Mcfarland v. City of Cheyenne

• Decision Date: 12 March 1935
• Docket Number: 1889
• Citation: 42 P.2d 413,48 Wyo. 86
• Parties: McFARLAND v. CITY OF CHEYENNE, ET AL
• Court: Wyoming Supreme Court

42 P.2d 413

48 Wyo. 86

McFARLAND v. CITY OF CHEYENNE, ET AL

No. 1889

Supreme Court of Wyoming

March 12, 1935

ON RESERVED CONSTITUTIONAL QUESTIONS from the District Court of Laramie County, SAM M. THOMPSON, Judge.

Action by J. P. McFarland against the City of Cheyenne, a municipal corporation, and others. On reserved constitutional questions from the district court.

Case remanded.

For the plaintiff there was a brief and the cause was argued orally by Walter Q. Phelan, of Cheyenne.

The action was instituted by the plaintiff alleging his unlawful removal from the police department of the City of Cheyenne and a refusal to permit him to continue further with his employment, for which he had received $ 145 per month. Plaintiff alleged that said removal was a violation of Sections 22-201; 22-202 and 22-203 of the Wyoming Revised Statutes of 1931. Plaintiff prays for a declaratory judgment construing said statutes and a decision that his removal was illegal and unlawful; his restoration to his former employment and judgment against the defendant for the full amount of wages due him at the regular rate of $ 145 per month from January 1, 1934, the date of his removal. Issue was joined by answer and reply, whereupon there was a stipulation of facts, and certain reserved questions were submitted as to the constitutionality of the statutes referred to. Section 27 of Art. 3 and Section 1 of Art. 13 of the Wyoming Constitution are cited by defendant. Legislative acts are presumed to be constitutional. 12 C. J. 791; Fletcher v. Peck, 6 Cranch (U.S.) 87, 128, 3 L.Ed 162. Counsel for defendant admits that the legislation here involved was intended to remove the police department from partisan politics and place it on a Civil Service status. Counsel for defendant cites the following authorities State v. Read, 33 Wyo. 387, 240 P. 208; Edwards v. City of Cheyenne, (Wyo.) 114 P. 677; State v LeBaron, (Wyo.) 162 P. 265; McGarvey v. Swan, 17 Wyo. 120; State v. Sheldon, 29 Wyo. 233. It is noticeable that with the exception of the LeBaron case, this court upheld the constitutionality of every statute which was attacked in any of the cases. This court has, on at least two occasions, held that similar legislation was in violation of Section 1 of Article 13. State v. Sheldon, 29 Wyo 233; McGarvey v. Swan, 17 Wyo. 120. Plaintiff in this action relies upon the authority of McGarvey v. Swan, supra, as the leading case in this state, upon the meaning of Section 27 of Article 3 and Section 1 of Article 13. Every contention made by the defendant in the present case and every objection urged to the legislation here involved, may be found in the McGarvey case, wherein the legislation was upheld. In view of that decision, we are unable to see wherein the statutes referred to may be held to be in conflict with the constitutional provisions hereinbefore mentioned without overruling the McGarvey decision.

For the defendants, there was a brief and oral argument by Harry B. Henderson, Jr., of Cheyenne.

The action was here on stipulated facts and reserved questions. It was commenced below to obtain a declaratory judgment as to plaintiff's right to be continued as an employee of the police department of Cheyenne. Pertinent sections of Chapter 47, Revised Ordinances of the City of Cheyenne, 1926, are: 690, 692 and 694. Section 22-1908; see also Section 22-1914, R. S., as to jurisdiction of the mayor. Policemen are subject to the orders of the mayor and marshal. Sections 22-1926, 1927, R. S., 1931. Police department regulations are shown at Chapter 108, Revised Ordinances of Cheyenne, 1926. Sections 22-1174, 1176, 1179, 1181 and 1189. Plaintiff's term had expired and had not been renewed. Chapter 22 above referred to appears to be void as in conflict with Article XIII, Section 1 of the State Constitution, since it applies to towns and cities having a population of less than 8,000. The Constitution provides for four classes of cities, each to be subject to the same powers and restrictions. A question arises as to special charter cities in this connection. Plaintiff relies on the statute enacted in 1931 and its express provision that it applies to any city organized under a general law or special charter. This act however adds to the confusion by nullifying its application to any city or town having a population of less than 8,000. The classes of cities in Wyoming are defined as: First Class--22-301, R. S.; Second Class--22-1101, R. S.; General Incorporation--22-1401, R. S. The Act of 1931 may by its terms apply to and restrict cities in the first and second class, but a town of 5,000 must be a city of the first class, while a town of 8,000 may be a city in that class, or in the second class, or maybe the third class. Then there are cities such as Laramie, Sheridan and Casper which must because of population be in the first class, because they exceed the maximum of 9,000 population that limits the cities of the second class. The Act of 1931 (Sec. 22-201) therefore applies to cities of the first and second class, since it is applicable to any city with a population of more than 8,000, and may be in either of the first two classes contemplated by the statutes and originally provided for in Article XIII, Section 1 of the Constitution. The public welfare or good of the department are not considered in this legislation of 1931, its purpose being to place the employees of a police department beyond the control of their superior officer, who is deprived of the power to remove any officer for any cause. The practical necessity of police control is provided for by Section 22-387, and Section 22-314 provides for removal of any officer for incompetency or neglect of duty. The territorial charter cities contain the same powers, so the Act is clearly in conflict with Article III, Section 27 of the Constitution, prohibiting the legislature from passing local or special laws amending such charter. Article I, Section 34 requires all laws of a general nature to have a uniform operation. The discriminatory character of the Act of 1931 and its conflict with Article XIII, Section 1 of the Constitution seems clear. State v. Sheldon, 29 Wyo. 233 applies in principle. The rule in McGarvey v. Swan, 17 Wyo. 120 is not applicable here. That case declares that legislation cannot be made for special charter cities as a class, except by a general law. If this law were so beneficial as is claimed, it would be made applicable to every paid police department in the state. The health of the employees is not involved as in the case of State v. Read, 33 Wyo. 387, nor the public welfare in securing a water supply as in Edwards v. City of Cheyenne, 19 Wyo. 110. The purpose of the law is to perpetuate a paid police department personnel. See Article XII, Section 22, R. S. 1931. The case of State v. LeBarron, 24 Wyo. 519 involved a statute limiting the hours of labor for females, except those employed by railroad hotels and restaurants, and held that limiting the hours of labor for females, except those employed by hotels and restaurants operated by railroads, was unconstitutional on the ground that it was class legislation, which is in violation of the Fourteenth Amendment to the United States Constitution and Article I, Section 54, as well as Article III, Section 27 of the Wyoming Constitution. There seems to be little difference in excluding railroad restaurant waitresses from the beneficial operation of the statute and the policemen in Rawlins or Cody, Wyoming, from the benefits of the statute here in question. As to the exercise of judicial functions by administrative officers, we find the principle discussed in the Burdick case, 3 Wyo. 588; Farm Investment Company v. Carpenter, 9 Wyo. 110, and in the Ross case, 31 Wyo. 500. But we do not believe that the point is important in this controversy. A similar act was involved in State v. Goddard, (Kan.) 57 P. 962, and in Whitney v. Hillsboro County, (Florida) 127 So. 486. Municipal government and its functions are clearly defined in McQuillin on Municipal Corporations (2d Ed.), 588 to 618, Vol. I. The courts take judicial notice of city populations as given by the U. S. census. Lebanon v. Walker, (Ind.) 164 N.E. 637. That census shows Casper 16,619, Cheyenne 17,561, Laramie 8,609, Rawlins 4,868, Rock Springs 8,440, Sheridan 8,536. It also shows the population of other towns in the state.

BLUME, Justice. KIMBALL, Ch. J., and RINER, J., concur.

OPINION

BLUME, Justice.

This case is here upon reserved constitutional questions. The plaintiff, J. P. McFarland, brought this action in January, 1934, under the Declaratory Judgment Act of this state, to determine his rights. The petition alleges:

The City of Cheyenne is a municipal corporation, incorporated as such under a special charter (having a population of about 18,000). The defendant Archie Allison is its Mayor, and the defendant T. Joe Cahill is the duly appointed Chief of Police of the city. The plaintiff, during 1933 and for many years prior thereto, was a member of the paid police department regularly organized and maintained by the City of Cheyenne receiving a salary of $ 145 per month; thereafter, and on the first day of January, the defendant Archie Allison and the defendant T. Joe Cahill attempted to remove and did remove the plaintiff from his position as such policeman, without any cause arising out of the good of the service and without serving or causing to be served upon the plaintiff a written notice, and without giving the plaintiff any opportunity to answer any written cause or demand a public hearing before the City Commission of the City of Cheyenne. All this was done in violation of Sections 22-201 to 203, Rev. St., Wyo. 1931. Plaintiff accordingly prayed that his rights in the premises...