SEPARATE OPINION OF
JUDGE BLISS.In concurring with the result to which Judge Adams has arrived, I do not concur in all his views. It may or may not be that the proceedings of the several courts called into being in contravention of the constitutional clause under consideration would be held to have been void. That matter I have not specially considered, and it is unnecessary to express any opinion upon it. I should, however, imagine that a difference would be found between the acts of a court organized in good faith and under the forms of law, and which the Legislature had the power to organize, but failed to comply with a constitutional requirement in' exercising the power, and of one that existed merely in usurpation and without color of legality. A doubt, however, upon this question would greatly increase my hesitation in giving an opinion that should affect the multitude of local courts called into being by special enactment.
As to the object of the provision against special legislation I entertain no doubt. I agree with Judge Wagner that its design was to stop just such legislation as the act organizing a Probate Court in Boone county, and other acts of a like nature. The evil is great, and especially when legislation gives diversity of jurisdictions in the several counties. It is an evil which has always been endured to some extent, but which has greatly increased since the -constitutional provision designed to cure it. It would seem that our law-making body was unconscious of its obligation to conform its action to the requirements of, and respect the restrictions imposed by, the organic law.
But I am not satisfied that we have the power to remedy the evil. Some body or tribunal must decide in each case whether the object can be provided for by a general law. In some States, under a similar provision, it is held that the courts may pass upon this question, while in others the decision is referred to the Legis*326lature alone. When the prohibition is absolute it cannot be evaded, and should be enforced by both the Legislature and the judiciary. When it is limited and conditional, and upon a question upon which judgment must be exercised and an opinion formed, the argument is certainly plausible that the body called upon to act must exercise that judgment.
It is seven years since the constitution went into operation. During every session of the Legislature it has construed, and, as I understand it, violated, the provision under consideration. The people have acquiesced in the lawfulness of its action and conformed their public business to it; the courts have treated it as legal and obligatory; and thus a practical construction has been given to the clause which should have its weight, and, in a doubtful case, be decisive.
I must, therefore, treat the clause as directory, binding upon the conscience of legislators, but, if disobeyed, the courts cannot furnish the remedy.