State ex rel. Ford v. Schofield

MR. JUSTICE HOLLOWAY

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 That Act was amended in 1913, and the amended Act superseded by another of the same general character, in 1915 (Chap. 139, Laws 1915).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 legislative assembly passed Senate Bill 76 (Chap. 56, Laws of 1917) —a special Act — creating Carter county and providing for its organization and government. This Act became a law without the approval of the Governor, pursuant to section 12, Article VII, of the Constitution. The present proceeding was instituted to test the validity of the Act, and it is the contention of relator that it violates the provisions of section 26, Article V, of the Constitution. That section forbids special legislation upon any one of the thirty-four enumerated subjects, among them locating or changing county seats, regulating county or township affairs, and concludes: “In all other cases where a general law can be made applicable, no special law shall be enacted. ’ ’

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.

[2] The concluding sentence of section 26 above is not an absolute prohibition in the sense that the preceding section is. Section 25 is absolute in its terms. It means that under no possible set of circumstances may a law be revised or amended by reference to its title only, and any Act passed in violation of its provisions is absolutely void. The concluding sentence of section 26 does not prohibit special legislation altogether, but does seek to curtail it. It forbids special laws in all cases where general laws can be made applicable. But who shall determine whether a general law can be made applicable in any given instance? Upon this question the decisions are in hopeless conflict, and no useful purpose can be served by reviewing them at length. The cases cited by respondents hold that the question is one exclusively for legislative determination, while cases cited by relator hold with equal emphasis that it is one for decisions by the courts. We might relieve ourselves of much work and worry by accepting one theory or the other, and, blindly following precedent, content ourselves with merely citing the authorities. The decisions of other state courts are not binding upon us. They are useful or persuasive with us, or they are not, according to whether the reasoning appeals to our judgment or fails to do so. We are not at liberty to abdicate in favor of some other tribunal, but conceive it to be our duty to determine every controversy presented to us according to our own best judgment, enlightened to the utmost extent possible by the learning and experience of other courts and by textwriters who have specialized upon particular subjects.

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.

On the other hand, we think the theory that it is a judicial question in every instance equally fallacious. To illustrate by an extreme case: Suppose there is a county in this state, no portion of which is adapted to agriculture, but which does contain extensive grazing areas; that in the remainder of the state agricultural development has progressed to that point where a herd law is imperatively demanded, and the legislature is responsive to the demand and seeks to promote the welfare of the state by the enactment of a suitable law restraining livestock from running at large. If the legislature ascertains that the facts are that the range county is so far bounded by mountain ranges and rivers that stock running at large therein will not jeopardize the interests of any other section, then it would seem that common sense would dictate to the lawmakers that a statute be enacted restraining livestock from running at large, but excepting from the operation of its provisions the range county. Such an Act would meet the demands of every section of the state, promote the general welfare, and infringe the rights of no one; but it would be special legislation. A herd law could be passed which would be general and uniform in its operation throughout the state, and which, in addition to promoting the interests of forty counties, would also destroy the principal industry of the one. Indeed, it is conceivable that a general law can be enacted upon any subject of legislation; but, if this be the sense in which the language is employed in the concluding sentence of section 26, then its ultimate purpose is to prohibit special legislation altogether.

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 available to ascertain. Upon the first class of subjects, the courts can and must determine the applicability of general laws; upon the second, the legislature must be left free to act.

[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.

As remarked before, it was possible for the first state legislature to enact a general law for the organization of new counties. The same general law enacted in 1915 could have been enacted in 1891, but it would have been a useless piece 'of encumbrance upon the statute books. It would have prohibited the formation of any new counties for many years, and would have retarded the development of the state to an almost unlimited extent. It was likewise possible to enact a general law with such liberal provisions that any aspiring community in the state, then or thereafter, could have secured separate county government. But the possibility of enacting a general law for new county organization is not -the test prescribed by the Constitution. In order to bar special legislation, the general law must be applicable, and in our opinion that word was employed in a very general and comprehensive sense. The framers of our Constitution were not idle dreamers. They were eminently endowed with practical common sense. Their discussions in convention disclose a fixed purpose to avoid legislating, and to confine their efforts to the enunciation of those fundamental principles deemed essential to the stability and general welfare of the commonwealth. They recognized that the Constitution was intended to be, not a grant, but a limitation, of power, and they left the legislative department free to exercise its lawmaking function, subject only to such limitations as were deemed necessary to be imposed. They wrote with peculiar perspicuity and terseness, and never intended their language to be given a strained or unreasonable interpretation. "When they referred to a general law as applicable to a particular case, they meant a law in its practical operation adequate to the purpose for which it was intended. In this sense, whether a general law can be made applicable to the creation of new counties depends upon a multitude of extraneous facts and circumstances, which the legislature, operating without the fixed rules of judicial procedure, is peculiarly qualified to ascertain and pass upon, but which the courts can but inadequately ascertain, if at all.

Our conclusion upon this branch of the case is that with respect to the particular subject — the creation of new counties— it was peculiarly the province of the legislature to determine at all times between 1889 and 1911 whether a general law could be made applicable, and that the failure or refusal to enact a general statute upon the subject is tantamount to a decision that such a statute could not be made applicable.

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 now be made applicable to the creation of new counties, it likewise possessed the authority to declare the same result by the enactment of this special law. We will not indulge the presumption that the legislative assembly wittingly violated the Constitution; but, assuming that it is necessary to do so in order to uphold the validity of the Act in question, we will presume that due consideration was given to the concluding sentence of section 26, and that the enactment of this special law was the means employed to express the legislative determination that the general law is no longer applicable to the creation of new counties under the conditions as they now exist. The same conclusion might have been expressed more lucidly by repealing the general law outright; but, if the determination was reached, the particular means by which it was expressed is of no moment.

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.