
    State of Kansas ex rel. Attorney General v. Board of Com’rs. of Ford Co. and others.
    January Term, 1874.
    1. Counties: Fraudulent Organization. Where a county organization of a new county lias been obtained through falsehood and fraud, by presenting to the governor a false and fraudulent memorial, and false and fraudulent census returns, the supreme court may, in an action in the nature of quo warranto against the persons assuming to act as officers of such organization, inquire into said falsehood and fraud, and declare the organization illegal and void.
    2. -: Legislative Reoognition. Where the legislature has seemingly recognized the existence of a county organization of a certain county by passing an act providing for the holding of terms of the district court therein, but where such county, up to the time of such seeming recognition, never had any organization, defacto or otherwise, such recognition does not have the effect to create an organization.
    [3. -: Ministerial Duties. None but ministerial power is exercised by the governor and other officers in the organization of new counties.)
    Original proceedings in quo warranto.
    
    This action was commenced May 12, 1873. The petition was entitled “The State of Kansas upon the relation of the Attorney General, plaintiff, v. The Board of County Commissioners of the County of Ford, James Hanrahan, Charles Bath, J. G. McDonald, and Herman J. Fringer, defendants.” The case is like that of the same plaintiff against commissioners of Pawnee county, ante, *426. The two cases were argued together.
    
      Ross Burns and Joseph G. Waters, for the State. See their brief, ante, pp. *428, *432.
    
      John Guthrie and George S. Brown, for defendants.
    ,The information in this case being against Ford county as one of the defendants, in the corporate name of the county, this involves the admission that it has a legal existence. This *is the rule in England. Dill. Mun. Corp. § 719. It is also the rule in this country, under statutory provisions like those of this state. (People v. Rensselaer & S. R. Co., 15 Wend. 113; State v. Cincinnati G-. L. & C. Co., 18 Ohio St. 262;) and the exception intimated in this latter case, as to municipal corporations, because the usurpers might be too numerous to proceed against them individually, supposing counties to be rightly considered municipal corporations, is obviated under our practice by section 38, of the Civil Code. While thus making admission as to the legal existence of the county, the plaintiff will not be permitted to question that existence upon the ground of fraud in the steps prerequisite to its organization. Commercial Bank v. State, 6 Smedes & M. 599; Ang. & A. Corp. § 756. If a proceeding in the nature of a guo warranto may be maintained at all, upon the facts alleged in the petition, it should be against the individuals who are charged with usurping the corporate functions,— it should be instituted against them as individuals, and not against them as a corporation. Instituted against them in their corporate name, it can only raise a question of forfeiture, not one of existence; People v. Richardson, 4 Cow. Ill; Ang. & A. Corp. § 756. If then, by thus admitting the legal existence of Ford county, plaintiff is es-topped from questioning the conditions precedent to its organization, for a stronger reason he is estopped from questioning the right of the other defendants to exercise the functions of their respective county offices on the ground of fraud in the conditions precedent to the county organization.
    Even if in this proceeding against the county in its corporate capacity, inquiry into the conditions precedent to its organization were permitted, the petition, relying as it mainly does upon the alleged fraud of the census taker in the premises, is insufficient to authorize a dissolution of the county existence. The census taker was an officer of the state, filling an office created by the legislature, appointed by the executive power, receiving his pay out of the state treasury. Laws 1872, p. 243. To allow the state in this proceeding to take advantage of the fraud of its own officer would be to violate the well-known rule that a party shall not have advantage from his own wrong. The authorities are all strongly illustrative of the proposition that fraud on the part of officials appointed to carry into effect legislative provisions for the organization of a corporation, practiced in effecting that organization, will not invalidate the same. Minor v. Mechanics’ Bank, 1 Pet. 48; Commercial Bank v. State, 6 Smedes & M. 599; Virginia v. West Virginia, 11 Wall. 39-63; Shepherd v. Com., 1 Serg. & R. 1.
    The legislative recognition of the organized existence of the county, set up in the answer, must be conclusive of the case. Legislative recognition of the existence of a corporation cures defects in the organization thereof. Kanawha C. Co. v. Kanawha & O. C. Co., 7 Blatchf. 391;-Jameson v. People, 16 111. 257.
    The court has no jurisdiction over the subject-matter of this proceeding. ■ A county is a political subdivision of the state. Blackstone says it is a civil division of a country for judicial and political purposes. 1 Bl. Comm. 113. In the English law it signifies a circuit or portion of the realm into which the whole land is divided for the better government thereof and the more easy administration of justice. 1 Bouv. Law Diet. “County.” Judge Dillon succinctly defines it as an involuntary, political, or civil division of the state, created by general laws, to aid in the administration of government. Dill. Mun. Corp. 32. And see County of Hamilton v. Mighels, 7 Ohio St. 109; Beach v. Leahy, 11 Kan. *23. It would seem from the very nature of the question that the organization of new counties appertains to the political department of a state government, and involves purely a political question. If this position be correct, then the petition in this case seeks a determination by the court of a question which belongs to the political department of the state government, as to which the action of that department is conclusive. Courts will not entertain a case which calls for a judgment upon a political question only. The subject of the organization of new counties belongs alone to the legislature. In the exercise of this power the legislature has provided for the manner in which new counties shall be organized. By these provisions the governor, a co-ordinate branch of the political department of the state government, is clothed with certain discretionary powers relating to the Organization of new counties, in the exercise of which his judgment cannot be impeached by the judicial department. In the exercise of these powers he stands as the delegate of the legislature, performing political functions, and his acts in the premises are conclusive upon the courts. Whether or not the conditions prerequisite to the organization of a county may have been complied with, is to be determined by him alone, and when so determined it must conclude inquiry upon the part of the courts. Virginia v. West Virginia, 11 Wall. 39, 62; Lusher v. Scites, 4 W. Va. 11.
   Valentine, J.

This case is in some respects very much like the case of State v. County of Pawnee, just decided, (ante, *426, *437.) It is an original proceeding in this court in the nature of quo warranto. The questions involved in this case, as in the Pawnee County Case, are raised on petition, answer, and demurrer to the answer. We shall discuss only such of the questions involved in this ease as differ from those discussed in the Pawnee County Case, and such only as are necessary to be considered in the decision of this case. The plaintiff has made the county of Eord, in its organized, corporate capacity, a party defendant, thereby substantially admitting that such county has an actual corporate existence, and then asks that we shall decide that such county never had any legal corporate existence. Whether this is correct pleading, we shall not now stop to decide, as the plaintiff has also made the acting county commissioners, in their individual capacity, and also the county clerk, in his individual capacity, parties defendant. Hence, if we should hold that the plaintiff had made á mistake in making the county in its organized corporate capacity a party defendant, we should allow the plaintiff to amend its petition by striking out the name of the county as a party.

The boundaries of Ford county have been regularly established by law. Gen. St. 235, § 25. And an attempt has been made to organize the county under the general laws of Kansas. Gen. St. 249; Laws 1872, p. 243. And, while *the records of the organization would seem to be regular and valid upon their face, yet the pleadings show that said organization was obtained by means of falsehood and fraud. The memorial for the organization was not in fact signed by forty householders and legal electors, as the law requires. Neither were there ever six hundred bona fide inhabitants of said county, as the law requires there should be whenever a new county is organized. The governor was therefore deceived by the false memorial and false census returns. The proceedings to organize said county were commenced in October, 1872, but were not completed until April 5, 1873, when the governor appointed three county commissioners, a county clerk, and designated a place for the county-seat, and duly declared the county to be organized.

The first question to be determined is whether said organization is valid notwithstanding said falsehoods and fraud. We think it is not valid. As we have already stated in the Pawnee County Case, the legislature has absolute power over the organization of new counties. They have as absolute power over the organization of new counties as they have over the organization of townships, school-districts, or road-districts. They may exercise the power directly themselves, or they may put it into the hands of the governor, or any other officer, or agent. The power is legislative when they exercise it directly themselves. They may make it ministerial, judicial, or possibly executive. Or they might make it partake of the nature of all. They might pass an act for the organization of a particular county; the passage of the act would be the exercise of legislative power. The act might require certain commissioners or agents to perform certain duties; the performance of these duties might be the exercise of ministerial power. The act might require a judicial determination upon evidence as to when the county was organized; this would be the exercise of judicial power. And the act might then require the governor to put the new organization into operation; this would be the exercise of executive power. After a careful examination of the act *under which new counties are organized, we have come to the conclusion that none but ministerial power is exercised by the governor, or by any other officer in the organization of a -new county. When the memorial is presented to the governor, he appoints a census taker. The census taker takes the census of the county, and reports to the governor. - If there are six hundred or more bona fide inhabitants in the county, the governor then appoints three county commissioners, a county clerk, and designates a place for the temporary county-seat. The officers thus appointed then qualify and proceed to the discharge of their respective duties, and the county thus becomes organized by these proceedings, and by operation of law. It requires no proclamation from the governor. And every act that he performs might constitutionally be conferred upon any other officer. Therefore, the acts of the governor, and the acts of the other officers in the organization of new counties, being merely ministerial acts, must be in substantial conformity to law, or they are void, and the courts may declare them void. And, therefore, the proceedings in this case, in attempting to organize said county, being in violation of law, are void, and the organization is void, and the court has the right to declare it to be void.

In this case, as well as in the Pawnee County Case, there was a recognition by the legislature of a county organization. In this case the recognition was by passing an act providing for terms of the district court to be held in said Ford county. Laws 1873, pp. 165, 166, §§ 1, 2, 7. But as there was no attempt by the legislature to establish or create a county organization in Ford county, and as no county organization, defacto or otherwise, was then in existence in Ford county, we cannot think that said recognition by the legislature created any county organization. The act seemingly recognizing. Ford county as an organized county was passed March 4, 1873, and took effect two days thereafter. The legislature adjourned sine die March 7, 1873. But Ford county never had any organization, de facto or otherwise, until April 5, 1873. Hence, when the legislature passed said act, there was no organization for the legislature to ratify or make valid. The legislature cannot ratify a thing that never had an existence. They cannot cure a defective or irregular organization when the organization itself never in fact existed. And the seeming recognition of a thing which never had any actual existence cannot create such a thing.

The demurrer to the answer must be sustained.

(All the justices concurring.)  