Los Angeles daily herald., 1889-06-27
ORANGE COUNTY 1T is.
The Superior Judges, With One
Consent, so Decide.

down their opinion in the matter OF the
validity of the bill creating the county
of Orange out of certain portions OF the
county of Los Angeles. The decision is
unanimously in favor Of the new county,
There are three opinions handed down,
as follows:
JUDGE wADE's OPINION.
In the Superior Court OF the County of Los
Angeles State of California.
The People ex rel. ]. A. Graves VS.. James
McFadden ct al.
There are but two propositions raised by the
pleadings and arguments of counsel In this
case necessary for consideration in order to de-
termine the suficiency of the complaint The
first is whether the Act in question is unconsti-
tutional for the reason that it is delegation OF
Legislative authority to the electors eff the ter
ritory comprising the proposed new county Of
second. Whether the ct is unconstitutional,
for the reason that 1t is an Tempt to accom-
plish by spe cial act what could have been ac-
complished by a general law. All other ques-
tions raised as to the details of the statute are
regarded as unessential to the question whether
OF not the demurrer in this case should be sus-
tanned.
concur in the Judgment of the Court upon
the first objection raised by the complaint to
the Act upon the authority OF the People VS..
As to the second objection, that the Act is a
special one, where general law could be made
ADDllCaDle, L concur III Ju6 Judgment OF lue
Court, for the reason that regard It as case
peculiarly within the exception implied in the
.S3d Subdivision of Section 25 Article of the
Constitution. that leaves to the Legislature Ger
tain discretion to determine whether or not a
general law can be made applicable to a par
ticular case; and this view is not taken by me
for the reason that the discretion of the Legis-
garded as final and conclusive upon the Courts,
but for the reason that if this matter were pre-
sented as a purely judicial question for con-
81 7 N iunlinad tO I'd ac
falling within the exception. It would be eX-
tremely inccnvenient. If not impossible, for the
Legislature to enact general law for the for
nation of new counties out of the territory
already embraced in counties as at present
organized. without embodying in such legisla-
tion some features that would be intolerably
vicious and burdensome to the public.
W. P. WADE,
Judge, Department
JUDGE sHAw's OPINION.
In the Superior Court of the County of Los
Angeles. State of California.
The People of the State of California upon
the relation eff J. A. Graves, plaintiffs, VS.. W.
M McFadden. Andrew B. Caldwell, ]. W.
Towner, John H. Kellum and r. o. Wickham,
This proceeding under Chapter of the
Code of Civil Procedure, against the defend
ants as Commissioners appointed under the
act for the creation OF the county of Orange,
passed March II. 1889 (Acts 1889, p. 1879. 1t
Is insisted that the act in question is unconsti-
tutional
The important questions in the case are
First. whether or not the provision of the law
for submitting the question of the formation of
the new county to vote of the people is a
delegation of legislative power, and therefore
invalid; and, second, whether or not the law is
invalid because it is a local act, where a gen.
eral law could be made applicable.
Upon the first question. the principle estab-
lished in the case of the People vs. McNally, 40
California, is decisive, and must control the
decision here.
The facts were very similar to the present
case. True, that was case OF disorganization
and abandonment of a county. while this is a
case of the creation of a new county. But both
are equally the subject of legislative control,
and upon the particular questions presented
the same principles are manifestly as applica-
Bile to one as to the other. If 1t is not delega-
ton of legislative power to make the discon-
tinuance and disorganization of a county de-
pend on the contingency Of a favorable popular
vote, nei he is 1t delegation of legislative
power to make the creation of a county de-
pend on a favorable vote. Both acts deter
mine the existence of a county. In one case
county ceases to exist; in the other county
begins to exist. Another point of difference is
that in that case the county of klamath was to
cease to exist, upon the contingency that the
voters of SsRiyou county should at an election
vote in favor of annexing a part of Klamath
county to siskiyou, and the voters of Klamath
county were to have no voice in the matter st
all; while here the county of Orange is to be
formed out OF part OF Los Angeles county, upon
the proposed county of Orange shall vote in ia.
vOr of the new county. while the voters of the
other parts of Los Angeles county are to have
no voice IN the matter. Justice McKinstry,
in his concurIing opinion in that case,
seems to make distinction between the con-
tingency Of favorable vote of the election of
the particular territory, and that of a vote of
the electors of some other locality. But it is a
distinction without material difference. 1t is
impossible to discover any reason why the
former is delegation of the legislative power
while the lat er is not. That case decides that
the latter is not a delegation of legislative
power, and we must follow the precedent there
NOD opd dan1 hat fha forrr is,
Upon the question whether or not the law is
invalid because 1t is local act, there are no
decisions of our Supreme Court directly in
point. The Constitution does not permit To-
cal law to be enacted If a general law can be
made applicable.
It is urged on behalf of the defendants that
the Legislature is the sole judge as to whether
or not general law can be made applicable;
that its action on that point is not the subject
of review by the courts
The provisions of the Constitution are man
datory and prohibitory. To hold that the courts
cannot, in any case, review the action of the
Legislature would be in effect to say that, in
cases not specially mentioned in Section 25,
Article A, the Legislature must not pass
special law unless it sees fit to do so. 1t would
abrogate the command contained in subdi-
vision 33 OF that Sc ction and transform that
subdivision into mere recommendation.
But the question whether or not general
law can be made applicable is in general, a
question of fact; and the facts are not always,
perhaps not generally, those of which a court
can take judicial knowledge. II seems to fol-
low that upon this question the same rule
should be applied that obtains in other cases
where decisions upon questions OF fact are re
viewed The decision of the body to whom the
question is first submitted is presumed to be
correct until the contrary is shown: And if
the evidence or circumstances bearing upon
the question are conflicting, or leave the case in
doubt, the decision must stand.
The feasibility and propriety OF general law
upon the subject in hand are celtlinly not free
from doubt, and the legislative decision upon
that subject should not be interfer. with.
1t seems natural to provide for the formation
of a certain territory into new county by
special law. And for that particular purpoEe
no general law could be framed. tits, perhaps
possible to frame law for the organization eff
new counties which would be general in it's
conditions a new county might be formed in
any portion of the State. Such laws are in
operation in Kansas and Nebraska. But the
Legislature may have been of the opinion that
twas not the hest to form new counties in any
other portion of the State; and, if SO, it
could not safely pass a general law 1t is
conceded on both sides that the Legislature
has the exclusive power of determining the
time when and the conditions on which new
county shall be created. 1t is desired to create
the county Of Orange and not to permit the for
nation of any other new counties, iG could only
make sure of that result by means of a local
law. 1t must be admitted that such design Is
within the province Of the Legislature.
1t Is also conte1ded that the classification of a
now county cannot be made by special law.
III q new county can be created by special
law, 1t seems to be a necessity that Its proper
class should be determined by special law.
In no other way can an intelligent classifica-
tion be made. census of the new county
would require a special law. II would be i'm
possible to determine the population of the
territory in 1880 from the census returns; and
IL it were possible 1t would, at best, furnish no
reliable informal as to the present popula
ton. The fact of the necessity for the foTma-
tion OF a new county indicates great increase
T6a cloeoi6oation of n new countv In mon