Brinegar v. Clark, No. 3020

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtPARKER
Citation371 P.2d 62
PartiesLee Roy BRINEGAR, Appellant (Plaintiff below), v. Burton L. CLARK, State Fire Marshal, Appellee (Defendant below).
Docket NumberNo. 3020
Decision Date01 May 1962

Page 62

371 P.2d 62
Lee Roy BRINEGAR, Appellant (Plaintiff below),
v.
Burton L. CLARK, State Fire Marshal, Appellee (Defendant below).
No. 3020.
Supreme Court of Wyoming.
May 1, 1962.
Rehearing Denied July 9, 1962.

Page 63

George F. Guy, Walter B. Phelan, of Guy & Phelan, Cheyenne, for appellant.

Norman B. Gray, Atty. Gen., and W. M. Haight, Deputy Atty. Gen., Cheyenne, for appellee.

Before BLUME, C. J., and PARKER, HARNSBERGER, and McINTYRE, JJ.

Mr. Justice PARKER delivered the opinion of the court.

Plaintiff on April 18, 1959, opened a coin-operated service station in Rock Springs. When on April 23, 1959, he was given twenty-four hours by town authorities for compliance with the state fire code, he brought a declaratory judgment action challenging the constitutionality of §§ 35-431-35-433, W.S.1957, under which the state fire marshal had acted, and § 35-421, W.S.1957, which sets out the powers of the marshal. He alleged that the former statutes deprived him of property without due process of law, in violation of Art. 1, § 6, Wyo.Const.; that the latter gave the marshal no jurisdiction over gasoline pumps of service stations; that the moving force behind both the adoption and the enforcement of the regulations by the marshal was the activities of business competitors; and that the law in question was in violation of other Wyoming constitutional provisions: Art. 2, § 1, that the powers of government are divided into three departments; Art. 3, § 24, that a bill shall contain only one subject, which shall be expressed in its title; and Art. 4, § 1, that the executive power be vested in the governor. 1

The matter was fully heard at which time evidence was adduced by both parties. The court found that the third cause of action wherein it was alleged that business competitors were the moving force behind the adoption and enforcement of the regulations had been properly dismissed; that §§ 35-431-35-433 were constitutional; that § 35-431 (apparently this was a typographical error and the court intended to state § 35-421) gave the fire marshal jurisdiction to promulgate necessary rules and regulations in accordance with the standards provided; and that the title of c. 93, S.L. of Wyoming, 1955, now art. 1 of c. 7, title 35, W.S.1957, did not violate Art. 3, § 24, Wyo.Const. Accordingly, judgment was entered dismissing the complaint and plaintiff here urges error as to each of the court's rulings.

At the inception it may be well to note that plaintiff's philosophy of the case stems largely from his view that the rules prohibit rather than regulate his business, a premise which we shall explain later is unwarranted.

The statutes in issue are contained in title 35, art. 1 of c. 7, W.S.1957, and were originally passed as c. 93, S.L. of Wyoming, 1955, the basic provision being contained in § 35-421:

'In addition to the powers hereinafter granted, the State Fire Marshal shall have the following powers:

* * *

* * *

'4. The State Fire Marshal shall have authority to inspect public, business or industrial buildings and to require conformance to standards of prevention

Page 64

and safety and of use of premises as promulgated by the National Board of Fire Underwriters, or by the United States Bureau of Standards.

'5. The State Fire Marshal is hereby given power to do all things necessary and convenient for carrying into effect the laws of this State governing this Act [§§ 35-419 to 35-436] and may, from time to time, promulgate necessary rules and regulations for the better protection of the lives and property of the public.'

Purporting to act under the authority of the last named subsection, the marshal, who was defendant's predecessor, on November 10, 1958, issued a statement that he had adopted as the minimum standards for the State of Wyoming certain pamphlets including National Board of Fire Underwriters Pamphlet 30, entitled 'Standard for the Storage, Handling and Use of Flammable Liquids.' Although all of the standards of Pamphlet 30 are questioned, the principal section under challenge in this action is:

'6340. Automatic Dispensing Units:

'The installation and use of coinoperated dispensing devices for Class I flammable liquids [including gasoline] is prohibited.' 2

Plaintiff argues that the marshal in issuing the questioned regulations went beyond the implementation of the statutes and the effectuation of the will of the legislature, violating Art. 2, § 1, and Art. 3, § 1, Wyo.Const.; that nothing in title 35, art. 1 of c. 7, W.S.1957, authorizes the marshal to regulate filling stations which are not listed in the statutes as subject to inspection and regulation.

He urges that filling stations are not within the 'building or premises' mentioned in § 35-431, the 'places where large numbers of persons work, sleep, live or congregate' of § 35-421, subsection 2, or the 'public, business or industrial buildings' of § 35-421, subsection 4. He attempts to invoke the doctrine of ejusdem generis and cites a few authorities in substantiation but presents only general discussion and fails to correlate any cited authorities with the pertinent statutes so as to carry his argument to a logical conclusion. Undoubtedly, as relates to this case, the words 'building or premises subject to * * * inspection' in § 35-431 refer to § 35-421, subsections 4 and 5. These two subsections by the method of dismemberment employed by plaintiff can, of course, be questioned as authority for the challenged action, but grammatical analysis of the provisions therein must be made in the light of well settled rules applying to constitutionality, i. e., that statutes will not be declared unconstitutional unless the unconstitutionality is clear, 3 that it cannot be presumed that the legislature intended to do a futile thing, 4 and that in determining constitutionality all related statutes must be considered in pari materia. 5 So considered, these subsections reasonably extend the mentioned authority of the marshal not only to buildings but to premises used for public, business, or industrial purposes.

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20 practice notes
  • Billis v. State, Nos. 88-311
    • United States
    • United States State Supreme Court of Wyoming
    • October 5, 1990
    ...title must encompass all of the aspects of the statute; or that everything therein affected need be delineated. Brinegar v. Clark, Wyo., 371 P.2d 62, 66 [1962]; Morrow v. Diefenderfer, Wyo., 384 P.2d 601, 603 [1963]; Board of Com'rs of Laramie County v. Stone, 7 Wyo. 280, 51 P. 605, 607 Sta......
  • Wyoming Nat. Abortion Rights Action League v. Karpan, Nos. 94-8
    • United States
    • United States State Supreme Court of Wyoming
    • September 7, 1994
    ...every single textual provision or specific aspect of the bill but, instead, only "reasonable adherence" is required. Brinegar v. Clark, 371 P.2d 62, 66 (Wyo.1962). See also Morrow v. Diefenderfer, 384 P.2d 601 (Wyo.1963); State ex rel. Fire Fighters Local No. 946 v. City of Laramie, 437 P.2......
  • Wyoming State Dept. of Educ. v. Barber, No. 25
    • United States
    • United States State Supreme Court of Wyoming
    • August 18, 1982
    ...universities. Similar use of the National Board of Fire Underwriters by the State Fire Marshal was approved in Brinegar v. Clark, Wyo., 371 P.2d 62 The district court found, and appellees contend, that § 10b of the rules and regulations regarding certification went beyond that authorized by......
  • State ex rel. Fire Fighters Local No. 946, I. A. F. F. v. City of Laramie, No. 3633
    • United States
    • United States State Supreme Court of Wyoming
    • February 15, 1968
    ...title must encompass all of the aspects of the statute; or that every thing therein affected need be delineated. Brinegar v. Clark, Wyo., 371 P.2d 62, 66; Morrow v. Diefenderfer, Wyo., 384 P.2d 601, 603; Board of Com'rs of Laramie County v. Stone, 7 Wyo. 280, 51 P. 605, In the case of In re......
  • Request a trial to view additional results
20 cases
  • Billis v. State, Nos. 88-311
    • United States
    • United States State Supreme Court of Wyoming
    • October 5, 1990
    ...title must encompass all of the aspects of the statute; or that everything therein affected need be delineated. Brinegar v. Clark, Wyo., 371 P.2d 62, 66 [1962]; Morrow v. Diefenderfer, Wyo., 384 P.2d 601, 603 [1963]; Board of Com'rs of Laramie County v. Stone, 7 Wyo. 280, 51 P. 605, 607 Sta......
  • Wyoming Nat. Abortion Rights Action League v. Karpan, Nos. 94-8
    • United States
    • United States State Supreme Court of Wyoming
    • September 7, 1994
    ...every single textual provision or specific aspect of the bill but, instead, only "reasonable adherence" is required. Brinegar v. Clark, 371 P.2d 62, 66 (Wyo.1962). See also Morrow v. Diefenderfer, 384 P.2d 601 (Wyo.1963); State ex rel. Fire Fighters Local No. 946 v. City of Laramie, 437 P.2......
  • Wyoming State Dept. of Educ. v. Barber, No. 25
    • United States
    • United States State Supreme Court of Wyoming
    • August 18, 1982
    ...universities. Similar use of the National Board of Fire Underwriters by the State Fire Marshal was approved in Brinegar v. Clark, Wyo., 371 P.2d 62 The district court found, and appellees contend, that § 10b of the rules and regulations regarding certification went beyond that authorized by......
  • State ex rel. Fire Fighters Local No. 946, I. A. F. F. v. City of Laramie, No. 3633
    • United States
    • United States State Supreme Court of Wyoming
    • February 15, 1968
    ...title must encompass all of the aspects of the statute; or that every thing therein affected need be delineated. Brinegar v. Clark, Wyo., 371 P.2d 62, 66; Morrow v. Diefenderfer, Wyo., 384 P.2d 601, 603; Board of Com'rs of Laramie County v. Stone, 7 Wyo. 280, 51 P. 605, In the case of In re......
  • Request a trial to view additional results

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