State v. Wright, 2328

• Decision Date: 06 November 1945
• Docket Number: 2328
• Citation: 62 Wyo. 112,163 P.2d 190
• Parties: THE STATE OF WYOMING, on the relation of the BOARD OF COMMISSIONERS OF LARAMIE COUNTY, WYOMING, GLEN E. HENDERSHOT, DR. C. A. MOORE, CHARLES H. LEISHER, COMMISSIONERS, Petitioners, v. EARL WRIGHT, State Treasurer of Wyoming, Respondent, CITIES OF CHEYENNE, RAWLINS and CASPER, WYOMING, Municipal Corporations, Intervenors
• Court: Wyoming Supreme Court

163 P.2d 190

62 Wyo. 112

THE STATE OF WYOMING, on the relation of the BOARD OF COMMISSIONERS OF LARAMIE COUNTY, WYOMING, GLEN E. HENDERSHOT, DR. C. A. MOORE, CHARLES H. LEISHER, COMMISSIONERS, Petitioners, v. EARL WRIGHT, State Treasurer of Wyoming, Respondent, CITIES OF CHEYENNE, RAWLINS and CASPER, WYOMING, Municipal Corporations, Intervenors

No. 2328

Supreme Court of Wyoming

November 6, 1945

Original proceeding in mandamus by the State of Wyoming, on the relation of the Board of Commissioners of Laramie County Wyoming, Glen E. Hendershot and others, commissioners against Earl Wright, State Treasurer of Wyoming, to compel defendant to disburse 25 per cent of the revenues derived from gasoline license tax on the basis provided by Rev. St 1931, § 115-1108 (1) as amended by Laws 1935, c. 72, § 7 wherein the Cities of Cheyenne, Rawlins and Casper, Wyoming, municipal corporations were permitted to intervene. Writ of Mandamus denied.

Writ of mandamus denied.

For the Petitioners, the cause was submitted on the brief and also oral argument of Edward Byron Hirst and Allen A. Pearson, both of Cheyenne, Wyoming.

POINTS OF COUNSEL FOR PETITIONER

There are in the various states two opposite rules under which the validity of legislative enactments are considered. In some states the enrolled act is considered final and the courts will not go behind it to see whether it accurately reflects the action taken by the Legislature in its passage. In other states the courts will go behind the enrolled act and consider the legislative journals in order to determine what the action of the legislative body actually was. Wyoming, as is shown in the case of State ex rel v. Swan, 7 Wyo. 166, 51 P. 209; State ex rel v. Cahill, 12 Wyo. 225, 75 P. 433, to mention only two of our authorities, long ago adopted the rule that the journal entries may be consulted.

The enrolling clerk or committee has no power or authority to modify a bill passed by the Legislature in any respect. In those jurisdictions where the enrolled act is not regarded as conclusive as to the existence and contents of the bill, it is generally held that the enrolled bill, as presented to, and approved by, the Governor must be the same as that passed by the Legislature, at least in substance and in legal effect; and where, through some mistake in the enrollment of the bill, a material change has been made, or an altogether different bill is presented to, and signed by, the Governor, it does not become a law. 59 C. J. 588. Integration of Bar Case (Wisc.) 11 N.W.2d 604, 151 A. L. R. 586.

If the portion of the act which actually passed the legislature, and is not included in the enrolled and published statute, has any material relation to other portions of the act, so as to modify, restrict, or extend its application, then such other portions must also fall. State v. Swan, supra; State v. Sheldon, 29 Wyo. 233, 245.

For the Respondent, the cause was submitted on the brief of Honorable Louis J. O'Marr, Attorney General, Hal E. Morris, Deputy Attorney General, and Frank M. Gallivan, Assistant Attorney General, all of Cheyenne, Wyoming and oral argument by Mr. Morris.

POINTS OF COUNSEL FOR RESPONDENT

The constitutionality of a statute may be tried in mandamus proceedings. Brown v. Nash, 1 Wyo. 85; State v. Swan, 7 Wyo. 166; Hynds v. Cahill, 12 Wyo. 225; State v. Schnitger, 16 Wyo. 479.

The Enrolled Act is only prima facie evidence of the validity of a law passed by the Legislature, and the Court will examine the proceedings leading up to the actual signing thereof to determine its constitutionality, and in such case the Journal entries govern. Brown v. Nash, supra; Union Pacific Railroad Company v. Carr, 1 Wyo. 97; State v. Swan, supra; State v. Cahill, supra; Younger v. Hehn, 12 Wyo. 289; State v. Gillespie, 12 Wyo. 284; Hollibaugh and Bunten v. Hehn, 13 Wyo. 269; Bolln Company v. North Platte Valley Irrigation Company, 19 Wyo. 542; Arbuckle v. Pflaeging, 20 Wyo. 351; State v. Smart, 22 Wyo. 157; State v. Hall, 27 Wyo. 224.

For the Intervenors, the cause was submitted on the brief and also oral argument of Carlton A. Lathrop of Cheyenne, Wyoming, Eph U. Johnson of Rawlins, Wyoming, and E. L. McCrary of Casper, Wyoming.

POINTS OF COUNSEL FOR INTERVENORS

Courts appear to follow two rules, to-wit: The Enrolled Act Rule and The Journal Entry Rule. Under the Enrolled Act Rule, the enrolled act as on file in the office of the Secretary of State, properly signed and approved, is conclusive on the Courts, and even though constitutional defects are alleged to have occurred in the enactment, the enrolled act is conclusive and the Courts will not go back of the enrolled act and inspect the journals.

The other rule is the Journal Entry Rule wherein the Courts can inspect the legislative journals to ascertain if all the constitutional requirements have been fulfilled. These two rules are discussed and the reasons therefor in 50 A. J. under the heading "Statutes", Sections 137 to 150, both inclusive. Carr v. Coke, 116 North Carolina, 223, 47 A. S. R. 801; Sherman v. Story, 30 Cal. 253, 89 Am. Dec. 93.

Wyoming has followed the journal entry rule since territorial days, the first case so decided by the Supreme Court on this question being Brown v. Nash, 1 Wyo. 85, which was followed by State v. Swan, 7 Wyoming 166; State v. Cahill, 12 Wyo. 225; George Bolln Company v. North Platte Valley Irrigation Company, 19 Wyo. 542; State v. Smart, 22 Wyo. 154.

It is well settled that whenever the existence of an act of the legislature is called in question, the Court may resort to any source of information capable of conveying to the judicial mind a clear and satisfactory answer to such question. State v. Swan, supra.

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

OPINION

BLUME, Chief Justice.

This is an original proceeding in mandamus, brought in this court against the State Treasurer by the county of Laramie, to compel the State Treasurer to disburse 25 percent of the revenues derived from the gasoline license tax on the basis provided by Section 115-1108 Revised Statutes of 1931 as amended by Section 7 (1) of Chapter 72 of the Session Laws of 1935. The amended act of 1935 provided that of the revenues mentioned 25 percent should be disbursed to the several counties in the state, on the basis provided by the act; that out of such revenue should be paid the interest on the outstanding highway bonds, and that the remainder (nearly 75 percent) should be paid into the State Highway Fund, for the use of the Highway Department. The cities of Cheyenne, Casper and Rawlins were permitted to intervene herein, and they have filed a brief and argued the case orally along with the main parties in the case. The State claims (in part concurred in by the intervenors), that only 23 percent of such revenue should be distributed among the several counties (including towns with a less population than 1500), and that 2 percent of such revenue should be distributed to the several cities and towns in this state over 1500 population, in accordance with the provisions of Chapter 157 of the Session Laws of 1945, as corrected. That chapter as printed provides for the distribution to counties, including towns of less than 1500 population, of 25 percent of the revenues above mentioned, and 2 percent to the cities and towns of the state of a population of more than 1500. But the state claims that the term 25 percent is a clerical error and should be corrected by this court to read 23 percent. The petitioner concedes the error, but claims that this invalidates the whole act, and that, accordingly the distribution should be made in accordance with the enactment of 1935 above mentioned.

The facts are not in dispute and will be briefly summarized as follows (leaving out facts which are not involved in the contention herein): On January 19, 1945, there was introduced in the House of Representatives a bill known as House Bill No. 37 to amend subsection 1 of section 7 of chapter 72 Session Laws of 1935. The bill, in brief, provided for the distribution of 23 percent of the revenues above mentioned to counties, and 2 percent thereof to cities and towns of over 1500 population. The bill was amended in the House to provide for a distribution of 25 percent of the foregoing revenues to counties, without disturbing the provision in reference to the distribution to cities and towns, and as thus amended the bill duly passed the house. The Senate refused to agree to the amendment made by the House, restored the 23 percent mentioned in the original bill, and as thus amended the bill duly passed the Senate. When the bill got back to the House, the latter refused to concur in the action of the Senate. Thereupon a conference committee was appointed. That committee recommended several amendments among which were--the only one necessary to be mentioned--that only 23 percent of the foregoing revenue should be disbursed to counties (including towns of less population than 1500), and that 2 percent of such revenue should be paid to cities and towns of over 1500 population, as shown by the original bill. Both the Senate and the House agreed to these amendments, and the bill as thus amended was duly passed by both Houses on February 17, 1945, the last day of the Session of the Legislature.

The bill as thus passed was enrolled, known as Enrolled Act. No 96, but instead of providing that 23 percent of the foregoing revenue should be distributed to counties, provided for 25 percent thereof. The enrolled bill, containing this error, was duly signed by the presiding officers of both Houses, and was thereupon presented to the Governor of State, who, on February 27th or February 28th, 1945, approved the bill and filed it in the office...