
    State of Kansas ex rel. Attorney General v. Board of Commissioners of Pawnee Co. and others.
    
    January Term, 1874.
    1. Pleading: Demurrer: What it Reaches. A demurrer to an answer, . on the ground that the answer does not state facts sufficient to constitute a defense to the plaintiff’s cause of action, may be carried back, and sustained as against the petition where the petition does not state facts sufficient to constitute a cause of action. [Stratton v. McCandless, 27 Kan. 299.]
    2. Counties: Organization of New. The legislature lias the exclusive power to provide for the organization of new counties.
    3. -: Legislative Recognition. 'Where a county has a defacto organization, and the records of its organization appear to be regular and valid upon their face, and the governor has recognized and proclaimed the organization to be valid, a legislative recognition of the validity of such county organization will make the same valid, although the original organization may have been defective and fraudulent.
    4. -. An act of the legislature providing that such county be detached from the county to which it had formerly been attached for judicial purposes, and not attaching it to any other county, but providing that terms of the district court may be held in the county so detached, is a legislative recognition of the validity of the organization of such county.
    [5. Ratification. It is a general principle of almost universal application that whenever a state, county, corporation, partnership, or person has power originally to do a particular thing, it also has the power to ratify and make, valid an attempted effort to do such thing, although the same ’ may have been done ever so defectively, informally, or even fraudulently " in the first instance. Per Valentine, J.]
    Original proceedings in quo warranto.
    
    On the eighth of May, 1873, the attorney general, as relator, filed" his duly-verified petition in this court, in the name of the state of' Kansas, as plaintiff, and against the board of county commissioners-of the county of Pawnee, George B. Cox, A. H. Boyd, W. S. Patten; and D. A. Bright, as defendants. So far as is material here, said petition was as follows:
    “A. L. Williams, attorney general of the state of Kansas, who-’ sues for the said state in this behalf, comes here before the supreme court of said state, and for the said state of Kansas gives the said court here to understand and be informed that George B. Cox, A. H. Boyd, and W. S. Patten, in the county of Pawnee, in the state of Kansas, each pretend and assume to hold the office of county commissioner of said county of Pawnee, and that they, as such county commissioners, claim and assume to act, and do act, use, exercise, and perform the functions, duties, and powers of a municipal corporation, under the name and style of ‘ The Board of County Commissioners of the County *of Pawnee;’ and that said George B. Cox, A. H. Boyd, and W. S. Patten so pretend to exercise, use, act, perform, and possess the functions, powers, and duties of a municipal corporation within and throughout the boundaries of that certain territory in the state of Kansas described by law with certain metes and bounds, and known as ‘Pawnee County,’ and which said pretended municipal corporation is made a defendant herein. And the attorney general gives the court here further to understand that D. A. Bright, who is made a defendant, herein pretends and assumes to hold, use, occupy, possess, exercise, and perform the duties of the office of county clerk of and for the said county of Pawnee, and as sucli pretended officer claims and assumes to act, and does now act, exercise and perform the functions, duties, and powers of a county clerk, as required by the laws of the state of Kansas. [Petition then alleges that said powers are assumed and exercised, and said municipal corporation is claimed to exist, under and by virtue of a pretended organization of said Pawnee county made on the fourth of November, 1872.] And the said attorney general gives the said court here further to understand and be informed that the pretended organization of said Pawnee county, and the pretended claims of said defendants to said offices as aforesaid, and the said pretended municipal corporation under the name and style of ‘ The Board of County Commissioners of the County of Pawnee,’ so set up, maintained, and based upon said pretended organization, was procured by fraud and perjury, and is illegal and void. [The petition alleges in detail that the petition for said organization, and the census taken of said county, were false and fraudulent, the organization thereon illegal and void, and that the county officers elected thereunder are intruders and usurpers.] And the attorney general further gives the court here to understand and be informed that the said pretended officers of the said county of Pawnee, the defendants herein, so pretending falsely and fraudulently to act, exercise, and perform and possess the functions, duties, and powers of a municipal corporation under the name and style of ‘ The Board of County Commissioners of the County of Pawnee,’ a defendant herein, as such false and fraudulent corporation, are threatening and are about to levy and collect taxes on the property situate in said county, and to impose other grievous liabilities on said county of Pawnee, to the detriment and injury of the inhabitants thereof, as a legal and properly constituted municipal corporation under the said name and style might and could do under the laws of the state of Kansas.
    
      “Wherefore, plaintiff prays that the said pretended board of county commissioners, defendant herein, be required to show by what authority it so exercises the powers of the county; that the said other defendants be required to show by what authority they severally assume and pretend to use, occupy, exercise, and perform the functions, powers, and duties of their-said several pretended offices; and that upon a final hearing of this action a judgment of ouster may be rendered against the said board of county commissioners, and that judgment ouster may be also rendered against the other defendants herein, together with all other persons holding office under said pretended organization; and that said pretended organization be declared null and void.” ’
    The board of commissioners answered, alleging that the county of Pawnee was created by chapter 24, Gen. St. 1868, § 57; that it was. duly organized in 1872, in accordance with act of June 4, 1861, (Gen. St. 249,) as amended by chapter 106, Laws 1872, p. 243, and its due organization proclaimed by the governor November 4, 1872, — setting out in full all the proceedings for and in relation to such organization, and alleging that said county was legally organized, and that the defendant officers were duly elected and qualified, and are rightfully discharging their repeetive duties as such officers. To this answer the plaintiff demurred.
    
      Ross Burns and Joseph G. Waters, for the State.
    The petition charges that the steps taken successively to organize this county were fraudulent; that while the memorial purported to be signed by forty householders and legal electors of said county, that the same did not contain the names of forty householders and legal electors; that while the census purported to exhibit the names of over six hundred bona fide inhabitants, that the same was fraudulent, and that there were not, at the time of taking such census, or at any time since, and up to the filing of the petition, to exceed two hundred bona fide inhabitants in Pawnee county; that such fraud was perpetrated for the purpose of deceiving *the governor, and obtaining the appointment of commissioners and clerk. The answer admits all the allegations of fraud, and attempts to justify by setting up the organization of the county, and alleging the election of the commissioners thereunder, on the fifth of November, 1872, by the voters of that county, at an election held the next day after the governor and secretary of state, at the capital, three hundred miles away, had signed and published the proclamation organizing the county. The state demurs; the understanding being on both sides that the allegations of fraud and fraudulent conduct on the part of those who participated in effecting the pretended organization, for the purposes of this argument, are to be deemed fully and expressly admitted by the answer. For the purposes of this argument, it is admitted on the part of the state that the proceedings had in the organization of the county, from the inception, down to but not including the election of officers, were apparently in conformity with the law, so far as forms relate; leaving as the paramount ■question to be decided, can the state inquire into an organization thus alleged to have been instituted, and go beyond election of offi,cers, the appointment of their predecessors, the report of the census taker, question the truth of the memorial, and bring to light the untruthfulness, the perjury, and fraud known and admitted to exist in all the proceedings had in relation to these organizations? Can the real facts be presented, or shall the frauds admitted to have been perpetrated bar the road to justice, and deny us an investigation?
    The constitution unqualifiedly gives to the legislature the uncontrolled and undivided power to provide for the organization of new counties, — a power shared by neither of its co-ordinate branches of government, and plainly to their exclusion. It can no more be contended that the executive or judicial department has aught to do in organizing new counties than that the granting of pardons — an executive prerogative — is shared by the judiciary; or interpreting the laws vested in the judiciary is partly the business of the executive. The legislature, in pursuance of the power dele*gated it by the constitution, enacted a law in 1872 for the organization ■of new counties. The intent of the legislature is plainly manifest by the act itself. It has fixed upon six hundred bona ficle inhabitants as the minimum of population to set the machinery of the government in motion; that the burdens of an organized county, with all its incident of taxation and expense, could not well be sustained by a less number; that the perils of operating the organization and of fastening upon new counties a policy that might work its ruin or disaster in the future, or of incurring obligations that might afterwards be repudiated, should not in safety be trusted to a less number than six hundred bona fide inhabitants. With this idea as a central figure the legislature enacted this law, guarding, at every step taken, ■this feature, and hedging it in with every precaution to insure such result. The law requires as a preliminary step that a memorial signed by forty householders who are legal electors of the state shall be presented to the governor, showing in such memorial that there are six hundred inhabitants in the county to be organized, accompanied by the affidavit of at least three householders showing that the signatures thereto are genuine, and that the affiants have reason to and do believe that there are six hundred inhabitants in such county. The legislature requires, not the names of forty electors simply, but that they shall also be householders, — persons of full age, owning or occupying a house as a place of residence, — to sign the memorial. In addition to the names of forty of this class of citizens, at least three;, were by oath to declare their belief that there were six hundred inhabitants in the county; and, to prevent organization with a less number, the law requires the governor to appoint some competent person who is a bona fide resident to take the census, and ascertain the number of 
      ñoña fide inhabitants, and who, after being sworn, shall proceed to take the census by ascertaining the name and age of each of the bona fide inhabitants, and who shall return the same to the governor, certified to be correct and true; and if it appears by such *return that there are in such unorganized county at least six hundred bona fide inhabitants, he shall appoint, etc., and the county shall be deemed organized. What means the appointment of a competent person, if the legislature cared nothing for the number of the inhabitants? For what purpose did the legislature so particularly declare that he should be a bona fide resident, and that he be sworn, and why specify the particular duty of the census taker, if numbers were not to be of essential validity to its organization ? There is no insurmountable barrier to prevent inquiry into the falsity of all these proceedings, and go behind them, and produce, instead of the facts they are fictitiously supposed to represent, the naked enormities and gross frauds admitted to have been perpetrated on the public. There is no divinity walling in these transactions from a judicial investigation. The law, as well as good policy and a pure government, demand that these affairs be probed to the very bottom. We cannot see that it occupies any higher plane than an election, which can be fathomed to its lowest depth, by the same kind of proceedings here instituted. We view this as a kindred case. The person appointed to take the census occupies the same position, in one sense, that the board of canvassers does in the canvass of the votes cast at an election. If he does, then his acts can be inquired into, and, if fraudulent, may be declared illegal and void. Frauds committed, having a direct influence on the result, may be inquired into; the polls ma.y be purged of illegal votes; a recount of votes may be had; and the certificate ■of election may be cast aside as so much waste paper. The authorities on this point all agree. Steele v. Martin, 6 Kan. *439; People v. Kingston R. Co., 23 Wend. 209; People v. Cook, 8 N. Y. 67; People v. Van Slyek, 4 Cow. 297; Bashford v. Barstow, 4 Wis. 567.
    The defendants, after admitting the fraud alleged, attempt to justify by setting up the perpetration of another fraud. The defendants claim to hold their respective offices, and exercise the powers of a county, by virtue of an election held the day after the county was declared organized. By section 3, Gen. St. p. 250, it is provided that “each township shall constitute an *eleetion precinct, and such commissioners shall give at least thirty days’ previous notice of the time which they shall fix upon for holding the first election of township and county officers.” From the fourth to the fifth of November, one day only, the time was entirely too short, even for this rapid age, to give the Notice of thirty days required by law. The election thus held was simply and absolutely void, and the farce of setting up such an election, whose every badge is one of fraud on the voters of that county, as a justification of another fraud, savors largely of the ridiculous. The defendants who claim by such an election are usurpers and intruders into their respective offices, regardless of how the case, as to the corporate existence of the county, may be disposed of.
    It will be claimed by the defense that the establishment of courts in Pawnee county is legislative recognition of the county as an organized municipality, and validates the preceding attempt at an organization. The legislature is incapable of recognizing fraud; and to. say that the unblushing frauds the defendants openly admit can be, medicined by something -to be inferred from a legislative act, is but, to hide Judas behind his thirty pieces of silver. While we admit that, it is a question almost beyond dispute that a municipal corporation once legally instituted cannot be dissolved; that for lack of inhabitants, it may lie dormant, and its vitality be suspended, as is suggested in Dill. Mun. Corp., — yet we hold fraud institutes nothing; organizes nothing; and, by reference to all the books in speaking of the dissolution, of public corporations, they all treat it from the stand-point that they-had a legal, rightful inception.
    
      Nelson Adams and B. M. Buggies, for defendants.
    The demurrer interposed by the relator to the answer of said de-. fendants should be carried back to the petition; and if that is defective in substance, then such defendants are entitled to judgment.. Anthony v. Halderman, 7 Kan. *61.
    Is the petition deficient in substance ? does it fail to state facts:. sufficient to constitute a cause of action? and does *it fail to<, show jurisdiction in the court ? If either, then the defendants-, are entitled to judgment. The latter proposition is perhaps included, in the former, so far as this ease is concerned, and neither is waived by answering. Code, § 91. The sufficiency of the petition in this, case is to be determined in the same manner as in any other action. The whole object and theory of the petition, of course, is to have the-, organization of one of the political subdivisions of the state declared, to be void by rea,son of certain frauds existing in the preliminary steps, taken to perfect the organization. To accomplish this object, and get the matter properly before the court, the pleader, in the dilemma, in which he is naturally placed, attempts to make a sure thing of it by pleading both horns of his dilemma; that is to say, he attempts,, in the first instance, to bring the (at least, de facto) quasi corporation of Pawnee county itself, by name, into court, and have it answer (as. such quasi corporation) why it uses and exercises the powers and functions granted to it by the General Statutes, and then asks that, the court shall, by its judgment, annul the existence of that which never had any existence at all to annul! Then, fearful that he may be mistaken in the right to sue a defacto corporation by name at all, he brings into court certain other defendants,-^-individuals or natural persons, — whom he says usurp or pretendió exercise the rights,, pow-ers, and duties of those officers by means of which such a quasi corporation acts, and asks that they (the individuals) be required to show by what authority they pretend to exercise the rights they undoubtedly-would possess were the organization of the county of Pawnee right in its inception. A civil action like the present will not lie against a corporation, as such, in its corporate name, to compel it to show by what right or authority it exercises the franchise or right to be a corporation. People v. Rensselaer R. Co., 15 Wend. 113, 128; State v. Cincinnati Gas-light & Coke Co., 18 Ohio St. 262, 286; Dill. Mun. Corp. 670, § 719; Ang. & A. Corp. § 756. But it may be objected that a municipal corporation may be an exception to the rule, as is said, arguendo, in State v. Cincinnati Gas-light & Coke Co., supra, 286. To this we answer that counties, *although corporations or quasi corporations, for certain political or governmental purposes fixed by statute, are not municipal corporations, but are merely political subdivisions of the state. Beach v. Leahy, 11 Kan. *23.
    The admitted facts, and legal propositions arising under the demurrer, are these: That by chapter 24 of the General Statutes the state was subdivided into 79 political subdivisions, with defined territorial limits, and names to distinguish each one by, called “counties;” that among the number of counties so created was and is the county of Pawnee; that any one of these quasi corporations, after their creation, could, by going through certain preliminary steps, become organized, and, being so organized, could exercise certain powers granted by chapter 25 of the General Statutes, among which is the power of taxation, the threatened exercise of which is the real cause of this proceeding. It is admitted by the demurrer, and by the petition, that every preliminary step required to be taken in order to organize the already created quasi corporation was and had been actually in fact taken by the fourth of November, 1872, and that these things had been made to appear, in the manner prescribed by statute, to the then governor of the state, who then, in accordance with the provisions of the statute, issued his proclamation establishing a temporary county-seat, appointed the special county commissioners and clerk required by statute, who immediately qualified; that then the county of Pawnee became, at least prima facie, duly organized; that at the next general election thereafter these defendants were duly elected to the offices they claim to hold, and they duly qualified and accepted the several offices. These admitted facts entitled the defendants to a judgment in their favor in this action, unless the court, in an action of this nature, can go behind the action of the governor in organizing this county, and look into the fraud that is alleged in the petition to have been used in the preliminary steps, and by the use of which it was made to appear to the governor that certain things existed which in truth and in fact did not exist, and ■upon the existence of which, as shown, his action was based, and by reason thereof *Pawnee county was organized. The answer of the defendants, for the sole purpose of raising the question of the jurisdiction of this court to go behind the action of the governor, did not take issue with the petition on the alleged frauds; and hence the demurrer. So the question is squarely raised, can the court, in this action, on the. admitted facts, go behind the action of the governor? Or, in other words, when such a quasi corporation as a county has been legally created by an undisputed constitutional act of the legislature, and has, by reason of certain preliminary steps having been taken, a proclamation issued, and appointments made by the governor in a manner unquestionably constitutional, acquired the powers and rights incident to such quasi corporations, or political governmental subdivisions of the state, can the court, in such a case, in an action of this kind, or indeed in any action, go behind such proclamation and such appointments, to find out whether the governor was not deceived, by reason of fraud, into doing what he did, and then by its judgment take away the rights and powers that have vested in such quasi corporation or political governmental subdivision of the state by reason of such proclamation and appointments, if such frauds did exist? We answer, most certainly not; and we maintain that no jurisdiction is given to courts, in an action of this nature, by section 653 of the Civil Code (section 1, c. 316, Laws 1871.) Would the court, at common law, under a writ of quo warranto, have had jurisdiction or right or power to inquire into such a question as the one here presented, for the purpose of annulling the organization of a previously legally created political subdivision of the state? We ■can find no ease involving this question; nor, indeed, any case since the famous quo icarranto against the city of London, where the existence of a public political corporation or quasi corporation has been directly sought to be annulled, either for some defect in its organization, or for some act done or omitted by its officers, unless we except State v. Weatherby, 45 Mo. 17; and in that case the question was sought to be directly raised, and there decided adversely to . the theory of *the plaintiff in this case. In the case of People v. Whitcomb, 55 111. 172, the jurisdiction, by analogy, would unquestionably seem to be denied; and also in the case of State v. City of Lyons, 31 Iowa, 32. The only cases which seem to support the theory that the court has the right to inquire into matters antecedent to the action of the governor (People v. Carpenter, 24 N. Y. 86; Com. v. Fowler, 10 Mass. 290; State v. Scott, 17 Mo. 521; People v. Maynard, 15 Mich. 463) are all distinguishable ¿from the ••case at bar, and do not in fact support such theory.
    The action of the governor in appointing a census taker for Pawnee ■ county, making proclamation that the same was organized, and appointing the special county commissioners and special county clerk •.for said county, upon certain things being made to appear to him, was ¡and is conclusive; and this court cannot go behind such action to see ¡if there was fraud or not. Again, could the legislature have delegated this power to any other person than the governor to organize ¡a new county, and locate its temporary seat of government, appoint officers to carry on the government of such a subdivision of the state ? If this be answered in the negative, as we think it must be, then it shows conclusively that the acts in question belong either to the legislative or executive departments of the government, and therefore, when such acts are performed by either of said departments, they are beyond the control of all courts or relators, whether such relator be nominally the attorney general of the state, or really a railway company seeking to escape taxation. And if we consider the action of the governor in the organization of Pawnee county as that of an officer invested with certain limited discretionary powers, to be exercised when certain preliminary matters should be made to appear to him, then his action is equally conclusive, and the courts will not exercise a supervisory power over such action. The acts would in such case be judicial in their nature, involving the exercise of judgment and discretion, and absolutely conclusive in any collateral proceedings as to the whole world.
    The legislature has recognized the existence of the county *of Pawnee as a political governmental subdivision of the state in at least two acts of the legislature for the year 1878. In one, by changing the boundaries of such county, (Laws 1873, p. 152, §§ 27, 30;) and in another act, by establishing courts in Pawnee county, and providing for the transfer of records to such county, (Laws 1873, pp. 165, 167, §§ 1-3, 7.) This recognition is equivalent to a previous creation, if the legislature had power to creat the county in the first instance. Jameson* v. People, 16 111. 258; Kanawha C. Co. v. Kanawha & O. C. Co., 7 Blatchf. 406. As we understand it, the legislature has, by constitution, full and exclusive power and control over the political subdivisions of the state; and such as are purely political in their nature, as counties, may be created by special act even. It is no objection that the defendants were elected on the fifth of November, 1872, and the organization of the county perfected on the fourth of said November. The fifth of November, 1872, was the day fixed by the constitution as the time when a general election should be held; and lack of notice is never fatal when the time is fixed by law. As all may see it for themselves, every one is bound to know the law. Dishon v. Smith, 10 Iowa, 219; Hasbrouck v. City of Milwaukee, 21 Wis. 235; People v. Hartwell, 12 Mich. 508; People v. O’Brien, 38 N. Y. 193; Mason v. Nichols, 22 Wis. 363; Cohas v. Baisin, 3 Cal. 477; People v. Cowles, 13 N. Y. 350; State v. Jones, 19 Ind. 3561 Nor will an election be held void for lack of notice, where the people have in fact voted, unless it be affirmatively shown that injury has resulted from lack of notice.
    
      
       See State v. County of Ford, post, *441.
    
   Valentine, J.

This is an original action in this court in the nature of quo warranto. The only question necessary to be determined is whether the county of Pawnee has a valid organization as a county or not. The question arises upon a consideration of the plaintiffs petition, the defendants’ answer, and the plaintiff’s demurrer to the answer. The ground of the demurrer is that the answer does not state facts sufficient to constitute a defense to the plaintiff’s action. Such a demurrer must always be carried back to all the prior pleadings, and be sustained as to '*the first pleading that is subject to a defect such as is complained of by the demurrer. Anthony v. Halderhian, 7 Kan. *61; Hunt v. Bridge Co., 11 Kan. *433. If the petition should not state facts sufficient to constitute a cause of action, the demurrer should be sustained as against it, and not as against the answer. We shall therefore take into consideration both the sufficiency of the petition and of the answer.

The county of Pawnee was established in 1868. Gen. St. 243, § 57. During the months of September, October, and November, in the year 1872, an attempt was made to organize said county under the then existing laws of Kansas. Gen. St. 249; Laws 1872, p. 243. A de facto organization was effected, with a full set of county officers, and with all the paraphernalia of a legally organized county. On November 4, 1872, the governor proclaimed that the county was fully organized. Prom that time up to the present it has exercised all the powers and duties of a legally organized county. On March 4, 1873, while said county had a de facto existence as an organized county, the legislature recognized its organized existence by detaching it for judicial purposes from the county of Ellis, and authorizing district courts to be held in said Pawnee county. Laws 1873, p. 165, §§ 1-3, 7.

It is claimed that said Pawnee county has no valid organization on account of fraud and irregularities in its organization. We shall not stop to inquire whether the organization was originally valid or not, for, as there was a complete organization de facto, we think the recognition by the legislature of that organization cured the supposed fraudulent and defective organization, and the eountyfrom that time forward became a legally organized-county. The whole power of organizing new counties belongs in this state to the legislature. Const, art. 2, § 1, and article 9, § 1. It may provide for their organization by general law, and through the intervention of the governor, or of any other officer, agent, commissioner, or person it may choose; or it may directly organize a new county itself by special act. *The provision of article 12 of the constitution has no application to counties, as counties. ’ Beach v. Leahy, 11 Kan. *23. It may organize a county with six hundred inhabitants, or with any number, more or less than six hundred. It may organize a county whenever there shall be a sufficient number of persons to hold the county offices, and the legislature may provide for a less number of county officers than the usual number. Borton v. Buck, 8 Kan. *308; County of Leavenworth v. State, 5 Kan. *688. Therefore, as the whole matter is within the control of the legislature, we think the recognition by the legislature of said de facto organization had the 'effect to make such organization valid, at least from and' after such recognition. Jameson v. People, 16 Ill. 257; Kanawha Coal Co. v. Kanawha & Ohio Coal Co., 7 Blatchf. 391, 406; Syracuse City Bank v. Davis, 16 Barb. 188. It is a general principle, of almost universal application, that whenever a state, county, corporation, partnership, or person has power originally to do a particular thing, it also has the power to ratify and make valid an attempted effort to do such thing, although the same may have been done ever so defectively, informally, or even fraudulently in the first instance. This principle is so elementary in its nature that it requires no citation of authorities to uphold it.

Now this action is prosecuted in the name of the state, and for the benefit of the state, by the attorney general; but as the state, through its proper agents — the legislature — has already recognized said organization as valid and binding, and has thereby ratified the same, all the other departments, officers, and agents .of the state must also recognize said organization as valid and binding. We suppose that no question will be raised as to whether the legislature did recognize the organization of said county, or as to the extent of that recognition. The records of the organization of said county were regular, formal, and valid upon their face. The governor had already recognized the organization as valid, and had proclaimed it to be valid and complete. And the legislature then provided for holding *terms of the district court in said county. Now, if the county had really not been organized, there would have been no county officers, and no term of the district court could have been held in that county. There would have been no sheriff to serve writs, and preserve order.in the court-room; no clerk of the district court to enter the proceedings of the court; no county commissioners to furnish a room in which to hold court, nor to furnish stationery, fuel, etc., for the court; and no county attorney to prosecute and defend for the public. Besides, where would the money have come from to pay the expenses of the court, to pay for fuel, to pay jurors’ fees, etc. ? There would have been no assessors to assess property, no county clerk to make out the tax-list, no treasurer to collect the taxes. And who would draw the jurors? and who summon them, etc. ? The language used by the legislature in establishing a district court in Pawnee county clearly shows that the legislature intended to recognize the organized existence of Pawnee county. For instance, section 2 of the act provides that “courts are hereby established in the counties of Chase, Marion, Harvey, Beno, Bice, Barton, Pawnee, and Ford; and in the counties of Hodgman, King-man, Harper, Barbour, Comanche, Kiowa, Clark, Pratt, and Stafford, or in the other counties west of Ford and Clark, as soon as the same shall be organized.” Laws 1873, p. 165. But if district courts cannot be held in Pawnee county, then what are the people of that county to do? The county has been detached from Ellis county, the county to which it was formerly attached for judicial purposes, and has not been attached to any other county for judicial purposes. If district courts cannot be held in Pawnee county, then the people of that county áre wholly deprived of the benefit of courts. Is it not clear, beyond all question, that the legislature intended that said organization should be considered as valid and binding ?

The demurrer interposed to the answer is carried back and sustained as to the petition, and judgment will be rendered in favor of the defendants for costs.

(All the justices concurring.)  