(dissenting.) The principles announced in the opinion of my associates in this case seem to me so at variance with those underlying the formation of society into the organization known as “the state” that I am unable to give them my assent. If I understand their opinion correctly, it holds: First, that the election of sheriffs and state’s attorneys, being provided for in the constitution, none of the duties pertaining to those offices under the law, at the time the constitution was adopted, can be taken from them, and conferred upon any other officer appointed by authority of the legislature; and, second, for the reason that the constitution has provided for the election of sheriffs and state’s attorneys by counties, it must be implied that the people of the state, in adopting the constitution intended to establish the principle of what is commonly known as “home rule,” or local self-government, and that they thereby turned over or delegated to counties the absolute right to the control of all matters relating to the enforcement of the criminal statutes of the state, and in practical effect relinquished their right to determine how or in what manner the duties of such officers shall be performed, or whether they shall be performed at all.
The courts of several of the states with constitutional provisions on this subject practically like our own have repudiated in toto the doctrine of home rule; but in considerting this case, I shall not base my conclusions upon the reasoning of the courts of this class of states, but shall assume, though it may be a debatable question, that this principle is recognized by our constitution, and that its proper application should be protected by the courts. I, however, cannot assent to the terms and methods of its application used by my brethren. I am strongly impressed with the opinion that they have been led into error by an earnest, and from their viewpoint a laudable, desire to recognize in this new state the right of local self-government, so called, in its different coun*503ties and municipalities. After long and careful consideration of the vast array of authorities, on one phase and another of these principles, it is clear to me that they have extended this doctrine far beyond any point to which it is carried by any other court of this country, and where, if put into practical operation and effect in all the counties, it might deprive the state of the right and power to enforce the laws of its own making for the protection of life, liberty and property, as guaranteed by the constitution, and would almost completely nullify the powers of the state as an organization. I am convinced that the majority opinion overlooks or fails to give due weight to several important principles, namely: (1) The purposes and objects sought to be attained by the organization of society into the political entity and system known as “the state.” (2) It fails to take into consideration the relation which the county or municipality bears to the state, and the relation which county officers hold to the county and to the state. (3) It fails to distinguish between officers whose duties are to the state, and those whose duties are to the county or municipality, and likewise between the duties which one officer owes to the state and those duties which he owes to the municipality. (4) It fails to give due weight to article 20 of the constitution. (5) It is unsupported by authorities, the principle of local self-government, where upheld by the courts, being uniformly in conflict with its application, as made by the majority opinion.
Before proceeding with a discussion of the principles applicable to the law in question, I desire to call a little more definite attention to some of its provisions than has been done in the majority opinion, and also to some contemporaneous history, serving as the inducement to the legislature to enact this statute. Section 1 of chapter 187, page 303 of the Laws of 1907, provides for the appointment of a commissioner by the governor; for his compensation and expenses etc. Section 2 prescribes his qualification, and that with the advice and under the direction of the governor, he shall have and is authorized to exercise in any part of the state certain duties. Section 3 provides for the appointment of a deputy and his powers. Section 4, for the appointment of enforcement sheriffs in such number as in the judgment of the commissioner may be necessary, giving them the powers of sheriffs in their respective counties, in the enforcement of the law against the manufacture and sale of intoxicating liquors. Sections, 5, 6 and 7 *504have no bearing upon this matter. Section 8 requires that the enforcement commissioner, upon being satisfied that the local authorities fail to enforce the law referred to in any county, city, village or town, shall, subject to the limitations of section 2 (i. e., with the advice and under the direction of the governor), with the aid, assistance and co-operation of his deputy and one or more of the enforcement sheriffs, enforce such law. Section 9 provides that nothing in the act shall in any way relieve sheriffs or municipal officers of cities, towns or villages, or the state’s attorneys of any county of the duties devolving upon them under the prohibition law. Other sections make it the duty of the governor to remove the commissioner from office whenever in the judgment of the governor he is no longer a necessity. In the latter case, the office is suspended until the governor again deems the services of a commissioner required. Courts take judicial notice of contemporaneous history which led up to and induced the enactment of a law. Rev. Codes 1905, section 7319. Bailey v. State, 163 Ind. 165, 71 N. E. 655.
The territory of Dakota was under various laws relating to the traffic in intoxicating liquors. It had both high and low license laws, and in 1887 the legislature enacted a county local option law, under which some of the counties in the present state of North Dakota voted to prohibit the traffic, and others to license it. The experience of the people with the subject evidently convinced them that this traffic was-the cause of much of the poverty which existed, of a very large percentage of the crime, and was a great burden on the taxpayers of the state, as well as highly detrimental to the morals of any community tolerating the traffic. It was also deemed to be a fruitful source of corruption in politics. The voters of a large number of the various districts which elected delegates to the convention which framed the constitution of the new state in 1889 instructed their candidates to vote for constitutional prohibition of the manufacture and sale of intoxicants. Accordingly the convention framed article 20 of our constitution, which provides “No person, association or corporation shall within this state, manufacture for sale or gift, any intoxicating liquors, and no person, association or corporation shall import any of the same for sale or gift, or keep or sell or offer the same for sale, or gift, barter or trade as a beverage. The legislative assembly shall by law prescribe regulations for the enforcement of the provisions *505of this article, and shall thereby provide suitable penalties for the violation thereofand to enable the people to vote upon this article intelligently v and independently of any other part it was submitted to a vote separately and apart from the remainder of the constitution.. No voter was required, and it was not even possible, to vote for any other provisions of the constitution, or for the constitution as a whole, either for the purpose of securing the adoption of constitutional prohibition or to insure its rejection. The first state legislature which convened obeyed the terms of article 20, and enacted a law prescribing regulations for its enforcement. While this law has generally been well enforced, in a few counties little if any effort had, up to the beginning of the year 1907, been made either to obey the law or to secure its enforcement. It was understood that public sentiment in these few counties was against the law and against its enforcement, and that the voters of such counties deliberately elected state’s attorneys and sheriffs known to be opposed to its enforcement, and ofttimes those who pledged the voters that they would take no steps to secure it. It was well understood that no candidate for either of these offices in such counties who was understood to favor the enforcement of law could be elected. The conditions which existed in such counties rendered them and the state the objects of ridicule by all classes of people. The business as conducted in some such counties became the fruitful source of graft and corruption. Cities, under the guise of licensing poolrooms and other places of resort, exacted contributions from the proprietors, as dealers in intoxicating liquors, for permission to carry on the unlawful traffic. County officers were believed to be participants in the revenue derived from the exactions made of those who were permitted to treat with impunity the law and constitution of the state. These conditions and the odium attached to the state by reason of their existence, as well as the growing sentiment among the people and lawmakers that the traffic was an unnecessary evil, and in conflict with the best interests of the state, and detrimental to the welfare of its people, led the legislature of 1907 to enact the law in question, with a view to making the operation of the so-called “Prohibition Law” uniform in all parts of the state, and of securing obedience to its provisions.
My opinion on the constitutionality of the law, however, is to no considerable extent based upon its having any relation to consti*506tutional or statutory prohibition. The principles involved are far wider reaching, and of far greater moment as applied to the general subject of the powers of the state to enact and enforce police regulations applicable to the whole state, and to provide the means by way of state officers to secure the enforcement of criminal statutes, than anything applying simply to the traffic in intoxicants. However, as I shall show later in treating of article 20 of the constitution, that article in my judgment furnishes reasons, in addition to those general reasons applicable to the general police power and the sovereignty of the state, why the law attacked in this proceeding is constitutional.
The people in the formation of the state, by a compact between themselves for the purpose of protecting life, liberty and property, and the reputation of its inhabitants and of all the people within its borders, and as a guaranty to their inalienable right to pursue and obtain happiness, delegated to the legislative assembly the power to enact laws not expressly or by necessary implication prohibited by the constitution. This state was not formed by a union of pre-existing local or other governments or bodies of people. The state was made the supreme organization; counties, cities, towns and other political or municipal subdivisions are the mere creatures of the state.
The majority opinion places great stress upon the article of that eminent attorney, Mr. Amasa M. Eaton, published in the Harvard Law Review. While I shall call further attention to them, it is sufficient to say here that he had been employed to attack a law of the state of Rhode Island authorizing the governor to appoint a commission which should have the appointment of police officers for the city of Newport,, control and remove them, and to make rules and regulations to govern them, and he did so upon the ground that it was an invasion of the doctrine of home rule or local self-government, and based his contention upon the historic development of the town governments of Rhode Island and of other New England states, which is entirely unlike that of the county in this state. He contended that because the state of Rhode Island had been formed by a union of four colonies or towns which each contained and maintained all the machinery incidental to government and sovereignty in itself for many years prior to the union, and because the state conducted all its affairs until 1842 without a constitution, that each of the towns or municipalities *507existing within the state now retains every element of local self-government possessed by it prior to their union into a state. The case referred to was pending in the Supreme Court of Rhode Island when most of the articles were published. It takes no mental effort to see that there was far stronger reason for the application of the doctrine as contended for by him in that state than exists in North Dakota. He made an exceedingly strong and learned' presentation of his views on the subject, and while they may furnish authority for this state, as they appear to do, they were not considered as the correct exposition of the law by the highest court of his own state, which held against him on all propositions, and its opinion has become a leading authority on the subject. It is found in 22 R. I. 196, 47 Atl. 312, 50 L. R. A. 330, City of Newport v. Horton, and is followed in the later case of Horton v. Newport, 27 R. I. 283, 61 Atl. 759, 1 L. R. A. (N. S.) 512. Evidently for his own satisfaction he determined to have his views printed, but in so doing he repeatedly recognized, and his argument to a considerable extent is built upon the fact, that there is a distinction between the right to local self-government in Rhode Island and the New England states and the states of the west and south, where he concedes the doctrine has far less force than in Rhode Island. If we are to destroy the sovereignty of the state, which follows the application made by the majority in this case of the principles of home rule, we do it by making the county or municipality sovereign, and instead of one sovereignty we have many, each with a power to nullify within its own borders the laws enacted by the legislative assembly for the preservation of the inalienable rights of the people and their protection in exercising them, and there is no power provided which can prevent all manner of oppression, or admit of the state performing the functions for which it was organized. To me it is perfectly clear that the state is and must be sovereign — that is, the people as represented by the state government are and must be sovereign — and that a division of the state into hundreds of minor and petty sovereignties, which is the effect of this decision, was not contemplated in the adoption of the constitutional provisions relied upon. It cannot be that it was the intention 'to give to the officials of any locality the irrevocable right to say whether the laws enacted by the people of the state shall be obeyed or trampled under foot as the caprice or the personal interests of its residents may dictate. The ap*508plication of the principle made means that life, liberty and property and the other inalienable rights of the people may be placed in jeopardy in any locality at the will of the inhabitants of such locality; that the laws of the state, while in terms of uniform application, are not so in fact, but may be defied at will -by any community, and that a part is greater and more potent than the whole. This is not an assertion of the principle of home rule or local self-government, but is the assertion of a principle, the application of which can only be destructive of all government by the state.
Prof. Burgess, in his work on Political Science and Comparative Constitutional Law, in speaking of the ends of the state, on page 36 of volume 1, says “First of all, the state must establish a reign of peace and of law, and it must establish a government, and vest it with sufficient power to defend the state against external attack and internal disorder. This is the first step out of barbarism, and, until it shall have been taken, every other consideration must remain in abeyance. If it be necessary that the whole power of the state be exercised by the government in order to secure this result, there should be no hesitation in authorizing or approving it. The highest duty of the state is to preserve its own healthful growth and development.” How can its own healthful growth and its existence and development be preserved if the voters of a locality can at any moment set at defiance the laws of the state by an intentional election of officers, ■ whose known purpose and design is to nullify and defy the laws constitutionally enacted by the legislative assembly, and the state retain no power to enforce its own laws? The application of the doctrine of home rule sought and made in this proceeding is but a reassertion, in a new form with local application, of the South Carolina doctrine of nullification. The majority of the people of that state, as will be remembered, in 1832 asserted the right within its borders to nullify a law of congress in terms of uniform and universal application throughout the Union. The chief executive of the nation, a man learned in the law, who had served six years as judge of the highest court of Tennessee, answered the ordinance written by Mr. Calhoun, adopted by South Carolina, and the doctrine it contained, which Mr. Calhoun preferred not to call nullification, but rather a “suspensive veto” of the laws of congress, in a proclamation which has become historic. In this proclamation he says, “The power *509to annul a law of the United States is incompatible with the existence of the Union, unauthorized by its spirit, inconsistent with every principle on which it is founded, and destructive of the great objects for which it is founded.” These principles may' be applied with greater force to the pretended right of the county to nullify within its borders a criminal statute of the state. If the principle is conceded that the county can by electing officers whose legal duty is to prosecute criminals for violation of one criminal statute, but who willfully refuse to do so, nullify the laws of the state, it necessarily follows that all criminal laws may be violated with impunity, and that neither -the individual whose rights are infringed or endangered nor the state are possessed of any remedy.
In State v. Mason, 153 Mo. 23, 54 S. W. 524, it is said: “The right to establish peace and order is an inherent attribute of government whatever its form, and is coextensive within the geographical limits thereof, touching every part of its territory. From this duty flows a corresponding power to impose upon municipalities of its own' creation a police force of its own creation, and compel its support out of the municipal funds. Such is the conceded doctrine by the most learned writers upon constitutional law, and such is the concensus of judicial decision throughoút the United States.” “It could not be true that the legislature exercising the sovereign power of the state to legislate can create a peace board, and impose upon the city the duty of maintaining it, and yet be powerless if the city sees fit to attempt to thwart the prime purpose of its existence as such.” This decision was written in 1898, and refers to the constitution of 1875, and although, when that constitution went intó effect, police officers were recognized as existing officers with definite duties, and although the constitution contains provisions identical with section 173 of our own, the Missouri court held that the state could take the appointment of police officers from the city.
Mr. Black, in his work on Constitutional Law, at section 108, says: “There is in every sovereignty an inherent right and plenary power to make all such laws as are necessary to a proper preservation of public security, order, health, morality and justice. This power is called the police power. It is a fundamental power and essential to government, and is based upon the law of overruling necessity. It cannot be surrendered by the legislature, or irrevocably alienated in favor of individuals. * * * It cannot be *510doubted that the origin of this power must be sought in the very purposes and framework of organized society. It antedates all laws and may be described as the assumption on which the constitution rests, for the state must have the right of self-protection, and the right to preserve its own existence in safety and prosperity, else it could neither fulfill the law of its being, nor discharge its duty to the individual. To this end it is necessarily vested with power to enact such measures as are necessary to secure its own authority and peace, and to preserve its constituent members in safety, health and morality. It is a power, as has been well said, essential to self-preservation, and exists necessarily in every well-organized community. License Cases, 5 How. (U. S.) 588, (12 L. Ed. 256); Thorpe v. R. & B. R. R., 27 Vt. 140, 62 Am. Dec. 625, Cooley Const. Lim. 572. For these reasons it appears that the nature and authority of the police power is best described by the maxim, ‘Salus populi, sprema lex.’ * * * It has always been held that the police power is an inalienable attribute of sovereignty, and therefore can never be curtailed or diminished; that it is present in every act of the legislature, and that no legislature can either sell or surrender it, destroy or hamper the power of its successors to make such enactments as they may deem proper in matter of public police. * * * The exercise by the state at any time of its right to legislate for the protection and good government of the community can never be construed into a violation of the prohibition in question, notwithstanding its effect may be to repeal existing charters or otherwise invade the terms of legislative engagements. Stone v. Miss., 101 U. S. 814, 25 L. Ed. 1079; Boyd v. Ala., 94 U. S. 645, 24 L. Ed. 302; Slaughterhouse Co. v. Live Stock Landing Co., 111 U. S. 746, 4 Sup. Ct. 652, 28 L. Ed. 585.” And in section 109 he says “The police power extends to the making of laws which are necessary for the preservation of the state itself, and to secure the uninterrupted discharge of its legitimate functions, and for the prevention and punishment of crime, and for the preservation of the public peace and order, and for the protection of all members of the state in the enjoyment of their just rights against fraud and oppression.” And he 'continues in section 110: “Under the American system of government, plenary authority to make police regulations is vested in the legislatures of the different states, restricted only by the paramount authority of positive constitutional prohibitions. * * * It is vested in a subordinate and delegated man*511ner in the authorities of municipal corporations. It must be observed that there is not a distinct police power inherent in municipal corporations, other than that of the state ¡to which they owe their existence. * * * Of course, the police power delegated to a municipal corporation is not exclusive of that retained by the state. That is, municipal police regulations must yield to the general laws of the state whenever there is a conflict between them.” Yet it follows from the application of the principle of home rule made in the cáse at bar, that municipalities may enact and enforce ordinances and by-laws in conflict with, and which take precedence over, the laws of the state.
“Subject to the paramount power of the national government, each state, under our constitutional system, is supreme and sovereign throughout its own borders — as well within cities and villages, as with rural counties, towns and scho.ol divisions. No one of these divisions, as a rule, has any political rights or authority save that which the state concedes and recognizes. Within all parts of its jurisdiction there is both an authority and a duty on the part of every state — and also an obligation on the part of all its citizens — to take care that the enforcement of its constitution and laws are such as will most contribute to the welfare of the whole people of the state, without discriminating locally in favor of any portion of them at the cost of others, whether they reside in cities, villages or towns. For the state to neglect its duty, or to surrender such authority, would be treason to itself and disastrous to the well-being of the people.” Dorman B. Eaton, Government of Municipalities.
The preservation of the peace has always been regarded both in England and America as one of the most important prerogatives of the state. It is not the peace of the city or county, but the peace of the king or state, that is violated by crimes and disorders. The prosecution is on behalf of the state. People v. Hurlbut, 24 Mich. 44, 9 Am. Rep. 103.
Cooley defines a state as a body politic, or a society of men united together for the purpose of promoting their mutual safety and advantage by the joint efforts of their combined strength. Several authorities define it as a self-sufficient body of persons united together in one community for the defense of their rights, and for other purposes. In this sense the state means the whole people united together in one body politic. Another writer defines, as *512among the attributes of a state: It must be an organization of people for political ends. It must permanently occupy a fixed territory. It must possess an organized government capable of making and enforcing law within the community; and says, “A community cannot be considered a state if their government is permanently incapable of enforcing its own laws.” It appears from the abóve definitions that, when the state ceases to be able to protect its citizenship and enforce its laws, it is no longer entitled to be considered a state. It may be answered that this is not the effect of the decision, because the attorney general may perform the functions of the state’s attorney where the latter officer fails or refuses to perform his official duties as a prosecutor. But under the law as it existed when" we became a state, this was no part of the official duties of the attorney general, unless requested by the governor or the legislature to ' act in a designated case; and to adopt the theory of the respondent in this case, any change in the law adding this duty to those of that office when the constitution was adopted takes away from the state’s attorneys duties which are theirs under the constitution, and is therefore invalid.
It is again answered that the remedy lies in the removal of officers who fail to perform their sworn duties. This answer is clearly weak. With public sentiment against the enforcement of criminal law in a county, so no officer can be elected who will enforce the law, but only such as are known to oppose its enforcement, how can a jury be obtained or proceedings maintained to punish an officer for failing to do things which he pledged the people he would refrain from doing, and who in case of removal would appoint others like him? And again, if the officer have a sacred inheritance in the duties incumbent upon the office when the state was organized and the people of the county the sole right to name him, no power of removal can exist except.on the part of the very people who elected him. It cannot be asserted that in practical operation there is any method of removal except by failure to re-elect on the expiration of the term of office. What is a county, and what is its relation in the enforcement of state laws, to the state as a whole? Prof. Fairlie, in his work on Local Government in Counties, Towns and Villages, says “A county is one of the civil divisions of the state or territory for judicial and political purposes, and at the same time a district of quasi corporate character for purposes of local civil administration. By constitution or statute, *513counties are usually created bodies politic or corporate. This has been said to mean that they have both political and business functions, and the two terms at least mark an important legal distinction in their powers and duties. As corporations their powers are limited, and less than those of a full municipal corporation. They may bring suits, and be sued, and make contracts for authorized purposes, and they may acquire and hold real estate and personal property, but these powers are for the most part incidental and secondary to the governmental functions of counties. The latter are so prominent that it has been said in a judicial opinion that counties exist only for the purposes of the general political government of the state. They are -the agents and instrumentalities the state uses to perform its functions. All the powers with which they are intrusted are the powers of the state, and the duties imposed on them are the duties of the state, and the county organization is created almost exclusively with a view to the policy of the state at large.” See Madden v. Lancaster County, 65 Fed. 188, 12 C. C. A. 566; State v. Downs, 60 Kan. 788, 57 Pac. 962; 11 Cyc. page 341, note 5.
For the distinction between counties and full municipal corporations, see 7 Am. & Eng. Ene. Law, p. 903, and cases cited in note 2. In Alabama this distinction has been very clearly drawn. It is said in Askew v. Hale County, 54 Ala. 641, 25 Am. Rep. 730: “It is created mainly for the interest, advantage and conveniece of the people residing within its territorial boundaries, and the better to enable the government to extend the protection to which they are entitled, and the more beneficently to exercise over them its powers. All the powers with which the county is entrusted are the powers of the state, and all the duties with which they are charged are the duties of the state. If these were not committed to the county, they must be conferred upon some other governmental agency. The character of these powers, so far as counties in this state are concerned, are all for the purposes of civil and political organization. The levy and collection of taxes, the care of the poor, the supervision and control of roads, bridges, ferries, the compensation of jurors attending the state courts, and the supervision of convicts sentenced to hard labor as punishment for many violations of the criminal law, it is the general policy of the state to intrust to the several counties, and are all but parts of the power and duty of the state. These powers can be withdrawn *514by the state, in the exercise of its sovereign will, and other instrumentalities or agencies established and clothed with .them.” Also see Town of Montpelier et al. v. Town of East Montpelier, 29 Vt. 12, 67 Am. Dec. 748.
Black’s Constitutional Law, section 132, defining a municipal corporation, says: “Municipal corporations are the administrative agencies established for the local government of towns, cities and counties, or other particular districts. The special powers conferred on them are not vested rights as against the state, nor are they in the nature of contracts, but, being wholly political, they exist only during the will of the legislature. Such powers may at any time be changed, modified, repealed or destroyed by the legislature, saving only the vested rights of the individuals.” See, also, Hare’s Constitutional Law, section 628.
County officers are but the instrumentalities or agencies through whom the county exercises its functions, both those pertaining to itself as a quasi municipal corporation, and those which it exercises as the agent of the state in the conduct of political affairs and in the execution of state laws. For this reason county officers can have no greater rights in the duties of their respective offices than has the county in the performance of its functions as an instrumentality or agent of the state.
In Board of Commissioners v. Board of Commissioners, 92 U. S. 307, 23 L. Ed. 552, Mr. Justice Clifford says: “Public duties are required of counties, as well as of towns, as a part of the machinery of the state, and in order that they may be able to perform these duties they are vested with certain corporate powers, and their functions are of a wholly public nature, and they are at all times as much subject to the will of the legislature as incorporated towns.” And again: “Such corporations are the mere creatures of the legislative will. * * * These officers are nothing more than the local agents of the state; their powers may be revoked and enlarged, and their acts may be set aside or confirmed at the pleasure of the paramount authority, so long as private rights are not thereby violated.” Fairlie, at page 106, describes a sheriff as a county officer representing the executive power of the state within his county, as the chief conservator of the peace, and as considered in law the agent of the state government, and not as a local officer. Pie says that as the conservator of the peace in his county the sheriff is the representative of the sovereign power of the state *515for that purpose. See Fairlie, Local Government, pp. 106-112, and cases cited; Coke (Lit.) 168 (a); Murfree on Sheriffs, section 1160.
A sheriff is a public officer, a mere creature of law created by the sovereign power of the state for public purposes connected with the execution of the law and the administration of justice, as the agent of the body politic, to give effect to its sovereignty and carry into effect its will. His office is a mere civil institution, established for public political purposes, and may be regulated or changed by society. The mere ceature of the law, he holds not by contract, and his duties change with the law. He is the mere agent of the public, under a naked authority to perform duties prescribed to him by law, the expression of the public will for the public benefit, and all that can be claimed to be granted to him is the mere authority to be such agent. State v. Dews, R. M. Charit. (Ga.) 397.
The prosecuting, or state’s attorney as he is designated in this state, is an expansion of the old English office of attorney general. He conducts suits on behalf of the central government. The colonies each had an attorney general, and Connecticut in the early part of the eighteenth century established local assistants to the attorney general, and from this beginning the present system of public prosecuting officers has been established. Their most important duties are connected with criminal prosecutions, which are brought in the name of the state, and the prosecuting attorney in such cases is acting as the agent of the state, and not as a local officer. Fairlie, Local Government, p. 104; 23 Am. & Eng. Enc. Law, 275.
From these definitions, I think it may safely be inferred that, in considering the right of the state to modify or change the duties of the sheriff and prosecuting officer, they are to be regarded as the representatives of the state, and it is clear that they are not in this respect local officers, and such duties do not pertain to local self-administration of communities. Regarding the modification or change in their duties, which it is held by this decison are not constitutional, we may at the outset eliminate from our consideration the New York and Wisconsin cases, some of which, although duly recognizing the sovereignty of the state, appear to hold that such duties cannot be changed, for the reason that they are grounded upon the constitutional provisions adopted in New York in 1846, *516and copied into the constitution of Wisconsin. This provision is quoted in 'the majority opinion, but I again quote it: “All county officers” — and here this term is used for identification — “whose election or appointment is not provided for by this constitution, shall be elected by the electors of the respective counties, or appointed by a board of supervisors or other county officers, as the legislature shall direct;” and this is followed by a similar provision as to city, town and village officers. The constitution of this state contains no corresponding, provision or requirement. On the contrary, it contains an express command that the legislature “shall prescribe” the duties and compensation of all county, township and district officers. It has been contended that this should not be construed to mean that the legislature can take away from such officers any of the duties known to the office at the time the constitution was adopted. The logic of this contention is that the word “prescribe” can only mean in that connection that the legislature may add to their duties, and not take from them. To me this seems a frivolous contention. The words “shall prescribe,” as used in section 173, of course mean prescribe by law; that is, by future enactment of law to fix or establish their duties. If these duties were already fixed unchangeably by the law in force at the time of the adoption of the constitution, then this is a meaningless and idle provision, and leaves the legislature powerless to prescribe them as commanded. It contemplates future action; that is, action by the legislature after the adoption of the constitution. This very principle is passed upon in Field v. Marye, 83 Va. 882, 3 S. E. 707, where a section of the constitution was construed which provided that the attorney general should receive such compensation as may be prescribed by law, and it is held that this did not mean settled beforehand, and that the attorney general’s salary could be diminished during his term of office. In Shannon v. Village of Hinsdale, 180 Ill. 202, 54 N. E. 181, and Mansfield v. People, 164 Ill. 611, 45 N. E. 976, it is held that the word “prescribe” means that it “should fix,” and this applies to the future. The organic law of Utah as a territory required the judges to hold court at such time and place as may be prescribed by law, and it was held to mean “by law” passed by the territorial legislature, and hence by law enacted after the enactment by congress of the organic law of that territory. And again, the office provided in the law of this state is not a county office, but is a state office provided as a means *517to aid the governor in emergencies. My associates have cited and quoted from some opinions which appear on their faces to sustain their decision that these duties cannot be .changed or modified. One or two of them may be construed to uphold that dootrine, but most of them on careful analysis appear to me not to do so. It may be conceded that the duties of the county officers, whose offices weré established by the constitution, cannot be taken from them in a body and transferred to unconstitutional officers, because to do so would be in effect to abolish the .constitutional office. I cannot take the time or space to analyze all the opinions cited by my associates, but think the same purpose will be served by showing what was really decided in a few such cases. Their opinion says “We do not deny the power of the legislature to prescribe duties for these officers, which power carries with it by implication the right to change such duties from time to time as the public welfare may demand, but we do deny its power to strip such officers, even temporarily, of a portion of their inherent functions, and transfer them to an officer appointed by central authority. This, as we view it, is a plain violation of the constitution, and is subversive of the obvious intent of its framers, to reserve to the people of each county the right, to their elected officers, to enforce the criminal laws of the .state.” This proposition appears to me to beg the whole question by failing to distinguish between the functions of such officers as local officers and as agents of the state or state officers, which I shall later more fully analyze, and to which the authorities relating to self government in municipal corporations most clearly apply. This opinion criticised and adopted the criticism by Mr. Eaton of People v. Draper, 15 N. Y. 532, written by Chief Justice Denio, and indicates that it has been overruled by the court of appeals of New York. In that case it was held that an act of the legislature providing for the formation of a police district embracing and combining certain, territory which theretofore had had independent systems, and providing for the appointment by the central government of the state, of commissioners having the appointment of all police officers in a distract, was constitutional, because the enforcément of the police power of the state was a state function, and that the law 'in question did not interfere with local self government, because it created a larger district than the existing district. This case has become the leading case on the subject in this country, and, while in the case cited *518from (People v. Albertson) 55 N. Y., the opinion by Judge Denio is criticised, it was not overruled, and the principle he established has been recognized and accepted as the law in nearly every state in which the question has arisen, and most of the states have held that the state has supreme authority over the police of a district composed of a city without joining additional territory.
But apply the principle to the law attacked in this proceeding. The legislature of this state was providing regulations for the enforcement of the police power of the state, and it made, in effect, a district of the state for that purpose, as it related to the prohibition law, and provided for the appointment of state officers who, under the direction of the governor, who, by the constitution, is charged with the duty of seeing that the laws of the state are executed, are to serve as his aids or agents for that purpose. The principle of the statute is identical with that of the New York law and others, which have from time to time been attacked on the same ground and held valid. People v. Draper, decided and recognized in the very latest cases, wherein the .courts have passed upon these principles, and notably in these of People v. Tax Commissioners, 174 N. Y. 417, 67 N. E. 69, and State v. Anson (Wis.) 112 N. W. 475, infra.
Great stress is laid upon the case of People v. Tax Commissioners, 174 N. Y. 417, 67 N. E. 69, and the opinion in this case says that the court, in upholding the New York law, regarding the taxation of franchises, placed its decision upon the ground that the function of assessing special franchises did not in its nature belong to the county, city, town, or village, but belonged to the state. So I say the function of enforcing the criminal laws of the state, the right to self preservation, is a sovereign function of the state, and never has been delegated to the county, and never can be so delegated by any far fetched implication derived from the terms of the constitution. It is only by the grossest acts of judicial legislation that any such implication can be read into or out of the terms of our constitution, or any such construction placed upon article 173.
In People v. Tax Commissioners, supra, a law enacted by the legislature of New York, which provided for the appointment by the governor of a tax commission to assess all special franchises, was attacked. That law was aimed specially at the railways, and it made such franchises real property. The function of assessors *519had been performed by the constitutional officers, and this law was attacked on the ground that it deprived the constitutional officers of the duties belonging to them. The court, after a labored argument to show its loyalty to the principle of home rule, arrived at a conclusion that the provisions of the law did not violate that principle, because theretofore franchises had not been taxed. It ignored the plain principle that constitutional tax assessors were clothed with authority and duty to tax all property, and that franchises were made real property, and held that, because franchises had not heretofore been taxed, their assessment was not a duty which had devolved on other officers. The doctrine of this case applies most clearly to the law providing for the enforcement commissioner attacked in this proceeding. No prohibition law had ever been in force in Burleigh county prior to the adoption of the constitution. The service of papers and the arrest of violators of such law, and their prosecution, had never been parts of the duties of either the sheriff or state’s attorney of that county; and this removes those officers in that county from the rule that the majority of this court lays down as applicable and controlling in this case. My first impression was that this could not be so, but after examining authorities I am satisfied that this principle is applicable to this proceeding, as it has been repeatedly held that, where the law relating to the dutes of officers did not apply uniformly to all counties, the validity of an enactment changing the duties of such officers might be affected by the fact as to whether such duties had been incident to the local office. It may be contended that it is not the duties relating to the enforcement of the prohibition law, but those relating to all criminal laws, that belong to those offices when the constitution was adopted, and that this is the test. The logic of this may be tested by inquiring whether, if prohibition rested in this state upon the statute, would a law repealing such statute be constitutional? Could the legislature deprive these officers of the duties imposed upon them to enforce'the terms of the prohibition law by repealing such law? The mere asking of this-question is its own answer.
State v. Anson (Wis.) 112 N. W. 475, is nearly parallel to the New York case. The legislature of Wisconsin transferred the duties of jury commissioner from the clerk and constitutional officer who had performed them as part of his official duties prior to the adoption of the constitution, to a commissioner appointed by *520judges', and .it was held that this did not infringe upon the rights of the people, or of the office of clerk, because these duties were only incidental to his office, and more particularly because prior to the enactment of the law attacked there had been no officer known as a “jury commissioner.” These two cases simply illustrate as is shown by the argument of the learned judge in the New York case, to what extent courts go in upholding laws passed to meet some new emergency or condition, which, unlike the act involved in this proceeding, appear to conflict with constitutional provisions, and what refinement of construction is resorted to to sustain such laws. No such refinement is necessary in the case before us.
The opinion of my associates states, in connection with the Wisconsin case, that it is apparent that the decision would have been to the contrary had there existed prior to and at the time of the adoption of the constitution county officers charged with the performance of this function, but it is expressly stated in the Wisconsin opinion that that function had devolved upon certain county officers.
In State v. Hastings, 11 Wis. 518, the law held invalid provided for an officer whose duty it should be to audit accounts against the state, and whose concurrence was necessary in their approval, before the acts of the constitutional officer should take effect. I think this is in no sense in point. Had the law of that state provided for an officer to aid the governor in executing the laws of the state, and then provided that no acts of the governor of this nature should be valid unless concurred in by this new officer, or that no act of the sheriff or state’s attorney should be valid except with the concurrence of the new officer, then there might have been a parallel. Again the court of Wisconsin based its decision somewhat upon the ground that the duties of the auditor were of a judicial nature, and that in such matters the people of the state had a right to the judgment of the officer they had selected for that purpose, rather than that of an officer otherwise named.
State v. Brunst, 26 Wis. 412, 7 Am. Rep. 84, and People v. Keeler, 29 Hun. (N. Y.) 175, are not authorities, because the decisions in these cases were expressly stated to be largely upon the ground that the act held invalid deprived the sheriff of the principal part of his duties and emoluments. Then, too, the constitutional provisions of these states heretofore referred to were in force. .
*521z Warner v. People, 2 Denio (N. Y.) 272, 43 Am. Dec. 740, cited in the majority opinion, holds that the legislature had not the power to divide the office of clerk of court of common pleas, and create a separate office of clerk of court, dividing the duties, for the reason that the new office was given the largest share, in point of duties and emoluments, and held that the duties taken from the old office were the substance of the office itself, and therefore not pertaining to the right to regulate the duties or emoluments of the office. That case expressly holds that the legislature may regulate or add to or diminish the duties or the fees of a constitutional office, and since its publication has become the leading authority in New York to that effect.
State v. Cunningham, 88 Wis. 81, 57 N. W. 1119, 59 N. W. 503, holds that the constitution having appropriated the proceeds of public lands to the school fund, it is beyond the power of the legislature to divert them to any other use than the support of schools, and that it cannot set them aside for a city park, or withhold the lands from sale, inasmuch as that power was intrusted to the discretion of the commissioners of public lands by the constitution.
State v. Arrington, 18 Nev. 412, 4 Pac. 735, decided that the legislature could not extend the terms of constitutional officers beyond the time for which they were elected, and the remarks contained in that opinion cited as authority for the holding of this court are clearly obiter.
McCabe et al. v. Mazzuchelli, 13 Wis. 534, simply holds that a patent to land executed by the governor and the secretary of state, instead of by a board of commissioners, established by the constitution for the sale of school and university lands, was void and not competent evidence.
In People v. Squires, 14 Cal. 13, it was held that it was competent for the legislature to enact laws transferring the duties of assessors and collectors of taxes, which were constitutional offices, to the sheriff. The court says: “We do not see that it would be at all unconstitutional to authorize every taxpayer to pay his taxes directly into the treasury. The law authorizes many acts, such as service of papers, etc., which seem appropriately to belong to the sheriff’s office, to be done by parties or private persons. The law might authorize the collection of stamp duties 'by various officers named’; indeed, the whole of the license receipts, where licenses are required, we apprehend, might be made if they are not *522now, receivable by other persons than tax collectors. If the legislature could do away with the tax entirely after the qualification of the sheriff, it is difficult to see why they could not change the hands that were to collect it. * * * The duties of the tax collectors are wholly undefined by the constitution, as are their services and compensation. These are left to legislative direction, and we cannot see that an act of the legislature committing this special duty of collecting this license money to particular officers selected by the board of supervisors is a clear violation of the constitution; in which event only could we declare it void.”
The constitution may receive interpretation from long, constant, and uniform legislative practice, and where, as in many instances, the legislature exercises the power of appointment to office, unquestioned, this is evidence of a constitutional construction concerning the separate nature of the departmental functions, and an acquiescence by the people and the various departments in such practical interpretation. Mayor v. State, 15 Md. 376, 74 Am. Dec. 572.
Apply this principle as an aid to the construction of the enforcement commissioner law. What do we find the legislative construction of the constitution, as evidenced by similar acts, has been in this state? Our legislature has enacted laws providing for game wardens, whose duties include some of those which, prior to statehood, devolved upon sheriffs. They have provided for railway policemen, whose duties likewise infringe on those of sheriffs and police officers, A law changing the duty of executing condemned murderers from sheriffs to the wardens of the penitentiary has been enacted. The same law took the custody of such criminals from the sheriff and placed it with the warden. A state board of health has been provided; a sealer of weights and measures to perform duties which were formerly performed by sheriffs. Laws have been enacted permitting the service of process by private persons. All of these laws come within the ban of the principle of home rule, if properly applied in the majority opinion. But we may go much farther and conclude that, if the duties of the sheriff and state’s attorney are as sacred as maintained —that the .repeal of law creating crimes is obnoxious to the divine principle of home rule- — -that any change in any law which in any manner decreases the duties of this officer is equally invalid. On this subject a most instructive opinion is found in R. M. *523Charlton’s Report (Ga.), in the case of State v. Dews, supra. In that action an act of the legislature-of that state, appointing the mayor and aldermen of Savannah commissioners of the jail of Chatham county, and transferring the duties of jailer and custodian from the sheriff, was held constitutional, and that the sheriff is entirely a ministerial officer, whose province is to execute duties prescribed by law; that- these duties may be contracted or enlarged at the will of the legislature. The learned judge, who wrote the opinion, goes into the history of the office from the early English days down to date. He says: “The idea that the duties of a ministerial officer cannot be changed would involve an inversion of the order of things, and be a flagrant absurdity. It would invest him, who is a mere minister and servant, with authority to limit the power of and exercise an overmastering control over those from whom he is to receive the law. These duties are the mere creatures of law, and are in their very essence changeable by the lawmaking power. That office he s.till retains without any interference with the tenure upon which it was conferred upon him,-and with it he retains the right to execute the duties which may from time to time be appropriated to it, nor can he be deprived of that right. Those duties which are the mere creatures of law, resulting from the legislative sense of the public interests, are not his private concern, and may be modified, increased, or diminished at the pleasure of those in whom the power of legislation resides. * * * He is entitled to the office, but it is such as the laws of the land make it, and being an institution of government created for public purposes, exercising unalienable political power for the public benefit, it may be altered or modified as the public good, the interest or happiness of the people may require. The act in question does not disturb the tenure by which he holds his office, nor interfere with his right to exercise its functions. It simply changes those functions, and diminishes his duties and powers by relieving him from the duty and power, incidental to that duty, of safekeeping prisoners confined in the jail of the county. The principle upon which the validity of the act is questioned * * * would almost annihilate the powers of ordinary legislation; for what public statute is there that may not act upon his duties?” He thus disposes of the contention that the sheriff takes his office charged with duties applying to it when the constitution went into effect, and, in doing so, he quotes with approval *524Treasurer v. Taylor, 2 Bailey (S. C.) 524. “It would seem indisputable that the legislature has the right to regulate the execution of the duties which are incident to the office of sheriff, and to demand an indemnity for their faithful discharge. If it be not so, then it necessarily follows that, since the sheriff is in office under the constitution, he could be bound to perform only such duties as had been prescribed before the constitution, and all legislation since has been idle and worse than idle. No one, I presume, would contend for positions which they were sensible would lead to such consequences. * * * The current of authority then is unbroken and unvaried that a public office is not held by contract, within the sense of that term as employed in the constitution, but it is an appropriate exercise of legislative power and within legislative competency to reform the office and change and modify its duties at pleasure, unless the constitution of the state shall by express provision have fixed that duty.” The constitution of North Dakota has not fixed the duties of sheriff, but on the contrary, by section 173, has expressly delegated that power to the legislature; and section 2 of the schedule expressly empowers the legislature to alter or repeal any law in force when the constitution was adopted. The opinion in the case cited proceeds to show that in Georgia the duties of the sheriff were governed, when the constitution was adopted, if such theor) is correct, by the law relating to the duties of the same officer in England, which made him the associate of the king, chief executive and military officer of the county, vested with high judicial powers, all of which were gratuitously discharged; that such construction would be contrary to the spirit of the constitution, and would be ridiculous and absurd; and that, if this principle were to apply to the office of sheriff, it would apply with equal force to all laws, which would by the application of the principle be indelibly fixed upon us, and which could not be changed, since any change would effect the sheriff in his powers and duties, and make them different from what they were in England at the period of the adoption of the Georgia constitution; and, relating to this principle, the learned judge uses this language: “That such doctrine would mean that the framers of the constitution, with the iron hand of imbruted despotism, stamped inflexible immutability upon our institutions; have bound us to the notions of our ancestors, no matter how exploded by the sentiments of society j or inconsistent with its interests; and not merely limited, but *525abolished, the power of the legislature, in the very effort to organize it. The proposition is too monstrous to be for a moment entertained.”
While this law is attacked as an interference by the state with the right of counties to local self-government, the majority opinion is confined on that subject mostly to authorities relating to cities and towns. This is doubtless due to the fact that the books contain practically no cases showing that the doctrine has been contended for on behalf of counties, or held to apply to them, while they are very numerous as relates to cities. It may be contended that there is no distinction in the principle. For the purposes of this case, this may be conceded, although in my opinion the principle of local self-government, while possibly applicable in some respects to counties, is far less applicable to them than to cities and towns, and it is so held by the various authorities, from some of which I have quoted. A county is only a quasi municipal corporation, while a city is a full municipal corporation. The county has far less interests which may be termed private than has a city. But assuming that the law relating to police powers, and the principles of local self-government which Prof. Goodnow in his work on Municipal Home Rule says is more properly termed “local self-administration,” applies alike to cities and counties, I shall discuss it without making any distinction, and the principles established by the authorites which I cite relating to the doctrine in cities apply with equal and greater force to counties.
As shown, the functions of a municipal corporation are dual or twofold. They relate not only to the conduct of the private and the local affairs of the corporation, such as the care of streets, sidewalks and waterworks, and other similar duties, and the ownership of necessary property to enable them to conduct their affairs, but they also have duties, as agents or departments of the state, for the local enforcement of law, the collection of taxes, and in many other ways. The distinction between those duties which are purely local and private, and those which devolve upon the municipality as the agent of the state, have not always been clearly made where the doctrine of local self-government has been conceded or upheld, but I find no case in any state extending the doctrine to those duties relating to its public functions as an agent or local subdivision of the state for the administration or enforcement of state laws. The failure to note this distinction, I think, is re*526sponsible for the misapplication of the principle of local self-government which it appears to me my associates have made. This distinction is noted in nearly all the authorities, though in some it has not been necessary to call attention to it. Mr. Eaton in his articles notices it, but nowhere contends that the doctrine extends further than to the administration of purely local affairs, and concedes that it does not extend to the other functions of municipal corporations. In discussing it, he says in the Harvard Law Review, vol. 14, p. 128, “It is not denied that the legislature can appoint state police,” but, however, claims that if the legislature does so it must pay them with state money, and this is the distinction he makes regarding peace officers appointed by the state and those appointed by a city. Again he says, page 649, vol. 13, “Of course, the state may appoint state constables and pay them”; and again, at page 651, he expressly admits the power of the state legislature in case of necessity to create a system of state police for the prevention of crime, his only contention being that in doing so it should not abolish the municipal police.
Black, in his work on Constitutional Law, at section 134, says: “In respect to all those matters in which the people of the state generally have an interest and concern, the legislature may require and compel the municipalities to discharge duties, perform works, and, if necessary, contract debts; but in regard to matters of purely local concern which are not of importance to the state at large, and which are generally best regulated by the local authorities, the rule of local self-government requires that the municipality should be controlled only by the preference and determination of its own citizens. The double functions of municipal corporations require them to assume a share in the performance of state duties, as the legislature shall apportion the same, and also' to regulate the matters which only concern the particular community. In respect to the first class of duties, the legislature has control, and it may grant, modify or abrogate municipal powers as its wisdom shall dictate. * * * While municipal corporations are subordinate agencies of the state, and as such subject to the control and legislative authority of the state, yet they are also in some respects assimilated to private corporations in respect to their rights and powers. Governmental powers granted to the municipality may be altered or revoked.” And again at section 136: “Officers having to do with municipal corporations are of two sorts; those whose *527functions concern the whole state or its people generally, although territorially restricted, and those whose powers relate exclusively to matters of purely local concern. Officers of .the former class may be appointed or regulated by the state authorities, but the principle of local self-government requires that the choice of offficers of the latter class should be left exclusively to the people of a particular community. The administration of justice, the preservation of the public peace and the like although confided to local agents, are essentially matters of public concern, while the enforcement of municipal by-laws proper, and the establishment of gasworks or waterworks, and the like, are matters which pertain co the municipality as distinguished from the state at large.” This is also the doctrine announced by Judge Dillon in his work on Municipal Corporations at section 58.
Black continues: “Thus a municipal board of police is clearly an agency of the state government, and not the municipality, and therefore belongs to the first class above mentioned.” This is also held in People v. Hurlburt, supra. At section 138, Mr. Black gives the particular limitations upon the power of municipal corporations to enact by-laws, and, among other things, he says, “They must not be in conflict with any provision of the constitution of the state, nor with the general statutes of the state, and must not exceed or violate the limitations imposed by the charter of the particular community.” It may be pertinent to inquire, if the municipality cannot pass by-laws in conflict with the constitution or the laws of the state, can it accomplish the same result, but even more effectually, by electing officers who are pledged to permit the violation of such laws, and the state be left powerless to enforce either its own constitution or its laws?
The Supreme Court of the United States minimizes the doctrine of local self-government, and in Barnes v. District, 91 U. S. 540, 23 L. Ed. 440, says: “A municipal corporation in the exercise of all its duties, including those most strictly local and internal, is but a department of the state. The legislature may give it all the powers such a being is capable of receiving, making it a miniature ■state within its locality. Again, it may strip it of every power, leaving it a corporation in name only, and it may create and recreate these changes as often as it chooses, or it may itself exercise within the locality any or all the powers usually committed to a municipality. We do not regard its acts as sometimes those of *528an agency of the state and at others a municipality, but that, its character and nature remaining at all times the same, 'it is great or small according as the legislature shall extend or contract its sphere of action.” And again, in City of New Orleans v. New Orleans Waterworks, 142 U. S. 79, 12 Sup. Ct. 142, 35 L. Ed. 943: “The municipality being the mere agent of the state it exists in its governmental or public character in no contract relations with its sovereign, at whose pleasure its charter may be amended, changed or revoked, without the impairment of any constitutional obligation, while with respect to its private and proprietary rights and interests it may be entitled to constitutional protection.”
In Mr. Eaton’s articles he refers to the case of State v. Moores, 55 Neb. 480, 76 N. W. 175, 41 L. R. A. 624, as an authority strongly supporting the principles enunciated in the majority opinion, and the opinion in Newport v. Horton, supra, refers, in connection with this case, to Nebraska as the only state still holding that police officers are not state officers, and their control and appointment a proper subject for state legislation; but in Redell v. Moores, 63 Neb. 219, 88 N. W. 243, 55 L. R. A. 740, 93 Am. St. Rep. 431, States v. Moores is overruled, and the Supreme Court of that state in overruling it used some very forceful and cogent arguments. The latter case refers to the constitutionality of a statute conferring upon the governor the power to appoint members of a board of fire and police commissioners of cities. This case upholds the power of the legislature to make these provisions, and in referring to the former opinion of the court it says: “After careful examination of the opinion, and with all due appreciation of the learning and the ability of the members of the court who concur therein, we beg to say that it does not commend itself to our judgment. It holds that the provisions of the statute placing the power to appoint members of the board of fire and police commissioners in the hands of the governor are invalid, not because they are in conflict with any express provisions of the state or federal constitutions, but because they are repugnant to the inherent right of local self-government, which it is claimed was retained by the people at the time of the adoption of the organic law. As far as individual members of society are concerned, in the nature of things there can be no such thing as an inherent right to local self-government. The right of local self-government is purely a political right, and all political rights of necessity have *529their foundations in human government. For an individual to predicate an inherent right, a right inborn and inbred on a foundation of human origin, involves a contradiction of terms. So far as a city is concerned, considered in the character of an artificial being, it is the creature of the legislature. It can have no rights save those bestowed upon it by its creator. As it may have been lacking some right bestowed upon it, it is in no position to complain should the power that bestowed such right see fit to take it away; in other words, the power to create implies a power to impose upon the creatures such limitations as the creator will, to modify or even destroy what has been created. The power to create a municipal corporation which is vested in the legislature implies a power to create with such limitations as the legislature may see fit to impose, and to impose such limitations at any stage of its existence. * * * We have been taught to regard the state and federal constitutions as the sole tests by which the validity of the acts of the legislature are to be determined. If the majority opinion in that case is to stand as the settled law of the state, then in addition to such test there is another, an elusive something, elastic and uncertain as an unwritten constitution, which may be invoked to defeat the legislative will.”
People v. Lynch, 51 Cal. 15, 21 Am. Rep. 677, is cited as an authority in the majority opinion. I, however, do not read it that way. It holds that the legislature cannot by special act deprive the city council or the proper local authority of a city, of all discretion in respect to local improvements, when the charter leaves such matters to the judgment and direction of the local authorities, and that the legislature is limited under the California constitution relating to assessments to preventing the abuse by municipalities of that power. The learned court discusses at great length the powers of municipalities in such matters, and limits their uncontrolled exercise of those powers clearly and emphatically to internal affairs of purely local concern, and cites with approval the opinion of Judge Campbell in People v. Detroit, 28 Mich. 228, 15 Am. Rep. 202, wherein he says: “There is a clear distinction between the functions of officers whose jurisdiction is limited territorially, considered as agents of the state and as agents of the municipality. The only confusion existing on this subject has arisen from the custom, prevalent under all free governments, so far as possible of making use of local corporate agencies whenever it can be done *530profitably, not only in local government, where it is required by clear constitutional provisions, but also for the purposes of the state.” This case also approves the statement of Mr. Dillon, who says: “It is important to bear in mind the distinction between the state officers — that is, officers whose duties concern the state at large and the general public, although exercised within definite territorial limits — and municipal officers, whose functions relate to that particular community.” The California court in this case holds that, while the same individual may unite in himself the capacities of a state and a municipal officer, as to matters in which he acts for the state he is not a city officer, but a state officer, and that there is nothing in the nature of things which precludes an officer in his municipal capacity from being clothed with functions and being entitled to immunities with which he is not vested, and which he cannot claim as an agent of the state at large.
In Newport v. Horton, supra, the Supreme Court of Rhode Island says: “The proposition of the petitioners goes too far. It assumes that, because state control interferes at all with local control, it violates the principles of local self-government. In any system of government, towns, as well as individuals, must yield something of individual independence for the public good. The most important laws are made bv the legislature, and agencies are created to enforce them. Ordinarily the state makes use of existing agencies, like town or city officials, to do this, but none the less are they the officers of the state. To say, therefore, that the state cannot assume control of these agencies in public affairs is to say that a town can nullify a state law which it does not approve by choosing officers who will not enforce it. This is not the national doctrine, and for a stronger reason it cannot be the state doctrine. Two replies .to this statement can be made: First, that the state can appoint its own officers to enforce its law. To this we reply that economy and expediency at once suggest the futility of having' two sets of officers whose duty it is to do the same thing, and also that we see no more infringement of the right of local self-government in appointing special state officers to execute a law than in requiring local officers to execute the same laws. It may also be said that courts should not assume that local officers will not do their duty. The court does not so assume. The legislature has evidently made the assumption by the action it has taken and assuming its power, the question of policy is one for the legis*531íature exclusively. What the petitioners really claim is local independence, rather than local self-government.
In Michigan, the doctrine of local self-government seems to have received from the courts its most emphatic endorsement, but in none of the cases reported from that state does its court of last resort hold that the principle applies to municipal corporations in relation to their public functions. The last case I find from that state marking the distinction is Davock v. Moore, 105 Mich. 120, 63 N. W. 424, 28 L. R. A. 783. It upholds an act establishing a city board of health to be appointed by the governor, and the opinion refers to the distinction between public and private functions, and says, “In the discharge of public duties, there is no right of local self-government involved,” and “that the care of the public health is within the police power, and therefore within the control of the legislature,” and that it concurs in the distinction made in the prior Michigan cases between local and general duties, and that as regards duties which the people in the several counties owe to the commonwealth at large they cannot be allowed discretionary authority to perform them or not as they may choose. Such an authority would be wholly inconsistent with anything like regulated or uniform government in the state, and whenever the legislature imposes the performance of public duties there is no right of local self-government involved. They have certain duties imposed upon them which are of a governmental character, and which are performed by the local corporation bodies as the agents of the state, and such duties may be enlarged or diminished at the will of the legislature.
In Attorney General v. Lowrey, et al., 131 Mich. 639, 92 N. W. 289, in speaking of quasi corporations, it uses this language: “They consist of counties, townships, school districts, highway districts, etc. They are governmental agencies, and it is, to say the least doubtful if they are in any respect anything else, or have any rights that cari be called private. They perform many functions, but these are for and about the business of the state, which has imposed upon them the responsibility and expense of maintaining highways, schools, drains, and bridges,” etc. And the opinion in Youngblood v. Sexton, 32 Mich. 407, 20 Am. Rep. 654, is a direct answer to the construction placed upon the early Michigan cases by the majority opinion. An act of the legislature of Michigan transferred the duties of tax collectors from city, town*532ship and village officers to the sheriff of the county. Objection was made that collectors had a constitutional right to perform all the duties that belonged to -their offices when the constitution was adopted, including the collection of taxes, and the court, through Judge Cooley, says: “Admitting what these complainants insist upon, that the township and city collectors have a constitutional right to perform all the duties that belonged to their offices when the constitution was adopted, it does not follow that they were entitled to collect this tax. A constitutional right to perform the old duties cannot be extended to cover the new duties merely because they happen to be of a similar nature. This law takes from the local officers nothing. The complaint of it is that in providing for a new duty it confers it upon another officer instead of the city and township officers. In this there is nothing unusual. Sheriffs in many states are collectors of taxes, and in this state they have always in contingencies been collectors. It is true that in collecting this tax the sheriff acts upon behalf of the municipalities, but so he does in any case where the tax warrant is delivered to him; and so do the county treasurer and auditor general in collecting taxes, for they collect the local taxes, as well as those levied for state purposes. The whole tax system is something in which the state at large is concerned, and the rules by which it may be made to operate harmoniously cannot be rules so inflexible as not to yield to circumstances, when the legislature deems it essential. But there is another consideration that is conclusive on this point. This objection, like the last, is supposed to find support in People v. Hurlburt, supra. But in that case we took especial pains -to show that for some purposes the townships, villages and cities of the state could not be permitted to act independently, but were and must be subject to compulsion by the state. The case of taxes for general purposes was especially instanced, and it was said that municipalities could not be left to collect them, and they must sustain local government, whether willing to do so or not. To that extent every part of the state was concerned in the action of the other part, because disorder in one locality would derange more or less the whole system. In the previous case of People v. Mahaney, 13 Mich. 487, it had been decided that the state had power to take control of the police of the -city; and this was cited with approval in People v. Hurlburt, on the express ground that the police of the state and the preservation of order in every *533locality was a matter of state- concern, and not of mere local interest. It requires no argument to demonstrate this; the effect upon the whole state of abrogating local government in a single township or city, and leaving everything to the unrestrained passions of bad men, would inevitably be pernicious beyond estimate. Now the law under consideration, though having revenue for one object, has the police power of the state for'another. It was deemed important to adopt it as a matter of police regulation. The legislature saw fit not to leave it to localities to enforce it or not at their option, and it is a matter of reasonable inference that they refrain from doing so because the refusal of a locality to enforce it would introduce disorder into the system. Whether that was the reason or not, they had, as we think, an unquestionable right to make all such provisions as they deemed' essential to preclude the possibility of the law being nullified in any quarter. If to accomplish this it were deemed essential to commit the execution of the law to county instead of municipal officers, we know of nothing to preclude it. There is certainly nothing in the previous decisions of this court that is inconsistent with this feature of the law.”
In all matters of general concern there is no local right to act independently of the state, and the local authorities cannot be permitted to determine whether they are to contribute through taxation to the support of the state government or assist when called upon to suppress insurrections, or aid in the enforcement of state laws. Upon all such subjects the state may exercise compulsory' authority and may enforce the performance of local duties, whether by employing local officers for that purpose, or through agents or officers of its own appointment. People v. Detroit, supra; People v. Mahaney, supra; Bay City v. State Treasurer, 23 Mich. 503; People v. Hurlburt, supra.
The Indiana court is cited as an authority in the case at bar, but in Evansville v. State, 118 Ind. 426, 21 N. E. 267, 4 L. R. A. 93, in an opinion holding that a board of metropolitan police and fire board to be appointed by the legislature for cities, which is to have the control of both departments, is unconstitutional, as a denial of the right of local! self-government, the court says: “If the act related alone to the management of the police department, and the state proposed to take upon itself the burden of maintaining the department as well as its management, or if it were made *534to appear that the city failed to furnish a police force, or one that was insufficient for the protection of persons and property, then a very different question would be presented. And in State v. Kolsem, 130 Ind. 434, 29 N. E. 595, 14 L. R. A. 566, that court upholds the constitutionality of an act establishing boards of metropolitan police consisting of commissioners appointed by state officers, and puts it upon the ground that, in providing for the appointment of officers connected with the constabulary of the state, there is simply the exercise of the power to provide for the selection of peace officers of the state, which does not invade the rights of local self-government.
Arnett v. State (Ind.) 80 N. E. 153, 8 L. R. A. (N. S.) 1192, expressly holdá that the legislature can control the appointment of police commissioners of a city, for the reason that the maintenance of the peace, and the suppression of crime and immorality, are matters of general interest, and subject to state control, and not necessary to be submitted to the people of a locality, and states that this principle has so often been vindicated against attack that the question should now be considered at rest. To the same effect, see State ex rel. Kennedy v. Broatch, 68 Neb. 687, 94 N. W. 1016; State v. Nolan, 71 Neb. 136, 98 N. W. 657; State v. Fox, 158 Ind. 126, 63 N. E. 19, 56 L. R. A. 893; State v. Hunter, 38 Kan. 578, 17 Pac. 177; Diamond v. Cain, 21 La. Ann. 309; and Commonwealth v. Plaisted, 148 Mass. 375, 19 N. E. 224, 2 L. R. A. 142, 12 Am. St. Rep. 566 — in which the courts held that the privilege of local self-government in any particular in which such privilege is not guaranteed by any provisions of the constitution is not ground for declaring an act of the legislature invalid.
In State v. Fox, supra, this language is used: “It is very clear from the tenor of the whole instrument that the constitution makers never intended that the territorial divisions recognized — that is, counties, townships and towns — should govern themseleves independently of state supervision or state supremacy, but in every matter which affects the safety, morals, health or general welfare of the people at large there is undoubtedly reserved in the state the power to supervise, control, and even coerce local officers in the discharge of public duties, and even to send its own agents into organized districts, if necessary to enforce the public right or to accomplish a public benefit. * * * The enforcement of the state’s criminal and revenue laws are of equal importance to all. In *535all these, the setting up of corporation lines forms no barrier to the strong arm of the state in safeguarding every public interest.”
In State v. Covington, 29 Ohio St. 102, an act of the legislature was held constitutional which vested the police power and duties of cities in a board to be appointed by the governor, notwithstanding the fact that at the time of the adoption of the constitution the police of cities were elected by electors resident therein, or appointed by boards or officers elected by such electors; and it was held that matters relating to the police power do not fall within the doctrine of local self-government. Also People v. Shepard, 36 N. Y. 285; Metropolitan Board of Health v. Heister, 37 N. Y. 661.
Astor v. N. Y., 62 N. Y. 567, holds that it would be carrying the doctrine of noninterference with local affairs far beyond any reported case to hold that in no case whatever could any of the powers existing in a local officer at the time of the adoption of the constitution be taken away without violating constitutional provisions. People v. McDonald, 69 N. Y. 362, holds that commissioners appointed by the legislature to widen designated highways, were lawful officers, because the commissioners of highways already in office were continued in office, with charge of the highway after the fulfillment of the office of commissioner appointed by the legislature. Same effect, see Re Woolsey, 95 N. Y. 135.
David v. Portland AVater Committee, 14 Or. 98, 12 Pac. 174, sustains an act which empowers a committee appointed by an act of the legislature to establish or purchase waterworks, and says .that the subjects ordinarily classed as private affairs often become matters of public importance, and holds that when the legislature determines they are of public importance they cannot be designated as mere private affairs.
The Colorado Supreme Court, in Re Senate Bill, 12 Colo. 188, 21 Pac. 481, holds that, while there was strong reason to recognize the right of local self-government, it was a matter pertaining to the policy of proposed legislation, rather than a question of constitutional construction. See, also, State v. Smith, 44 Ohio St. 348, 7 N. E. 447, 12 N. E. 829, and State v. Williams, 68 Conn. 131, 35 Atl. 24, 421.
State v. Barker, 116 Iowa, 96, 89 N. W. 204, 57 L. R. A. 244, 93 Am. St. Rep. 222, relates to the validity of a law authorizing the appointment of trustees of the city water and supply system by the district court, and it was held that such provisions were unconsti*536tutional, because it conferred upon the court non judicial functions, and because it took from the city the right of local self-government; and in the opinion of the court a clear distinction is made between the dual functions of a municipal corporation. It says: “In our form of government the legislature creates municipal corporations, defines and limits their powers, enlarges or diminishes them at will, points out the agencies which are to execute them, and possesses such general powers over them as it shall deem proper and needful for the public welfare, and as to all matters of public concern, such as the performance by the city of functions as the agent of the state, the legislature has unlimited power * * * but the legislative ^control of municipal corporations is not without limitations” — and proceeds to show that the doctrine of local self-government is applicable to those functions of the city pertaining to the supplying of local needs and conveniences for its corporate advantage, and holds that the establishment and control of waterworks is a matter that pertains to the municipality as distinguished from the state at large, and to which the doctrine referred to applies.
The distinction between the functions of political subdivisions of the state which relate to their own duties and those wherein they act as the instrumentality of the state for the enforcement of law and for the carrying out of the general policy of state government runs all through the decisions of the courts relating to the liabilities of such subdivisions, and Prof. Goodnow, in his work before referred to, lays down the rule that municipal corporations are not responsible for torts committed in exercising a part of the state power, but that they are' liable when acting in the exercise of those duties which are purely municipal or private. See chapter 7, and cases there collected and cited. The same rule applies as to the control of property and its alienation by municipalities. Prof. Goodnow cites the laws providing for public examiners in the states of North and South Dakota and several others, as evidence, as he puts it, that with the common sense that is characteristic of the people of this country we have, notwithstanding our supposed adhesion to the political theory' of local self-government or administration, not hesitated to centralize our administrative system of subjecting our local authorities to the central administrative control whenever we have seen that uncontrolled local action has led to administrative inefficiency or inequality of financial burdens.
*537To those interested in the subject of municipal government, I commend Prof. Goodnow’s work on Municipal Plome Rule. No short excerpts from it can give an adequate comprehension of the far-reaching effect of the distinctions drawn between the functions which are termed “local” or “private” and those wherein they represent the sovereignty of the state.
The state of Vermont found the same difficulty in securing the enforcement óf criminal laws in some counties which was experienced in this state, and which resulted in the statute which we are considering. In that state, state’s attorneys can nolle pros, criminal proceedings; and to prevent this, and to ensure the enforcement of law, the legislature enacted a law providing for the appointment by the governor, in his discretion, of special prosecutors of criminal offenses within cities and towns where,, by reason of neglect or inefficiency of local prosecuting officers, criminal laws of the state were not properly enforced, and authorizing such special prosecutors to institute prosecutions and to appear in court and control the trial and disposition' of such cases, and required state’s attorneys to assist in such trials. The constitution of the state contained the requirement that state’s attorneys should be elected by -the voters of their respective counties, identical in effect with the provisions requiring county officers to be elected in this state, but the Vermont constitution contained no requirement that the legislature prescribe their duties. A prosecution was commenced by a special prosecutor so appointed, and a petition for a writ of habeas corpus was heard by the Supreme Court, wherein it was complained that the defendant was proceeded against by a special prosecutor, and it was contended that his imprisonment was illegal, because the act authorizing such appointment was in conflict with the article of the constitution requiring the election of state’s attorneys by counties, and the court held the act in question constitutional, and that the legislature had power to provide for the appointment of such officers by the governor, and by officers not elected by the people, although another phase of the law was not passed upon. In re Snell, 58 Vt. 207, 1 Atl. 566.
In Massachusetts, the .legislature in 1865 enacted a law providing for state police, known as the “State Constabulary Law,” which provided that the governor should appoint a state constable, who might appoint deputies who should be possessed of all the common-law and statutory powers of constables except the service *538of civil process, and also the powers given the police or watchmen by the statutes of the commonwealth or the charters or the ordinances of the several cities, concurrently with such officers, and that their powers should extend throughout the commonwealth. The act also provided that among their duties they were to obey the orders of the governor in relation to the preservation of the public peace or the execution of laws, and to see that the laws of the commonwealth were observed and enforced, and to' suppress and prevent crime by the suppression of liquor shops, etc. The constitution of Massachusetts provided for the election of sheriffs, and the governor could not appoint them; and in the case of the Commonwealth v. Certain Intoxicating Liquors, 110 Mass. 172, on this statute being attacked as unconstitutional, it was upheld as not being an -invasion of the constitutional provisions relating to the position of sheriff. It will be observed that the provisions of the Massachusetts law were nearly identical with those of the one construed in the case at bar.
The Supreme Court of South Dakota had before it in 1892 a law which authorized -the attorney general in certain contingencies •to appoint such reputable attorney as he should see fit, and who should be authorized to sign, verify and file such informations or papers as the state’s attorney was authorized to sign, file or verify, and to perform' any act that the state’s attorney might lawfully do and perform. This law was attacked, and the court says: “The contention of the defendant in error is that the legislature could not lawfully empower the attorney general to make this appointment; that it was the creation of a new office, and while the legislature might do this, it could not authorize the attorney general to do so. This position cannot be maintained. The office of attorney general is a constitutional office, but his duties ‘shall be prescribed by-law’ (section 13, art. 4, Const.), and so with the state’s attorney. ‘The legislature shall have power to provide for state’s attorneys and prescribe their duties.’ Section 24, art. 5, Const. I,t is thus left with the legislature to define the 'duties of each of these officers. The attorney general is in the same department of service as the state’s attorney,.but having a larger jurisdiction, and is in a sense a superior and supervising officer. We have no doubt, but that it would be competent for the legislature to authorize the attorney general to appoint an assistant for himself, or an assistant or deputy state’s attorney, in any county, *539naming the conditions under which such appointment might be made. This would not be delegating to the attorney general the legislative power to create a new office any more than a law authorizing a sheriff or register of deeds to appoint a deputy whenever a proper discharge of his official duties requred it. It is no objection that a statutory law authorizes an appointment of a deputy to a constitutional officer, and such a law may empower such deputy to discharge official duties in his own name. Touchard v. Crow, 20 Cal. 150, 81 Am. Dec. 108; Calender v. Olcott, 1 Mich. 344; Rose v. Newman, 26 Tex. 134, 80 Am. Dec. 646. Very nearly this same question was raised and decided in Re Gilson, 34 Kan. 641, 9 Pac. 763, where a provision of .their prohibitory law [of which the one under consideration is nearly a copy] was sustained.” State v. Becker, 3 S. D. 29, 51 N. W. 1018.
Mr. Dorman B. Eaton, in his celebrated work on the Government of Municipalities, says: “The subject of home rule for municipalities — the question hów far their residents should be allowed to control their own local affairs — is one of great importance, as to which there seems to be much confusion of thought. It is quite in harmony with our republican system, and highly desirable, that public authority should not be needlessly centralized; that it should be as directly and largely exercised by bodies and officers of local jurisdiction as is compatible with just and efficient government for the nation and states. Indeed, one of the paramount objects in the creation of cities and villages — as in the creation of towns, counties, and even of states — is to. facilitate the local control of their truly local affairs. The government of each of these jurisdictions involves a common principle and policy. The problem of home rule, as we ought to clearly see at the outset, raises not only a question between cities and states, but one between the states and the nation; for the pretended right of secession was but a phase of the question both of principle and policy. We ought clearly to see at the start that if a city has the absolute right ■to control what it may be pleased to call its own affairs, a village, a town, and a county may have the same right. These principles are indisputable. * * * Legally considered, the claim of right, on the part of every city, town or village, to regulate its own affairs, is a mere question — to be decided by the proper courts — as to the true interpretation of the constitution and laws applicable to them. It hardly need be said that on every basis of 'justice and law *540according to which a city or village may claim a right to home rule, a county and town may make a like claim. The state in short has a duty to govern every part of its people and territory— the city and forest equally — in the way that will be best' for the whole of them. The whole of its people have rights and interests paramount to those of any portion of them. * * * Any theory of home rule incompatible with these conditions is false in principle and tends to insubordination, to internal conflicts, to disintegration, and to rebellion.” Government of Municipalities, Eaton, p. 28. And on page 29 of his work he makes these pertinent suggestions: “It should be regarded as fundamental that authority for home rule is one to be conceded for improving and not for degrading local government or morality. Therefore if a city or village, by its own local vote, asks for authority to close its grog-shops, its gambling haunts, or its dens of infamy, apparently the state should grant it. But suppose they are closed under state laws, and such a vote, the expression of the most degraded city majority, asks authority to open them, and make them free to all, who will say that such a vote is good reason for granting larger power for so vile a home rule? Who can maintain a right to home rule authority for making things worse? The state has a duty to aid the most moral and patriotic of its citizens in their best endeavors. But it has morally no right to confer legal authority upon the citizens of its most degraded sections or cities, though the}'- be in the majority, to do worse things than the vote of the whole people of the state would tolerate. Civilization would speedily decay under a state government which allowed the depraved and the partisan, merely because in majority in a city, to govern it corruptly and despotically. If the gamblers and thieves shall gain the majority in a town or city, will it be the duty of the state to repeal the laws against their crimes, or to allow those who violate them to go unpunished?
It is significant of the thoughtless facility with which false and dangerous theories of home rule have lately found acceptance that the vital distinction here pointed out — the duty of the state to confer local power for improving and not degrading local government — has not been noticed, and that unscrupulous party majorities in great cities, shouting for larger home rule for degrading and partisan ends, have been, in substance, taught that they have a right to it, irrespective of consequences, merely because such a majority demands it.
*541Some readers may regard these elementary statements as being such mere truisms as might have been omitted. We are sorry to be compelled to think otherwise, and to find evidence of the vicious effects of the false theories they expose — theories which have caused tens of thousands of city voters to think they have been wronged in not being allowed to have their own way in wrongdoing in city affairs. These theories have supplied partisan demagogues with specious and vicious arguments. And, besides, if we concede that a part of the state called a “city” has the right to have as many grog-shops, lottery offices and gambling haunts as its majority desires, why must we not allow that part of a city called a “ward,” or a “district,” the same privilege, whenever its majority demands it?
The doctrine of home rule, as often presented, is not only one tending to disintegration, insubordination and anarchy, but is one which enfeebles the state and degrades it in the estimate of the people, in the same degree that it stimulates selfishness, arrogance, and partisan domination on the part of cities. When several states made war on the Union in the name of false theories as to the right of home rule, a mayor of New York, Fernando Wood, rightly interpreted their example, when he proclaimed the right of the city of New York to be a free city. Some of the champions of unrestrained home rule for cities seem to go quite as far as that notorious mayor, when they declare that “our large cities must stand in the same relation to the national government that states do,” and that it is necessary “our large cities should be free cities.”
We have on one side the sovereignty of the people of the whole state, and among the elements of such sovereignty is the police power, as I have shown by citations and otherwise, existing in the very foundations of society, even before the organization of the state or constitution, a power necessary to the maintenance of the state, to its self-protection and preservation as a unit of the American nation, and as a body whose supreme duty is to protect the peace and sovereignty of its citizenship, and the good order of communities, and we have article 20 of the constitution, supra, commanding the legislature to prescribe regulations for enforcing its provisions. On the other hand we have the doctrine — announced in the majority opinion — that it is not competent for the legislature to enact laws taking from sheriffs or state’s *542attorneys any of the duties incident to those offices wherein they act as agents of the state, in the preservation of order, and confer them upon any officer appointed by central authority, or by any other means than by the voters of a county, even though necessary to accomplish the ends of its creation. It is and must be conceded that this doctrine rests solely upon implication; that it is not contained in the constitution in express language, and rests for this implication only upon the ground that the constitution authorizes counties to elect sheriffs and state’s attorneys. Now, what is the result? That the first of these principles is fundamental cannot be denied. This being so, we have a conflict in principles, and the question for. courts to determine is, which shall prevail? It is an elementary principle of interpretation that, if two constructions of the constitution are possible, the effect of one of which is to maintain and carry out the underlying principles and purposes of the instrument and preserve and protect society, while the effect of the other would necessarily, or only might, be the destruction of organized society or the depriving of the state of’ the means to promote the purposes of its existence and protect itself by maintaining law and order, then the former construction should be adopted. In other words, if one construction is innocent and conforms'to the purposes of the instrument, while the other has a contrary effect, then that construction should not be given effect which leads or may lead, to harmful results. Sutherland, Statutory Construction, section 238; Hoke v. Henderson, 15 N. C. 1, 25 Am. Dec. 677; People v. Terry, 108 N. Y. 1, 14 N. E. 815; State v. Hope, 100 Mo. 361, 13 S. W. 490, 8 L. R. A. 608; Bowers v. Smith, 111 Mo. 45, 20 S. W. 101, 16 L. R. A. 754, 33 Am. St. Rep. 491; Leonard v. Commonwealth, 112 Pa. 607, 4 Atl. 220.
A constitutional provision should not be so construed as to defeat its evident purpose, but rather so as to give it effective operation and suppress the mischief it was aimed at (Jarrolt v. Moberly, 103 U. S. 585, 26 L. Ed. 492), and courts will look to the history of the times and examine the state of things when the constitution was adopted to ascertain the old law, the mischief, and the remedy. 6 Am. & Eng., Enc. Law, 930, notes 3 and 4.
No court of justice can be authorized so to construe any clause of the constitution as to defeat its obvious ends when another construction equally accordant with the words and sense thereof will *543enforce and protect them. Prigg v. Pennsylvania, 16 Pet. (U. S.) 612, 10 L. Ed. 1060; Legal Tender Cases, 12 Wall. (U. S.) 531, 20 L. Ed. 287. When a general provision conflicts with a special provision, the general must yield to the special. Warren v. Shuman, 5 Tex. 441; Gulf R. R. v. Rambolt, 67 Tex. 654, 4 S. W. 356. What force does section 11 of the constitution, requiring all laws of a general nature to have a uniform operation, possess, if the operation of a law general in its terms and intended to apply to all people of the state alike must, notwithstanding this, depend upon the approval of a majority in any locality before it can become operative locally? The fact that a majority in any county does not care for the protection supposed to be afforded by the constitution and the law is of no importance. If one person needs and desires such protection, he is entitled to have the fullest exercise of the sovereignty of the state in his behalf, and no implication should deprive him of this.
I have indicated the circumstances under' which article 20 of the constitution was adopted. It requires that “the legislature shall prescribe regulations for the enforcement of its provisions,” and from citations hereinbefore made it is clear that under such circumstances courts construe the kind and character of such regulations as being within the legitimate exercise of the judgment of the. legislature; that it is the judgment of the legislature rather than courts that is to be exercised. And again, the people having voted upon this article separately from the remainder of the constitution, and having by their votes adopted it, it was given an emphasis which otherwise would not have belonged to it, and it is entitled to a liberal construction with a view to carrying out the purpose of the voters in adopting it. When one section treats specifically and solely of a matter, that section prevails in reference to that matter, over other sections in which 'only incidental reference is made thereto, because the legislative mind, having been in the one section directed to this matter, must be presumed to have there expressed its intention, rather than the sections where its attention was turned to other things, and the same rule applies to constitutional provisions. 26 Am. & Eng. Enc. Law, 620, and cases cited; Warren v. Shuman, supra; Gulf R. R. v. Rambolt, supra.
It is an elementary principle that when a power is conferred everything necessary to carry out the purpose of the power con*544ferred, and make it effectual and complete, will be implied, and the legislature is the sole judge of the methods necessary to the accomplishment of the objects which it seeks to attain. Studabaker v. Studabaker, 152 Ind. 89, 51 N. E. 933; Sutherland, Statutory Construction, sections 340, 341; Cooley, Const. Lira. 194; 26., Am. & Eng. Enc. Law, 614; 6 Am. & Eng. Enc. Law, 928, note 4. See Arnett v. State, supra, and cases cited. Section 68 of the constitution reads: “The legislative assembly shall pass all laws necessary to carry into effect the provisions of this constitution.” The state, and the several counties within the state, had had nearly 20 jrears’ experience, and that experience proved that the execution of these provisions could not be intrusted to the people of certain localities, or to the officers elected by them, and the judgment of the legislators devised another method, wherebjr an officer was appointed to co-operate with the governor of the state in maintaining the supremacy of the constitution. The question was one of policy and method, and solely within the judgment of the legislators, and, through the law in question, they expressed their judgment as to the means necessary to secure enforcement. Their judgment cannot be revised by the courts. Local option, as I have heretofore indicated, was in effect when the people voted prohibition of the liquor traffic into the constitution. They had given it a trial; it was condemned by their own votes. It has remained for this court to say that the people of this state were ignorant of what they desired to secure, and of what they were doing, and that, while they believed that they were voting out local option and voting in prohibition, they, were in fact changing from legislative tO' constitutional local option, and that the requirements of the legislature contained in article 20 left little or nothing to the discretion of that body; that it is powerless to exercise its best judgment as to what regulations are necessary or best to comply with or enforce the provisions or commands of that article.
The logical and practical application of this decision in this proceeding means that this state not only has, in spite of the plain terms of the constitution to the contrary, local option as to the liquor traffic, but worse yet, that it lies in the option of any county, indirectly, by electing officers pledged to violate their oaths of office, to disobey any or all statutes enacted for the suppression of crime, for the promotion of public health and morality, for the protection of life and property, the assessment and collection of *545taxes, and the education of children, and, in' effect, to nullify at will any part or the whole police power, heretofore supposedly embedded in the very beginning of society, and older and more sacred than the constitution itself. Under it the people of any locality may defy the power of the state to preserve order, and maintain partial or total anarchy, as they may elect.
It must not be overlooked that, in construing a constitution, the courts always regard not simply what is happening, but what may or what is possible to happen. I repeat that the things above suggested are possible under an undue, and as I believe unwarranted extension of the principle of local self-government, so-called. I, however, have little fear that such conditions will ever prevail to any considerable extent. Fortunately, there will always be a majority of the people in most, and I believe in the near future in ail, our counties, whose respect and reverence for law, though they may doubt the wisdom of a partcular law, will prevent the prevalence of any such conditions.
From a review of all the authorities on the subject to which I have had access, I find none holding that positive prohibition not contained in the constitution can rest solely upon implication, when the result or effect is or may be to deprive the state of its police power, and negative its ability to afford its subjects the protection which is intended to operate as among the primary functions of the state. No such doctrine should be based upon any mere implication. The statement of it means that the county is bound by no laws except those its people may choose to ratify, and that all others may be annulled or resisted locally. “Our constitution does not contain the absurdity of giving power to make laws, and another to resist them.” At least such absurdity should rest upon some stronger authority than any derived merely by implication, when opposed by a positive prohibition. The enforcement of the criminal laws of the state has been universally conceded as a function of the state, and not solely included in the proper sphere of local self-government, the principle of which only applies to matters in which the people of the state at large have no interest, and I deem it beyond the province of the courts to hold that, because the constitution has permited the election of state’s attorneys and sheriffs by counties, it must be implied that the exclusive right and power to say whether criminal laws shall or shall not be observed rests in each county.
*546(114 N. W. 962.)From a consideration of the cases cited and many others, I am satisfied that the state has, within well-defined limits, the right to prescribe the methods and means to be used to enforce its criminal laws; that the office provided for in the law in question was a state office, with state and not local duties; that -the providing for it was a political question, the determination of which was within the judgment of the legislature, and not subject to the review of courts; that it exercised its judgment as to the method best adapted to meet the emergency, and without conflict with any principles of local self-government; but that if there existed such conflict, the express command and prohibition of the constitution should prevail rather than anything which must be read into it or unnecessarily implied from it.
I therefore conclude that the law in question is not subject to the objections made, but is a proper exercise of the legislative powers and functions.
The principle of the majority opinion is very far-reaching, and by implication puts a restriction on legislative power and discretion, as well as upon the people of the state, so great that it will be found, under the practical working of the rule announced, that the lawmaking power will be seriously hampered in framing legislation to meet new situations as well as present and future conditions, and this is my apology for the great amount of space which I have used in expressing my views and the reasons which seem to me to afford them ample support.