State ex rel. Keefe v. McInerney

Citation182 P.2d 28,63 Wyo. 280
Decision Date10 June 1947
Docket Number2343
PartiesTHE STATE OF WYOMING, on the Relation of ROBERT W. KEEFE, NORMAN SPEAR, ROBERT J. SMALLEY, WALTER HALLE, CHARLES H. DURNING, Petitioners and Respondents, v. JOHN J. McINERNEY, Mayor of the City of Cheyenne, Wyoming, Respondent and Appellant
CourtUnited States State Supreme Court of Wyoming

APPEAL from District Court, Laramie County; SAM M. THOMPSON, Judge.

Mandamus proceeding by the State of Wyoming, on the relation of Robert W. Keefe and others, petitioners, against John J. McInerney Mayor of the City of Cheyenne, Wyo., respondent, to compel the respondent to call an election on the question whether the City of Cheyenne should adopt the manager form of government. From a judgment in favor of the petitioners, the respondent appeals.

Judgment Affirmed.

For the Appellant, the cause was submitted upon the brief of John S Miller and Carleton A. Lathrop, both of Cheyenne, Wyoming and oral argument by Mr. Lathrop.

POINTS OF COUNSEL FOR APPELLANT

There is no room for doubt as to what the constitutional convention meant when it used the word electors in Section 1 of Article XX. The word according to the definition given it by those who framed the constitution means those who are entitled to vote, and when the constitution says a majority of the electors it means, in the absence of any qualifying phrase, a majority of those who are entitled to vote. State ex rel Blair v. Brooks, 17 Wyo. 344, 99 P. 874. Simpkin v. Rock Springs, et al., 33 Wyo. 166, 237 P. 245.

Statements of witnesses that they know of their own knowledge certain persons were electors is incompetent testimony and a conclusion and does not qualify the said persons as electors.

The act of determining whether a signer is a qualified elector or not, and deciding, upon such determination, whether or not said signer should be counted as one of the ten per cent necessary to prevail, is judicial. There must be a finding concerning the qualifications of the signer under the requirements of the constitution, upon which finding is based the conclusion or judgment whether his or her name should be counted, or not be counted. Sarrls, City Clerk v. Trimble (Ind.) 166 N.E. 270 (1929); Keane v. Remy, et al. (Ind.) 168 N.E. 10.

A city operating under the commission form of government must abandon that form of government as provided by statute before it can adopt another form. Lakota Oil and Gas Company v Casper (1941), 57 Wyo. 329, 116 P.2d 861.

Courts do not favor repeal of settled principles by implication, and the Legislature in the enactment of a statute will not be presumed to intend to overturn long established legal principles, unless such intention is made clearly to appear by express declarations or by necessary implication. 50 Am. Jur. Pg. 333.

The city manager law does not apply to special charter cities. Sec. 22-801, W. R. S. 1931. Sec. 1, Art. XIII, Const. of Wyo.

There is nothing in the city manager law which shows any intent to apply said act to cities with a special charter. Lakota Oil and Gas Company v. Casper, supra.

Special charters are not covered by Art. XIII, Sec. 1 of the Constitution except that they may abandon their charters and organize under the general laws, if they desire to do so. McGarvey v. Swan, (1908), 17 Wyo. 120, 96 P. 607; State v. Sheldon, (1923), 29 Wyo. 233, 213 P. 92; McFarland v. Cheyenne, (1935), 48 Wyo. 86, 42 P.2d 413; May v. Laramie (1942), 58 Wyo. 240, 131 P. 2d. 300.

The city manager law does not operate uniformly and hence is in violation of Sec. 27, Art. III and Sec. 34, Art. I of the Constitution. People v. Earl (Colo.) 94 P. 294.

It is a judicial function of the courts to pass upon a statute enacted by a Legislature to determine whether the act is a competent expression of the legislative will, and further, if the act provides no sufficient means whereby it may be enforced, the act or the section of the act which fails in that particular should be declared judicially invalid and void. A legislative act is stillborn, without life, though it be attended at its inception with all the official function necessary to give it life, unless it contains within it a delegation and grant of power by which it may be carried into effect. And if such is not so given by the legislative will, the act is nugatory, it is merely a dead letter. And it is a judicial function to so declare it, if it is sought in any manner to affect the citizens by it through illegal means. State v. Gerhardt (1896), 145 Ind. 439, 452, 44 N.E. 469, 33 L. R. A. 313.

The City of Cheyenne is a special charter city, and is presently governed by its special charter. The clear intent of the constitution is that the City of Cheyenne must abandon that charter if it is to organize under the general laws, in this case the city manager law. Accordingly, the City of Cheyenne will, in compliance with the constitution, be required to abandon its special charter in the event it adopts the provisions of the city manager law. Schultz v. City of Phoenix (Ariz.) 156 P. 75.

For the Petitioners and Respondents, the cause was submitted upon the brief and also oral argument of Allen A. Pearson of Cheyenne, Wyoming.

POINTS OF COUNSEL FOR RESPONDENTS

The word elector is generic. It includes not only those who vote, but those who are qualified yet fail to exercise the right of franchise. To hold otherwise would in effect give to the word electors a narrower and more restricted meaning that they give to it in the Constitution. State ex rel v. Brooks, 17 Wyo. 344, 99 P. 874.

Where the qualifications of an elector are prescribed by a constitutional provision, an elector is one possessing the prescribed qualifications. The constitution has given to the word "elector" a precise, technical meaning, and it is ordinarily used in our legislation with that meaning only. An "elector" is a person possessing the qualification fixed by the constitution, and duly admitted to the privileges secured, and in the manner prescribed, by that instrument. Pfuser v. Sioux City (Iowa) 263 N.W. 551, 100 A. L. R. 1298.

It is a rule well known and recognized by many authorities that, where a subsequent statute covers the whole ground occupied by an earlier statute, it repeals by implication the former statute. Tucker v. State, 35 Wyo. 430, 251 P. 460, 465.

It is a well settled rule in construing statutory provisions that repeals by implication are not favored, and, when two statutes covering in whole or in part the same matter are not absolutely irreconcilable, effect should be given, if possible, to both of them. And this rule is universal; the courts, with varying language, declaring the same principle whenever called upon to construe apparently conflicting statutes. McMillan v. Board of Commissioners, (Okla.) 79 P. 898.

The validity of the law cannot depend upon whether one or all the cities choose to exercise the power which the act confers upon all. This act gives the same power to all the cities of the class. It does not confer one sewer system upon some of the citizens and another system upon others; but all the cities have the same power to adopt the same sewer. The possession of the power does not depend upon its exercise; it depends upon the general law, which is in force equally upon all cities of the class, whether or not it is invoked. State v. Sheldon, supra.

It is always a matter of very grave importance to decide upon the constitutionality of an act of the Legislature, and the statute should be held void only where it is shown that there has been a clear violation of the Constitution. State ex rel Hynds v. Cahill, 12 Wyo. 225, 75 P. 433.

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

OPINION

BLUME, Justice.

In 1923 the legislature of this State provided for the so-called manager form of government for towns and cities in this State. The provisions therefor now appear in Sections 29-701--29-921, Compiled Statutes of Wyoming, 1945. Sec. 29-702 provides as follows:

"Within five (5) days after filing with the city clerk of a city, of a petition of electors of said city equal in number to ten (10) per centum of the number of registered electors of such city, the mayor thereof shall by a proclamation to be published in at least one newspaper in said city for three (3) times, submit the question of accepting the provisions of this Act (§§ 29-701, 29-921) at a special election to be held at a time specified therein not less than thirty (30) days and not more than sixty (60) days after said petition is filed. If the provisions of this act are not accepted at such special election, the question of accepting said provisions shall not again be submitted to the voters of said city for adoption within two (2) years thereafter. The signature(s) to the petition need not all be appended to one paper, but each signer shall state his place of residence and street number. One of the signers of each paper shall make oath that each signature to the paper appended is the genuine signature of the person whose signature it purports to be."

In accordance with the foregoing provisions a petition bearing 1770 signatures was filed with the clerk of the City of Cheyenne on April 27, 1945. The petition had been circulated by a number of parties and the separate papers of the several parties were then combined and thus presented to the City Clerk. Each of the papers circulated as above mentioned was headed as follows: "To the Mayor and City Commissioners of the City of Cheyenne: We, the undersigned Electors of the City of Cheyenne, respectfully petition that the following question be submitted to the voters of this City: 'Shall the proposition to adopt the City Manager Form of Government be approved, and shall the proposition to accept the provisions of Chapter...

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13 cases
  • State v. Sodergren, 83-110
    • United States
    • Wyoming Supreme Court
    • 26 Junio 1984
    ...a statute on our own motion, nor will we declare a statute unconstitutional unless it is absolutely necessary. State, ex rel. Keefe v. McInerney, 63 Wyo. 280, 182 P.2d 28 (1947). Nor will we inquire upon our own motion where the case can be completely and effectively disposed of without suc......
  • Thomson v. Wyoming In-Stream Flow Committee
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    • 22 Septiembre 1982
    ...and correctness of the petitions, which they did not do; they cannot "defend it by mere inertia." See also State ex rel. Keefe v. McInerney, 63 Wyo. 280, 182 P.2d 28 (1947) where the statute with respect to establishing the city manager form of government the right of initiative in this sta......
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    • United States
    • Pennsylvania Supreme Court
    • 19 Octubre 2004
    ...of electors, but were enacted for the purpose of regulating the exercise of the elective franchise...."); State ex rel. Keefe v. McInerney, 63 Wyo. 280, 182 P.2d 28, 31 (Wyo.1947) (observing that most courts "take the view that it is not necessary that a petition similar to that involved in......
  • Tate v. Akers, C75-147.
    • United States
    • U.S. District Court — District of Wyoming
    • 25 Febrero 1976
    ...and it will not be presumed that they intended to enact a law in violation of constitutional restrictions. State ex rel. Keefe v. McInerney, 63 Wyo. 280, 182 P.2d 28 (1947). The Court therefore concludes that the plaintiffs and others of their class are not members of the class of persons w......
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