State ex rel. Keefe v. Jones

• Decision Date: 31 July 1945
• Docket Number: 2326
• Citation: 161 P.2d 135,62 Wyo. 61
• Parties: THE STATE OF WYOMING, on the Relation of ROBERT W. KEEFE, NORMAN SPEAR, ROBERT J. SMALLEY, WALTER HALLE, CHARLES H. DURNING, Petitioners, v. BRUCE S. JONES, Mayor of the City of Cheyenne, Wyoming, Respondent
• Court: Wyoming Supreme Court

161 P.2d 135

62 Wyo. 61

THE STATE OF WYOMING, on the Relation of ROBERT W. KEEFE, NORMAN SPEAR, ROBERT J. SMALLEY, WALTER HALLE, CHARLES H. DURNING, Petitioners, v. BRUCE S. JONES, Mayor of the City of Cheyenne, Wyoming, Respondent

No. 2326

Supreme Court of Wyoming

July 31, 1945

Reserved Case from Laramie County; SAM M. THOMPSON, Judge.

Mandamus by the State of Wyoming, on the relation of Robert W. Keefe and others, residents and electors of the city of Cheyenne against Bruce S. Jones, mayor of the city of Cheyenne Wyoming, to compel respondent to issue a proclamation calling a special election on question whether the city should adopt the city manager form of municipal government. On constitutional questions reserved for the Supreme Court on motion of the district court.

Case remanded with questions unanswered.

For the petitioners the matter was submitted on the brief and also oral argument of Allen A. Pearson, of Cheyenne, Wyoming.

POINTS OF COUNSEL FOR RESPONDENT

Since 1877, the City of Cheyenne has been governed by its present special charter. That special charters are not covered by Art. XIII, Sec. 1 of the constitution, except that they may abandon their charters and organize under the general laws if they desire to do so, has been clearly settled by McGarvey v. Swan, (1908), 17 Wyo. 120, 96 P. 697; State v. Sheldon, (1923), 29 Wyo. 233, 213 P. 92; McFarland v. Cheyenne, (1935), 48 Wyo. 86, 42 P.2d 413; May v. Laramie, (1942), 58 Wyo. 240, 131 P.2d 300.

Chapter 22, Article 8, Wyoming Revised Statutes, 1931, is unconstitutional in that it violates Article III, Section 27 and Article I, Section 34 of the Wyoming Constitution.

The City of Cheyenne must abandon its special charter in the event it adopts the provision of Chapter 22, Article 8, Wyoming Revised Statutes, 1931. Art. XIII, Sec. 1 of the Constitution.

For the respondent the matter was submitted on the brief and also oral argument of Carleton A. Lathrop and A. Joseph Williams, both of Cheyenne, Wyoming.

POINTS OF COUNSEL FOR PETITIONERS

The city manager law would not involve a new classification any more than would the commission manager law. The other two forms of municipal government are not new classifications of municipalities. State v. Sheldon, 29 Wyo. 233, 213 P. 92.

It is not necessary that all cities of the same class have exactly the same powers and restrictions, but only that they all have the same right to acquire them if they so desire. State v. Sheldon, supra.

It is always a matter of very grave importance to decide upon the constitutionality of an act of the legislature, and the statute should be held void only where it is shown that there has been a clear violation of the Constitution. State ex rel Hinds v. Cahill, 12 Wyo. 225, 75 P. 433.

OPINION

Per Curiam.

This cause comes before this court upon a number of reserved constitutional questions asserted by the order of the District Court of Laramie County, Wyoming, which made the reservation, to be important and difficult and as arising upon the record duly certified here by the clerk of that court. §§ 89-5001 to 89-5003, inclusive, W. R. S., 1931, indicate the procedure which must be followed in such matters.

In State v. Kelley, et al, 17 Wyo. 335, 98 P. 886, a case involving procedure under the statutes above referred to, this court pointed out that, "It is a uniform rule that courts do not pass upon the constitutionality of a statute unless the necessity therefor in the case pending clearly appears (Cooley Const. Lim., Sec. 163)."

Reiterating the same rule in substance the decision in the later case of State v. Smart, 18 Wyo. 436, 110 P. 715, a cause of like character with that of the Kelley case, supra, so far as procedure is concerned, declared also that:

"And it has been uniformly held that this court will examine the original papers certified to it by the District Court in order to determine whether such questions arise in the action or proceeding, and whether their determination is necessary to a disposition of the case; * * *."

In both of these cases the constitutional questions undertaken to be reserved were returned to the several district courts unanswered, and in the Kelley case, supra, the following positive language was used:

"we are of the opinion that it would be not only improper to decide the constitutional question sought to be presented on the brief and the reserved questions, but that this court is without jurisdiction to do so until it shall plainly appear that such decision is necessary to the disposition of the demurrer."

The legal principles thus announced have been recognized and followed in Budge v. Commissioners, 29 Wyo. 35, 208 P. 874; In re Gillette Daily Journal, 44 Wyo. 226, 11 P.2d 265; State ex rel. Lee, Attorney General v. Continental Oil Co., 48 Wyo. 152, 43 P.2d 686; and Roberts v. City of Rock Springs, 52 Wyo. 89, 68 P.2d 891.

We proceed, therefore, to examine the record now before us to determine in the light of these decisions what is the proper course for this court to follow relative to the questions thus propounded.

The action is one brought by certain residents and qualified electors of the City of Cheyenne, Wyoming, to obtain a writ of mandamus commanding the respondent, Bruce S. Jones, as Mayor of said City, to forthwith issue a proclamation calling a special election therein for the purpose of submitting to the qualified electors of that city the proposition as to whether that city should adopt the City Manager form of municipal government as provided for by Ch. 22, Art. 8, W. R. S., 1931, as amended by Ch. 32, Laws of Wyo., 1943, and Ch. 114, Laws of Wyo., 1945.

§ 22-802, W. R. S. 1931, which provides for the issuance of such a proclamation under certain circumstances, reads as follows:

"§ 22-802. Within five days after filing with the city clerk of a city, of a petition of electors of said city equal in number to ten per centum of the number of registered electors of such city, the mayor thereof shall by a proclamation to be published in at least one newspaper in said city for three times, submit the question of accepting the provisions of this article at a special election to be held at a time specified therein not less than thirty days and not more than sixty days after said petition is filed. If the provisions of this article are not accepted at such special election, the question of accepting said provisions shall not again be submitted to the voters of said city for adoption within two years thereafter. The signature to the petition need not all be appended to one paper, but each signer shall state his place of residence and street number. One of the signers of each paper shall make oath that each signature to the paper appended is the genuine signature of the person whose signature it purports to be."

The City of Cheyenne is a city originally incorporated and for many years operating under a special charter; subsequently it adopted the commission form of municipal government (W. R. S. 1931, Art. 6) and for more than thirty years has conducted its affairs thereunder. In order to understand the nature of some of the questions raised by the pleadings in this cause, which will be presently briefly and in substance reviewed we now refer to §§ 22-629 and 22-630, of Art. 6, aforesaid, which supply the procedure to be followed when it is desired to abandon the commission form of government after a city has operated under it for a certain number of years as specified in the law. They provide:

"§ 22-629. At any time after the expiration of three years from the adoption by any city of the provisions of this article, such city can abandon such form of government as herein provided."

"§ 22-630. Within five days after the filing with the city clerk of a petition of electors equal in number to fifteen per centum of the number of registered electors of such city, the mayor shall, by proclamation to be published at least three times in any newspaper of general circulation within such city, submit the question of abandoning the commission form of government to a special election to be held at a time specified therein, not less than thirty days nor more than sixty days after said petition is filed."

The petition for the writ of mandamus after stating that the petitioners were and are residents and qualified electors of the City of Cheyenne; that they signed a petition calling for the submission of the proposition as to whether the City of Cheyenne should adopt the city manager form of government as provided for by Ch. 22, Art. 8, W. R. S., 1931, and amendments thereof mentioned above; that they bring the...