State ex rel. Fawcett v. Board of County Com'rs of Albany County

• Decision Date: 13 July 1954
• Docket Number: No. 2639,2639
• Citation: 73 Wyo. 69,273 P.2d 188
• Parties: STATE et rel. FAWCETT, v. BOARD OF COUNTY COM'RS OF ALBANY COUNTY et al.
• Court: Wyoming Supreme Court

Page 188

273 P.2d 188

73 Wyo. 69

STATE et rel. FAWCETT, v. BOARD OF COUNTY COM'RS OF ALBANY COUNTY et al.

No. 2639.

Supreme Court of Wyoming.

July 13, 1954.

Maurer & Garst, Joseph Garst, Douglas, for appellant.

Gordon W. Davis, Co. and Pros. Atty., Robert W. Costin, Deputy and Pros. Atty., Laramie, for respondents.

RINER, Justice.

This litigation grew out of an attempt by the Legislature of the State of Wyoming to detach certain lands from the County of Albany and incorporate them in and as a part of Converse County by altering the boundaries of these counties as set forth and described prior to the year 1953 in Section 26-102 of W.C.S., 1945, for Albany County, and Section 26-106 of W.C.S., 1945, for Converse County. The action of the Legislature in the premises, and the subject of controversy here, appears in Ch. 137 of the Session Laws of Wyoming, 1953, being inserted in said session laws as 'Original House Bill No. 142.'

The action was entitled in the District Court of Albany County and was brought on the relation of C. A. Fawcett as plaintiff against the Board of the County Commissioners of the County of Albany, hereinafter usually called the 'Board' or the 'defendants,' the constituent members of the Board being E. E. Fitch, E. L. Knight, and George Dodge. The suit was one for a writ of mandamus and in substance as regards its initiatory pleading is to the following effect: After alleging in Paragraph I thereof that the three persons last named are the 'duly elected, qualified, and acting members of and constitute the Board of County Commissioners of Albany County, Wyoming, a legally constituted County of the State of Wyoming;' and in Paragraph II that the petitioner 'was and is at all times herein mentioned a resident and qualified elector of the territory hereinafter mentioned proposed to be cut off of Albany County, Wyoming, and added to Converse County, Wyoming, by the Legislative Act to which reference is herein made;' stated in Paragraph III:

'(At the solicitation of petitioner and others similarly situated) The legislature of the State of Wyoming, during its 1953 session, passed an act and the same was on February 20, 1953 approved and became a law designated as Chapter 137, Session Laws of Wyoming, 1953, whereby a certain part of Albany County, Wyoming, was proposed to be cut off from that county and annexed to Converse County, Wyoming, (because the residents of the territory proposed to be cut off were isolated from their county seat by a high mountainous barrier and during inclement weather, impassable roads, which necessitated a long, timeconsuming, expensive and round-about trip whenever they desired to go to the county seat for the transaction of business or participate in their county government, and as a resident of said territory and a qualified elector in said territory, your petitioner, along with others similarly situated, is deeply interested in the proposed change.)'

On motion of the defendants, the District Court struck out the words of said paragraph enclosed in parenthesis; and plaintiff was allowed to remove them by lining them out. Paragraph IV of plaintiff's petition avers that by said Act the Legislature correctly defined the boundaries of said Albany County and also that portion thereof proposed to be cut off from that County and annexed to Converse County but in redefining the boundaries to Converse County, a portion formerly a part of said Converse County was omitted, but that the omitted portion does not in any way affect the boundaries of Albany County as redefined, nor does it render a true description of the territory proposed to be cut off incapable of a true definition.

Paragraph V reads verbatim as follows:

'Among other things provided by said Act were that Converse County was to assume and be holden for an equitable proportion of the indebtedness of Albany County so reduced; and, that the proposed changes in the boundaries of said Counties were not to become effective until a majority of the qualified electors within the territory proposed to be cut off from said Albany County approved said proposed change by a favorable vote at an election, the time of which was to be fixed by resolution of the Board of County Commissioners of Albany County, but not later than December 31, 1953.'

Paragraph VI of said pleading upon information and belief of petitioner states that said Board fixed the time for such an election on September 29, 1953, but on discovering the mistake in defining the Converse County boundaries in said Act considered the Act to be unlawful and ineffective and refused to hold said election and now refuses to fix the time for and hold an election by which the approval or disapproval of the qualified electors of the territory proposed to be cut off from Albany County can be determined.

Paragraph VII asserted that it is the duty of the defendants to call said election as directed by the provisions of the Act of the Legislature aforesaid and the petitioner is without remedy except by interposition of the Court.

The prayer of this pleading was that 'a Writ of Mandamus against Defendants be granted' commanding them to fix the time for and hold an election in the territory proposed to be cut off from Albany County by said Act in accordance with that law and for all other proper relief. This pleading was duly verified by counsel 'as he verily believes'; and it was filed in the District Court of Albany County on October 27, 1953.

Upon this filing being made, the District Judge on October 27, 1953, also ordered the issuance of an alternative writ of mandamus directing the defendants to fix a time not later than December 31, 1953, for, and hold, a special election as sought by plaintiff's petition or show cause on November 3, 1953, at 1:30 p.m. why they had not done so.

On November 3, 1953, the defendants filed their answer wherein they admit the allegations of Paragraph I of said petition but deny each and every other allegation contained in Paragraphs II to VII, inclusive, in said pleading. In the remainder of their answer, designated sub-division 'II,' they allege in substance:

(1) That the Legislature of this State during its 1953 session passed an Act approved February 20, 1953, and designated as Ch. 137, Session Laws of Wyoming, 1953;

(2) That by its terms said Ch. 137 amended and re-enacted Section 26-102, W.C.S., 1945, defining the boundaries of Albany County, Wyoming, and amending and re-enacting Section 26-103 of W.C.S., 1945, defining the boundaries of Converse County, Wyoming;

(3) That the Title of said Ch. 137, Session Laws of Wyoming, 1953, reads verbatim as follows:

'To amend and re-enact Section 26-102, Wyoming Compiled Statutes, 1945, defining the boundaries of Albany County, Wyoming; to amend and reenact Section 26-106, Wyoming Compiled Statutes, 1945, defining the boundaries of Converse County, Wyoming; and providing for Converse County to assume an equitable proportion of the indebtedness of Albany County so reduced.'

(4) That Section 1 of Ch. 137 defines Albany County's boundaries;

(5) That Section 2 of said Ch. 137 defines Converse County's boundaries;

(6) That it is not possible by tracing the description of the lands described in Sections 1 and 2 of said Ch. 137 to determine what lands, if any, are to be detached from Albany County and attached to Converse County;

(7) That by comparing the description of the lands as described in Sections 1 and 2 of said Ch. 137 with a description of lands described in Sections 26-102 and 26-106, W.C.S., 1945, it is possible to determine that certain lands previously contained in Albany County were deleted and inserted as a portion of the description of Converse County; that the lands thus affected are described as follows:

'Commencing at the north quarter corner of section two (2) township twenty-eight (28) north, range seventy-one (71) west; thence south through the center of section two (2) to the south quarter corner of said section two (2); thence west along section line to north-west corner of section eleven (11), township twenty-eight (28) north, range seventy-one (71) west; thence south along section line to the southwest corner of section eleven (11), township twenty-eight (28) north, range seventy-one (71) west; thence west along section line to the north quarter corner of section fifteen (15), township twenty-eight (28) north, range seventy-one (71) west; thence south to the south quarter corner of section twenty-two (22), township twenty-eight (28) north, range seventy-one (71) west; thence west along section line to northwest corner of section twenty-seven (27), township twenty-eight (28) north, range seventy-one (71) west; thence south on section line to the southwest corner of section ten (10), township twenty-seven (27) north, range seventy-one (71) west; thence west along section line to the northwest corner of section sixteen (16), township twenty-seven (27) north, range seventy-one (71) west; thence south along section lines to the southwest corner of section twenty-one (21), township twenty-seven (27) north, range seventy-one (71) west; thence west along section lines to south quarter corner of section nineteen (19), township twenty-seven (27) north, range seventy-two (72) west; thence north along center section lines to the center of section nineteen (19), township twenty-seven (27), north, range seventy-two (72) west; thence west along center section lines to southeast corner of the southwest one-quarter (1/4) northeast one-quarter (1/4) of section twenty-one (21), township twenty-seven (27) north, range seventy-three (73) west; thence north on subdivision line to northeast corner of northwest one-quarter (1/4) northeast one-quarter (1/4) of section twenty-one (21), township twenty-seven (27) north, range seventy-three (73) west; thence west along section line to southeast corner of section seventeen (17), township twenty-seven (27) north, range...