State ex rel. City of Casper v. Morgan

• Decision Date: 24 March 1959
• Docket Number: No. 2859,2859
• Citation: 336 P.2d 791,80 Wyo. 1
• Parties: STATE of Wyoming, on relation of the CITY OF CASPER, Natrona County, Wyoming, a municipal corporation, Appellant (Relator below), v. Charles B. MORGAN, State Treasurer, Appellee (Defendant below).
• Court: Wyoming Supreme Court

Page 791

336 P.2d 791

80 Wyo. 1

STATE of Wyoming, on relation of the CITY OF CASPER, Natrona County, Wyoming, a municipal corporation, Appellant (Relator below), v. Charles B. MORGAN, State Treasurer, Appellee (Defendant below).

No. 2859.

Supreme Court of Wyoming.

March 24, 1959.

Robert R. Rose, Jr., Arthur F. Fisher, Richard A. Tobin, Casper, for appellant.

Thomas O. Miller, Atty. Gen., and Ellen Crowley, Deputy Atty. Gen., for appellee.

Before BLUME, C. J., and PARKER and HARNSBERGER, JJ.

Mr. Chief Justice BLUME delivered the opinion of the court.

This is an action brought by the City of Casper to have the gasoline license tax apportioned to cities and towns of this state apportioned to the City of Casper according to a special census taken of that city in 1957 instead of having the tax apportioned according to the population shown by the regular decennial federal census.

Section 32-2402, W.C.S.1945, provides for the levying of a gasoline license tax of four cents per gallon on all gasoline sold in the state. Part of this tax was to be distributed to cities and towns of the state in accordance with § 32-2408, W.C.S.1945, which provided that:

'* * * From all other gasoline tax revenues provided by this Act, the [state] treasurer shall:

'* * * Apportion two per cent of revenues secured from gasoline license tax between the several cities and towns of the State having a population of more than 1,500 in the ratio which the population of such city or town bears to the total population of all such cities and towns according to the last available Federal census * * *.' (Emphasis supplied.)

Section 32-2408 was amended by Ch. 229, S. L. of Wyoming, 1957, but the provision with reference to the distribution of two cents per gallon above mentioned remained the same.

Section 2, Ch. 118, S. L. of Wyoming, 1951, provided for a special and additional gasoline license tax of one cent per gallon and § 3 of the Act provided:

'The revenue derived from the additional license tax provided for in this Act shall be distributed * * * twenty-five per cent (25%) to the cities and towns. * * * The twenty-five per cent (25%) due cities and towns under this Act shall be divided among the incorporated cities and towns of the State in ratio which the population of each city or town bears to the total population of all such cities and towns according to the last available Federal census, to be used in their street and alley program.' (Emphasis supplied.)

According to the census of 1950, the population of the City of Casper was 23,673. A special census was asked to be taken by the City of Casper in 1957 and, according to that census, the population of the City of Casper was 35,459. The city thereupon brought an action against the State Treasurer to compel him to distribute the gasoline license tax heretofore mentioned in the ratio which the population shown by the special census bore to the total population of cities and towns in the state limited as above mentioned. The trial court held against the contention of the City of Casper and from its judgment denying the city and relief it has taken appeal to this court.

In former days the State of Wyoming had enacted legislation for taking a state census midway between the decennial census taken by the federal government, but we have not had any state census for many years and the legislation on that subject was repealed by Ch. 11, S. L. of Wyoming, Spec.Sess., 1933. Hence we can readily agree with the statement of the Arizona court in the case of City of Bisbee v. Williams, 83 Ariz. 141, 317 P.2d 567, 569, as follows:

'* * * Population is usually determined as the result of a census and it is true in the United States when one speaks of 'the census' the term has come to be understood as meaning the United States decennial census.'

If that is true, and we think it is, then that fact would seem to show reasonably clearly that the legislature, when it enacted the acts hereinbefore mentioned, did not have in mind any special censuses to be taken by any cities or towns in the state. We must further bear in mind that if it were permissible to take such censuses piecemeal it is apparent that as a matter of self-interest and self-protection each and every municipality in the state would be required to cause a federal count of its inhabitants to be made each time another municipality chose to have one made in order to retain its just share of the gasoline license tax. This argument was made in the Arizona case above mentioned but was rejected by the court. However, it is readily seen that it does have considerable, if not controlling, effect in order to determine as to what was the intention of the legislature in making the provisions above mentioned.

Counsel for the appellant in this case cite us to State ex rel. Brubaker v. Brown, 163 Ohio St. 241, 126 N.E.2d 439; In re Cleveland's Claim, 72 Okl. 279, 180 P. 852; City of Compton v. Adams, 33 Cal.2d 596, 203 P.2d 745, as sustaining the contention of the city herein. These cases all relate to the internal affairs of the respective cities or towns. In the California case, for instance, the question was whether or not a municipal court should be established after the city had attained a certain population in accordance with a special census. These cases have no bearing, or at least no controlling effect, herein. The legislative acts under consideration in this case have a statewide effect and do not relate to the mere internal affairs of a municipality.

The only case cited to us by the appellant that can in any manner be said to sustain the city's contention is the case of City of Bisbee v. Williams, supra. In that case the statutory provision was as follows:

'The state treasurer of the state of Arizona shall pay ten percent (10%) of the privilege tax collected under the Excise Revenue Act of 1935, or any amendment or modification thereof to the various municipalities of the state of Arizona in proportion to their population, as shown by the most recent United States census, to be used by said municipalities for any municipal purpose.' § 73-1322, A.C.A.1939, as amended, 1952 Cum.Supp. [83 Ariz. 141, 317 P.2d 568.]

In that case it was held that a special census taken in 1956 was controlling in connection with the distribution of the privilege tax mentioned above. It may be noted that the...