State ex rel. Budge v. Snyder

• Citation: 30 Wyo. 287,219 P. 735
• Decision Date: 08 November 1923
• Docket Number: 1179
• Parties: STATE EX REL. BUDGE v. SNYDER
• Court: United States State Supreme Court of Wyoming

219 P. 735

30 Wyo. 287

STATE EX REL. BUDGE v. SNYDER

No. 1179

Supreme Court of Wyoming

November 8, 1923

Original proceeding in mandamus by the State, on the relation of James Budge and others, against John M. Snyder, as State Treasurer, involving the organization of Teton County.

Writ denied.

Haggard and O'Mahoney for Relators.

This is an original action in mandamus by taxpayers of that portion of Lincoln County, set aside as Teton County, to require the State Treasurer to pay to Lincoln County, certain funds derived from the United States forests within the boundaries of Lincoln County, as defined by Sec. 1260 C. S. The State Treasurer has paid only a portion of said funds to Lincoln County, and has apportioned the balance to Teton County. The pleadings and agreed statement of facts, tender an issue of law, as to the legality of the organization of Teton County relators maintain the negative of this issue upon two general grounds; (a) that the steps required by law for the legal organization of Teton County have not been taken. (b) the act (Ch. 21 Laws 1923), organizing said county, is void; the Legislature first enacted Chapter 53 Laws 1921, for the creation of Teton County, prescribing its boundaries thereafter certain steps were taken for the organization of said county; subsequently a question arose as to the validity of its organization in a suit, brought in Lincoln County, and certified to this Court, upon reserved questions which involved a question as to the sufficiency of the property valuation and population within the area of the proposed county; this question was disposed of in Budge et al, v Com'rs., 208 P. 874, upholding Sec. 1281 C. S. requiring a $ 5,000,000.00 property valuation and at least three thousand inhabitants for the formation of a new county; the District Court of Lincoln County thereupon enjoined its commissioners from levying a tax for the compensation of the organization officers, appointed by the Governor. The Legislature thereafter enacted Chapter 21 Laws 1923, for the evident purpose of validating all acts or proceedings theretofore had for the creation and organization of Teton County and prescribed its boundaries, which differed in some respects from the boundaries prescribed for it by the Act of 1921; the Act of 1923 therefore attempted to create and organize a different county from that created by the Act of 1921, without taking the steps required by Ch. 91 C. S. 1920, or following the requirements of Art. XII Sec. 2 of the Constitution; the proceedings were void; Board v. Woods, et al, 18 Wyo. 335, 8 Cyc. 1023; Burgett v. Norris, 25 O. St. 308; Quaker City Bank v. County, 59 F. 660; The Constitution did not authorize the act. Sykes v. Mayor, 55 Miss. 115; Katzenberger v. Aberdeen, 121 U.S. 172; Granada Co. v. Brown, 112 U.S. 261; The Legislature may not organize a county by enactments. Com'rs. v. Perkins 5 Wyo. 166, and may only authorize such organization by general law, Art. XII, Sec. 2, and Ch. 91 C. S. 1920, is such a law. By the Act of 1923, it was undertaken to set aside this general law and organize Teton County, by a special law; the Act of 1921 included portions of the State of Idaho and of Park County, in its description creating Teton County; the so called Curative Act of 1923, did not attempt to organize a county of that description, but did attempt to organize a county with different boundaries. As to the second ground, relators contend that the Act of 1923 conflicts with Art. I, Sec. 34 of the Constitution, in not being of uniform operation; it seems clear that no county may be exempted from the provisions of Ch. 91, C. S. 1920. The law of 1923 is not of uniform operation; Art. III, Sec. 27, prohibits special laws regulating county or township affairs; this act is not general. Shaw v. Harris, 103 P. 777; Carlton v. Johnson, 55 So. 975; 61 Fla. 15; State v. A. T. & S. Co., 151 P. 305; Univ. v. Com'rs., 112 P. 215; Dillman v. State, 20 Wyo. 404. Nothing in the Budge case holds to the contrary; if the Act of 1923 should be held a repeal of the general law, we are left without a general law for the organization of new counties, and without power to organize a new county, in view of the Constitutional requirement of a general law on the subject. But, it is not a repeal of the general law; Art. XII, Sec. 2, requires a majority vote to divide a county; a validating act may cure defects in the form of irregularities, but not jurisdictional defects. Cooley Con's. Lim. 6th ed. 456, 543. The legislature cannot validate retrospectively, acts or contracts which it had no power to permit or sanction in advance, Cooley Lim. 7th ed. 543. Defendants cite Forde v. Schofield, 165 P. 594, a Montana case; the Montana Constitution differs from ours in not requiring a general law for county organization. The case is not in point; nor is the case of State v. Carter, (Wyo.) 215 P. 477; nor McGarvey v. Swan, 17 Wyo. 120, involving a law held to be general in its nature, nor State v. Sherman, 18 Wyo. 169; Relators have a right to maintain this action as electors of the state to prevent injury and damage to taxpayers of Lincoln County. The jurisdiction of this Court is not circumscribed as are the Federal Courts by Art. III of the Federal Constitution, the State Government possessing all power not withheld in its Constitution. The question is one of public right which may be protected by mandamus. High, Ex. Leg. Rem. 421; State v. Tanzy, 49 O. S. 656, A special interest need not be shown as was required in Frothingham v. Mellon, 43 S. C. R. 597; A Constitutional right to vote on county division cannot be divested by legislation, Frost v. Pheiffer, 58 P. 147; The general law was not repealed by implication, Lewis Suther, Stat. Const. Vol. 1, 532; 36 Cyc. 1093; The original creation of Teton County was invalid. An examination of the authorities cited by respondent, from the different states will show that they are based upon Constitutional provisions different from ours. There being no organized county of Teton, the funds should be paid to Lincoln County.

W. C. Mentzer and P. W. Spaulding for Respondents.

The preamble of Chapter 21 Laws 1923, indicates that the Legislature understood the dilemma in which Teton County had been placed, by its failure to accurately describe the boundaries of that county, in the Act of 1921, or to repeal certain provisions of 1281 C. S.; the Act of 1923 operated to ratify, approve, confirm and validate the formation and organization of said county of Teton, and repeal certain portions of Sec. 1281 C. S. Const. Art. XII, Sec. 2, provides for the creation and organization of new counties. Art. III Sec. 27, has a bearing on this case. The Legislature may enact laws on any subject not restricted by the Constitution. State v. Irvine, 14 Wyo. 318; Budge et al, v. Board, 208 P. 874. In the Budge case this Court did not pass upon the question of repeal, holding that it should first be determined by the District Court. There was no question as to the power of the Legislature to repeal Section 1281, C. S. A Legislature may cure defects in legislation, wherever it had power to so legislate in the first instance, 12 C. J. 1091; Williamstown School Dist., 12 S.W. 298. The Legislature had power to repeal 1281 C. S., in its 1921 enactment. Redlands v. Brooks, 91 P. 150. It is true that the boundaries prescribed for Teton County in the Act of 1921, differed from the description thereof stated in the Act of 1923; but the Legislature had power to correct said description, by eliminating the Idaho and Park County territory, erroneously included in the Act of 1921; The qualified electors residing within the territory correctly described in the Act of 1921, voted in the affirmative for county division, and said territory contained a sufficient number of inhabitants and of property valuation for its organization as a county. The effect of the Act of 1923, was:

1st. To accurately describe the territory to be included in Teton County.

2nd. To repeal the provision of the general law, requiring three thousand inhabitants and $ 5,000,000.00 of assessed property valuation, by reducing the number of inhabitants and property valuations to the minimum Constitutional requirements; this it had authority to do. Board v. Wood et al, 18 Wyo 316; by an act operating retrospectively; State v. Abraham, 117 P. 501. An appellate court in reviewing a judgment may notice subsequent legislation and cure, possible errors therein. U. S. v. The Peggy, 1 Cranch 109; Curative acts apply to pending proceedings, 2 Lewis Suth. Stat. Const. 1237; Cooley's Cons. Lim. 7th ed. 543; Faver v. Wayne, 203 S.W. 22; Taylor v. Tenn. Co., 72 So. 206; State v. Lewis, 168 P. 952, 12 C. J. 1087. Special laws may repeal general laws, 36 Cyc. 1094; Legislatures are presumed to have regarded constitutional limitations as carefully as the courts. Garrett v. Com'rs. 230, S.W. 1010. The vote of electors is upon the question of division and not upon boundaries, the latter being a legislative question. Board v. Wood, 18 Wyo. 316. No intent to violate the Constitution is to be attributed to the Legislature. Board v. Wood, supra; Dillon v. State, 20 Wyo. 404. Where two acts are repugnant, the latter act will prevail, 36 Cyc. 1073. A general repeal clause is sufficient; the Legislature may determine the necessity of a special act. Argol v. Co. 181 P. 84; State v. Schofield, 165 P. 594. The whole matter of county division or creation is political, and belongs to the Legislative Department. Pershing Co. et al., v. Judicial Dist. 183 P. 314. The inhabitants of a county have no vested rights as far as boundaries of the county are concerned, and the same may be changed without their consent. Pershing Co. v. Dist. Ct., supra. The Act of 1923 is valid, ...