Board of Commissioners v. Perkins

CoNaway, Justice. Section one of Chapter 48 of the session laws of Wyoming Territory of 1890 provides: “That all that portion of the Territory of Wyoming described and bounded as in this section hereafter set forth, is hereby created and made a county, of the Territory of Wyoming, by the name of Big Horn;” and then defines the boundaries. Section two makes general provision for the organization of the county created by .section one and for the organization of counties generally, “for all the purposes of • county government,” by petitioning the governor to appoint three electors residing within the county to act as commissioners organizing the same, and requiring specially, in the case of Big Horn county, proof to be presented to the governor showing that the counties of Fremont and Johnson, respectively, would have left within the boundaries of each an assessed valuation of sixteen hundred thousand dollars, ■ and that the taxable property of Big Horn county would not be less than fifteen hundred thousand dollars. It also provides that these commissioners should not be appointed before Feb.. 1st, 1892. — 169 — Section three directs the commissioners, “as soon as practicable and within twenty days after- receiving notice of their •appointment, to paeet at- some suitable place within said Big Horn-county or any other county hereafter to'be organized;” and directs what -method they shall-pursue in organizing the county. '' ' The remainder of thé act consists of three sections, -in these-words: - ■ “See. 4. Until such time'as said county.of'Big Horn shall have, selected officers, as provided by -law, and the same shall have-duly qualified'as such, all such portions of said Big Horn-county as-at the time of the passage :of this act belong to or are a part of some other county, for judicial revenué and election purposes, and-representation ■ in the-legislature of. the State of Wyoming, should it be admittéd into the Union as a State, shall be attached to the counties, respectively, from which such portions of said Big Horn county are taken, except as hereafter provided by law. •. “Sec. 5. ■ For all purposes for- which a county -exists in this territory, except as hereinbefore provided; said- county of; Big Horn shall be deemed-and held to-be one of-the counties of the Territory of" Wyoming from and- after the passage of this act. • • . “Sec. 6. After the-said.County of Big Horn-shall have-duly chosen its officers as provided by' law, and the same shall- have- duly qualified, -the said-county shall thereafter'constitute a portion of the third judicial district-of'Wyoming, and a term of court-shall- be held thérein .annually, com-' meneing on the first Monday in August of each-year.” The appointment of commissioners to effect the organiza- ■ tion of Big Horn county .under-this act has not been made.It is to enjoin defendants and all other ’ electors and taxpayers, residing within the limits of the county of Big Horn' acting with them from petitioning for' such"appointment-that this action is brought- - Plaintiff claims that the provisions of-the act as-to-the organization of Big Horn county- are repugnant to- the -constitution of-the State :,of( Wyoming. — 170 — The constitution took effect by the act of Congress admitting Wyoming as a State in the Union on July 10, 1890. Section 3 of article 21 of the constitution is in these words: "All laws now in force in the Territory of Wyoming, which are not repugnant to this constitution, shall remain in force until they expire by their own limitation, or be altered or repealed by the legislature.” The first session of the legislature of the State of Wyoming also adopted the Revised Statutes of 1887 and the Session Laws of 1888 and 1890, “in so far as they do not conflict with and are not repugnant to the provisions of the constitution of the State of Wyoming.” Chap. 35, Laws of 1890-91, page 53. Other constitutional provisions bearing upon the decision of this cause occur in-article twelve of the constitution, as follows: “Section 1.. The several counties in the Territory of Wyoming as they shall exist at the time of the admission of said Territory as a State, are hereby declared to be the counties of the State of Wyoming. “Sec. 2. The legislature shall provide by general law for organizing new counties, locating the county seats thereof temporarily and changing county lines. But no new county shall be formed unless it shall contain within the limits thereof property of the valuation of two million dollars, as shown by the'last preceding tax returns, and not then unless the remaining portion of the old county or counties shall each contain property of at least three millions of dollars .of assessable valuation, and no -new county shall be organized, nor shall any organized county be so reduced as to contain a population of less than one thousand five hundred bona fide inhabitants, and in case any portion of an organized county or counties is stricken off to form a new county, the new county shall assume and be holden for an equitable portion of the indebtedness of the county or counties so reduced. No county shall be divided unless a majority of the qualified electors of the territory proposed to be cut off voting on the proposition shall vote in favor of the division.” — 171 — The county of Big Horn as “created and made” by section one of chapter 48 of the laws of 1890 “has not the population or assessed valuation which is required by the constitution in order to be cut off from Fremont, Johnson and Sheridan counties and organized if the constitutional provisions for the organization of new counties are to be applied in the organization of Big Horn county.” This is admitted by defendants. It is also alleged in the petition of plaintiff, and not denied in the answer of defendants, that there is not the constitutional population nor assessable property valuation left in either Fremont, Johnson or Sheridan counties. Plaintiff claims that under this state of facts the organization of Big Horn county is prohibited by the constitution, and brings this action to- enjoin such organization. Defendants claim that Big Horn county was a county of the Territory of Wyoming, existing as such at the time the constitution took effect, and became a county of the State by virtue of section one of article 12 of the constitution, and that it may yet be organized as such county, in accordance with the provisions of the act creating it as to property valuation requiring proof that it contains fifteen hundred thousand dollars and that there will be left to Fremont and Johnson sixteen hundred thousand dollars each, notwithstanding the provisions of the constitution requiring greater property valuation, and without regard to the constitutional requirement as to population in Big Horn county and in the several counties from which its territory was severed. The question is, can Big Horn county now be legally organized? If it can, the injunction should be denied; if not, the injunction should be granted. Several considerations seem to require that this question should be answered in the negative. By chapter 48 of the session laws of 1890 Big Horn county was “created and made.” The act then provides in what manner it, or any county thereafter to be organized, may be “organized,” commencing with the appointment by the governor, on petition of three hundred electors of the county, of three electors residing within the county “to act as com — 172 — missioners in organizing the same.” It thus appears that while Big Horn, county : was “created and made” by the act of 1890, further-and-future action, by at-least three hundred electors within the limits of the'county^ by the governor, and by the commissioners- appointed • by the • governor, - was required'to organize the county. The legislature has thus made a distinction between Creating. and making a. county and organizing one..- The legislature- creates and makes-the county of Big Horn by‘its-own enactment. But the legislature merely .-provides for putting machinery in motion for organizing-Big Horn or-any other ■ county, - by petition of three hundred electors of such county; The question to be decided is- further-- complicated by the introduction} in section 2 of article 12 of the constitution,- of another word to indicate -some portion of the process' of creating and putting in operation a county government. It is the word “formed.” Certain conditions are specified under which a new -county.may be “formed.” Other and different conditions are specified under which a new county may be “organized.” The constitution thus makes a distinction between forming a county and organizing one. It is similar to the distinction made by the a'ct of 18.90 between creating and making a county and organizing one. It seems clear that both, before and since the adoption of the constitution the creation or- making, or formation of a county was and is a legislative function; but the organization of a county is not and never was. The legislature can and must, :when a new county is to be made and organized, give it a name and define its boundaries. But the organization: of. such county is a matter of administration and can be effected only by administrative or executive officers. This' makes the creation of the county effective for the only purpose of its creation, by organizing within'the.geographical limits fixed by the legislature,' the. quasi corporation known as a county,- and putting in operation the county government.- It is; urged on behalf of defendants that the provisions of article 12 of the' constitution are prospective in their operation and not retroactive. “The legislation it speaks of — 173 — is future legislation and not past;” says the brief of defendant. This position is well sustained by authority and is evidently correct. ■ “The legislature, shall provide .by law ■ for organizing new counties/’ says the constitution..- This'is clearly a, duty imposed on legislatures succeeding the eon--stitution, and it does-.not affect legislatures -preceding it; “But no new.county shalh.be formed unless it shall contain within the limits thereof - property, of the valuation of two - million' dollars, as .shown.by the last, preceding-.tax returns, and'not-, then unless the remaining portion.of the-¡old' county, or eouffi-' - ties shall, each contain property .of., at least three million dollars of assessable valuation,” says the constitution. . Coumties which “shall.be formed” are not.those already formed. And this-provision is .-'in its terms'-a provision for/the. future formation, of counties, and evidently'.does-not. affect.-those already, formed. Authorities ..cited.’on behalf. of-defendants amply sustain-this view. See Cass v. Dillon, 2 O. St., 207; State v. Trustees, &c., 8 O. St., 397; Allbuyer v. State, 10 O. St., 588; State v. Barbeer, 3 Ind., 258; State v. Macon County Court, 41 Mo., 453; State v. Thompson, 2 Kan., 432; Lehigh Iron Co. v. Lower McCungie Twp., 81 P. St. 484; Indiana Co. v. Agricultural Society, 85 Pa. St., 357; Dean v. Co. Com., 6 Colo., 202; People, v. Supervisors of Utica Co., 3 Barb., 332. And the constitution, proceeds to say .-further:,.. “And no new counfy shall be organized, nor shall, any- organized county be ,so .reduced,, as to contain a,population,.nf. less -.than one. thousand five hundred bona fide inhabitants.” . This ■ pro-visiomis also prospective. - It does not affect, counties already ■ organizéd... It affects.only-the future.organization of.counties... And .the proposed organization .'óf Big Horn county-is a fu-,. ture organization of. that county. -.It. is not a- thing, accomplished in the past, .but it .is .something to be done, in the -■ future. . Neither is it a legislative function. .It is a .thing which the legislature cannot do: and has not., attempted . to do. If these views are correct it' would seem. that, there .is,. — 174 — nothing unconstitutional in chapter 48 of the session laws of 1890. That act created, made or formed Big Horn county. It also provided for its organization, with certain conditions as- to assessable property. The act imposed no conditions as to population. Of course that act was subject to be amended or supplemented either by legislative enactment or constitutional provision. It has not been amended or supplemented by legislative enactment, but it seems clear that it has been supplemented by constitutional provision. And the language of that provision is exclusive and self-executing. It includes in its scope not only legislative action, but action by any department of the government, by any officer or officers, and by any citizen or citizens. “No new county shall be organized, nor shall any organized county be so reduced, as to contain a population of less than one thousand five hundred bona fide inhabitants.” No language could be broader in its terms or more sweeping in its scope than this. It seems clear that, since the adoption of the constitution neither Big Horn county nor any other new county could be organized with a population of less than one thousand five hundred bona fide inhabitants. Because Big Horn county has not the population required it cannot now be organized. This disposes of the ease. But the district court has certified ten questions as being included' in the determination of the cause. These questions will now be stated with such ‘ answers or remarks as seem appropriate. “First. Can the electors, living within the geographical limits of Big Horn county, organize said county, for all the purposes of a county government, by proceeding under section 2 (two) of chapter forty-eight (48) of the Session Laws of Wyoming of 1890, the -same being the act. creating the county of Big Horn in the then Territory of Wyoming?”- Ans. They can, when Big Horn county has the population required by. section 2, article 12, of the constitution. “Second. Is Big Horn county, as described in said enabling act, creating it, one of the counties of the State of Wyoming, and did it exist as a county at the time of the ' admission of the Territory of Wyoming as a State, as provided — 175 — by section one (1), Art. XII, of the constitution of the State of Wyoming?” Ans. It existed as' an unorganized county. “Third. Is the provision for the organization of Big Horn county in the act creating it, it being a special act as regards Big Horn county, repugnant to that part of Sec. 2 of Art. XII of the constitution of the State of Wyoming, which states: ‘That the legislature shall provide, by general law for organizing new counties’?” Ans. It is not. This constitutional provision operates prospectively only, and is not self-executing. “Fourth. Big Horn county having been created by chapter 48, Session Laws of 1890, and provision having been made for its organization, when it was shown that Johnson and Fremont counties, respectively, shall have left within their boundaries, respectively, after the complete organization of said Big Horn county, an assessed valuation of property of sixteen hundred thousand dollars, as shown by their assessment rolls after the said assessment rolls have been duly examined and equalized, and that Big Horn county has taxable property within its boundaries as shown by the last-assessment of property in said district embraced within said Big Horn county, amounting to the sum of not less than • one million five hundred thousand dollars, after having been duly examined, and equalized, as required by law, is it necessary under section 2 of article 12 of the constitution of Wyoming that said Big Horn county shall have property within the limits thereof of the valuation of two millions of dollars, as shown by its last preceding tax returns? And is it also necessary that the counties of Fremont, Johnson and Sheridan. shall each contain property of at least three millions of dollars of assessable valuation before said Big Horn county can organize for the purposes of county government?” Ans. It is not necessary that Big Horn county shall have property of the valuation of two millions of dollars, nor that - Fremont, Johnson and Sheridan counties should each have property of the valuation of.three millions of dollars before — 176 — Big Horn county can organize. The constitutional provision as to property valuation applies to the formation of new-counties as distinguished' from their organization. “Fifth.. There having been no. requirement as to the population .of. said Big. Horn county before it could be organized under the act creating it, is. it necessary under section 2 .of -.article.-12.'.of the constitution, that said Big Horn county-should-contain a population of not less than one thousand five hundred bona fide, inhabitants, before it can be organized for the- purposes of a-county government? And is it necessary that.Fremont^.[Johnson and. Sheridan■ counties shall'.each, respectively,-.have.after the organization of said Big Horn county, a population of not less than one thousand five hundred bona fide inhabitants?” Ans. It, is-necessary that Big Horn county. should have 1,500.population, but it is not necessary that Fremont, John-son and Sheridan counties should each have that population. They: were- “reduced”'by .the act of 1890 before the constitution was in force. “Sixth. Big Horn county having, been created by chapter 48/ Session Laws, of 1890, .did said act of the legislature' designate the ..geographical boundaries • of said Big Horn - county,-separate it-from the counties of'Fremont,-Johnson and-Sheridan, and divide said: counties of Fremont, Johnson'- and-Sheridan, cutting :oif- from them the county Of BigHorn, in such-, manner that fit- is not now necessary for a ■ majority, of the qualified- electors óf-,‘said>.Big'.Horn county to vote dn favor of the -division" of said counties of Fremont, Johnson and'.Sheridan, and cutting .off thev said. Big Horn ■ county before-.the said-Big Horn, county can be organized for the purposes-'of a county-government?” ■ . - • Ans-.'- Fremont,. Johnson andrSheridan counties’-were divided: by the act-of: 1890.-v No' vote. is:.necessary. “Seventh. Did chapter 48 of the Session Laws of-1890become, a part of .the,-láw'-.of the State-of-Wyoming .when the State was admitted?” ■ Ans.-. The chapter, became'a. part .of the laws' of Wyoming,. and it.is not repugnant-to the. constitution.- But-it -is sup — 177 — plemented by the constitutional provision requiring a new county to have a bona fide population of one thousand five hundred in order to organize. “Eighth. Chapter 48, Session Laws of 1890, being in-force at the time of the adoption of the constitution of the-State of Wyoming, and at the time the State of Wyoming was admitted, does said act, in so far as it relates to the creation and organization of Big Horn county, remain in force, it not having been altered, or repealed by the legislature, or is said act repugnant to the constitution and therefore void?” Ans. See answer to seventh question. “Ninth. The county of Big Horn having been created by section 1 of chapter 48 of Session Laws of 1890, and section 5 of said chapter 48 having declared that for all the' purposes for ydiich a county exists in this territory, except as hereinbefore provided, said county of Big Horn shall be deemed and held to be one of the counties of the Territory of Wyoming from and after the passage of this act, which act was approved March 12, 1890. Now, did said county of Big Horn exist within the meaning of section 1, article 12, of the constitution of Wyoming, in such manner that by the terms of said section 1, article 12, it is declared to be one of the counties of the State of Wyoming, 'or was it necessary for the qualified electors residing within ■ said -county-to proceed as provided by said act, to organize said county before it could exist as a county under the provisions of the constitution?” Ans. The county'of Big Horn, by virtue of section 1, article 12, of the constitution, became a county of the State of Wyoming as it (the county) existed at the time of the admission of the Territory as a State — that is, as an unorganized county. It may yet be organized under the conditions • required by existing laws upon the subject- of its organization. These conditions are found in chapter 48 of the Session Laws of 1890, and in that clause of section 2 of article 12 of the constitution which treats of the population required in a new county to enable it to be organized. * '.j — 178 — “Tenth. Since the act purporting to create Big Horn county provided that each of the counties of Johnson and Fremont should have property of an assessed valuation of one million six hundred thousand dollars, but made no provision as to Sheridan county with reference to what the valuation of its assessable property valuation should be, does not the provision of the constitution apply to Sheridan county requiring that such county shall have at least property of an assessed valuation of at least three millions of dollars before said county of Big Horn can be organized?” Ans. There is no such constitutional provision as that stated in this question. The constitutional requirement of a certain valuation of assessable property applies to the formation of the.county by the legislature. The organization of the county so formed is a different and subsequent proceeding by other parties and other officials. It seems that a new county may be “formed” if it has the requisite wealth, and if the counties from which it is taken, when so “reduced,” still contain the requisite wealth and population, but the new county cannot be “organized” until it contains the requisite population. We use the words “formed,” “created,” and “made,” in the sense in which they seem to be used in the act of 1890 and in section 2, article 12, of the constitution. Sheridan county is a casus omissus. The courts cannot make a -law for this county. • The injunction frayed for will issue, GhoesbecK, C. J., and CORN, J., concur.