Haddenham v. City of Laramie

• Decision Date: 21 July 1982
• Docket Number: No. 5674,5674
• Citation: 648 P.2d 551
• Parties: D. N. HADDENHAM, d/b/a B & D Distributors, Appellant (Petitioner), v. The CITY OF LARAMIE, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 551

648 P.2d 551

D. N. HADDENHAM, d/b/a B & D Distributors, Appellant (Petitioner), v. The CITY OF LARAMIE, Appellee (Defendant).

No. 5674.

Supreme Court of Wyoming.

July 21, 1982.

John L. Hoke, Rawlins, and Richard C. Wolf, Cheyenne, for appellant.

Thomas S. Smith, City Atty., Laramie, for appellee.

Jack R. Gage and Thomas E. Campbell of Hanes, Gage & Burke, P. C., Cheyenne, filed an amicus curiae brief on behalf of the Wyoming Pyrotechnic Association, Inc.

Before ROSE, C. J., and RAPER, THOMAS, ROONEY and BROWN, JJ.

ROONEY, Justice.

Appellant-petitioner appeals from a judgment and order entered in a declaratory judgment action brought by him against appellee-defendant (hereinafter referred to as "City"). The matter was presented to the trial court on a stipulation between the parties which provided, among other things:

"4. That there remains one legal issue to be determined as follows:

"(a) whether the governing body of the City of Laramie acted in excess of its The trial court held that it did not. Enrolled Ordinance No. 618 ¹ (hereinafter referred to as "Ordinance") extended the provisions of the Uniform Fire Code, which had been previously adopted by the City to "be enforceable within the city limits and within two miles outside of the city limits." The definition of fireworks in the Uniform Fire Code included that which was being sold by appellant at his places of business located within two miles of the City limits.

powers in its adoption of Enrolled Ordinance No. 619."

We affirm.

Appellant contends that (1) the City does not have the power to ordain a definition of fireworks more restrictive than that contained in the state statutes and that the Ordinance was in conflict with such statutes, and (2) that by virtue of the statutes, the City lacked the power to ordain relative to fireworks beyond its City limits.

DEFINITION OF FIREWORKS

The statutes relative to fireworks, §§ 35-10-201 through 35-10-207, W.S.1977, provide in pertinent part:

Section 35-10-201:

"(a) 'Fireworks' means and includes any article, device or substance prepared for the primary purpose of producing a visual or auditory sensation by combustion, explosion, deflagration, or detonation, including, without limitation the following articles and devices commonly known and used as fireworks; toy cannons or toy canes in which explosives are used, blank cartridges, firecrackers, torpedoes, skyrockets, Roman candles, and daygo bombs, but not including soft shell firecrackers not to exceed one (1) inch in length and one-eighth inch in diameter, sparklers, Vesuvius fountains, spray fountains, torches, color fire cones, star and comet type aerial shells without explosive charge for the purpose of making a noise, color wheels, toy cap pistols, and toy caps each of which does not contain more than twenty-five hundredths of a gram of explosive material.

"(b) 'Governing body' means the board of county commissioners as to the area within a county but outside the corporate limits of any city or town; or means the city council or other governing body of a city or town as to the area within the corporate limits of such city or town."

Section 35-10-202:

"Except as hereinafter provided, it shall be unlawful for any person to offer for sale at retail, expose for sale at retail, sell at retail, give away, use, discharge or detonate any fireworks in the state of Wyoming."

Section 35-10-205:

"This act (§§ 35-10-201 to 35-10-207) shall not be construed to prohibit the imposition by municipal ordinance of further regulations or prohibitions upon the sale, use and possession of fireworks within the corporate limits of any city or town, but no such city or town shall permit or authorize the sale, use, or possession of any fireworks in violation of this act."

Sections 35-10-203, 35-10-204, 35-10-206 and 35-10-207 provide for issuance of permits by governing bodies for supervised public displays as exceptions to the prohibitions of the act; for other exceptions such as use for mining purposes, etc.; for seizing and disposing of fireworks involved in violation of the act; and for a misdemeanor penalty upon conviction for violating the provisions of the act.

All portions of the act must be read in pari materia, and every word, clause and sentence of it must be given effect, State Board of Equalization v. Cheyenne Newspapers, Inc., Wyo., 611 P.2d 805 (1980); State ex rel. Albany County Weed and Pest District v. Board of County Commissioners of Albany County, Wyo., 592 P.2d 1154 (1979); Department of Revenue and Taxation v. Irvine, Wyo., 589 P.2d 1295 (1979), all with the purpose of ascertaining and giving effect to the legislative intent, Sanches v Sanches, Wyo., 626 P.2d 61 (1981); Oroz v. Hayes, Wyo., 598 P.2d 432 (1979); McGuire v. McGuire, Wyo., 608 P.2d 1278 (1980).

Section 35-10-202 prohibits an offer for sale, use, etc., of fireworks in the state of Wyoming, and § 35-10-201(a) defines fireworks as that which explodes, detonates, etc., but excluding certain named devices such as sparklers, Vesuvius fountains, soft-shelled firecrackers not to exceed a specified size, etc. But § 35-10-205 allows a city to impose "further regulations or prohibitions upon the sale, use and possession of fireworks" if such does not authorize "the sale, use or possession * * * in violation of the act." If the definition of fireworks in § 35-10-201(a) were taken to preclude a city from regulating or prohibiting the sale, use or possession of more restrictive devices, as argued by appellant, § 35-10-205 would be meaningless and of no operative effect. The legislature will not be presumed to intend futile things. Yeik v. Department of Revenue and Taxation, Wyo., 595 P.2d 965 (1979); DeHerrera v. Herrera, Wyo., 565 P.2d 479 (1977); Kuntz v. Kinne, Wyo., 395 P.2d 286 (1964).

The enactment restricts the offer for sale, use, etc., of the larger, more powerful, fireworks in the state of Wyoming, but it authorizes cities and towns to further restrict or prohibit the offer for sale, use, etc., of the smaller, less powerful, fireworks within their "corporate limits."

Even without the authorization contained in § 35-10-205 for cities to ordain further prohibitions or restrictions on the smaller, less powerful, fireworks, Art. 13, § 1(b) of the Wyoming Constitution ² empowers cities to place limitations or prohibitions on the smaller, less powerful, fireworks. This because the smaller, less powerful, fireworks were excluded from that prohibited by state legislation and, thus, there is no statute concerning them which is "uniformly applicable to all cities and towns." The Ordinance is not subject to, subordinate to or subservient to §§ 35-10-201 through 35-10-207. It concerns that deliberately excluded from such sections. It includes that which is not applicable to any city or town, let alone that which is uniformly so applicable. See Laramie Citizens, Etc. v. City of Laramie, Wyo., 617 P.2d 474 (1980).

BEYOND CORPORATE LIMITS AVAILABILITY

Appellant contends that even should the City be empowered to ordain relative to the smaller fireworks, the "corporate limits" language contained in § 35-10-205 prevents the City from making the Ordinance effective "within two miles outside the city limits." In 1953, at the time of the original enactment of the predecessor of § 35-10-205, such was certainly the case. However, legislative action ³ since that time has changed the restriction. In 1965, a new Municipal Code was enacted (Ch. 112, S.L. of Wyoming 1965). Section 3 thereof provided in pertinent part:

"(a) All cities and towns have the following powers which may be exercised by their governing bodies:

"(26) To regulate, restrain or prevent the storage, use and transportation of gunpowder, high explosives, tar, pitch, resin, coal oil, benzine, turpentine, hemp, cotton, gasoline, nitroglycerine, petroleum or any product thereof, fireworks and other combustible or explosive material within the corporate limits, or within a given distance thereof." (Emphasis added.)

Obviously, the provision in the later enacted statute giving power to regulate fireworks "within a given distance of a city" is not consistent with the provisions of § 35-10-205 which limits the exercise of such power to the city limits. The two statutes cannot stand together. To the extent of the inconsistency, § 35-10-205 was repealed.

"Repeals by implication are not favored. * * * What must be shown is that the latter statute is so repugnant to the earlier one that the two cannot stand together * * *." Nehring v. Russell, Wyo., 582 P.2d 67, 73 (1978).

See Thomas v. State, Wyo., 562 P.2d 1287 (1977); and Hutchins v. State, Wyo., 483 P.2d 519 (1971).

In 1980, the Municipal Code was revised. One of the purposes of the revision as stated in the title to the act (Ch. 38, S.L. of Wyoming 1980) was to "eliminate duplicative" language. Section 3(a)(26) of Ch. 112, S.L. of Wyoming 1965, was then revised to read as now set forth in § 15-1-103(a) (xxviii), W.S.1977:

"(a) The governing bodies of all cities and towns may:

"(xxviii) Regulate or prevent the storage, use and transportation of any combustible or explosive material within the corporate limits or within a given distance thereof."

Appellant argues that § 15-1-103(a)(xxviii) and its similar predecessor are unconstitutionally vague because the words "within a given distance" are not sufficiently specific. Standing alone, such words may be unconstitutionally vague. See Yeik v. Department of Revenue and Taxation, supra. However, we must again consider the statutes in pari materia. If legislative intent can be ascertained with reasonable certainty, the statute will not be declared inoperative.

"A statute cannot be held void for uncertainty if any reasonable and practical construction can be given to its language. * * *" People v. Klufus, (1 Misc.2d 828) 149 N.Y.S.2d 821, 827 (1956).

"* * * Other statutes may also be drawn upon as sources from which to clarify how a...