Dickerson v. City Council of City of Buffalo, 4883
| Citation | 582 P.2d 80 |
| Decision Date | 28 July 1978 |
| Docket Number | No. 4883,4883 |
| Parties | Dugal DICKERSON, Domingo Goyhenex, Lavern Kinnison, Donald Pickering, Donald Scantling, and Dan Hanson, Appellants (Plaintiffs below), v. The CITY COUNCIL OF the CITY OF BUFFALO, Wyoming, the Board of County Commissioners of the County of Johnson, and the Joint Powers Board of Johnson County, Wyoming, and Buffalo, Wyoming, Appellees (Defendants below). |
| Court | United States State Supreme Court of Wyoming |
William K. Archibald, of Holstedt & Archibald, Sheridan, for appellants.
Greg L. Goddard, Buffalo, for Board of County Commissioners of Johnson County and Joint Powers Board, appellees.
Dennis M. Kirven, of Kirven & Kirven, Buffalo, for City Council of Buffalo and Joint Powers Board, appellees.
Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.
The appellants, plaintiffs below, are Dugal Dickerson, Domingo Goyhenex, Lavern Kinnison, Donald Pickering, Donald Scantling, and Dan Hanson, who sue in their capacities as taxpayers and residents of Johnson County, Wyoming. The appellees, defendants below, are The City Council of the City of Buffalo, Wyoming, The Board of County Commissioners of the County of Johnson, and The Joint Powers Board of Johnson County, Wyoming and Buffalo, Wyoming.
In this action, appellants filed a complaint praying for an order of the court which would declare
(1) an intergovernmental agreement between the Town of the City of Buffalo, Wyoming, and County of Johnson, State of Wyoming, dated November 5, 1975, to be void;
(2) The Buffalo-Johnson Joint Powers Board is illegally constituted and the officers thereof are holding their offices illegally; and
(3) The City of Buffalo, Wyoming, and County of Johnson, State of Wyoming, will re-establish the Buffalo-Johnson Joint Powers Board in accordance with statutory requirements.
The appeal comes here from an order granting defendants'-appellees' motion to dismiss, which, under Rule 12(b), W.R.C.P., was treated as a motion for summary judgment.
The document concerning which appellants lodge their grievance is an Intergovernmental Agreement dated November 5, 1975, entered into by the Town of the City of Buffalo, Wyoming, and the County of Johnson, State of Wyoming, which contract provides for the creation of a Joint Powers Board pursuant to § 9-1-133, W.S.1977 (§ 9-18.17, W.S.1957, 1975 Cum.Supp.). The further purpose of the writing is to provide for the construction, maintenance and operation of a criminal justice building. The Agreement was timely signed by both the city and county approved by the Office of the Attorney General filed with the Secretary of State, and recorded in the office of the County Clerk of Johnson County, Wyoming.
Pursuant to the Agreement, the Joint Powers Board was formed with membership consisting of the Mayor of the City of Buffalo, the Chairman of the Board of County Commissioners of Johnson County, and one member of the Buffalo City Council appointed by the Mayor with the approval of the City Council, together with one member of the Board of County Commissioners appointed by the Chairman with approval of the Board. The fifth member of the Joint Powers Board was selected by the above-named members of the Board with the approval of the governing body of the City of Buffalo and the Board of County Commissioners of Johnson County. Appellants charge this formation of the Board is in violation of § 9-1-133(a), W.S.1977 (§ 9-18-17(a), W.S.1957, 1975 Cum.Supp.). 1
The reason the Board is illegally constituted and the members illegally holding office, say appellants, is because prohibited incompatibility results when the City Council and County Commissioners appoint their own members to the Joint Powers Board.
Once formed, the Board entered into agreements with respect to a Criminal Justice Building, yet to be constructed, and, when finished, the building was then leased by the Board to the City of Buffalo and the County of Johnson. On December 1, 1976, the City and County entered into possession of the building.
On March 8, 1977, appellants filed their complaint herein in the District Court for Johnson County, Wyoming, and on May 9, 1977, appellees filed a motion to dismiss, supported by various affidavits. On October 5, 1977, the district judge entered summary judgment in favor of the appellees and against the appellants, and appellants have taken this appeal from this judgment of the court.
The issues for review which are identified by the appellants are:
1. The court erred in granting the appellees' motion for summary judgment and failing to grant the appellants' motion for the reason that the Joint Powers Board was illegally formed.
2. The court erred in not directing the Joint Powers Agreement be amended to provide that the Criminal Justice Building will become the property of the City and County when the lease is terminated.
3. The court erred in holding the appellants' action barred by laches.
4. The court erred in holding the appellants' action barred by the doctrine of res judicata.
5. The court erred in holding the appellants had no standing to sue as taxpayers in this declaratory judgment action.
We will affirm the district court in its order granting appellees' motion for summary judgment for the reason that there is no issue of material fact to be determined here since the appellants failed to pursue the correct legal remedy. This being the disposal of the appeal, other issues raised will not be considered.
The appellants, in their brief to this court, contend that they have brought this action under the Uniform Declaratory Judgments Act (§§ 1-37-101 through 1-37-114, W.S.1977 (§§ 1-1049 to 1-1064, W.S.1957, 1975 Cum.Supp.)) to challenge the legal existence of the Buffalo-Johnson Joint Powers Board and the right of the now-sitting board members to hold office. Such an action will lie only in quo warranto brought under the pertinent statutes in the name of the State of Wyoming.
When a civil action is brought in this state against one usurping, unlawfully holding or exercising public office, the quo warranto statutes are applicable. Section 1-31-101(a)(i), W.S.1977 (§ 1-896, W.S.1957), provides in relevant part "Actions against persons.
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