State ex rel. Whitehead v. Gage
| Decision Date | 07 January 1963 |
| Docket Number | No. 3143,3143 |
| Citation | 377 P.2d 299 |
| Parties | The STATE of Wyoming on the relation of Edwin H. WHITEHEAD, Harry H. Schaefer, Clayton A. Trosper, Rae R. Martin, Louis Leichtweis, Burton Marston, KATI Corporation, and Ralph A. Urbigkit, Appellants (Plaintiffs below), v. Jack R. GAGE, Secretary of State of Wyoming, and Norman B. Gray, Attorney General of Wyoming, Appellees (Defendants below), and Dick Jones, Herbert D. Livingston, Craig L. Thomas and Joe Buckley, Interveners (As Defendants below). |
| Court | Wyoming Supreme Court |
Walter C. Urbigkit, Jr., Cheyenne, for appellants.
Norman B. Gray, Atty. Gen., W. M. Haight, Deputy Atty. Gen., and Lowell O. Stephens, Asst. Atty. Gen., Cheyenne, for appellees.
Before BLUME, C. J., and PARKER, HARNSBERGER and McINTYRE, JJ.
The relators in this case are Wyoming voters and taxpayers. They seek a writ of mandamus against the secretary of state and attorney general to compel reapportionment of the Wyoming State Legislature. The writ was denied by the district court.
The petition here involved was filed June 18, 1962. It sought to compel the secretary of state to certify to the counties the number of senators and representatives to be elected to the legislature in 1962, on a basis determined by applying to the 1960 Federal census the ratios fixed under the 1933 law in §§ 28-9 and 28-10, W.S.1957. In the alternative, petitioners prayed that certification be made in such a way that all senators and representatives in 1962 would be elected on a state-wide basis rather than on a county basis.
The district court entered its judgment on August, 3, 1962, denying the writ, and this appeal has followed. In the meantime, a primary election was held August 21, 1962, and a general election was had November 6, 1962. These elections have resulted in the election of new members to the state legislature on a county basis and on the basis of ratios fixed by law in 1933.
It is the contention of the secretary of state and attorney general, as appellees, that the events which have occurred subsequent to the commencement of this case render it impossible for the court to grant any effectual relief, making the case moot.
It is true, as stated in 55 C.J.S. Mandamus § 11, pp. 36-37, in order to warrant issuance of mandamus, it must appear the writ will be effectual as a remedy; and hence the writ should be denied where it would be useless, nugatory or unavailing by reason of events occurring subsequent to the commencement of proceedings. This controlling principle for mandamus suits has been previously announced in this jurisdiction in State ex rel. Schwartz v. Jones, 61 Wyo. 350, 157 P.2d 993, 995; in State ex rel. Moore v. Van Tassell Real Estate & Live Stock Co., 53 Wyo. 89, 79 P.2d 476, 478; and in State ex rel. Sullivan v. Schnitger, 16 Wyo. 479, 95 P. 698, 707.
In LeBeau v. State ex rel. White, Wyoming, 377 P.2d 302, a decision of this court rendered simultaneously with this decision and not yet reported, we had occasion to discuss the use of mandamus as a remedy and pointed out two things, viz: (1) The writ cannot be made to serve the purpose of an ordinary suit; and (2) it will issue only where the duty to perform is clear, certain and undisputable. In the LeBeau opinion we listed a number of Wyoming cases having to do with the need for a clear duty. The citations need not be repeated here.
As to whether the secretary of state and attorney general have a clear duty under the law to do what relators are here demanding, it certainly, cannot be said that either has a clear and undisputable duty to assume a function which has not been imposed upon them.
Members of the Thirty-seventh Legislature are now elected. This legislature has not yet had opportunity to take such action as is necessary to comply with its duty under the state constitution. We must assume it will perform such duty. In the interim no effective remedy could be decreed in any event. Until the legislature meeting in January 1963 has had opportunity to apportion the composition of future legislatures, we need not consider what action might be necessary to bring about observance of the constitutional mandate for reapportionment.
Concerning the alternative request of petitioners for a mandate requiring the appellees to certify for election at large all state senators and representatives, there is no such duty imposed either by the constitution or by law upon the appellees. In fact, the idea is so clearly contrary to express constitutional provisions that it cannot be given serious thought. Art. 3, § 3, Wyoming Constitution, not only provides that each county shall constitute a senatorial and representative district, but it also provides that each county shall have at least one senator and one representative. In addition, both Art. 3, § 3, and Art. 3, § 48, Wyoming Constitution, require the legislature to be 'apportioned' among the counties.
Counsel on both sides of the instant case freely admit some of the past legislatures have failed to fulfill their duty of adjusting the apportionment of senators and representatives, as required by the constitution. Both say courts are not without power to require that to be done which the constitution or fundamental law of the state clearly demands. With this we agree. Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 694 and 720, 7 L.Ed.2d 663; Scholle v. Hare, 367 Mich. 176, 116 N.W.2d 350, 357; Asbury Park Press, Inc., v. Woolley, 33 N.J. 1, 161 A.2d 705, 713.
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