The State of Ohio on relation of Ezra E. Evans v. Gilman Dudley

Eanney, J.

The agreed statement of facts, signed by the parties, and -upon which this cause is now submitted to the court,, makes the whole controversy depend upon the solution of this question—Is the county of Noble, at this time, a legally organized and existing county of the state ? If it is, it is conceded the defendant is the probate judge thereof, and exercising his office within it, and not elsewhere; if it is not, he is assuming to act within the boundaries of the county of Morgan, and is guilty of the intrusion and usurpation charged upon him.

The act to erect the county of Noble was passed by the last general assembly convened under the constitution of 1802, on the 11th day of March, 1851, the next day after the adoption, by the convention, of the constitution now in force.

It is expressly admitted by the counsel for the relator that the legislature, “ at the time the law was passed, had full power under the old constitution to enact such a law; ” that the county was legally organized under it, and continued to exist until the first day of September of that year, when the present constitution took effect. But they insist that its continued existence is inconsistent with the provisions of that instrument, and, “ if inconsistent with it, like all such laws previously existing, it ceased to be a law on the first day of September, a. d. 1851, and the legal existence of the county ceased at the same time; and, as a consequence, for the want of a legal existence of the county, the defendant, by . ^virtue of his election to the office of probate judge, can not lawfully exercise the office, the territory embraced within the county, by legal operation, having fallen back to the original counties from which it was taken.” In short, their position is that the law erecting the county is inconsistent with the present constitution, and was repealed by it when it took effect. If such inconsistency is found to exist, after a fair and honest effort to reconcile them, it can not be doubtful which must give way, and the conclu- sion contended for by the relator would inevitably follow.

The rule by which we should be guided in pursuing this inquiry is well settled. As repeals by implication are not favored, the repugnancy between the provisions of two statutes must be clear, and so contrary to each other that they can not be reconciled, in order to make the latter operate a repeal of the former. This rule is the result of a long course of decisions, and we know of no reason why it does not equally apply, when the repugnancy is alleged to exist, between a constitutional provision and a legislative enactment. With this principle in view, we proceed to the inquiry, Does such necessary and obvious repugnancy exist between the law creating this county and the constitution ? It is claimed by the relator to arise from the necessary workings of the 9th article of the constitution, and the 19th section of the schedule, apportioning the state for senatorial, representative and judicial purposes; and it is insisted that the continuance of the county has the necessary effect of altering the territorial arrangement prescribed by the constitution for these purposes, and of depriving the inhabitants of this county of their right of suffrage and representation .in these departments of the government. If this conclusion is legitimately drawn, it can not be doubted that the law must give way and the county cease to exist. The constitution divides the wh.ole state for these purposes, and secures to all the people in it these important rights —rights lying at the very foundation of every free government, and not to be invaded or impaired by any ^legislative enactment, either prior or subsequent to its adoption.

We further agree with the counsel for the relator that the constitution must receive the same construction since its ratification by the people that it would have received when it passed from the hands of the convention. , By its own provisions, however, it could have no effect until ratified by the people, and until the first of September following the time fixed for its operation. As a necessary result from this principle, things as they existed on the 10th of March, when it was adopted by the convention-, must control in its construction. In short, the instrument speaks from the 10th of March, although by its own terms its effect was postponed to the first of September. As a further consequence, the apportionment of the state must be regarded as made by the convention, and none the less so because the approval of the people was made necessary to its ultimate effect. They but ratified and approved an act already done by their representatives in convention, and were not, in any correct sense, the authors of the act itself.

Before proceeding to a particular examination of the question in its application to each of the departments of government before mentioned, it will be necessary to have a- clear understanding of two propositions, equally applicable to each, and upon which, it seems to me, all correct reasoning must proceed.

And first, the constitution apportions political power amongst the inhabitants of the state as neaidy equally as possible, in proportion to numbers, without any regard whatever to property, or, indeed, to any other circumstance. Inhabitants alone are represented; a given number in one place exercise tbe same political power as a like number in any other locality. I am aware that some departure from the absolute equality of numbers is allowed in favor of the inhabitants of small counties, in the constitution of the house of representatives; but this in no wise changes the basis of representation from population to territory or property.

^Second, the whole state is divided into districts, and the limits of each clearly and definitely fixed. These limits were, in every instance, described by county lines, as they existed when the constitution was adopted by the convention—the boundaries of counties being referred to and adopted, from convenience and propriety, as the boundaries of districts ; and thus making the limits of each district as certain as though it had been marked out by natural or artificial objects. While the counties remained as they then were, of course, no one of them could be divided so as to fall into different districts. But while the boundaries of counties, to a ceitain extent, and districts, were fixed upon the same lines, they were yet independent of each other; so that whatever changes might be made in county limits, the lines of the districts remained as before, subject only to such changes as are provided for in the constitution itself.

How far changes are authorized, and by whom, and in what manner effected, I shall have occasion to notice particularly in the further progress of this opinion.

To construct a scheme of constitutional apportionments, to endure for many years, and, so far as the election of members of the-general assembly is concerned, subject to no control or-alteration by that body, is a work of much difficulty, when it is considered how constantly and materially changes are being wrought in the political divisions of the state, and in the relative increase of population. And yet I am much mistaken if the system adopted by the convention is not found entirely adequate to accomplish all the substantial purposes proposed, and one of the most valuable features-of the constitution. The state has been subjected to a most humiliating experience, while the power was left with the general assembly ; and the scenes of anarchy and confusion, which had marked its exercise there, undoubtedly determined the people to deprive that body of it absolutely, so far as the election of their own members was concerned, for the future.

*Sligbt inconveniences may arise from this determination, but evils of much graver importance will be avoided.

With these considerations in view, and considering the foregoing propositions as undeniably correct—that all the inhabitants of the state have the constitutional right to be represented in the legislative and judicial departments, and all the electors of the state the right of suffrage in their several districts, to elect the necessary officers to fill these departments; and also that no change can be made in the constitutional districts, other than those expressly provided for in the constitution—we are brought to the direct question : Can Noble county continue to exist, consistently with the full enjoyment of these constitutional rights?

After a careful examination of all the objections urged, four of the members of this court are of opinion that it can; and that there is no necessary conflict between the law creating it and the constitution of the state.

A more detailed examination of these objections, in their application to the election of senators, representatives, and judges of the court of common pleas, will sufficiently illustrate the grounds upon which our conclusion is based. .

I. By the 7th section of article 9, the state is divided into thirty-three senatorial districts, electing, for the first decennial period, thirty-five senators. Of these districts, the counties of Washington and Morgan constitute the fourteenth, and Guernsey and Monroe the nineteenth. Prom these two districts, the county of Noble was afterward taken, and the consequence is, a part of the citizens of this county must continue to vote, and be represented in the senate, in one of these districts, and the residue in the other. By the 10th section of the same article, it is expressly provided “ that no •change shall ever be made in the principles of representation as herein established, or in the senatorial districts, except as above provided.” The exception refers to the 8th and 9th sections, the •first of which provides for the apportionment of fractions, after the ■first ten years, and for annexing districts which may fall below three-fourths of a senatorial ratio *to an adjoining district; and the last gives to any county included in a senatorial district, which has acquired a population equal to a full senatorial ratio, the right, at any regular decennial apportionment, to be made into a separate senatorial district, if a full senatorial ratio is left in the •district from which it is taken. Subject to these qualifications, ■which have no bearing upon the question under consideration, the districts formed by the constitution must forever remain unchanged.

These districts, as we have already seen, are composed of the territory embraced in the counties named at the time they were made, .and are not liable to fluctuate with any subsequent change of county limits. Are such changes of county lines therefore prohibited ? If not, it is very clear that they may always result in leaving part of ■a county in one senatorial district, and the residue in another. That no such prohibition, or any provision requiring the senatorial districts to continue to be bounded by existing county lines, is to be found in the constitution, must be admitted. On the contrary, the convention adjourned, leaving a legislative body in session with full power, as is admitted, to work such changes ; and by section 30 of article 2 such changes are expressly provided for after the constitution should have taken effect. If this county had been erected since the constitution took effect, with the same boundaries it now has, and, of necessity, divided for senatorial purposes, it is admitted the .act would be without objection, and its existence entirely consistent with the other provisions of the constitution. How the same precise ■effect, worked by a law passed by a general assembly having full power to do so, before the constitution was in force, can be said to be inconsistent with the same provisions, is what we are unable to understand.

The truth is, the power to make new counties and change county lines has always existed under both constitutions; under that now in force, it is true, subject to very important safeguards. Its exercise under either, since the apportionment made by the convention, might work the inconvenience *of dividing a county into different senatorial districts, but could not in any manner deprive the inhabitants of their right of representation and suffrage in electing members of that body, or work any change in the boundaries of districts. This inconvenience should constitute a very strong argument against the exercise of the power, unless in cases of strong necessity, but can not in the least detract from the power itself; and the power must in all cases be measured by the constitution in force when the law is passed.

II. The next inquiry relates to the election of members of the house of representatives.

Section 10 of article 9, already quoted in part, provides: “For the first ten years after the year one thousand eight hundred and. fifty-one, the apportionment of representatives shall be as provided-in the schedule, and no change shall ever be made in the principles-of representation, as herein established, or in the senatorial districts, except as above provided. All territory belongi ng to a county at the time of any apportionment, shall, as to the right of representation and suffrage, remain an integral part thereof, during the decennial period.” By reference to the 19th section of the schedule, it will be seen that the counties of Morgan, Monroe, G-uernsey and Washington, are each constituted separate representative districts, and a representation awarded to each, according to the population-, it then contained.

These provisions irrevocably fix the .districts, and apportion the representation for ten years. At the expiration of that period, Other sections of the 9th article direct specifically in what manner the executive officers charged with the duty, shall ascertain and fix it for another period of ten years; but it is unnecessary to refer to-them in detail, as they throw no light upon the pending question. It is sufficient to say that, in pursuance of the principles established in this article, and which are forever to remain unchanged, an apportionment is to be made once in ten years—the ratio for a representation being ascei’tained by dividing the whole population of the state by the number one hundred ; each *county then, existing having a population equal to half said ratio is entitled to-a separate representation, and those falling below that number are to be attached to the adjoining county having the least population.

From all this it is manifest that no change, alteration, or modification of the representative districts is allowed between the periods of decennial apportionment; and all that has been said of the-senatorial districts is, to this extent, strictly applicable to the representative districts, but, unlike the senate districts, they are not. forever to remain unchanged. On the contrary, they must, of necessity, at the expiration of each ten years, so change as to conform, to the boundaries of counties as they are then found to exist; and. the limits of districts at those periods become again identical with those of counties.

Now, by the first clause of section 10, article 9, it is provided: ‘For the first ten years after the year one thousand eight hundred and fifty-one, the apportionment of representatives shall be as pro- Tided in the schedule.” This apportionment, as we have already settled, was made by the convention on the 10th of March, 1851,. although subsequently approved by the people. At that time the territory now included in Noble county belonged to1 the counties from which it was taken, and it necessarily follows, not only from the principles already discussed, but by the positive provision of the last clatise of the same section, that this territory must continue during the decennial period, “as to the right of representation and suffrage, to remain integral parts” of such counties. This result, so far from being inconsistent with the operation of this apportionment, is the very state of things contemplated by that clause, and the very state of things which must always occur whenever a new county is made, or a county line changed, between the-periods of decennial apportionment; and, I may add, the very state of things provided for by section 3, article 7, of the constitution of 1802. But it is claimed that this clause only provides for territory taken from a county after the present constitution *took effect. The phrase is, “belonging to a county at the time of any apportionment.” Now, if the convention did make an apportionment for ten years, and did make it on the 10th of March, as we have supposed, the language would seem to be too plain to admit of construction, and its application to this apportionment too obvious to require comment. That they did make it, and at that time, we have already settled without the least doubt in our minds.

It was made by the convention to take effect at a future day, provided it was ratified and approved by the people.

III. The judicial apportionment. -

By the 12th section of article 9th, the county of Washington is placed in the third subdivision of the seventh judicial district, and the counties of Monroe and Guernsey in the second, and the county of Morgan in the first subdivision of the eighth district. The general principles already discussed being equally applicable to these districts need not be again repeated. An important distinction is, however, here to be noted. While the general assembly is deprived ■ of all power over the legislative districts, they are invested with . full authority to alter, change, and add to the judicial districts. \ The 15th section of article 4th provides: “The general assembly may increase or diminish the number of the judges of the supreme court, the number of the districts of the court of common pleas, the number of judges in any district, change the districts, or the ■■subdivisions thereof, or establish other courts, whenever two-thirds of the members elected to each house shall concur therein; but no such change, addition, or diminution shall vacate the office of any judge.”

It is insisted by the relator that these districts must always continue to be bounded by county lines—that the general assembly has no power to attach Noble county as a whole to any one of these districts ; but if they had, an election was to be held for judicial officers before a general assembly could convene, at which the electors included in Noble county would be deprived of their right of suffrage.

*In support of the first proposition the 3d section of article 4 is relied upon, which provides: “The state shall be divided into nine common pleas districts, of which the county of Hamilton shall constitute one, of compact territory, and bounded by county ■lines,” etc. To construe properly this provision, reference must be had to other parts of the constitution. It certainly can not mean that the number of districts shall always continue to be nine, since power is given to the general assembly to increase or diminish them. It is equally clear that it can not mean that the county limits shall always remain the same, as full power is given to change them and to make new counties. To hold, on the other hand, that ■the limits of the districts must, of necessity, enlarge or diminish with the counties named as embraced in them, would be to say that Hamilton county, so reduced by division as to contain but twenty thousand inhabitants, would still constitute a district and be entitled to elect three judges. When taken in connection with the fact that the convention itself proceeded to make the division z-efei’redto in this section, it is very clear to us that it must be -regarded mainly as prescribing a rule for the government of their own action ; and when they did act in accordance with it, and fixed the districts by definite boundaiues, they must so remain, •securing to all the citizens included within them their right of suffrage in such districts, until changed by legislative enactment.

But the convention foresaw the difficulty of having the territory included in a new county in different judicial districts or subdivisions, and have provided for it in the most explicit manner in ■article 9, section 13, as follows : “ The general assembly shall attach •any new counties that may hereafter be erected to such districts or •subdivisions thereof as shall be most convenient.”

This section, in our opinion, very clearly applies to any new county erected after the adoption of the constitution by the convention. This construction does not require any ^effect to be given to the constitution before the 1st of September, but, after it has taken effect, it directs the general assembly what to do with counties erected after the 10th of March ; or, in other words, it imperatively requires the general assembly, acting under the constitution, to attach all counties created after that date to some convenient district and subdivision. If this view is correct, the objection that the electors of Noble county could not vote at the judicial election of 1851 has no foundation in fact; but, whether correct or not, it is certainly clear that the general assembly were not only fully •authorized, but required to so attach it as to give its inhabitants the full benefit of the judicial system; and this mandate of the constitution has been obeyed. A failure to do so, at the time the county is created, whether under the former constitution or the present (and the same difficulty from such an omission might now arise), would not make the law repugnant to the constitution, but would only show a necessity for further legislation in order to the enjoyment of all its benefits; it would not nullify what had been properly done, but would require more to be done to make the work perfect. Nor would such a result, by any means, be confined to a case like the present. Time would fail me to enumerate the instances where the enjoyment of constitutional privileges is made dependent upon legislation. Suffice it to say that, while the constitution creates courts, they are utterly powerless to redress wrongs until their jurisdiction is defined bylaw; and while each county is entitled to have sessions of the court of common pleas each year, still none can be held until fixed by the legislature.

Some remarks have been made as to the manner the law under consideration was passed through the legislative body. It is only necessary to say that such considerations can not be permitted to influence judicial action. The members of that body were responsible for their official conduct to the people that elected them, but not to the judicial tribunals. The only question that can here arise is one of constitutional power. If that is found to exist, however much they may *have abused the confidence reposed in them, it can in no degree justify a court in usurping power to-remedy the evils they may have committed. •

Bartley, C. J.,

dissented.

I regret that I can not concur in the opinion of the majority of the court in this case. And the question involved is of such a nature as to require a statement of the reasons of my dissent, which. I shall endeavor to give with all the brevity consistent with perspicuity.

I know nothing of the influences, local or political, which have-operated either in favor of, or against the new county of Noble. I consider the case before us as involving purely a question of constitutional interpretation.

I recognize the doctrine, that a law shall not be adjudged void on-the ground of unconstitutionality, unless it be in a case of clear and undoubted conflict with some provision of the constitution. But where that conflict with the constitution does plainly exist, it is the-imperative duty of the court, without the slightest shrinking from the responsibility or delicacy of the question, to declare the law unconstitutional and void.

The investigation of this case has brought my mind to the clearest conviction of the following conclusions :

1. That the law creating the county of Noble was clearly inconsistent with the express provisions and plain intent of the present, constitution of the state when it took effect on the first day of September, 1851.

2. That this inconsistency abrogated the law, and was fatal to the-existence of the new county.

No one will presume to controvert the position that all laws of the state inconsistent with any express provision and the clear intent of the constitution were abrogated when the constitution went into-operation. The framers of the constitution deemed it even necessary to provide in the first section of the schedule that all laws consistent with the constitution should continue in force until amended or repealed.

*A county is a municipal corporation covering a certain portion or district of country, instituted as a department of the-state for the purposes of the more convenient administration of justice, and the better government of the territory included. That the framers of the constitution had the power to abrogate existing «counties and authorize new and different county organizations cannot be denied.

The right of suffrage, the right of representation in the general .assembly of the state, and the right to the use of the judicial ■tribunals for the administration of justice, are fundamental rights guaranteed by the constitution to all the citizens of the state. The county organizations are designed chiefly to aid in the more convenient and useful exercise of these important functions. And, 1 presume, it will not be controverted that, if, when the present constitution went into operation, there was any county organization not recognized in the constitution, the existence of which would have deprived any portion of the people of the state of either one of these fundamental constitutional privileges, that such county was •abrogated by the constitution.

The first section of the fifth article of the constitution secured to ■every white male citizen of the age of twenty-one years the right “ to vote at all elections.” And, according to the fourth section of the same article, no person can be excluded from the privilege of voting, or of being eligible to office, except a person convicted of some infamous crime.

Any law which, in its operation, would have abridged this right of suffrage, or eligibility to office, as to any portion of the citizens of the state, at any election, or in the election of any officer, would have been in conflict with this provision of the constitution.

The third section of the fourth article of the constitution contains the following:

“The state shall be divided into nine common pleas districts, of which the county of Hamilton shall constitute one, of compact territory, and bounded by county lines; and each of said districts, •consisting of three or more counties, *shall be sub-divided into three parts of compact territory, bounded by county lines, and •as nearly equal in population as practicable; in each of which one judge of the court of common pleas for said district, and residing therein, shall be elected by the electors of said sub-division. .Courts ■of common pleas shall be held, by one or more of these judges, in-•every county of the district,” etc.

Pursuant to this provision, the whole state is apportioned into judicial districts and subdivisions bythe twelfth section of the eleventh article, in which every county in the state, at the time the constitution was framed, is named, the county of Noble, of course, not being among the number. This apportionment of the state,, for judicial purposes, has express reference to the geographical limits of each county as it then existed, and without which the apportionment for the whole state could not have been perfect; and each of the districts, as well as each of the subdivisions, was bounded by county lines. In this apportionment, a part of the territory-taken to compose the county of Noble was included in the seventh judicial district, and another part in the eighth judicial district; a part was included in the third subdivision of the seventh district,, a part in the first subdivision of the eighth district, and another part in the second subdivision of the eighth district.

The constitutional convention adjourned on the tenth day of March, 1851; the law for the creation of the county of Noble was-passed by the legislature on the next day, being the eleventh day of March ; the constitution was adopted by the people of the state ■ on the seventeenth day of June, 1851, and took effect on the first day of September following. No legislation could take place under this constitution prior to the first day of January, 1852. And the fourth section of the schedule provided that the first election of judicial officers should take place on the second Tuesday of October, 1851.

If the county of Noble had any legal existence as such county, at the time the constitution went into operation, it could neither-belong to any one of the judicial districts, nor to any one of the-judicial subdivisions, inasmuch as they were *expressly and positively required to be bounded by county lines ; and, as such county, it was attached to none of them. The consequence would, have been inevitable—that the citizens of the territory composing Noble county would have been, by the existence of such county,, disfranchised at the first election of judicial officers, the third section of the fourth article of the constitution requiring that the judge of the court of common pleas of each subdivision should be a resident therein, and elected by the electors thereof. And the county was not entitled to have the court of common pleas held within it, the same article of the constitution authorizing said court to beheld only in the counties belonging to some one of the judicial districts. .

The boundaries of the judicial districts and subdivisions, created by the constitution, and which existed when the constitution took effect, were the county lines, as is very definitely and clearly ex pressed in the constitution. The creation of Noble county, under the old constitution, between the time when the present constitution was framed, and the time when it was adopted by the people, could not have changed the boundaries of the judicial divisions-prescribed by the new constitution. The existence of Noble county, therefore, as such, at the time when the constitution went into operation, was plainly inconsistent with the express provision that the judicial districts and subdivisions should each be composed of “ compact territory, and bounded by county lines.” If, when the constitution went into effect, on the first of September, 1851, Noble county existed as one of the counties of the state, the judicial districts and subdivisions were not all composed of “ compact territory, bounded by county lines, and as nearly equal in population as practicable.” Consequently, when the op’eration of the constitution commenced, the judicial apportionment was imperfect, and one of the existing counties of the state left out entirely, and no provision made for it. And unless subsequent legislation could remedy the difficulty, Noble county could never have had a court of common pleas. Appeals from the judgment of justices of the *peace, within the territory of Noble county, would either have been prevented altogether, or been carried to the common pleas of the different counties from which the territory of Noble was taken. No appeals could be taken from the county commissioners, and the court of the probate judge would be the court of last resort in the county. The citizens in one part of the territory would have sued and been sued in the court of common pleas in one county, while the citizens of another part would have sued and been sued in a different court of common pleas, and in a different county—a difficulty which the framers of the constitution undertook, by express provision, to prevent.

The constitution contains no provision to meet the event of the creation of an additional county between the time when it was framed and the time when it went into operation. This is undeniable. The test, however, whether the county of Noble was abrogated is its consistency with the provisions of the constitution at the time when it took effect, and not-the possibility of amending or removing the inconsistency by subsequent legislation. All laws inconsistent with the constitution at the time when it wont into operation were abrogated or annulled. If Noble county was inconsistent with the constitution on the first day of September, 1851, it lost its vitality as a legal existence, and could not have been revived by subsequent legislation without pursuing the forms of creating a new county prescribed in the 30th section of the 2d article of the present constitution.

The fifteenth section of the fourth article of the constitution provides that, “ The general assembly may increase or diminish the number of the judges of the supreme court, the number of the districts of the court of common pleas, the number of judges in any district, change the districts, or the subdivisions thereof, or establish other courts, whenever two-thirds of the members elected to ■each house shall concur therein.”

, This furnishes no remedy for the difficulty. It does not authorize the annexation of a new county not previously ^included in the apportionment to any existing district or subdivision. It .simply provides for a change in the boundaries of the districts and subdivisions as already made by the constitution, when other courts shall be established, or the number of the judicial districts, •or the number of the judges in any district, shall be either increased or diminished by legislation under the new constitution. The context of the whole sentence must be taken together. The authority to change the districts or subdivisions here conferred, is coupled with the exigencies which may make it necessary, and upon which alone it can be exercised. And this change, however, could only be made by subsequent legislation, after the general assembly shall have been elected and convened under the new constitution, and then only by the concurrence of two-thirds of the members elected to each house. It would seem to me vain, indeed preposterous, to attempt to maintain the legal existence of Noble county by virtue of this provision in the constitution.

The thirteenth section of the eleventh article of the constitution isas follows: “The general assembly shall attach any new counties that may hereafter be erected, to such districts,, or subdivisions thereof, as shall be most convenient.”

This provision can have no reference to counties created either before the constitution went into operation, or before it was adopted bj the people of the state. Before the 17th of June, 1851, the constitution had no validity. It was nothing more than a proposition submitted to the people for their adoption. By its own. terms it did not become the constitution of the state till it had reoeived the sanction of the people at the ballot-box. It was designed to pro- wide for what should exist or occur under it after it should go into operation. It speaks, therefore, from the time when it took effect as the constitution of the state. The “new counties hereafter erected,” to which this section refers, must therefore be those ■erected after the constitution became operative. It is not pretended that Noble county was erected under the requirements of the present constitution. The thirtieth «section of the second article authorizes the creation of new counties, and prescribes the peculiar mode by which alone they can be made. The thirteenth section above recited must receive a construction with a view to its connection with the other parts of the constitution. And if it be applicable to a new county created before the constitution took effect, the same principle would make the thirtieth section of the second article applicable, and require the erection of the county to be in conformity to its terms.

There is also another part of the constitution, consistently with which I find myself wholly unable to reconcile the existence of Noble county.

The eleventh article of the constitution prescribes the principles and mode for making the apportionment of the state for representation in the general assembly every ten years. And, in accord-dance with these principles, the seventh section of the article contains the apportionment of the representation in the senate, dividing the several existing counties of the state into thirty-three sena-torial districts, for the first decennial period. Also the nineteenth section of the schedule contains the apportionment of the state for the house of representatives, upon the same principles, dividing the ■counties of the state into representative districts, for the first decennial period. These senatorial and representative districts cover the entire state, are made by classifying or arranging into districts all the existing counties of the state, each and every county in the state being named with reference to its geographical boundaries, and the districts, both for senatorial and for representative purposes, being bounded by county lines. In this apportionment, Noble county is omitted.

The tenth section of the eleventh article contains the following provision : “ Ail territory belonging to a county at the time of any ■apportionment shall, as to the right of representation and suffrage, remain an integral part thereof, during the decennial period.”

Now if Noble county existed “ at the time of the apportionment ” for the first decennial period, all the territory ^belonging to» it would remain integral parts of it during that period. It, therefore, becomes a matter of the very first importance to ascertain “ the time ” of this first apportionment, within the meaning of the constitution. And what was it? Was it the time when, according to the journals of the convention, this apportionment was finally adopted and agreed to in the convention ? Was it the time when the convention adjourned, and the constitution was signed by the members of the convention ? Was it the time when the constitution was adopted by the people of the state ? Or was it the time when the constitution took effect ? It could not have been either the time when it was finally adopted in the convention, or the time when the convention adjourned, because at neither of these periods did it become a valid apportionment, or receive such sanction as to make it then, or in future, without further action, the fundamental law of the state. The time of the apportionment, within the meaning of the constitution, was clearly the time when the making of it was consummated, and it became, without any further action, the valid and binding constitutional apportionment of the state, commencing and operating for the period prescribed by its berms. When it was adopted in the convention, it was not, as yet, a valid apportionment of the state. When the convention adjourned, the constitution had not, as yet, become a binding instrument. It was not, as-yet, the constitution of the state. Further action was necessary. The making of the present constitution was the act of the people-of the state. The constitution begins by declaring : “We, the people of the State of Ohio, grateful to Almighty God for our freedom, to secure its blessings and promote our common welfare, do establish this constitution.” And the 17th section of the schedule provides that the constitution shall be submitted to the electors of the state, at an election to be held on the third Tuesday of June, 1851, and if it shall appear that a majority of all the votes cast at such election are in favor of the constitution, it shall become the constitution of the State of Ohio, and not otherwise. The making of the constitution was, therefore, the ad of the ^people of the state, and not consummated till their vote in favor of its adoption. The convention was but the agent to prepare the terms of the proposition to be submitted to the principal for adoption. When the time of the making of a deed is referred to, it is not the time when the attorney or agent draws up its terms upon paper that is meant, but the time when the grantor adopts it as his own deed by executing it, and making it a legal and valid instrument.

The constitutions of some of the states did not, by their terms,, require .the ratification of the people, and were, as it has been said, valid instruments from the time they came from the hands of the conventions in which they were framed. Such was the case with the late constitution of the State of Ohio. It was never submitted to the people of the state for their adoption. There was no provision in it requiring this to be done. It acquired its validity,, therefore, from the act of the convention, and became a valid instrument from its date, the time of its final adoption in the convention. But such was not the case with the present constitution of the state. It was not -made, and did not become, the constitution of the state, by its own terms, until the electors of the state had, in due form, made it such, by their adoption at the ballot-box.

“The time of the apportionment,” therefore, was the time when it became the valid constitutional apportionment of the state. And this was when it was ratified and adopted on the third Tuesday of June. Now, if Noble county ever had any existence as a county, it existed at that time. The consequence was that when the constitution went into operation, on the first day of September, 1851, if the county of Noble continued to exist, it was plainly in violation, either of the provisions of the constitution making the apportionment, and including its territory, as to the right of representation and suffrage, in the different senatorial and representative districts with the four several counties from which it was taken; or in violation of the provision in the tenth section, that all territory belonging to a county, “ at the time of any *apportionment,” shall remain an integral part thereof during the decennial period. If the latter, then the apportionment of the state was impeifect, and the existence of Noble county would deprive the people of the territory composing that county of the constitutional right of representation and suffrage during the first decennial period—a right which the second and third sections of the eleventh article provided that every county of the state should have, in accordance with the ratio of representation therein prescribed. But this is not all. The counties from which the territory and population of Noble were taken, being reduced, would not, on the principle adopted,m the constitution, be entitled to the full representation given to them severally in the apportionment for the first decennial period.

It is clear that, in the formation of the constitution, no such thing was contemplated .as the creation of a new county, between the time of the adjournment of the convention and the time when the new constitution should go into operation. Had such an event been contemplated, as a valid change in the county organizations of the state, it evidently would have been provided for in the constitution. Three several times are all the existing counties of the state named in the constitution, with direct reference to their existing boundary lines. It was the evident intention of the constitution that the judicial districts and subdivisions, as well as the senatorial and representative districts, should all be bounded by •county lines, and should include all the counties of the state, at the time when the constitution should go into operation. It is to be presumed that if any change in the county organizations of the .state was to be allowed, it would have been provided for. It is true, the constitutional convention had not the power to arrest the exercise of the authority of the legislature, under the former constitution, prior to the time of the new constitution taking effect. But it was sufficient to provide that only such laws as were consistent with the constitution should continue in force.

*It is said that the same difficulty will arise whenever any new county may be made under the provisions of the present constitution. This is not correct. The constitution expressly provides for the existence and rights of new counties erected in conformity to its own terms, but it makes no provision for such a contingency as the erection of a new county between the time when the constitution was framed and the time of its adoption.

If the erection of one new county, thereby altering the boundaries of several of the old counties, could have been made between the time when the constitution was framed and the time of its adoption, and continue in force after the constitution took effect; upon the same principle a law passed at such time and in the same manner, changing the boundaries of all the counties of the state, or repealing all existing counties, and erecting an entirely new system of counties throughout the state, could have been sustained. Suppose, for illustration, that, after the adjournment of the convention, but before the adoption of the constitution, the legislature had passed a law erecting an entire new system of counties throughout the state, and making the boundaries of all the counties different from what they had been. What would have been the result? Would the purposes of the new constitution have been defeated? Would the election of officers and the administration of the government have commenced under the new constitution with the county organizations as recognized by it, or as changed by the legislature ? Would the boundaries of the judicial districts and subdivisions have been changed throughout the state? How could the-new counties have been attached to the districts and subdivisions-composed of the old counties ? Would the election of one part of the public officers have taken place under one set of counties, and the election of other officers under other and different county organizations? Would the judges of the courts of common pleas-have been elected and their courts held under one system of counties, and the probate judges, county officers, and justices of the-*peace have been elected and done business under another and different system of counties ? This shows the inconsistency and utter confusion to which the doctrine upon which Noble county is sustained would lead if carried out to the full extent.

Suppose, again, for example, that the legislature had passed a law repealing all the existing counties of the state, between the time of the adjournment of the convention and time of the adoption of the constitution. Would that have defeated the operation of the new constitution? Would that have prevented the election, for the adoption of the new constitution? Would the first election for state and county officers under the new constitution have been defeated ? Certainly not. The counties, at the time the constitution was framed, with their boundary lines as then existing, and contemplated by the constitution, would have been continued and upheld by virtue of the constitution itself. The constitution contained the elements of vitality within itself, and such repealing law would have fallen by its inconsistency with the constitution, and the counties named in the constitution, and repeatedly referred to in almost every article, would have been continued till changed by legislation in conformity to its provisions.

It is the plain and evident intention of the constitution, apparent from the context of the whole instrument, that the counties of the state, as repeatedly named and recognized in it, and with their-geographical limits as existing at the time of its formation, should, continue until changed by legislation under its provisions.

It is said that some local inconvenience and difficulty connected with the public business would have arisen from the abrogation of Noble county by the operation of the new constitution. If the barriers of the constitution are to be broken down, or its provisions frittered away either by strained or loose construction, induced by considerations of convenience or expediency, the people of the state will soon find that the boasted safeguards of their constitution are •delusive and inefficient.