Torres v. Laramie County School Dist. No. 1

• Decision Date: 26 February 1973
• Docket Number: No. 4187,4187
• Citation: 506 P.2d 817
• Parties: Virginia TORRES et al., Appellants (Plaintiffs below), v. LARAMIE COUNTY SCHOOL DISTRICT NO. 1, Appellee (Defendant below).
• Court: Wyoming Supreme Court

Page 817

506 P.2d 817

Virginia TORRES et al., Appellants (Plaintiffs below), v. LARAMIE COUNTY SCHOOL DISTRICT NO. 1, Appellee (Defendant below).

No. 4187.

Supreme Court of Wyoming.

Feb. 26, 1973.

Rehearing Denied March 30, 1973.

Louis A. Mankus, Cheyenne, for appellants.

A. G. McClintock of McClintock, Mai, Urbigkit & Moriarity, James O. Wilson of Loomis, Lazear, Wilson & Pickett, Cheyenne, for appellee.

Before PARKER, C. J., and McEWAN, GUTHRIE and McINTYRE, JJ.

Justice McINTYRE delivered the opinion of the court.

Suit was brought by five electors of Laramie County School District No. 1 contesting a bond election in which the question presented to the voters was whether the trustees of the district should be authorized to issue general obligation bonds of the district in an amount not to exceed $9,500,000 for school buildings. The bond issue carried by a vote of 5,628 for and 4,743 against. A majority of 885 voters favored authorization for the bonds.

The district court held against the contestants and in favor of the school district. The contestants have appealed. Six grounds for reversal are urged and we will confine ourselves to a consideration of the assignments relied upon. Such assignments are these:

1. The district required only 30 days instead of 60 days as a residency qualification for voters.

2. All absentee ballots should be voided and the election should be declared invalid.

3. An improper affidavit of voter was used at the election.

4. The affidavit of voter was not properly sworn to and received and the election should be declared a nullity for this reason.

5. The authorization for bonds is void because a debt in excess of ten percent of the assessed property valuation in the district has been created.

6. Appellants were not given a fair trial and a new trial should be granted.

1. 30-Day Residency. Appellants contend § 22-139.5, W.S.1957, 1971 Cum.Supp., is controlling with respect to residency qualifications in bond elections; that such section requires a voter to be a resident of the county for 60 days; that there is no statutory authority allowing a person to vote who has been a resident for only 30 days; and until the legislature changes the durational residency requirement, the requirement for a voter to have resided in the county 60 days remains the law in Wyoming.

Art. 1, § 37, Wyoming Constitution, declares the State of Wyoming is an inseparable part of the federal union, and the constitution of the United States is the supreme law of the land. This necessarily means the constitution of the United States as interpreted by the United States Supreme Court is controlling law in Wyoming. Thus, when the United States Supreme Court, in Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274, declared durational residence laws are unconstitutional unless a state can demonstrate that such laws are necessary to promote compelling governmental interest, it not being sufficient for a state to show that requirements further a very substantial state interest, that holding became binding upon Wyoming.

As far as this state is concerned, we held in Delgiorno v. Huisman, Wyo., 498 P.2d 1246, 1251, that requirements in our constitution and laws for a durational residence of one year in the State and residence in excess of 30 days in the county as a precondition for voting were, under the state of the record there before us, repugnant to the 14th amendment of the Constitution as construed by the Court in Dunn v. Blumstein, supra, and while indicating further that the legislature was free to establish durational residence requirements for any period for which their investigation showed there was a compelling reason, said that we were establishing guidelines for the direction of election officials and citizens pending action by the legislature, 498 P.2d at 1250.

In the record before us here there is no evidence of a compelling reason for the imposition of the 60-day period and our pronouncements in Delgiorno must apply.

2. Absentee Ballots. Chapter 5 of the Wyoming Education Code deals with school elections in general and Article 2 of Chapter 5 pertains to absentee ballots. Appellants assert that two sections in Article 2, §§ 21.1-90 and 21.1-91, W.S.1957, 1971 Cum.Supp., provide there shall be no absentee voting in school bond elections. They are incorrect in such assertion. Actually, the sections referred to prescribe the procedure for obtaining an absentee ballot in any school election 'except a bond election.'

The Education Code (including §§ 21.1-90 and 21.1-91) was adopted by the legislature in 1969. Two years later, in 1971, the legislature adopted a special and separate chapter pertaining to bond elections. This chapter is now §§ 22-139.1 to 22-139.9, W.S.1957, 1971 Cum.Supp. It is a part of the election laws of the state. Section 22-139.5, a part of this special chapter, expressly provides: 'Absentee voting is permitted in bond elections provided for in this act (§§ 22-139.1 to 22-139.9).' Thus, if the provision in § 22-139.5 (which permits absentee voting in bond elections) controls, then the claim of appellants that absentee ballots should be voided would be without merit.

In further argument under assignment 2, appellants direct our attention to §§ 22-118.121 to 22-118.143, W.S.1957, 1971 Cum.Supp. These sections are a part of general election laws which were passed in 1961. They have to do with absent voters and persons in military service. Section 22-118.122 specifies that the article involved shall pertain to and be limited to any qualified elector (1) who has complied with laws of the state concerning registration and expects to be absent on election day; or (2) who has complied with laws of the state concerning registration and expects to be physically unable to appear at the polls on election day.

Although appellants argue § 22-118.122 requires a voter to be registered before he can vote absentee, the section does not so provide. If prior registration is not required before voting in a particular election, then it cannot be said an unregistered voter has failed to comply with laws of the state concerning registration.

The same logic applies to § 22-118.127. It specifies that a clerk of election shall not send ballots to absent voters unless and until they are registered 'according to law.' Of course, if the law requires no prior registration for a particular election, then the clerk could not refuse to send ballots to absent voters, along with the necessary registration affidavit which the voter would make at the time of voting.

But, even if the provision in § 22-139.5, which states that absentee voting is permitted in bond elections, is thought of as conflicting with one or more of the sections which appellants say are inconsistent, § 22-139.5 would prevail. That section is a part of the chapter dealing specially and particularly with bond elections.

The rule to be applied is that general legislation must yield to special legislation on the same subject whether provisions are found in the same statute or in different statutes. Higby v. State, Wyo., 485 P.2d 380, 382. ¹

Of course, if the statutes in question can be read in harmony and do not actually conflict, then there is no problem. In Bixby v. Cross, Wyo., 384 P.2d 710, 711-712, we held that to be the situation. We are inclined to believe it is the situation in the case at hand. At least appellants have failed to persuade us there are critical conflicts.

We have previously referred to Chapter 5 of the Wyoming Education Code which has to do with school elections. The first section of that chapter (§ 21.1-72, W.S.1957, 1971 Cum.Supp.), provides:

'No prior registration by voters shall be required for any election authorized or required to be conducted under this code.'

The next section (21.1-73) states that the general election laws of the state shall govern school elections insofar as 'they are applicable and not inconsistent with the provisions of this code.' It will be seen from this that appellants cannot rely on general election laws which are not applicable, or which are inconsistent with provisions of the Education Code. This would mean the provision in § 21.1-72 (a part of the education code), to the effect that prior registration shall not be required, will prevail over any general election law which appellants might seek to rely on.

In any event, consideration being given to the order in which legislation has taken place, the special chapter having to do with bond elections (including the declaration in § 22-139.5 that absentee voting is permitted) supersedes all other statutes relied on by appellants. That because §§ 22-139.1 to 22-139.9 were passed in 1971. Also, § 21.1-72, which states no prior registration shall be required, supersedes anything in conflict therewith in §§ 22-118.121 to 22-118.143. That because § 21.1-72 was passed in 1969 and §§ 22-118.121 to 22-118.143 were passed in 1961. Minor amendments not here relevant were made in 1971 to § 22-118.132.

3. Affidavit Form. Appellants claim the affidavit of voter form prescribed in § 21.1-83, W.S.1957, 1971 Cum.Supp., was used for the election which is contested. They contend bond elections are governed solely by §§ 22-139.1 to 22-139.10. As far as § 22-139.10 is concerned, that section did contain an affidavit of voter form. However, the section was repealed in the 1971 special session of the legislature. Ch. 4, § 20, Session Laws of Wyoming, 1971 Special Session.

In addition to the chapter dealing with bond elections (§§ 22-139.1 to 22-139.9), the Education Code authorizes special elections such as the one here involved, in § 21.1-104. It provides:

'(a) In addition to the regular annual election, the board of trustees of any school district within the state may call an election at any time for any purpose authorized by law. Any election other than the regular annual election shall be known as a special school district election.

'(...