Brown v. Clark, Secretary of State, 1876

• Decision Date: 19 June 1934
• Docket Number: 1876
• Parties: BROWN v. CLARK, SECRETARY OF STATE
• Court: Wyoming Supreme Court

34 P.2d 17

47 Wyo. 216

BROWN v. CLARK, SECRETARY OF STATE

No. 1876

Supreme Court of Wyoming

June 19, 1934

HEARD on reserved constitutional questions from the District Court of Laramie County; SAM M. THOMPSON, Judge.

Action by C. O. Brown against A. M. Clark as Secretary of State under the Declaratory Judgment Statute, to test the constitutionality and the validity of Chapter 44, Session Laws of Wyoming, 1933.

For the plaintiff there was a brief by E. E. Enterline, W. B. Cobb Bryant S. Cromer, A. B. King, Durham & Bacheller, Burt Griggs, Robert R. Rose, Chester Ingle, John J. McIntyre, John D. Dawson, Joseph Garst, Thomas O. Miller, Paul R. Greever Meyer Rankin, Milward Simpson, H. S. Harnsberger, W. E Hardin, A. H. Maxwell, Reid & More, A. D. Walton, W. O Wilson, James A. Greenwood, W. C. Kinkead, Armstrong & Armstrong, and oral argument by Messrs. Enterline, Cromer and Armstrong.

This action was brought under the Declaratory Judgment Statute by plaintiff to test the constitutionality of Chapter 44, Laws of 1933. It will be noted that by this act, only two of the old districts are left intact; eight counties of the state are placed in other districts than those to which they belonged under the old law; two districts are eliminated, and two district judges are removed from office. This act is not an amendment to the then existing laws providing for judicial districts, but repeals existing laws and itself constitutes all of the statute law of the state upon the subjects embraced herein. The case is important in that it involves the validity of all judicial districts in the state, and the act in question is believed to be an unwarranted interference by the legislative branch with the functions of the judicial branch of the state. The case is submitted on five (5) separate propositions, which will be discussed in their order. The provisions of the constitution involved are Article I, Sec. 1; Article II, Sec. 1; Article III, Sec. 27; Article V, Secs. 1, 6, 12, 17, 19, 20, 21; Article XII, Secs. 1 and 2 and Article XIX, Sec. 10. Before proceeding with our main argument, we desire to direct the court's attention to the authorities cited on the introductory pages in the Attorney General's brief, all of which, we believe, will be found to be based upon constitutional provisions differing from Wyoming, except certain of said decisions either differing from the present case on the facts or having no bearing whatsoever upon the questions here involved.

PROPOSITION I.

The legislature has no power or authority to reduce the number of judicial districts in Wyoming. No such authority appears in the constitution. Article V, Section 21 of the constitution authorizes an increase of districts but no authority to decrease districts appears therein, nor is such authority implied. MacDonald v. Doust, 81 P. 60; State v. Sheldon, (Wyo.) 213 P. 92; Rhyne v. Lipscombe, (N. C.) 29 S.E. 57; State v. Noble, 4 L. R. A. 101; State v. McBride, (Wash.) 70 P. 25; State v. Donald, (Wis.) 160 N.W. 1067. The last case referred to condemned a statute shortening the term of a circuit judge. Griffin v. State, (Ind.) 22 N.E. 7; State v. Douglas, (Wis.) 7 Am. Rep. 87; State v. Company, (N. C.) 29 S.E. 334; Perkins v. Corbin, (Ala.) 6 Am. Dec. 698; McDermont v. Dinnie, (N. D.) 69 N.W. 294; 12 C. J. 707. "Expressio unius est exclusio alterius." 6 R. C. L. 49; State v. Power, (Ariz.) 138 P. 781.

PROPOSITION II.

The legislature has no power or authority to shorten the term of, or diminish the compensation of any district judge. State v. Friedley, (Ind.) 34 N.E. 872; Commonwealth v. Gamble, (Pa.) 1 Am. Rep. 422; State v. Handy, (Ohio) 36 N.E. 1071; Crozier v. Lyon, (Iowa) 34 N.W. 186; Foster v. Jones, (Va.) 52 Am. Rep. 637; Reals v. Smith, 8 Wyo. 159.

PROPOSITION III.

The legislature has no power or authority to provide for the election of a district judge, by electors residing outside of that judicial district at the time of such election. Section 4 of Chapter 44, aforesaid, is a direct contradiction of the foregoing constitutional provision.

PROPOSITION IV.

The legislature has no power or authority to appoint a judge to serve over a portion of a judicial district to which he was neither elected or appointed by constitutional authority, or to serve over a district in which there is no regularly elected or appointed judge. By Section 5 of Chapter 44, Laws 1933, it has been attempted to assign judges to serve in the newly established sixth and seventh districts. This is illegal. Hoglan v. Geddes, 25 Wyo. 436.

PROPOSITION V.

Chapter 44, Laws 1933, is void because of indefiniteness, ambiguity and uncertainty as to what districts are attempted to be abolished and what are the jurisdiction and powers of the several judges affected by said law, and who may be candidates in 1934 for judicial office in the several affected districts. Attorney General v. Gaitskill, (Kan.) 300 P. 336.

For the defendant, there was a brief by Ray E. Lee, Attorney General; O. O. Natwick, Deputy Attorney General, and William C. Snow, Assistant Attorney General, of Cheyenne, and oral argument by Mr. Natwick. It is believed that the controlling authorities in the case are as follows: Vandeventer v. Rose, (Ill.) 67 N.E. 746; State v. Cochran, (Ore.) 105 P. 884; State v. Rusk, (Wash.) 46 P. 387; People v. Sassovich, 29 Cal. 480; State v. Gardner, (Mo.) 265 S.W. 996; McCulley v. State, (Tenn.) 53 S.W. 134; Lytle v. Halff, (Texas) 12 S.W. 610; State v. Lewis, (Utah) 72 P. 388; State v. Commissioners, (Nev.) 10 P. 901; Aikman v. Edwards, (Kan.) 42 P. 366; State v. Schnitger, 17 Wyo. 65; 7 R. C. L., Section 11, page 983. The legislature may add to or may take from the territory constituting a circuit. It may create new circuits. It may abolish a circuit, if the act be made to take effect at, and not before, the expiration of the terms of office of the judge and prosecutor of such office, as constituted, at the time of the act. The power to detach counties from one district and add them to another is within the legislative authority, and the change of a county from one judicial circuit to another whose judges the qualified voters of the county had no voice in electing does not violate a constitutional provision that the judges shall be elected by the qualified voters of the district. The legislature has the power to abolish as well as to create; to diminish as well as to increase the number of districts so long as it does not reduce the number below that originally specified. The questions of law raised in the case at bar are well covered by the above decisions. People v. Rose, 166 Ill. 422. Where a general power is conferred upon the law-making body by the constitution, it also gives, by implication, every particular power necessary for the exercise of the one or the performance of the other. Field v. People, 2 Scam. 79; City of Chicago v. Stratton, (Ill.) 44 N.E. 853; Cooley's Const. Lim (2d Ed.) 63. There is a seeming conflict between Sections 5 and 6 of Article VI of the constitution, but it is readily explained. State v. Cochran, (Ore.) 105 P. 884; State v. Rusk, 46 P. 387; People v. Sassovich, 29 Cal. 480; 19 R. C. L. 769; McCulley v. State, (Tenn.) 53 S.W. 134; Lytle v. Halff, (Texas) 12 S.W. 610; State v. Lewis, (Utah) 72 P. 388; State v. Commissioners, (Nev.) 10 P. 901; Aikman v. Edwards, (Kan.) 42 P. 366; In re Fourth Judicial District, 4 Wyo. 133; State v. Schnitger, 17 Wyo. 65. It is true that Section 21 of Article V of the constitution states that any increase or change in the boundaries of the district shall not work the removal of any judge from his office during the term for which he may have been elected or appointed. It is contended that this act shortens the term of office of judges from the first Monday in January, 1935, to the 31st day of December, 1934. But it is apparent from the provisions of the act, when all portions thereof are considered, that the intent was not to interfere with the term of any judge, for which he was elected, but that his term should extend to the first Monday in January, 1935.

Armstrong & Armstrong by supplemental brief for plaintiff.

District courts are constitutional courts, and the judges thereof are elected by the electors of such district for terms of six (6) years. The office is created by the constitution. 15 C. J 855. There is no provision in the constitution for decreasing the number of districts. The presumption is that the language has been employed with sufficient precision to convey the intent. Rasmussen v. Baker, 7 Wyo. 117. The maxim, "expressio unius est exclusio alterius" applies. 12 C. J. 707; State v. Light Company, (Ariz.) 138 P. 781. The expression of one thing excludes another. In re. A. T. & S. F. Ry. Company, (N. M.) 20 P.2d 918; 15 C. J. 860; Kruegel v. Daniels, (Tex.) 109 S.W. 1108; 15 C. J. 858; State v. Douglas, (Nev.) 110 P. 177; State v. Friedly, (Ind.) 34 N.E. 872; Commonwealth v. Gamble, 62 Pa. St. 343; Fant v. Gibbs, 54 Miss. 396; State v. Arrington, (Nev.) 4 P. 735; People v. Foley, (N. Y.) 43 N.E. 171; Hilton v. State, (Ohio) 140 N.E. 681; State v. Bartholomew, (Ind.) 95 N.E. 417; People v. Bollam, (Ill.) 54 N.E. 1032. If the effect of the act of 1933 is to create a vacancy in the office of judge of the sixth district, then, under the holdings of this court, such vacancy must be filled either at a special election or by appointment by the Governor. State v. Jefferis, 26 Wyo. 115. The statute must yield to the constitution. State v. Berg, (Minn.) 157 N.W. 652; State v. Heffner, (Ohio) 52 N.E. 785; State v. Schnitger, supra. One holding a civil office is entitled to continue until his successor is duly qualified. Ballantyne v. Bower, 17 Wyo. 356; People v. Shawver, 30 Wyo. 366; 33 C. J. 1029, 1938. It is...