Budge v. Board of Com'rs

Riner, District Judge. This action was brought in the District Court of Lincoln County by certain residents and tax-payers of that part of the County of Lincoln “within the boundaries of the proposed County of Teton.” It seeks to enjoin the defendants, the Board of County Commissioners of the County of Lincoln, from making any special levy of taxes upon the property of the plaintiffs situate “within the proposed boundaries of the proposed unorganized County of Teton” for the — 41 — purpose of defraying’ expenses incurred and to be incurred relative to the organization of that County. An answer was filed by the defendants, W. P. Redmond, P. C. Hansen and T. R. Wilson, the commissioners appointed to organize the County of Teton, and by other defendants. To this am swer the plaintiffs interposed a general demurrer. An agreed statement of facts wás also filed, duly signed by counsel for both plaintiffs and defendants. Upon the submission of the cause constitutional questions arising upon the record were at the instance of all parties duly reserved and certified to.this court for decision. Teton County was formed from a part of the territory included in Lincoln County by an act of the legislature, comprising six sections, approved February 15, 1921. This law appears as Chapter 53, S. L. 1921. The first section of the act forms the county and indicates its boundaries; the second section attaches its territory for judicial, revenue and election purposes, including representation in the legislature, to Lincoln County “until such time as the said County of Teton shall have organized and elected officers as by law provided;” the third section attaches its territory to the Third Judicial District and provides for a term of court “after said County of Teton shall have organized and shall have duly chosen its county officers as by law provided ;’’the fourth section attaches its territory to Lincoln County for all purposes of legislative representation until that is fixed by the legislature on the basis of a new census “after said County of Teton shall have organized as provided by law.;” the fifth section declares Teton County “shall be deemed and held to be one of the counties of Wyoming” from the passage of the act 'for all the purposes of which a county exists in this state “except as hereinbefore provided;” the sixth section declares that the act shall take effect and be in force from and after its passage. While the constitutionality of this act is assailed, it is sufficient for the purposes of this case to state in passing that we regard the act as constitutional in so far as it undertakes to form Teton County, using the word “form” in the sense employed by — 42 — tbe Constitution of Wyoming. In the case of Commissioners v. Woods, et al. 18 Wyo. 316 at 332, 106 Pac. 923, 927, this court, speaking of an act of the legislature forming Park County which was contended to be violative of constitutional provisions, said: “Such legislation is necessary to our form of government. No other way is pointed out whereby a county can be created, except by legislative enactment giving it a name and defining its boundaries. The act must be upheld as being in the nature of an enabling act to the people residing within the defined boundaries of the territory therein described, to organize the County of Park under the general statute contemplated by the Constitution. ’ ’ This language accurately describes the nature of the act forming Teton County. A clear distinction has been made by the decisions of this court between forming and organizing a county as contemplated by the Constitution and statutory enactments relative thereto. (Board of Commissioners of the County of Fremont v. Perkins, et al. 5 Wyo. 166, 38 Pac. 915.) The legislature evidently had in mind such distinction, inasmuch as in the act it is repeatedly declared that certain conditions shall prevail until or after “said County of Teton shall have organized as provided by law. ’ ’ From the pleadings and the agreed statement of facts it appears that the organization of Teton County was undertaken regardless of the provisions of Section 1281 of the Compiled Statutes of Wyoming 1920. It is conceded, as a matter of fact, that at the time of the signing and presentation to the Governor of the State of Wyoming of the petition-provided for by Section 1280 of said Statutes, and at all times during the year 1921, the proposed County of Teton contained a population of one thousand six hundred and twenty bona fide inhabitants and no more, and property of the value of two million three hundred and thirty-five thousand dollars and no more as shown by the last preceding assessment for taxation. To avoid the force of this enactment of the legislature, it is contended on behalf of the — 43 — defendants that its provisions forbidding formation and organization of a new county unless the county possesses property of the value of five million dollars as shown by the last preceding assessment for taxation and a population of three thousand bona fide inhabitants are unconstitutional. The section thus challenged is a part of the general law passed by the legislature providing for the organization of counties in this State. While the questions certified by the District Court are ten in number yet the question of the constitutionality of Section 1281 in the particulars mentioned is mainly all that this court can now properly decide. Section 2 of Article XII of the Wyoming Constitution provides in part: “The legislature shall provide by general law for organizing new counties, locating the county seats thereof temporarily and changing county lines. But no new county shall be formed unless it shall contain within the limits thereof property of the valuation of two million dollars, as shown by the last preceding tax returns, and not then unless the remaining portion of the old county or counties shall each contain property of at least three million of dollars of assessable valuation; and no new county shall be organized nor shall any organized county be so reduced as to contain a population of less than one thousand five hundred bona fide inhabitants. ’ ’ It is urged that when the legislature in Section 1281 aforesaid increased the property valuation necessary for the formation of a county and the number of inhabitants for its organization over the constitutional requirements above recited, such action was in derogation of the state’s Constitution. With this contention we are unable to agree. . Section 1 of Article III of the fundamental charter of Wyoming reads: “The legislative power shall be vested in a senate and house of representatives, which shall be designated ‘The Legislature of the State of Wyoming.’ ” — 44 — In thus creating the legislative department and conferring upon it the legislative power the people of this State must be understood to have vested the full and complete power as it exists and may be exercised by the sovereign power of any country subject only to such restrictions as they may have seen fit to impose, and of course, to the limitations embodied in the federal constitution. In other words the legislative department of a state is not made a special agency for the employment of specifically defined legislative powers, but is intrusted with the general authority to make laws at discretion. The generally accepted doctrine is that under constitutional provisions similar to those of this State the legislature may “pass any acts that are not expressly or by necessary implication inhibited,” by the state or the United States Constitution (12 C. J. 746 and extended list of eases cited in Note 5). This court has already announced this view of the law. In State ex rel. Agricultural College v. Irvine, 14 Wyo. 318 at 389, 84 Pac. 90, 106, it was said: “The legislature is vested with all legislative powers of the state; it may do anything within the domain of legislation which is not repugnant to the State or Federal Constitutions ; and constitutional restrictions upon the legislature are not to be enlarged by construction beyond their terms. ’ ’ The constitutional provision above recited declares that “no new county shall be formed unless it shall contain within the limits thereof property of the valuation of two million dollars as shown by the last preceding tax returns” and “no new county shall be organized * * * as to contain a population of less than one thousand five hundred bona fide inhabitants.” Applying the rule of construction indicated by this court in its decision above mentioned, it is plain the Constitution says to the legislative department: You may form counties as the needs of the state may require but your act is ineffective if it undertakes to form a county which does not have a property valuation of two million dollars as shown by the last preceding tax returns; you shall provide by general law the machinery whereby — 45 — counties may be organized but your machinery is ineffective if it allows a county to be organized which contains a population of less than fifteen hundred bona fide inhabitants. Recalling that all legislative power is vested in the legislature the limitations thus set by the Constitution are merely minimum limits below which the legislature cannot pass. Clearly then, this leaves the legislature with full power to ■provide that counties shall not be formed or organized unless they measure up to requirements in excess of those demanded by the Constitution. In the case of Elder v. Doss, 202 Pac. (Cal.) 144 at 145 recently decided, the Supreme Court of California has discussed a quite similar situation thus: “It was said in Los Angeles County v. Orange County, 97 Cal. 329, 331, 32 Pac. 316: ‘Counties are merely local subdivisions of the state, created by the legislature for governmental purposes, and are denominated public corporations for the reason that they are but parts of the machinery employed in carrying on the political affairs of the state. The legislature except as restrained by constihdional limitations, may change their boundaries and extent, consolidate two or more into one, or divide and create new counties out-of the territory of one or more previously existing ones.’ (Italics ours.) “At the time of this decision, as now, the only constitutional provision on the subject was Section 3 of Article 11 of the Constitution, which then simply provided that— ‘No new county shall be established which shall reduce any county to a population of less than eight thousand; nor shall a new county be formed containing a less population than five thousand; nor shall any line thereof pass within five miles of the county seat of any county proposed to be divided. * * *’ “These were prohibitions pure and simple, and, subject only to them, the power of the legislature in the matter of the creation of new counties by either general or special law (see Wheeler v. Herbert, 152 Cal. 224, 228, 92 Pac. — 46 — 353; Mundell v. Lyons, 182 Cal. 289, 187 Pac. 950) was unlimited. ’ ’ This rather extended quotation shows very well how the courts regard constitutional limitations such as are here under consideration. A great many authorities could be cited to the same effect. A few only are here mentioned: (Nowakowski v. State, 6 Okl. Cr. 123 (115 Pac. 351), Cherna v. State, 146 Pac. (Ariz.) 494, State v. Weiss, 84 Kan. 165 (113 Pac. 388); State ex rel. Caldwell v. Hooker, 32 Okl. 712; Hawley v. Anderson, 190 Pac. (Ore.) 1097.) It results from what has been said that Section 1281 of the Compiled Statutes of Wyoming is a constitutional exercise by the legislature of the powers vested in it. This conclusion disposes of the case except for the responses needed to the questions certified by the District Court. These questions will now be stated with such answers and remarks as may be required under the conclusions reached in this cause. The first question reads as follows: “Is Chapter 33 of the laws of 1921 a special act, particularly in the use of the words ‘Notwithstanding the provisions of Section 1281, Wyoming Compiled Statutes of 1920,’ and therefore in contravention of (a) Sec. 27 of Art. Ill, or (b) Sec. 2 of Art. XII, or (c) Sec. 34 of Art. I of the Constitution of the State of Wyoming?” To this question no answer is returned as it is not proper at this time for this court to decide. The constitutionality of Chapter 53 of the laws of 1921 as regards whether it is a special act or not for the organization of Teton County, which we understand to be the purport of the question, may not arise in this case inasmuch as Section 1281 has been declared to be constitutional. The District Court in disposing of the case will necessarily have to determine first whether the section last mentioned has been repealed by apt language in the provisions of Chapter 53 aforesaid. Until that is done and a conclusion reached that a repeal has been intended, the constitutionality of Chapter 53 will not arise. It is a well settled rule that courts do not pass upon the constitutionality of a statute unless the neces — 47 — sity therefor in the instant ease clearly appears. (Cooley Const. Lim. Sec. 163). This court has already ruled that it cannot consider questions which can only be reached after action by the District Court and which are not constitutional. (See State v. Kelly, 17 Wyo. 335, 98 Pac. 886). In this connection it may be observed that it is significant in the history of the act as it traveled through the legislature, that the general repealing clause originally incorporated therein was before final passage stricken out, and that repeated reference is made in its several sections to conditions which shall prevail until or after the County of Teton shall have organized “as provided by laio.” Should the District Court reach the conclusion that no repeal has been accomplished then, of course, Teton County will remain unorganized until it can comply with Section 1281 already discussed. To question number two, which reads: “If said Chapter 53, laws of 1921, is unconstitutional, are the proceedings thereunder as alleged in the pleadings and agreed to in the stipulated statement of facts, invalid and void ? ’ ’ the answer is, that under the answers returned to the other submitted queries this one does not present a constitutional question. To question number three, which reads: “Are Sections 1279, 1280 and 1281, Wyoming Compiled Statutes of 1920, a valid exercise of the legislative power to provide by general law for the organization of new counties under Sec. 2 of Art. XII of the State Constitution?” the answer is “yes.” To question number four, which reads: ‘ ‘ Has the legislature the right under the Constitution to prescribe by general law a minimum population and a minimum assessed valuation as a condition precedent to the organization of a new county in excess of the minimum prescribed by Sec. 2 of Article XII of the State Constitution?” the answer is “yes.” To question number five, embracing two questions, reading: “Assuming that the legislature has such right, are Sections 1279-1281, Wyoming Compiled Statutes of 1920, a valid exercise of the right of the legislature to fix a minimum — 48 — population and a minimum assessed valuation as a condition precedent to the organization of a new county in excess of the minimums prescribed by the State Constitution? And can Teton County be legally and constitutionally organized until it is able to comply with the requirements of the sections mentioned as to population and assessed valuation?” the response is “yes” to the first and the last not primarily involving a constitutional question is left without reply. To question number six, which reads: “Are the provisions of Sections 1279-1281, W. C. S. of 1920, requiring an affidavit setting forth that the new county has 3000 bona fide inhabitants and $5,000,000 assessed valuation to be attached to the petition for the appointment of organization commissioners, a valid exercise of the right of the legislature to provide by general law for the organization of new counties as set forth in Sec. 2 of Art. XII of the State Constitution?” the answer is “yes.” To question number seven, reading: “Is the act of the Governor in appointing organization commissioners in the absence of an affidavit accompanying the petition for their appointment averring that the new county has 3000 bona fide inhabitants and $5,000,000 assessed valuation, a valid exercise of his constitutional authority?” the response is that this does not primarily present a constitutional question and hence no answer is required. Question number eight, reading: “Has the Governor any constitutional authority to appoint organization commissioners for a new county except on petition with affidavits attached thereto fully complying in their averments with the provisions of See. 1281, W. C. S. of 1920, as to population and valuation ? ’ ’ does' not in the wording thereof primarily frame a constitutional question and is left without reply. Question number nine, reading: ‘1 Has the Governor the right to appoint as organization commissioners persons not named in the petition addressed to him ? ’ ’ does not present a constitutional question and hence requires no answer. — 49 — Question number ten, reading: “Was the appointment of the defendants Redmond, Wilson and Hansen, made upon the petition and the accompanying -affidavits attached to the pleadings herein, valid? And have these defendants legal authority to proceed with the organization of the new county of Teton?” likewise does not present a constitutional question and so requires no answer. The answers to the reserved questions as herein given will be certified to the District Court of Lincoln County wherein the action is pending. Kimball, J., and Blume, J., concur. Potter, C. J., being unable to sit when the cause was heard Hon. William A. Riner, Judge of the First Judicial District was called in to sit in his stead.