Los Angeles daily herald., 1889-06-27

tion arises, then, If the convention had sup
posed that county could be created and or
gsnized by general law, why did 1t not insert
| in the list of matters prohibited the right to
create or organize county by local or special
/ law the same a. it did in changing county
seats? The matter certainly was not over.
| looked, and the very fact of II being omitted
| from the list of subjects concerning which the
| Legislature is prohibited from acting by loea al
or special law, furnishes strong reason for
concluding that it was considered by the con
vention that general law could not be made
applicable
ersl law can be made applicable? Certainly
| the legislature must determine this matter in
| the first instance. There is no provision under
our system in this State for taking the opinion
of the courts in a matter not properly brought
| before them in the usual course of litigation.
Therefore the Legislature in any given case. in
order to act at all, must necessarily act upon
| its own judgment in reference to whether a
| general law would meet the case or not.
| Whether the action of the Legislature in this
| by the courts, 1t is not necessary to determine,
| for we think, from the various provisions of
| the Constitution already referred to, the Con
| vention that framed it were clearly of the
was not, prohibited from the creation and or
ganization of new counties by special a d
| local laws.
| Our attention has also been called to the
sixth section of Article XI, where it is declared
| that Corporations for municipal purposes
shall not be created BY special laws; but the
| the incorporation, organization and classifca-
tion, in proportion to population, of the cities
ana towns which laws may be altered, amend
| ed, or repealed" and it is claimed by the
| learned counsel on behalf of the people that
counties fall within this definition of corpora
tions for municipal purposes, We think not
| The Article in question relates to cities,
counties and towns; some of the sections
| in the Article plainly refer to coun-
ties only, others tens refer refer to cities tt,
| tion for municipal purposes. as village in
| contrsdistinction to townships, as organized in
| many of the Eastern States AS is well known,
under the old Constitution, cities were organ
lied by special law, and ii was the purpose of
this section of the Con stitution of 1879, to pro
hibit the Legislature in future from so doing
AS above remarked, some of the sections of the
article in question relate to counties alone, as
tor instance, section l, wherein the several
counties, as then existing, are recognized as
the legal subdivision of the State; section g
relating to the change OF county seats; Section
g. relating to the creation of new counties; and
Section 4, requiring the establishing of a sys-
TEN of county government; Section D, requir-
ing the Legislature to provide for election or
appointment of couBty officers. In these sec.
tions no reference is made to cities and towns
Or municipal bodies, but the 6th 9TH and Sth
refer entirely to cities and counties consoli
dated, making one municipal body, as in the
case of San Francisco, and we think it is very
clear that the term corporation for municipal
purposes y as used In Section g. has no refer
ence whatever to county.
For the foregoing reasons, we are of the
opinion JlHC the LeSlkldtur0 pOsbebbeS Jue
power to form and organize new counties by
local and special law.
1t is conceded that at the time of the passage
OF the act, the proposed new county contains
population of more than five thousand, and
that its creation would not reduce the old
county below eight thousand, also, that the
boundary lines of the new county do not pass
within five miles of the county seat of the old
county; and, therefore, in our opinion, the act
is not obnoxious to Section g. Article IL,
already referred to.
1t is a general rule of construction that
power granted. or the possession of power,
carries with it all the incipents necessary to
make the power operative aud effective there
fore, the power to form and organize new
county by special and local law, implies the
power to provide all the necessary machinery
for carrying out the act, among these, to sp-
point commissioners. as in this case, and to
confer upon them the necessary duties to set
the machinery in the new organization in mo-
ton.
without therefore, considering in detail the
various objections raised to number of the
provisions OF the act in question, which, if well
taken, would not defest the whole law, We are
OF the opinion that the act is valid, and the de.
murrer to the complaint, or petite n, should be
sustained, and the writ denied, and inasmuch
as the complaint cannot be amended SO as to
avoid the objections noted, an order should be
made dismissing the action.
WALTER VANDYKE.