Mestas v. Diamond Coal and Coke Company

• Decision Date: 25 April 1904
• Citation: 12 Wyo. 414,76 P. 567
• Parties: MESTAS v. DIAMOND COAL AND COKE COMPANY
• Court: Wyoming Supreme Court

76 P. 567

12 Wyo. 414

MESTAS v. DIAMOND COAL AND COKE COMPANY

Supreme Court of Wyoming

April 25, 1904

ON reserved questions from District Court, Uinta County, HON DAVID H. CRAIG, Judge.

The facts and questions are stated in the opinion.

W. L Maginnis, W. H. Bramel and C. C. Dey, for plaintiff.

The sole question presented in this cause concerns the validity of the so-called Lord Campbell's act of this State.

It is conceded that there was a valid act in the statutes of the Territory of Wyoming, up to the time the territory became a state. It is contended, however, by defendant, that when the constitution took effect it nullified the entire Lord Campbell's act of the territory, because the provision of the act, limiting the damages recoverable to five thousand dollars, is incompatible with Section 4 of Article 10 of the constitution.

It is further argued for defendant that, inasmuch as Section 4 Article 9, of the constitution, contains an ordinance to the effect that a right of action in favor of the party injured shall exist against a person or corporation causing death by wrongful act, and also contains a mandate to the effect that the Legislature, at its first session, provide for the manner in which such action shall be enforced, the belief of the Constitutional Convention that the Lord Campbell's act was nullified by the constitution is clearly expressed.

The same contention was unsuccessfully made by the defendant in the courts of Utah, in one of the cases arising out of the same disaster in question in this case. (Utah Savings &amp Trust Co. v. Diamond Coal & Coke Co., 73 P. 524.)

It must be conceded that such parts of the Lord Campbell's act as are not nullified by the constitution are valid laws of the State. Section 21 of the enabling act provides: "All laws in force, made by said territory, at the time of its admission into the Union, until amended or repealed, shall be in force in said State, except as modified or changed by this act or by the constitution of the State." Section 3 of Article 21 of the constitution provides: "All laws now in force in the Territory of Wyoming, which are not repugnant to this constitution, shall remain of force until they expire by their own limitation, or be altered or repealed by the Legislature." Section 1 of Chapter 35, Session Laws 1890-1891, provides: "That all of the Revised Statutes and Session Laws of the years 1888 and 1890 of the Territory (now State) of Wyoming, in so far as they do not conflict with and are not repugnant to the provisions of the constitution of the State of Wyoming, be and the same are hereby declared to be of full force and effect and they are hereby made the laws of the State of Wyoming," etc.

The purpose of the above sections was to provide for the new State a system of laws. They should be given a wide application and liberal construction. No law which is not in its entire scope clearly incompatible with the constitution should be rejected. Where there is a conflict between a law and the constitution, the constitution should be construed as amendatory of the law to the extent of the conflict. (State v. Dist. Court, 37 P. 7 (Mont.); Ry. Co. v. Adams, 24 L. R. A., 272 (Fla.); Robinson v. Ry., 105 Cal. 526.)

The act is found in Sections 2364a and 2364b of the Revised Statutes of 1887 of the territory. The same act is also found in Sections 3448 and 3449 of the Revised Statutes of 1899 of the State. Section 2364a of the territorial revision (3448 State revision) provides that a person or corporation causing death of a person by wrongful act, neglect or default, shall be liable to an action for damages therefor.

It is not contended that any part of this section is incompatible with the constitution. The next section (2364b of the territorial revision, 3449 of State revision) contains the inconsistent provision, viz: "In every such case the jury shall give such damages as they shall deem fair and just, not exceeding five thousand dollars, and the amount so recovered shall not be subject to any debts or liabilities of the deceased; Provided, That every such action shall be commenced within two years after the death of such deceased person." In this section only the parenthetical clause "not exceeding five thousand dollars," is in conflict with the constitution.

The inconsistent clause is, in logic as well as in form, a parenthesis set off from the context by commas in both books. It has nothing to do with the right given or procedure prescribed. It merely limits the recovery. It may be stricken out or nullified without affecting the meaning, purpose, completeness or operation of the act in any way, except as to amount of recovery. It is a fundamental principle that in such cases nothing more than the incompatible clause will be held unconstitutional. (Cooley Const. Lim. (6th Ed.), 209, 211; 6 Ency. Law (2d Ed.), 1088, 1089; Scott v. Flowers, 85 N. W., 857 (Neb.); Utah S. & T. Co. v. Diamond C. & C. Co., supra.) The constitutional provisions, in so far as they affect the act in question, operate in the nature of a repeal by implication, of such portions only of the act as are repugnant to the constitution. (Cass v. Dillon, 2 O. St., 607.) That it was the motive or intent of the Territorial Legislature to pass a law that could not be altered or repealed in part cannot be presumed, yet the entire argument of the defendant is based upon such a presumption. Reduced to its simplest terms, the argument of defendant is based upon the proposition that the repeal of an independent, severable portion of a statute destroys the whole act. The absolute contrary of this proposition is the law. (Bank v. Kahn, 79 Cal. 463; State v. Dist. Court, 37 P. 7 (Mont.); Loupe v. Smith, 123 Cal. 491; Wood v. U.S. 16 Peters, 342; Connors v. Iron Co., 19 N. W., 938 (Mich.)

Some argument is made to the effect that Section 4, Article 9, of the constitution, shows that the Constitutional Convention believed or thought, or was of the opinion that the Lord Campbell's act was repealed by the constitution, or at least that it was non-existent. There are two answers to this argument: First, Section 4 of Article 9 of the constitution does not, either expressly or impliedly, exhibit the opinion or belief of the convention as to the construction then placed or afterwards to be placed upon the laws and provisions in question here. Second, the opinion or belief of the convention as to these questions is immaterial. To construe laws, statutes and constitutions is a judicial and not a legislative function. (U. S. v. Claflin, 97 U.S. 546; Dist. of Columbia v. Hutton, 143 U.S. 18; Ottawa v. Perkins, 94 U.S. 260; In re Handley, 49 P. 829 (Utah.)

The limitation upon the amount recoverable does not prejudice the defendant. It works to its advantage. If the court below had limited the amount of recovery to plaintiff's prejudice, plaintiff could then raise the point in this court, but defendant cannot. (McKinney v. State, 3 Wyo., 719; Cooley Const. Lim. (6th Ed.), 196; 6 Ency. Law (2d Ed.), 1090.)

Further argument is made to the effect that Section 1 of Chapter 35, Session Laws 1890-1891, which adopts the territorial laws, is not valid because Article 3, Section 26, of the constitution, provides, in effect, that no law shall be revised or amended or extended by reference to its title only.

In view of the provisions of the enabling act and of the constitution, this question is not material. The validity of said law is founded upon a different section of the constitution. (Sec. 24, Art. 3.)

B. M. Ausherman and Richards & Ferry, for defendant.

Section 4, Article 10, of the constitution, effectually prevents the continuance in effect of Sections 2364a and 2364b, Revised Statutes of 1887. Not only is this so because of Section 2364b containing a limitation on the amount of recovery and in that respect is repugnant to the provision of the constitution, but Section 4, Article 9, of the constitution, providing for a cause of action for death by wrongful act under statehood, similar to that which had existed prior thereto, of course eliminating the features repugnant to the constitution, concludes with the provision: "And the Legislature shall provide by law at its first session for the manner in which the right of action in respect thereto shall be enforced." This is a significant provision--first, because it effectually precludes any idea that the section of the constitution is self-executing, and in express terms provides that there must be future legislation before it becomes effective, and taken in connection with the other provisions, it conclusively establishes that the Constitutional Convention, by its adoption, intended that there should be something other than Section 3, Aricle 21, of the same document, before there could be any effect given to any statute purporting to create a cause of action for death by wrongful act.

The plaintiff may, in the way of an effort to supply the requirements of Section 4, Article 9, call attention to the portion of the law enacted by the First State Legislature, being "An act providing for the adoption of the Revised Statutes of Wyoming and the Session Laws of Wyoming for the years 1888 and 1890 as the laws of the State of Wyoming."

That act is entirely insufficient to create the right and provide the remedy authorized by Section 4, Article 9, of the constitution, and it is in disregard and directly in conflict with Section 26, Article 3, of the constitution.

The act referred to is not only a violation of the provision, in not setting forth the sections of the Revised Statutes of 1887 sought to be extended, but it does not refer to those sections by reference to title. The Legislature cannot accomplish that beyond the intent and power of the...