delivered the opinion of the court.
[1] From the adoption of the Constitution in 1889 until 1911 we had no general statute for the creation of new counties, but during that period thirteen new counties were created, each by special Act of the legislature. By Chapter 112, Laws of 1911, there was written into the statutes of this state a general law of uniform operation, providing for the creation, organization and classification of new counties. That Act was amended in 1913, and the amended Act superseded by another of the same general character, in 1915 (Chap. 139, Laws 1915). Under- these Acts twelve counties were created, organized, classified and are now existing political subdivisions of the state.Without expressly repealing the general law, the fifteenth legis
Assuming the mandatory and prohibitory character of this last provision, respondents insist nevertheless that it is addressed to the legislature exclusively; that whether a general law can be made' applicable to any given case must be determined by the legislature from facts and circumstances as they are made to appear to it, and that the courts cannot review the evidence before the legislature, and therefore cannot overrule or reverse the legislative determination; that the enactment of a special law upon a given subject is a legislative determination that a general law cannot be made applicable to it; and that such determination must of necessity be final and conclusive. Adjudicated eases sustaining these propositions generally are cited almost without number.
In this instance we find ourselves unable to agree entirely with either theory established by the adjudications to which reference has been made. We have on our statute books a general law, of uniform operation throughout the state, which forbids gambling. If the legislature should be unwise enough to substitute for this law another of the same character, but which by its terms applied only to certain named counties, excluding all others, we imagine no one would hesitate to pronounce such an Act unconstitutional and void; and neither can we imagine that it could be urged with any semblance of reason that it was for the legislature to determine finally that a general anti-gambling law cannot be made applicable throughout this state. It is inconceivable that there is such a different standard of morality prevailing in different sections of the state that a police regulation of this character cannot be made to operate uniformly. Examples might be multiplied to illustrate the view that it cannot be exclusively a legislative question to determine in every instance whether a general law can be made applicable.
We believe there are many subjects of legislation, which, from their inherent character, are subject to regulation by general laws, and that the courts are as advantageously situated as any other department of government to say so; on the other hand, there are certain subjects which may or may not lend themselves to regulation by general laws, depending upon extrinsic facts and circumstances which the Legislature is peculiarly fitted to ascertain and determine, but which the courts have no means
[3] •The creation of new counties involves a question of public policy exclusively. It would have been perfectly competent for the people, in adopting their Constitution, to have made provision that the state should be divided into the sixteen counties then in existence, and prohibited the formation of any new counties thereafter. It would have been a very unwise thing to do, and it was not done. The debates of the constitutional convention disclose an attempt to write into our fundamental law a property restriction upon the creation of new counties; but the attempt failed, and the sense of the convention, so far as it is disclosed, was in favor of the widest liberality toward growing communities aspiring to local self-government. In the creation of new counties there are certain considerations which address themselves to the legislature, common to all alike — the financial ability of the community to support county government and the effect which the withdrawal of one portion of a county may have upon the capacity of the old county to continue its organization. If these and like questions were the only ones which could arise, the applicability of a general law to the creation of new counties would seem a demonstrable fact; but they are not. In the early history of the state we had certain sections of vast territorial extent, but with small population and little taxable wealth; others with congested population and vast wealth, but with little territory tributary. In many of the states on the plains it might be possible to lay off counties with a foot rule — to follow township and range lines and achieve practical results; but in a mountainous country, with navigable streams, such as this, so simple a plan could not well be applied. The topography of the country, the accessibility of one portion to another, the lines of transportation, the stability of the community, the opportunities for growth and development, are considerations which must enter into the discussion of any plan for county organization here.
Our conclusion upon this branch of the case is that with respect to the particular subject — the creation of new counties—
But it is said that our experience under the general law has demonstrated its applicability, and that a decision of the question has been set at rest by the legislature itself. At first blush this suggestion seems to afford a solution for the problem presented ; but no Act of a legislative assembly is irrepealable, and though the general law may have served the purpose intended during the six years succeeding its enactment in 1911, it was altogether competent for the last legislative assembly to determine that it has spent its force and is no longer adequate to the purpose for which it was enacted. It might have determined that with the creation of the twelve new counties, the physical and topographical conditions of the state no longer admit of its practical application, and that at the present state of our history and development no general law upon that subject can be made to serve the best interests of the commonwealth. Had it so declared by repealing the general law, we should not deem it within the province of this court to attempt to interfere, and if, with the general law repealed, it had then passed the special act creating Carter county, we should have accepted its determination that a general law could not be made applicable as conclusive upon us.
But it is insisted that the general law was not repealed, and that under its provisions new counties may now be created, if they can meet the requirements which its terms impose. But if no community in the state can now or hereafter meet those requirements, instead of being a law for the creation of new counties, it becomes a law prohibiting the formation of new counties. In other words, it has ceased to fulfill the purpose for which it was enacted. It has ceased to be applicable to the subject in the constitutional sense.
If the legislature possessed the power and authority, by repealing the general law, to say that a general statute cannot
In passing, we may observe that there are certain provisions contained in the Act creating Carter county which are clearly invalid; but they refer to incidental matters, and may be eliminated without impairing the Act as a whole. It is inconceivable that they could have operated as inducements to the passage of the Act, or that without them the measure would not have received favorable consideration at the hands of the legislature.
The demurrer to the complaint is sustained, and the proceeding is dismissed.
Dismissed.