Brinegar v. Clark

• Decision Date: 01 May 1962
• Docket Number: No. 3020,3020
• Citation: 371 P.2d 62
• Parties: Lee Roy BRINEGAR, Appellant (Plaintiff below), v. Burton L. CLARK, State Fire Marshal, Appellee (Defendant below).
• Court: Wyoming Supreme Court

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.

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 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.

Plaintiff maintains that even though this court should hold defendant to have had authority for the issuance of § 6340 such regulation is nevertheless unconstitutional as it is an unreasonable exercise of police power, has no rational basis of fact, does not bear a reasonable relation to public peace, health, morals, welfare, or safety, and is class legislation. He cites several cases, the following of which seem to be representative of his philosophy: Cities Service Gas Co. v. Peerless Oil & Gas Co., 340 U.S. 179, 71 S.Ct. 215, 95 L.Ed. 190, for the principle that a regulation must be substantially related to the end sought to be obtained; Louis K. Liggett Company v. Baldridge, 278 U.S. 105, 49 S.Ct. 57, 73 L.Ed. 204, for the rule that a police regulation must not be arbitrary or oppressive; and Ludwig v. Harston, 65 Wyo. 134, 197 P.2d 252, for the statement that a requirement must be reasonable in view of the object sought to be obtained. While the rules are unquestioned by counsel, the facts scarcely bear out plaintiff's thesis. It is true that there was testimony before the court which tended to show that a coin-operated gas dispensing device was not inherently dangerous, but he overlooks the testimony before the court which tended to show that fires have occurred in coinoperated stations in neighboring states during recent years. This testimony in conjunction with the fact that courts have long considered gasoline and kerosene stored in large quantities to be dangerously inflammable constituted sufficient basis upon which the trial court could have properly determined the regulation to be reasonable.

Plaintiff complains that the court erred in striking his third cause of action wherein he alleged that the moving force behind the adoption and enforcement of the questioned regulations was the desire of competitors to eliminate him from the gasoline filling station business. It is unnecessary to refer specifically to the various cases which he cites, since in general they deal with situations where the purported exercise of the police power was said to have been a mere cloak for the arbitrary interference with or the suppression of a lawful business. There was no evidence or offer to prove here that the business competitors influenced the enactment of the law or the adoption of the regulations, and, as we have previously pointed out, there was evidence before the court on which it could properly have found § 6340 to be reasonable. Except on the point of prohibiting rather than regulating plaintiff's business, which will receive attention hereafter, the cases are inapplicable.

Plaintiff asserts that § 35-421 is void because it unlawfully delegates a legislative function to a private agency and quotes from Hillman v. Northern Wasco County People's Utility District, 213 Or. 264, 323 P.2d 664, wherein the court held to be unconstitutional a statute which provided that all electrical installations should be made in substantial accord with the National Electrical Code as approved by the American Standards Association and rules and regulations promulgated by the Commissioner of the Bureau of Labor relating to such work as to fire and personal injury hazards. This situation was different from the one before us. The Oregon court emphasized the principal objection that the law adopted the questioned rules prospectively, saying that it doubted that the positive duty imposed on the commissioner by the statute 'is properly performed by blindly accepting in advance such safety regulations as may be adopted in the manner outlined.' (Emphasis supplied.) This distinction is further observed in Seale v. McKennon, 215 Or. 562, 336 P.2d 340, where it was stated that the authority to adopt as the future laws of Oregon future laws or regulations of the United States or its departments is unconstitutional, but adding 'adoption of existing statutes and regulations of the...