
    STATE ex rel. REDMAN, Appellant, v. MEYERS, County Superintendent of Schools, Respondent.
    (No. 5,123.)
    (Submitted October 26, 1922.
    Decided November 22, 1922.)
    [210 Pac. 1064.]
    
      Constitution—General and Special Statutes—Class Legislation —Creation of Joint School Districts•—Invalidity of Act.
    
    School Districts—Creation—Power of Legislature
    1. A school district is a political subdivision of the state created for the convenient dispatch of public business, and, in the absence of constitutional limitations, the legislature may create or abolish a district or change or rearrange the boundaries of an existing district, as well as create joint districts from territory lying in adjacent counties.
    Statutes—Special Statute—Definition.
    2. A special statute within the meaning of section 26, Article V, of the Constitution, forbidding such legislation, is one which relates to-particular persons or things of a class, or one made for individual cases and for less than a class, or one which relates and applies to particular members of a class either particularized by the express terms of the Act or separated by any method of selection from the whole class to which' the law might, but for sueh limitation, be applicable.
    Same—Special Statute—Test.
    3. Determination of the question whether a statute is special depends, not upon what it includes, but upon what it excludes.
    Same—Special Statutes on Creation of Joint School Districts Invalid.
    4. Held, that section 1038, Revised Codes of 1921, relating to the creation of joint school districts, is invalid- as special legislation upon a subject covered by a general statute (sec. 1035), in that it operates only upon existing districts divided by the creation of new counties under the New Counties Act and excludes from its operation all existing districts which may have been or may be divided by the creation of new counties by direct legislative Acts.
    Same—Class Legislation—When Valid.
    5. Class legislation may be constitutional if the classification is reasonable and operates equally upon every person or thing within the given class.
    Same—Validity—How Determined.
    6. The validity of a statute is not determined by what has been done, but by what may be -done under it.
    Same—When General Statute Controlling.
    7. While courts will not generally interfere with the determination of the legislature evinced by enacting a special statute, that the general law covering the subject is inapplicable because of extrinsie facts and circumstances or that the general statute has spent its force with the passing of time and has become inadequate, they will hold the special Act invalid under seetion 26, Article V, of the Constitution, where there are not and cannot he such facts or circumstances which can militate against the operation of the general law.
    
      Appeal from District Court, Judith Basin County; Rudolph von Tobel, Judge.
    
    Certiorari by the State on the relation of H. C. Redman, against Emily McLanry Meyers, as County Superintendent of Schools of Judith Basin County. From a judgment dismissing the proceeding, the relator appeals.
    Affirmed.
    
      Mr. Ralph J. Anderson and Mr. Edgar J. Baker, for Appellants, submitted a brief; Mr. Anderson argued the cause orally.
    
      Mr. John Jacob Jewett and Mr. John B. Muzzy, for Respondent, submitted a brief; Mr. Jewell argued the cause orally.
   MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

In 1920 Judith Basin county was created under the provisions of Chapter 226, Laws of the Sixteenth Legislative Assembly. The territory incorporated in the new county was taken principally from Fergus county, and the county boundary line between the new county and the old one divided School District No. 44 in Fergus county into two parts. The portion remaining in Fergus county continued to be known as District 44, while the portion in Judith Basin county was organized into a separate district known as District 41 in Judith Basin county. More than two months after the new county was created and the organization of District 41 completed, the Seventeenth Legislative Assembly passed an Act, now seetion 1038, Revised Codes of 1921, which, if valid, became effective February 24, 1921, and which provides: “That all school districts in the state of Montana, which have heretofore, or that may be hereafter divided by the creation of a new county under and by virtue of the provisions of Chapter 112, Laws of the Twelfth Legislative Assembly, or Chapter 133, Laws of the Thirteenth Legislative Assembly, or Chapter 139, Laws of the Fourteenth Legislative Assembly, or Chapter 226, Laws of the Sixteenth Legislative Assembly, shall be joint school districts and shall be subject to all laws of the state of Montana, relating to the management and control of joint school districts.” Thereafter, and in May, 1921, the county superintendent of schools of Judith Basin county made an order detaching a portion of the territory from District 41 and attaching it to District 25 in Judith Basin county, and this proceeding was instituted to secure an annulment of that order. Upon the return of the writ the trial court sustained a motion to quash, and rendered and had entered a judgment dismissing the proceeding. From that judgment this appeal is prosecuted.

The application for the writ proceeds upon the theory that at the time the order complained of was made, District 44, as constituted prior to the creation of the new county, was a joint district, and that the county superintendent of Judith Basin county acted without and in excess of her authority in changing the boundaries of the district without consulting the authorities in Fergus county. If the premise assumed is correct, the conclusion stated cannot be avoided. However, District 44 was not a joint district prior to the creation of Judith Basin county, and it was not made a joint district by virtue of the fact alone that the new county boundary line divided it into two parts, for the Act under which Judith Basin county was created commanded the county commissioners of Fergus county to divide the territory to be included in the new county into a convenient number of school districts, and to define their boundaries and designate their names (Sess. Laws 1919, p. 566), and, in the absence of any showing to the contrary, we must presume that that official duty was performed regularly (subd. 15, sec. 10606, Rev. Codes 1921), and that the territory in Judith Basin county theretofore in School District 44 was duly organized into District 41. If, then, the county superintendent of Judith Basin county acted in excess of her authority, she did so only because the territory which she sought to attach to District 25 was, in fact, a part of a joint district made such by the operation of section 1038. The trial court held this new statute to be unconstitutional, and the correctness of that conclusion is the only question presented by this appeal.

A school district is merely a political subdivision of the state, created for the convenient dispatch of public business. In the absence of constitutional limitations, the legislature may create or abolish a district or change or rearrange the boundaries of an existing district, and by the same token it may create joint districts from territory lying in adjacent counties. It is obvious that the only purpose of section 1038 was and is to create joint school districts, and the question then presents itself: Is there any constitutional restriction upon this character of legislation?

Section 26, Article Y, of our state Constitution forbids special legislation upon some thirty-four enumerated subjects, and then concludes: “In all other cases where a general law can be made applicable, no special law shall be enacted.”

Is section 1038 a special statute? A special statute is one which relates to particular persons or things of a class (In re Church, 92 N. Y. 1), or.one made for individual eases and for less than a class (Guthrie Daily Leader v. Cameron, 3 Okl. 377, 41 Pac. 635), or one which relates and applies to particular members of a class, either particularized by the express terms of the Act or separated by any method of selection from the whole class to Avhich the law might, but for such limitation, be applicable (State v. Cooley, 56 Minn. 540, 58 N. W. 150). The test of a special law is the appropriately] ness of its provisions and the objects that it excludes. It is not, therefore, what a law includes, but what it excludes, that determines whether it is special. (Budd v. Hancock, 66 N. J. L. 133, 48 Atl. 1023.)

Section 1038 does not assume to provide a general plan for the creation of joint school districts. By its express terms it operates only upon existing districts divided by the creation of new counties, and only such new counties as have been or may be created under the enumerated statutes which are known familiarly as the New County Acts. It excludes from its operation all existing districts which have been or may be divided by the creation of new counties by direct legislative Acts. It is a part of our state history that since 1912 several counties have been created under the New County Acts and several by direct legislative enactment. The fact that section 1038 applies only to some school districts does not necessarily render it invalid. So-called class legislation may be constitutional if the class is germane to the purpose of the law and is characterized by some special qualities or attributes which reasonably render the legislation necessary, or, in other words, if the classification is reasonable, and the law operates equally upon every person or thing within the given class. (1 Lewis’ Sutherland’s Statutory Construction, see. 203.) Interdicted class legislation includes all laws that rest upon some false or deficient classification, and the vice in such laws is that they do not embrace all of the class to which they are naturally related. (State v. Parsons, 40 N. J. L. 1.) A fair test for determining whether a statute is special is this: Does it operate equally upon all of a group of objects which, having regard to the purpose of the legislature, are distinguished by characteristics sufficiently marked and important to make them a class by themselves! (Clendaniel v. Conrad, 3 Boyce (Del.), 549, Ann. Cas. 1915B, 968, 83 Atl. 1036.)

Applying this test to section 1038, it must be conceded that it is a special law. There is not any difference in the situation or circumstances of a school district divided by the creation of a new county under the New County Acts and one divided.by the creation of a new county by direct legislative enactment. The first is included in the operation of section 1038, and the last is excluded, apparently without any reason, and in the absence of anything which distinguishes the excluded districts from those included. It is no argument to say that probably no school district has ever been divided by the creation of a new county by direct legislative enaet ment. The validity of a statute is not determined by what has been done under it, but by what may be done under it. (State ex rel. Holliday v. O’Leary, 43 Mont. 157, 115 Pac. 204.) Section 1038 is a special statute under all of the authorities, and the attempted classification found in it is purely arbitrary and artificial. (State v. Cudahy Packing Co., 33 Mont. 179, 114 Am. St. Rep. 804, 8 Ann. Cas. 717, 82 Pac. 833; State v. Holland, 37 Mont. 393, 96 Pac. 719.)

However, section 26, Article V, above, does not prohibit the enactment of special laws altogether. It only prohibits the enactment of such a law where a general law can be made applicable. For many years we have had a general statute for the creation of joint school districts (sec. 408, Chap. 76, Laws 1913; sec. 1035, Rev. Codes 1921), and that statute is still in force and effect. Circumstances may arise, however, under which a general statute cannot be made applicable to a given subject, or, if applicable when enacted, it may spend its force with the passing of time and cease to be adequate for the purpose intended. If the applicability of a general law depends upon extrinsic facts and circumstances, the question of applicability is referable to the legislature, and with its determination the courts will not interfere. (State ex rel. Ford v. Schofield, 53 Mont. 502, 165 Pac. 594.) In the present instance, however, there are not, and there cannot be, any extrinsic facts which could militate against the operation of the present general law for the creation of joint school districts, and which do operate in favor of a statute creating a joint district out of every existing district divided by the creation of the new county under the New County Acts. Our general law is applicable; hence section 1038 violates tbe last sentence of section 26, Article Y, above, and is void.

The judgment is affirmed.

Affirmed.

Associate Justices Farr, Cooper and Galen concur.  