Witzenburger v. State, 4788

• Decision Date: 26 April 1978
• Docket Number: No. 4788,4788
• Citation: 577 P.2d 1386
• Parties: Edwin J. WITZENBURGER, State Treasurer of the State of Wyoming, Appellant (Defendant below), v. STATE of Wyoming ex rel. WYOMING COMMUNITY DEVELOPMENT AUTHORITY, Appellee (Plaintiff below), v. STATE of Wyoming, Appellee (Intervenor below).
• Court: Wyoming Supreme Court

Page 1386

577 P.2d 1386

Edwin J. WITZENBURGER, State Treasurer of the State of Wyoming, Appellant (Defendant below), v. STATE of Wyoming ex rel. WYOMING COMMUNITY DEVELOPMENT AUTHORITY, Appellee (Plaintiff below), v. STATE of Wyoming, Appellee (Intervenor below).

No. 4788.

Supreme Court of Wyoming.

April 26, 1978.

V. Frank Mendicino, Atty. Gen., Peter J. Mulvaney, Sr. Asst. Atty. Gen., Cheyenne, and James B. Daley, Dawson, Nagel, Sherman & Howard, Denver, Colo., signed the petition for rehearing and brief.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

RAPER, Justice.

By a petition for rehearing filed on behalf of the State of Wyoming by the attorney general, we are asked to declare that our decision in the case is prospective only and not retroactive. In doing so, the petition is making application to this court to, in effect, judicially validate $27,645,000.00 in Wyoming Capital Facilities Bonds, 1977 Series A, precipitously issued during the pendency of this appeal under the provisions of Chapter 155, Session Laws of Wyoming, 1977, by the Capitol Building Commission. Neither that Act nor that bond issue nor that state entity nor any question of retroactivity were before this court for consideration. By attaching a copy to the petition for rehearing, an attempt is made to introduce into the record the official statement, in the nature of a prospectus, published to announce the availability of Wyoming Capital Facilities Bonds and the fact that such bonds were issued. On a petition for rehearing, this court will not notice matters entirely outside the record of the case before it. Braten v. Baker, 1958, 78 Wyo. 273, 323 P.2d 929, reh. den., 78 Wyo. 300, 325 P.2d 880; Wantulok v. Wantulok, 1950, 67 Wyo. 22, 214 P.2d 477, 21 A.L.R.2d 572, reh. den., 67 Wyo. 45, 223 P.2d 1030; 5 C.J.S. Appeal & Error § 1420, p. 547; 5 Am.Jur.2d, Appeal and Error, § 986, pp. 411-412.

We will not generally, on a petition for rehearing, consider any new issues not raised in the original hearing before the district court or this court. Mayor v. Board of Land Com'rs., 1948, 64 Wyo. 409, 192 P.2d 403, reh. den., 64 Wyo. 430, 195 P.2d 752; Walgreen Co. v. State Board of Equalization, 1946, 62 Wyo. 288, 166 P.2d 960, reh. den., 62 Wyo. 336, 169 P.2d 76; First Nat. Bank of Green River v. Ennis, 1932, 44 Wyo. 497, 14 P.2d 201, reh. den., 45 Wyo. 165, 15 P.2d 1111, and precedent in First National Bank there cited. The new issue presented is the validity of the Wyoming Capital Facilities Bonds.

The petition for rehearing argues that we created new law and, therefore, under pertinent decisions, the decision should be prospective. Our decision in this case did not change any existing jurisprudence with respect to the creation of indebtedness of the State of Wyoming. Paraphrasing from Chevron Oil Co. v. Huson, 1971, 404 U.S. 97, 92 S.Ct. 349, 355, 30 L.Ed.2d 296, 306, cited by petitioners, no new principle of law was established by overruling past precedent. We did not overrule Banner v. City of Laramie, 1955, 74 Wyo. 429, 289 P.2d 922, upon which the Wyoming Community Development Authority relied; as we succinctly pointed out it was just simply inapplicable to the case because it failed to deal with state indebtedness issues. The result we reached was foreshadowed and not a result of first impression, in the light of the abundantly clear prohibition expressed in §§ 1 and 2, Article XVI, Wyoming Constitution, along with the declarations in Arnold v. Bond, 1934, 47 Wyo. 236, 34 P.2d 28, and Laverents v. City of Cheyenne, 1950, 67 Wyo. 187, 217 P.2d 877. We see no inequity in requiring constitutional compliance, though it may result in some momentary uncomfortable distress and require fiscal readjustment, which we shall point out has been accomplished.

Additionally, there is no justiciable issue before the court as required in actions for declaratory judgment. In the case of the Wyoming Community Development Authority, the state treasurer refused to certify the bonds of the Authority to the extent that they would not constitute an indebtedness of the State. In the case of the Wyoming Capital Facilities Bonds, which we are now asked to obliquely approve, he certified unhesitatingly and seems to have relied on the opinion of bond counsel and the attorney general that the Community Development Authority "litigation will not have any effect on the availability of the Pledged Tax Revenues for payment of the Series A Bonds." ¹ It is now urged that the litigation does, in fact, have an effect on the availability of pledged tax revenues. We do not understand the obvious inconsistencies of position but it does disclose that there is only one party before the court on the questions offered for rehearing. In Brimmer v. Thomson, Wyo.1974, 521 P.2d 574, this court found that there existed adversary positions and quoted favorably from Sorenson v. City of Bellingham, 1972, 80 Wash.2d 547, 496 P.2d 512, 517, that though matters before the court may be of great public moment, there is another element, without which a justiciable controversy does not exist and that court said:

" ' * * * Finally, the proceedings must be genuinely adversary in character and not a mere disputation, but advanced with sufficient militancy to engender a thorough research and analysis of the major issues. Any controversy lacking these elements becomes an exercise in academics and is not properly before the courts for solution.' "

We cannot in good judicial conscience permit a presentation in which there is no genuine dispute between the litigants. The dissent would also inject into this proceeding the interests of new parties, such as schools, community colleges and other political subdivisions which might have outstanding bonds issued under some legislative Act about which we have nothing in the record nor anyone to represent adversary interests. See also Cranston v. Thomson, Wyo.1975, 530 P.2d 726, where it was declared that great public interest alone is insufficient to warrant granting a declaratory judgment.

The petition for rehearing implores us to consider that the Wyoming Capital Facilities Bonds were issued in good faith. We would set a dangerous precedent to decide cases ex parte, after the fact, on good faith. With rare exceptions, every party coming before us with a position does so in good faith. With equally rare exceptions, someone must with disappointment find we must disagree with their good faith points of view.

Finally, the question of damage to the credit of the State is moot because the legislature in its 1978 session has provided remedial legislation, first by amending W.S. 39-6-302, ² W.S.1977, Enrolled Act No. 38, House of Representatives, approved by the Governor March 21, 1978, which apparently authorized the pledging of future excise tax revenue for payment of capital savings bonds within such authorization and added the following to subsection (f):

" * * * Unless at the next general election the qualified electors of the state of Wyoming approve the use of future state mineral severance taxes to repay the indebtedness incurred by the state of Wyoming by the issuance of Wyoming capital facilities bonds, 1977, series A, or unless a final, unappealable court decision of rehearing of an existing case affecting the validity of the bonds upholds the legality of the financing of the bonds, then on January 2, 1979, any revenues dedicated to the repayment of the state of Wyoming capital facility bonds, 1977 series A, dated August 1, 1977, and any revenues dedicated to a reserve or redemption account for the bonds shall be transferred to the general fund until the sum of twenty-nine million one hundred thirteen thousand five hundred ninety-one dollars ($29,113,591.00) has been deposited in the general fund. Thereafter, the revenues shall be deposited in the capital facilities revenue account within the earmarked revenue fund."

Then, by what seems to be companion legislation, the legislature in its 1978 session, by Enrolled Act No. 42, House of Representatives, approved by the governor March 15, 1978, provides an appropriation of moneys from currently available funds to repurchase and redeem the Wyoming Capital Facilities Bonds issued in accordance with the plan there provided. That Act goes on also to make ready for the contingency of this court in some way approving or validating the Wyoming Capital Facilities Bonds issued, never a matter properly presented in the case before us.

We have great admiration for the legislature in its prompt and willing action directed to protection of the State's credit standing. We cannot see how any creditor or any other person contemplating investment in securities of the State can doubt the good image and reputation of the State of Wyoming when its legislature tenders a return of private funds expended, creates an account with money in it to carry out the State's promise and grants an alternative to the investor to continue his investment with no risk whatsoever, with the bonds secured by cash or its equivalent on deposit.

We will not in any manner in this case, either directly or indirectly, make any holding which in any fashion suggests that the Wyoming Capital Facilities Bonds were either valid or invalid. They were not and are not now appropriately before us for decision.

Petition for rehearing denied.

ROSE, Justice, dissenting, with whom McCLINTOCK, Justice joins.

I would either have granted the petition for rehearing, in order that this court might consider whether or not its decision should be applied prospectively, or I would have announced in the order denying the petition that the Witzenburger decision will have prospective...