The Lewiston teller. (Lewiston, Idaho) 1900-1905, 1901-06-20

voter OF the state, by proper proceedings
in the district court, or in this court,
could have obtained writ Of prohibition
restraining the secretary of state from
certifying the question Of adopting said
proposed amendment to the various
county auditors.
"The official ballot could have been
protected against the improper submis-
sion on such question and could have
been purged of the presence of such
question thereon, by proper judicial pro-
ceeding. This not being done. and the
question of the adoption of said amend
ment being suffered to appear upon the
official ballot at the election in 1898,
should not the rule ofestoppel which was
applied by this court in case of Baker VS..
Scott. 43 Pac. Is. and in People VS..
Alturas County, So Pac. 1867, aud which
applies to ordinary elections, be applied
now The authorities upon this point
are divided, and in our view of this
case it is not necessary for us to deter
mine this point.
"After the enacting clause, section 1 OF
the act Of March ~, 1901, is as follows
That all portions of the state Of Idaho
included within the following boundaries
to wit: Beginning at the southeast
corner of Kootenai county on the water
shed separating the waters Of the St.
Mary and Clearwater rivers; thence in
an easterly direction to the
place of beginning
Sections two and three declare that all
that portion. of Shoshone and Nee Perez
counties, respectively, mot embraced
within the boundaries Of the county OF
Clearwater as described in section OF
this act shall hereafter constitute the
counties of Shoshone and Nez Perez,
respectively.
''Section 4 provides that The gov.
ernor of the state of Idaho is hereby au.
thorized and directed within 80 days
after the establishment of the county OF
Clearwater, by act of the legislature Of
the state of Idaho, to appoint for the
county of Clearwater the following of.
6cers to-wit:'
"Section 4 provides that The county
seat Of said county of Clearwater shall be,
after the establishment of the county,
located at the present town Of Orofno.'
In sections s. and 10, the phrase
after the establishment OF Clearwater
county is used.
The opinion, proceeding, recites sec.
tions from the act, including the def.
milton of the boundaries of the proposed
county. The act, the opinion states,
nowhere creates the county of Clear
water. Those six words, ." Sh al
constitute the county of Clearwater"
were left out. Proceeding, the opinion
says:
There is no declaration anywhere in
the act that the territory described in the
FIRST section shall constitute or be the
county of Clearwater 1t might be in
ferred from the language of the second
and third sections that it was the inten.
ton Of the legislature to create. by the
passage of this act, the county of Clear.
water yet other language in the act,
especially the phrase after the es-
Enlistment of the county of Clearwater,
followed Immediately by the phrase. by
act of the legislature of the state Of
Idaho found in section 3 of the act,
negatives the idea that the legislature
intended to create county by the pas
sage OF this act, and lends color to the
idea that it intended to pass another
act creating or establishing the county
of Clearwater
"But be this as it may, can the legis-
lature by mere amendment, by implica-
ton. without any express declaration,
lop OF from certain counties specified
and create out of such territory
= new county? Unless this can be done,
the act in question fails to create the
county of Clearwater and no such
county has been established. 1t is true
that reading Of the entire act shows
that the legislature intended that q
county to be known % the county of
should be established out of
The territory described in the first section
of the act. but a. to whether it intend
ID to establish such county by the act in
question is extremely doubtful, as is
shown by the quotations hereinbefore
made.
Be this as It may, aud let it be re-