement of *34the result and the delivery of the poll lists, the boxes containing the ballots and a written statement of the result to the commissioners of election. So the language in the fourth section requiring the commissioners of elections to canvass-the returns “as such returns in general elections are canvassed,” can be fairly construed as relating to the manner of canvassing and certifying the result to the secretary of State, and not as conferring on the commissioners of election the powers of the board of county canvassers in general elections. The exercise of the powers of the board of county canvassers in general elections is subject to the right of appeal to the board of State canvassers. But the legislature expressly required the commissioners of election to certify the result to the secretary of State, who in turn should transmit to the General Assembly. This seems to eliminate the board of State canvassers as a tribunal to which an appeal might be taken from the commissioners of election, and it is impossible, without express language to that effect, to conceive that the legislature meant to confer upon the commissioners of election such powers as contended for, without. having provided for an appeal, unless the legislature intended to reserve for itself the right to ascertain the true result of the election. It is not at all probable that the legislature would make the commissioners of election of established counties, who according to human nature and experience, would be expected to be opposed to the dismemberment of these counties, the sole and final arbiters on the question of dismemberment; but it is easy to understand why the legislature would authorize such commissioners of election to-canvass the returns in the manner such returns are canvassed in general elections, with the provision that the returns, or a statement thereof, be sent to the secretary of State to be by him transmitted to the legislature, which by the Constitution must decide for itself whether conditions-exist which are necessary for the formation of a new county. No one would contend that the decision of a board of county canvassers is final as to an election of governor or a member *35of the General Assembly. Why? Because by the Constitution contested elections for governor are to be determined by the General Assembly, and because by the Constitution each house shall judge of the election returns and qualifications of its own members. It follows that no one ought to contend that the decision of the commissioners of election is final and conclusive in the matter of an election for the formation of a new county. Why? Because under the Constitution it is the duty of the legislature to ascertain for itself whether constitutional requirements for the creation of a new county have been complied with, the power to create upon conditions necessarily implying power and duty to ascertain the existence of such conditions.
But further, the fifth section of said act of 1896 makes it perfectly manifest that the legislature did not intend to make the decision of- the commissioners of election final and conclusive. It reads: “The General Assembly at its next session shall create such new county', if two-thirds of the qualified electors voting at such election shall vote in favor of the establishment of such new county, and if all the constitutional requirements for the formation of new counties have been complied with, of all which such General Assem - bly must judge.” I will not lay stress on the fact, but I call attention to it, that this section does not say that the General Assembly shall create the new county, if the result of the election as returned by the commissioners of election, is in favor of the establishment, as it would have said naturally if such had been the legislative intent; on the contrary, the new county is to be created if two-thirds of the qualiñed electors voting at such election shall vote, &c. But what I do wish to emphasize is this language of the section, “of all which such General Assembly must judge.” This most distinctly and positively affirms that the decision of the commissioners of election is not final, and that the legislature will judge for itself as to compliance with all constitutional requirements. I confess my inability to see how this can be doubted. It is said that to give this construction would place the act in *36conflict with the Constitution, which if possible shpuld be avoided. By the same reasoning ought we not to avoid a construction, the effect of which will inevitably result in declaring the act to establish Lee County void, if perchance the result of the election as returned by the commissioners of election is different from the result as declared in the act? But I do not think 'the fifth section conflicts with the Constitution. The legislature, as I construe the section, did not mean to make itself the final judge whether all constitutional requirements have been complied with, but meant to reserve its right of ascertaining for its own guidance whether constitutional requirements have been in fact complied with. The language certainly negatives the idea that the decision of the commissioners of election was intended to be final. T agree fully that the legislature is not the final judge of the existence of conditions essential under the Constitution for the creation of a new county. My view in this matter is that the legislature must in the first instance determine for itself whether constitutional requirements for the formation of new counties have been complied with, in order that it may exercise its power and discharge its duty in the premises; but when the act creating anew county is passed, it is within the power of the Courts to declare such act unconstitutional, if it clearfy or beyond a reasonable doubt appears that some constitutional requirement has not in fact been complied with. The presumption is that the act of the legislature is valid and is consistent with the facts appertaining to the discharge of its duty and exercise of its power. On those who assail it rests the burden of showing clearly some constitutional vice. As against an act of the legislature deciding to the contrary, the return of commissioners of election in the matter of forming a new county is not final and conclusive.
If I am correct in these views, then the reference of issues in this case should go further than provided for in the order of the Court, so as to allow the parties to show the true state of'facts, under the issues of fact raised in pleadings, *37independent of the return of the commissioners of election, and independent of the action of the legislature thereon. But, in any event, the limitation of the reference to the mere ascertainment of the result of the election, as returned by the commissioners of elections, should not be based on the ground that such returns of the commissioners are final and conclusive. Under my view, a reference merely to ascertain what was returned by said commissioners is of no avail, since such return in no way concluded the legislature on the question whether the requisite vote was had for the formation of Lee County.
Judge D. A. Townsend concurs.