(225 P.)

assessable property valuation required by the, reason alone; but its peculiar purpose is general law as a condition to the organiza- | recognized as taking it out of such a deftion of new counties. And the petition for inition, allowing it to be regarded as a genrehearing, with two exceptions, again pre- eral law if otherwise entitled to be so consents that question by stating as grounds that sidered, or, as declared in our former opinthe court erred: (1) In holding that the al- ion as to the act in question, not a special leged curative act attempted to do nothing law in the constitutional sense. See Cole that might not have been done in advance. v. Dorr, 80 Kan. 251, 101 Pac. 1016, 22 L. (2) In holding that said act is not special | R. A. (N. S.) 534; Flynn v. Little Falls, etc., and local and as such prohibited by the state Co., 74 Minn. 180, 77 N. W. 38, 78 N. W. Constitution. (3) In holding that a general 106; State ex rel. v. Brown, 97 Minn. 402, law could not be made applicable. (4) De- 106 N. W. 477, 5 L. R. A. (N. S.) 327; City clining to hold that, until the general law of Pullman v. Hungate, 8 Wash. 519, 36 for organizing counties is amended, no single Pac. 483; Redlands v. Brook, 151 Cal. county may be organized directly or indi- 474, 91 Pac. 150. Whether a law be general rectly, by special or curative act unless it or special does not depend upon its form, meets all the requirements of the general law. but upon its subject-matter. State v. Ellet, (5) In failing to consider the prohibitive | 47 Ohio St. 90, 23 N. E. 931, 21 Am. St. 772; effect upon the validating act of the constitu- State v. Cooley, 56 Minn. 540, 58 N. W. tional provision that all laws of a general 150. It is said in Lewis' Sutherland Stat. nature shall have uniform operation. Constr. at section 200:

"That the question is not one of form is expressly held as necessarily implied in all of the

cases.

* *

But while in most of the adjudicated cases the laws under consideration were general in form, but were assailed as special in fact, yet in some cases laws special in form have been held to be general in fact, and the test is the same in both cases. The question must be determined from the act itself and from facts of which the court will take judicial notice."

The general trend of the present argument on behalf of the relators is that the curative act is not a general law, but special, and an attempt to do indirectly what the Legislature could not have done directly, viz. organize the county by a special act. It is thus contended that, the Legislature being required by the Constitution to provide for the organization of counties by general law, the alleged and conceded defect in the organization proceedings cannot be cured except by a general law. The fundamental [3] Upon a fairly exhaustive re-examinaerror in this argument, in our opinion, is tion of the question suggested by the arguthe assumed proposition that the curativement aforesaid, we remain convinced that, act in question is to be classified or con- upon the conditions presented by the facts sidered as a legislative act organizing the county. That embraces a misstatement of the purpose and effect of the legislation, and ignores the situation confronting the Legislature when the act was passed, to meet which it was enacted-a de facto county organization, claiming a valid organization under the act of 1921 creating and forming the county and the general law for the organization of counties. See Budge v. Commissioners, 29 Wyo. 35, 208 Pac. 874. And our discussion at this time will be devoted principally to that phase of the question.

[1, 2] But, first, we want to say, as suggested in the former opinion, that the act might properly be considered as a general law, though special in form, since the conditions to be remedied existed in only one case, and, if general in form, the act could have had no other or greater operation. A curative act is necessarily retroactive, and, though general in form as such an act may be and often is, it can apply only to a condition or conditions then existing, and, therefore, may not come within a definition of a general law occasionally found in the books requiring that its classification be not limited to existing conditions or localities or persons within the class when the act is passed. Yet we think it correct to say that a curative act is not usually held to be special for that

in this case, the act in question, whether to be classed technically as general or speçial, must be upheld as a valid exercise of the legislative power, upon the principle, which we think settled by eminent and ample, if not the clear weight of, authority, that, where the thing lacking causing the defect might have been dispensed with by the Legislature, it is not necessary that the subsequent validating act shall be of the same kind or nature as that required for the original authority, as was clearly held in State v. Squires, 26 Iowa, 340. That case is cited and quoted from in the former opinion, and has been approvingly cited in many cases involving the validity of a curative statute, and is the leading case upon the point just stated.

The same principle was declared by the Supreme Court of the United States in Read v. Plattsmouth, 107 U. S. 568, 2 Sup. Ct. 208, 27 L. Ed. 414, also cited in the former opinion, and often cited with State v. Squires upon this question. And we believe it remains unchanged as authority by any later expression of that eminent court, but rather fortified as such by subsequent decisions. See Comanche County v. Lewis, 133 U. S. 198, 10 Sup. Ct. 286, 33 L. Ed. 604; Harper County v. Rose, 140 U. S. 71, 11 Sup. Ct. 710, 35 L. Ed. 344; Sherman County v.

$

Simonds, 109 U. S. 735, 3 Sup. Ct. 502, 27 L., sideration of the evils intended to be remEd. 1093; Utter v. Franklin, 172 U. S. 416, edied by such a constitutional prohibition 424, 19 Sup. Ct. 183, 43 L. Ed. 498. The cura- should restrict it to grants of that character tive act in that case had confirmed and legal- so as not to include within its terms curative ized "all acts and proceedings of the city statutes which operate upon transactions alcouncil of the city of Plattsmouth" in rela- ready passed and consummated. tion to the issuing of bonds and letting a Read v. Plattsmouth was followed also in contract for the construction of a high | Jarecki Mfg. Co. v. City of Toledo (C. C.) school building. Its validity was assailed 53 Fed. 329, and on page 331 of the cited volon the ground that legalizing bonds, void because issued without power, was equivalent to conferring corporate power to issue them, and, being a special act, was therefore unconstitutional. The court said:

ume may be found quoted a part of the opinion in Read v. Plattsmouth quoted above, to the effect that the curative statute operates upon the transaction itself which had already been consummated, and therefore does not confer additional corporate power in violation of a provision of the Constitution forbidding special legislation for that purpose. The statute in the case now cited was general in form, but stating conditions that made clear its application to the

claring the same binding upon both parties, a contract and claims thereunder entered into by the city in excess of the power and authority theretofore granted. The court, after stating that it was contended on behalf of the city that the Legislature had no power to legalize debts which were incurred when the city was without constitutional power to create the indebtedness, said further:

"But this conclusion we cannot adopt. The act in question, so far as it relates to the bonds in suit, does not confer any corporate power upon the city in the sense of the Constitution of the state. The statute operates upon the transaction itself, which had already previously been consummated, and seeks to give it a char-city of Toledo, purported to validate, by deacter and effect different in its legal aspect from that which it had when it was in fieri. Whether such an effect may be given by a legitimate exercise of legislative power, depends upon those considerations which draw the line beyond which retroactive laws cannot pass, and is not affected by the supposed form of the enactment as a special or general act conferring corporate power [italics ours]. For it operates upon the rights of the parties, as determined by the equity of their circumstances and relations, and gives to them the sanction derived from subsequent confirmation, by clothing them with forms which are essential to their enforcement, but not to their existence. Within the usual limitations prescribed by our written Constitutions, such as have been quoted from that of Nebraska, this may be done, provided it can be done without the destruction of rights recognized by the law as vested."

And in the further course of the opinion the court referred to State v. Squires as follows:

"So it was held in State v. Squires, 26 Iowa, 340, that while the Legislature would not, in view of the constitutional provision of that state, have the power to pass a special law incorporating an independent school district, it would nevertheless have the power to pass a curative act, legalizing the defective organiza'tion of a school district already in existence under the general law authorizing the creation of independent school districts."

"The proposition, as stated, is not the real one under consideration. It is better expressed by Mr. Justice Matthews, in his usual lucid and forcible style, in his opinion in the case of Read v. City of Plattsmouth, 107 U. S. 568, 2 Sup. Ct. Rep. 208, where he says," etc.

And then, following the quotation from Read v. Plattsmouth, the court further said: "Apply the principle here announced to the cases under consideration. The act in question, so far as the accounts sued upon are concerned, does not confer upon the city of Toledo any corporate power, in the sense of the Constitution. These transactions had already been consummated."

The same question was considered and the same view expressed in Texas. State ex rel. v. Larkin, 41 Tex. Civ., App. 253, 90 S. W. 912. The case was quo warranto to test, as we understand, the validity of the organization of a municipal corporation. From the opinion in the case we quote the follow

In a case decided in 1898 by the Uniteding: States Circuit Court of Appeals, Eighth Circuit, Springfield Safe Deposit & Trust Co. v. City of Attica, 85, Fed. 387, 29 C. C. A. 214, the same question being involved,. Read v. Plattsmouth was recognized and followed, and it was said to completely answer and to overcome the argument that a statute validating a defective or illegal exercise of power by a municipal corporation violates a constitutional provision against the enactment of special laws. And the decision was interpreted as holding that the constitutional inhibition referred to grants of power to be exercised in the future, and that a con

provides in substance that the Legislature shall "But appellant contends that the Constitution not pass any local or special law incorporating cities, towns or villages or changing their charters, and it is insisted that validating the corporation of the city of Athens is 'authorizing the incorporation of said city.' We cannot agree with this contention. We are of the opinion that the Legislature could by special act validate defects made in an honest attempt to incorporate under the General Laws. While the Legislature could not under the Constitution by special act create a municipal corporation having a population of 10,000 inhabitants or less, nevertheless, it had the power by spe

(225 P.)

cial act to pass a curative act legalizing the de- | stance and effect of the act in question was the fective incorporation of a city already in exist- release of the county treasurer from liability on ence under the General Laws"-citing cases in- his official bond. Did the Legislature have that cluding "Nolan Co. v. State, 83 Tex. 200, 17 power, and if it did, could it have delegated that S. W. 823, and Read v. Plattsmouth, 107 U. power to the board of supervisors?" S. 568. We conclude that the special act under consideration is valid. As above stated in our opinion the city of Athens is a valid municipal corporation, and that it is so, independent of the special act of the Twenty-Seventh Legislature. But, should we be mistaken in this, then we conclude that the effect of the special act was to validate any supposed de fects in the corporation, resulting from irregularities in petitioning to determine if an election should be held to incorporate under the General Law, or in ordering or holding of same or in declaring the result thereof, and also in including territory of four square miles within the corporate limits." (Italics ours.)

1106

tively a general law, and the court said that the fact that but one county happened to be affected by its provisions was of no moment, and that the subsequent statute was not a local or special law, citing Swartz v. Carlisle Borough, supra, and the Minnesota case of State v. Brown, supra, and saying:

"It being within the power of the law-making body, in due and proper form, originally to have authorized the work in question, there can be no doubt of the Legislature's right subsequently to ratify what it might have previously authorized, and this it does by the act now before us."

It was argued in that case that to make the subsequent act curative legislation, in the proper legal sense, it should have corrected the errors of the prior act which had been declared unconstitutional, and that the contractors, as a prerequisite to any recovery, would have to proceed with their work on a new authority under a curative act so drawn. But the court refused its assent to those contentions, and held that, if the improvement was made without authority be

such legislation the Legislature may not de-, counties in the state and therefore presumpstroy the obligation of contracts, or interfere with vested rights. Like curative acts generally, the act here does not confer or The pretend to confer original authority. Legislature found a de facto county organization in existence, under a claim that it had been legally organized under laws enacted for that purpose, and it acted upon that situation, and that alone. Therefore, it is incorrect to say that the Legislature has done indirectly what it might not do directly. It might have omitted from the said general law the provisions ignored by the organization proceedings, and hence have there by authorized what was in fact done. What was accomplished was the result of direct, not indirect, action on the part of the Legislature, to cure a situation existing in one locality only, by reason of a defective proceeding under the general law. And, necessarily, the legislation for that purpose was different in form and nature from legislation granting original authority, since the latter would operate prospectively only and the former retroactively and upon conditions in existence at the time. 25 R. C. L. 823. In a comparatively recent case in Pennsyl-cause of the invalidity of the act under which vania (Swartz v Carlisle Borough, 237 Pa. the county had proceeded, that was not a 473, 85 Atl. 847, Ann. Cas. 1914B, 458) three valid objection to the validity of the curative one of the act, since it was not the purpose of such an dissenting justices stated as grounds for their dissent that the Legisla-act to cure the defect in the void statute, but ture, in the act prescribing the require- to ratify what had been done under it. ments which had not been complied with, could not have excepted from its terms Carlisle Borough, that the curative act was but an attempt to accomplish indirectly through subsequent legislation something that was forbidden the Legislature that passed the original enactment, and was, therefore special legislation upon the subject required by constitutional provision to be regulated only by uniform law. That, as will be observed, is substantially the argument made here. But the majority of the Pensylvania court held otherwise, and declared that the curative act must be sustained as a "valid exercise of legislative power," citing Read v. Plattsmouth, supra, and the Minnesota case of State v Brown, cited above and in our former opinion.

The question of the necessity or propriety of determining the validity of a curative statute upon the theory that it confers original authority. or must be sufficient for that purpose, is so well considered by the United States Supreme Court in an opinion by Mr. Chief Justice White and its application here seems so apparent, that we feel justified in referring to it at some length, notwithstanding that it does not involve a question of general or special legislation. The case is United States v. Heinszen & Co.. 206 U. S. 370, 27 Sup. Ct. 742, 51 L. Ed. 1098, 11 Ann. Cas. 688, wherein it appeared that certain tariff duties upon goods going into the Philippine Islands had been collected without legal authority, and thereafter an act of Congress was passed legalizing and ratifying such duties and the collection thereof as fully as if the same had been specifically authorized and directed by a prior act of Congress. A discussion of the general question was introduced by the learned Chief Justice as fol

lows:

In a later case in the same state (Kennedy v. Meyer, 259 Pa 306 103 Atl. 44) it appeared that but one county had availed itself of a certain statute authorizing and providing the procedure for certain stated public improvements, and that after said county had so act"As the text of the act of Congress is unamed and become indebted to a contractor in a large amount and the statute had been held biguous and manifests as explicitly as can be unconstitutional because of a defective title, done the purpose of Congress to ratify, the case comes to the simple question whether Conan act was passed validating the contract to the extent of work done before the statute gress possessed the power to ratify which it assumed to exercise. When the controversy was held invalid, and authorizing the pay- is thus reduced to its ultimate issue we think ment of the indebtedness therefor; said act the error committed by the court below [denybeing general in form, but concededly apply-ing the right], both in reason and authority. ing to the one county alone. Said curative is readily demonstrable. That where an agent, act was held applicable by its terms to all without precedent authority, has exercised in

(225 P.)

the name of a principal a power which the principal had the capacity to bestow, the principal may ratify and affirm the unauthorized act, and thus retroactively give it validity when rights of third persons have not intervened, is

so elementary as to need but statement. That the power of ratification as to matters within their authority may be exercised by Congress, state governments and municipal corporations, is also elementary."

Coming then to the question of the nature of the curative act in that case, it was said (italics ours):

"As the duties collected were illegal, it is insisted that for the purpose of testing the validity of the act of Congress the fact of such collection must be put out of view and the act ratifying the exaction must be treated as if it were solely an original exercise by Congress of the taxing power *But the proposition begs the question for decision, by shutting out from view the potential fact that when the goods were brought into the Philippine Islands there was a tariff in existence under which du

If there is such a radical distinction be tween the nature of an act granting original authority and one ratifying what has been done without authority, may there not also be as broad a distinction between the form of an act authorizing certain proceedings and a curative act within the meaning of a constitutional provision requiring such proceedings to be provided for by general law? Indeed, there are many decisions to the effect that curative acts are not affected or controlled by a constitutional provision against special legislation. Thus it was said in California, in the case of San Pedro, L. A. & S. L. R. Co. v. Hamilton, 161 Cal. 610, 119 Pac. 1073, 37 L. R. A. (N. S.) 686:

act as has been said, admittedly confirmed the "The Legislature, by its general validating lease made by the city of Long Beach. Stats. 1907, p. 987 If this confirmatory act is valid, it, of course, cures any defects in the lease from the town of San Pedro which may be thought

ties were exacted in the name of the United States. Indeed the contention goes further even than this, since it entirely disregards the important consideration that although the duties were illegally exacted illegality was not the result of an inherent want of power in the United States to have authorized the imposito exist by reason of the lack of power in that tion of the duties, but simply arose from the municipality. Against the validity of the act the failure to delegate to the official the author- it is contended that it is special legislation. ity essential to give immediate validity to his Upham v. Hosking, 62 Cal. 250; Baird v. But this contention is completely answered by conduct in enforcing the payment of the duties. Monroe, 150 Cal. 560, 89 Pac. 352; and Red* * Moreover, the fallacy which the prop- lands v. Brook, 151 Cal. 474, 91 Pac. 150. The osition involves becomes yet more obvious when principle of decision is that such curative acts it is observed that the contention cannot even do not come within the constitutional inhibibe formulated without misstating the nature of tion against special legislation. Elsewhere the the act of Congress; in other words, without same principle of decision is uniformly applied" treating that act as retrospective legislation enacting a tariff, when on its very face the act is-citing Read v. Plattsmouth, State v. Squires, and State v. Brown, supra. but an exercise of the conceded power * * * to ratify an act done on behalf of the United

States which the United States could have orig- Falls E. & W. Co., 74 Minn. 180, 77 N. W. It was said in Minnesota in Flynn v. Little inally authorized."

That needs no explanation. No question as to the form of the statute was involved, but its validity was denied upon the ground that Congress could not then confer authority for the collection of duties previously illegally exacted and collected. But the court decided that the statute was not to be considered as an original exercise of the taxing power, or as conferring original authority, but as what it appeared to be, an exercise of the power to ratify an act which might have been originally authorized.

38, 78 N. W. 106:

A like contention disposed of in the same And in State v. Spaude, 37 Minn, 322, 34 way is found in Edwards v. Nash County N. W. 164, the same court declaring valid Board, 183 N. C. 58, 110 S. E. 600. That case an act legalizing the incorporation of vilinvolved a curative act validating a tax lev-lages attempted to be incorporated under a ied by a county board without authority, but void general statute, said: under the mistaken impression that it was authorized by a statute under which a like tax for previous years had been levied. It was contended that the curative act was only an ineffective effort to impart vitality to a levy that was entirely void But it was upheld as a proper exercise of the power to

"Had it been valid in other respects, and by reason of omitting some of its provisions, a the incorporation of villages under it had failed curative act, like the act of 1885, if it reached all villages within that predicament, could hardly have been called a special law within the meaning of the Constitution."