Wyoming State Treasurer v. City of Casper, 4521

• Decision Date: 22 June 1976
• Docket Number: No. 4521,4521
• Citation: 551 P.2d 687
• Parties: WYOMING STATE TREASURER, as Statutory Trustee of the Firemen's Pension Fund, Appellant (Plaintiff below), v. CITY OF CASPER, Appellee (Defendant below), and City of Cheyenne, (Defendant below).*
• Court: Wyoming Supreme Court

Page 687

551 P.2d 687

WYOMING STATE TREASURER, as Statutory Trustee of the Firemen's Pension Fund, Appellant (Plaintiff below), v. CITY OF CASPER, Appellee (Defendant below) and City of Cheyenne, (Defendant below).*

No. 4521.

Supreme Court of Wyoming.

June 22, 1976.

V. Frank Mendicino, Atty. Gen., and David A. Kern, Sr. Asst. Atty. Gen., Cheyenne, signed the brief and Lawrence A. Bobbitt, Special Asst. Atty. Gen., Cheyenne, appeared in oral argument on behalf of the appellant.

Hobart B. Harden, Jr., Harden & Harden, Casper, signed the brief and appeared in oral argument on behalf of the appellee.

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

RAPER, Justice.

This case involves assessment procedures for the firemen's pension fund, followed by the appellant-plaintiff as its statutory trustee with respect to a claim against the appellee-defendant in the sum of $20,433.87 for its pro-rata share of a 1973-74 fiscal year deficiency.

The legislature of the State of Wyoming created a firemen's pension fund for the purpose of paying various awards, benefits and pensions to city, town and county fire fighters. ¹ The fund is administered by the treasurer of the State of Wyoming through the Workmen's Compensation Department. ² The plan is financed by various means: 50% of the gross annual tax collected upon fire insurance premiums, gifts, donations and contributions; ³ since the legislative session of 1975, 8% of the salary of every paid fireman is deducted monthly and paid into the fund; ⁴ an annual assessment share against cities, towns and counties based on a formula of benefit units ⁵ and interest on fund money invested in United States, state, county, district and municipal bonds. ⁶

In 1973, the legislature established additionally a firemen's contingency fund to be maintained in an amount of $100,00.00 to be expended by the state treasurer as needed to pay unanticipated obligations of the firemen's pension fund. ⁷ It is established and maintained from the same sources as the firemen's pension fund; but principally from the city, town and county assessment. ⁸ It was an initial misunderstanding of the use of this fund by the state treasurer that generated the dispute between the litigants. The facts are stipulated. We shall mention them as required.

Sections 15.1-305(b) and (c) require that prior to July 1 of each year, the state treasurer 'shall' compute the amount of the annual assessment share of each city, town and county and prior to July 1 'shall' notify each entity of the assessment share computed, payable in 12 installments. ⁹ On July 24, 1973 for the 1973-74 fiscal year, the state treasurer computed the minimum annual cash requirements of the firemen's pension fund, computed the number of benefit units ¹⁰ attributable to each city, computed the value of a share, ¹¹ computed the annual assessment share ¹² of each city, and assessed each city in accordance with those computations. The assessment will be here referred to as the original assessment. That original assessment was based on annual known total figures. Thereafter, during the 1973-74 fiscal year, the state treasurer discovered what he believed to be an erroneous use of cash from the firemen's contingency fund, as a back-up source to meet the monthly obligations of the firemen's pension fund which for several months during the fiscal year was essentially depleted. By the end of April, 1974, only $28,864.76 ¹³ remained in the firemen's contingency fund and up to that time no unanticipated expenditures had arisen or been paid. The contingency fund was created by legislative fiat in 1973 to be used only for unanticipated expenditures, not known requirements. The reason for the fund being depleted was because the fire insurance tax money was not available for pension fund use until April, May and June, 1974.

About May 9, 1974, the state treasurer recomputed the minimum cash requirements of the firemen's pension fund and the firemen's contingency fund, recomputed the number of benefit units attributable to each city, recomputed the value of a share, recomputed the annual assessment share of each city as of July 1, 1973, for the fiscal year 1973-74 and reassessed each city in accordance with such computations. That assessment will be referred to as the reassessment. ¹⁴ The difference between the original assessment for the city of Casper and the reassessment comes to a claimed balance of $20,433.87, unpaid by that city and for the recovery of which this suit was brought in the district court.

While all of the foregoing seems complex, it simply boils down to the proposition that the state treasurer is each year authorized and required to compute and assess each city for a pro-rata portion of the firemen's benefit and contingent fund requirements, after crediting other income sources. The original assessment did not take into consideration the months when the benefit fund was without money and the contingent fund was used. The reassessment was to make up that shortage.

The trial court held that the state treasurer had authority to assess cities, towns and counties prior to July 1 of each year with an annual assessment share. The trial court also held that the use of the firemen's contingency fund as a 'back-up' fund is contrary to the terms of § 15.1-303(k). But it finally held that the state treasurer had no authority to assess or make a reassessment after July 1, 1973, for the fiscal year 1973-74, and specifically adjudged that the reassessment for the annual assessment made by the state treasurer on May 9, 1974, for the fiscal year July 1, 1973 of June 30, 1974, was made without statutory power to do so.

The district court apparently accepted the argument of the city of Casper made there and here that §§ 15.1-305(b) and (c) are mandatory as to date and that prior to July 1, the treasurer must compute and notify of the assessment for the ensuing fiscal year and he has no power thereafter in that fiscal year to recompute and reassess. In that connection, it was in the district court and is also urged here that the reason for that deadline rests in §§ 9-533, as amended, and 9-535(c), W.S.1957, of the municipal budget act, then in effect, which makes it incumbent upon municipalities to prepare their budgets prior to the fiscal year commencing July 1, upon the basis of proposed expenditures. The tentative budget must be prepared by June 15 for hearings on the fourth Tuesday in July and adopted by at least the next day thereafter. ¹⁵ However, in fairness at this juncture it must be pointed out provision is made in the budget act for unanticipated expenditures as well. Sections 9-534(a) and 9-535(a) ¹⁶ provide for a cash reserve fund, within budget requirements, to maintain in municipality on a cash-operating basis and to meet unanticipated requirements. We opine this was the source from which Cheyenne, Laramie, Rock Springs and Sheridan were able to meet the unexpected expenditures required by the reassessment.

The issues, as expressed by counsel, are three: (1) Did the state treasurer have statutory authority to assess cities, towns and counties on a benefit unit basis? The city of Casper claims the state treasurer did not have authority to even make the original assessment. (2) If authorized, did the state treasurer accurately compute the original assessment? The city of Casper claims he did and there was no need for a reassessment, even if empowered. (3) Did the state treasurer have authority to recompute and reassess, nine months later, if the original assessment was erroneous? The state treasurer claims this to be the only question.

The state treasurer, understandably, would not complain about the trial court's favorable findings that the treasurer had authority to assess and that the original assessment was erroneous. The city of Casper did not cross-appeal those parts of the judgment favorable to the treasurer, as provided by Rule 73(a)(2), W.R.C.P., in proper cases, giving added time of 14 days to do so following an appellant's notice of appeal. The state treasurer claims that the city of Casper in order to attack the trial court's judgment must cross-appeal.

It is apparent then that if the state treasurer had either no authority at all at any time to assess on a benefit unit basis or its original assessment was correct, there would be no need for this court to make a determination of the issue as to whether or not the state treasurer had authority after July 1 to recompute and reassess. This raises an intermediate question. Before this court can consider issues one and two, must the city of Casper have cross-appealed from those findings of the district court favorable to the state treasurer?

The controlling rule has been settled for many years. In United States v. American Railway Express Co., 1924, 265 U.S. 425, 435, 44 S.Ct. 560, 564, 68 L.Ed. 1087, 1093, it was said:

'* * * (A) party who does not appeal from a final decree of the trial court cannot be heard in opposition thereto when the case is brought here by the appeal of the adverse party. In other words, the appellee may not attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary, whether what he seeks is to correct an error or to supplement the decree with respect to a matter not dealt with below. But it is likewise settled that the appellee may, without taking a cross appeal, urge in support of a decree any matter appearing in the record although his argument may involve an attack upon the reasoning of the lower court, or an insistence upon matter overlooked or ignored by it. * * *'

In summary, a non-appealing party may not attack the ultimate effect of the judgment below but may support it by any matter appearing in the record. The rejection of a contention, argument or theory in support of a claim does not reject the final upholding of the claim itself. A party need not...