Dunnegan v. Laramie County Commissioners

DUNNEGAN, L. Gerald d/b/a and Leo

J & G Wholesale

Holmes, Petitioners,

v. COMMISSIONERS

LARAMIE COUNTY Sheriff,

and Laramie

Respondents, (Defendant), HOLMES, Appellant

Leo

v. Wyoming, STATE (Plaintiff). Appellee COMMISSIONERS;

LARAMIE COUNTY Sheriff; and State of (Plaintiffs),

Wyoming, Appellants DUNNEGAN, J & L. G

Gerald d/b/a Holmes, and Leo WHOLESALE (Defendants). Appellees 91-169,

Nos. 92-88. Wyoming.

Supreme Court of

May 1993.

HgQ County. works Laramie determining In validity resolution, we revisit the question of county’s authority to in this area.

We appellant reverse Leo Holmes’ coun- ty conviction, court part reverse in part affirm in 30, the district April court’s and order. Appellant Leo appellee Holmes and J & present G Wholesale the following issues for review: A. The used in the Laramie County Resolution when read in conjunc- with the of the Wyoming tion (W.S. act §§ 207), (the Act”) spe- “Fireworks cifically 35-10-201(a), §§ 204(a)(iii) 35-10-204(a)(iv) ambigu- ous, and unconstitutionally inconsistent vague process and violates the provi- due McDaniel, Roger Cheyenne, argued by Wyoming Constitution, sions of the Arti- McDaniel, Mr. Dunnegan, Gerald L. ele 3 and and the Fourteenth §§ d/b/a J & G Wholesale and Leo Holmes. Amendment of the United States Consti- Coates, Cheyenne, Roberta A. argued by tution. Coates,

Ms. County for Laramie Com’rs Court, B. Did the District in respond- and Laramie County Sheriff. ing to this Remanding Court’s Order Case for Consideration of Additional Cer- Hubbard, Gen., Michael L. Atty. Sr. Asst. 20, 1992, tification filed March exceed its Bobbitt, III, and Lawrence A. Sr. Asst. subject jurisdiction matter to the extent Gen., Atty. Wyo. for state of beyond that it authority went con- MACY, C.J., request tained in the THOMAS, Before on remand that it CARDINE, certify, certify, or decline to TAYLOR, GOLDEN thresh- JJ. old Supreme set forth in the

CARDINE, Justice. Court’s Order of March 1992? Alter- natively, if the District Court acted with- Appellant Leo Holmes was convicted of jurisdiction, in its did the District Court selling fireworks in violation of a correctly County conclude that the resolution regulating fireworks and as- not have criminal sessed a $750 fine. An was taken sanctions? conviction, from the a suit was filed seeking declaratory judgment appellant County presents Laramie county resolution was only unenforceable. The one issue for review: cases were consolidated. After argument police power Does the of a remand, in this court and the trial court protection of the health and welfare entered an affirming appellant’s order con- citizens of a of the State of viction vacating fine and af- $750 Wyoming necessarily right include the firming county’s carry effect, power such into and does it fireworks. County Laramie appeals that empower proper to use means part of the order vacating the fine. Resolution, to enforce subject judi- cial review as to the reasonableness of appeals These consolidated present such means? essential validity of a Lara- County mie Commissioners’ reg- 3, 1991, resolution April On following a bench trial ulating court, Leo Holmes was found Comm’rs, 679 P.2d 429 County fire- Bd. violating the guilty of II) (Haddenham timely appealed (Wyo.1984) Holmes

works resolution. and, Comm’rs, along G with J & court the district Injunctive Wholesale, Complaint for filed a seeking enjoin court in the district Relief II and we In Haddenham county reso- enforcing the the from possess the to held that counties contrary plain and to its in manner lution use, possession of regulate the sale and appeal purposes of ordinary meaning. For of stare decisis The doctrine fireworks. court, consolidated the district court this to prece to established requires adherence his conviction with appeal from Holmes’ 314, Burns, Wyo. 224 dence. Burns v. question from the following certified the 178, (1950); Worthington v. P.2d injunction: an action for civil State, 796, (Wyo.1979). P.2d 803-04 35-10- provisions W.S. Do the § However, policy, not an principle as a 35- 201(a), the § command, decisis does not inexorable stare interpreted 10-204(a)(iv) read and when formula for adherence create a mechanical the Laramie conjunction in with rigid in prior decisions and should not be process provi- the due Resolution violate State, 841 P.2d application. its Cook v. Constitution, Art. Wyoming the sions of Burns, 1345, (Wyo.1992); 224 P.2d at the 3 and United States Sections Amendment, principle disregard Constitution, 14th 183. The reasons under the entirety departing in rule the resolution its the of stare decisis such that vagueness perpetu and the conviction precedent prevent void for from are to the must set aside? plain, be of error and “to vindicate obvi ation Cook, P.2d at principles ous law.” argument on the certified We heard oral 1353; Worthington, 598 P.2d at see also 10, 1991, and on on December 804. 20, 1992, an Re- March issued Order we manding of Addi- Case for Consideration appeal presents This an occasion order, In that tional Certification. departure precedent from is neces when asked court to consider the the district sary plain, principles to vindicate obvious question to certification of a constitutional they of law. To the extent hold that W.S. county’s authority regarding the this court county governments 35-10-205 authorizes police power of the State of to exercise the regulate the sale of fireworks not other regulating Wyoming by resolution the sale law, regulated by wise state Haddenham county. in of fireworks the II and the Gueke misstate law. Continued The district court denied additional certi- misanalysis adherence to this of the law affirming order the fication and issued an by justified cannot be a commitment to regulate county’s fireworks precedent and the doctrine of stare decisis. impose denying authority to crimi- the nal sanctions for violation of Wyoming Statute 35-10-205 states: County appeals from resolution. Laramie through This act 35-10-201 [§§ portion the of the district court’s shall prohibit not be construed to 207] denying county’s authority impose the imposition by municipal ordinance No cross criminal sanctions. was regulations prohibitions of further challenging filed the district court’s deter- sale, upon possession use and of fire- county may, mination that a under W.S. any works within -207, use, city city but no such or town possession sale and of fireworks. Howev- permit sale, use, shall or authorize the er, county’s of a because the au- in violation posses- thority sale and added, [emphasis of this act. brackets in closely relates sion of fireworks so original] county’s authority to criminal sanc- tions, general statutory rules of opportunity we take this to reexam- construction prior ine our in decisions Haddenham v. are well settled. If of a

lili Wyoming unambiguous, we must cities and counties differ is clear statute they authority they meaning perform, functions by abide way they possess, and are created. rel. Deloges v. State ex the words used. Div., govern- In his treatise on local Compensation Wyoming Worker’s ment, Rudolph explains: Professor 750 P.2d clearly Counties, authorizes cities Statute 35-10-205 reason of their state man- stringent adopt more bans responsibilities, or towns to dated serve as adminis- must, trative arms of the state and there- upon the fore, works, collectively but it contains no similar cover the entire area of * * * pro- decisions the state. The constitution authority to counties. Our formed ignore the dis- vides that no new shall Haddenham II property municipali- unless it includes with an as- counties and tinction between sessed valuation of at million ties, governing least two in the state statutes both dollars, county orga- a nor shall new regulation in well estab- and population nized unless it has a of not the terms. The term lished definitions of less than 1500 inhabitants. county “municipality” can never include a com- government they and “should not be George Rudolph, Wyoming E. Local Gov- apples oranges, and pared any more than (1985). contrast, 1-2 In cit- ernment Law is fruitless.” 728 P.2d at 172 as it are as ies described follows: J., (Macy, dissenting). frequently, Courts state and almost ritu- alistically, municipal corporations a that municipality A has been defined as legislature borough, township village are creatures of and sub- “city, or ject complete to its dominion and control. body of officers taken [and] [a]lso [as] course, proposition, equally ap- The of is collectively, belonging city, to a who are districts, plicable to counties and school appointed manage its affairs and defend principal impact it has its with re- but Dictionary its interests.” Black’s Law spect to cities there it is not so because (5th 1979). Supreme ed. The Court of Wis- come into obvious. Cities and towns be- par- consin concluded that common “[i]n initiative, perform a ing through local lance, judicial in legislative and even and functions, range of and have cor- broader ‘municipality’ applied language, the word is greater discretionary au- respondingly incorporat- and to towns as well as to cities thority. Jacobs, villages.” ed Miller v. Town of (1887); Wis. 35 N.W. see also George Rudolph, Wyoming Local E. Gov- (1961) seq. 27A Words & Phrases 527 et at 67-68. ernment Law (Cum.Supp.1991). and agree and authorities that counties Other distinct, “municipal- and the cities are word clearly This outlined the difference Court ity” refers to cities. city a and a between when stat- in Municipal corporations, using ed: the term include, sense, unless otherwise its strict corpora- The line of distinction between statute, by provided the constitution or character, public such as coun- tions of a rule, cit- general only incorporated as a ties, districts, townships, and school and ies, Counties, villages it is and towns. proper, municipal corporations such as * * held, *. generally are not included towns, clearly cities and is marked. corporations former class of are subdivi- McQuillin, Municipal Eugene Law of governmental 1987) (cita- for (3d sions of the state 2.23 ed. Corporations, § public purposes, omitted). other while the latter tions by class is called into existence the will legislature’s in- Further evidence expressed people, within the limits permit only municipalities to tent to vote, by representa- by petition, regulation can be more strict of fireworks legislature. people tives legislature’s use of the terms found in the ordinance,” Co., “municipal “city or town” Searight Board Comm’rs v. Cattle of “gov- than the term W.S. 35-10-205 rather 31 P. grant permits. This of author- those Wyoming Statute 35-10- erning body.” body ity very specific, the section’s governing as follows: 201(b) defines read to language cannot be body” the board “Governing means authority to generalized grant of provide a as to the area county commissioners regulate, granting in addition to county but outside within a displays, sale town; permits public city or means body city governing or other council within the city as to the area or town autho Wyoming Statute 18-3-509 city or town. of such corporate limits boards commissioners rizes intended that en- has legislature

When the provide protection persons fire cities, counties and apply to both actments boundaries, property within “governing specific phrase it used specifically awhat enumerates 35-10-203(a) (1988). body.” e.g., See providing protection. do It makes 35-10-205, in granting regulation no fireworks or the Statute reference stringent regula- fireworks, to enact more of authori and no such “governing tions, term not use the implied used. ty from the can be “city terms body,” uses the rather Statutes de- “municipal town” ordinance.” provide through -304 for the closure ig- II and Gueke in Haddenham cisions danger. extreme This author areas of fire erroneously read nored this distinction by the ity close or limit an area’s use “city grant of or into the terms town” state of land public is vested in the board counties to also enact more authority for These 35-9-301. commissioners. W.S. stringent We hold that W.S. regulations. grant regulatory authority to provisions no grant not counties the au- 35-10-205 county of commission counties or boards stringent regulations thority more to enact ers. fire- possession the of of works, overrule our decisions and we 35-9-401 Statutes II and the extent Haddenham provide the through appointment -402 for contrary. those hold to the decisions county of fire and outline the warden provi fire warden’s duties. These

Additionally, we find that W.S. 35-10- any type do not counties of 203(a), 18-3-509, -402, sions through 35-9-401 regulate broad the sale provide through -304 no possession grants authority, implied, or al- express of lowing fireworks. As counties political A county is a subdivi earlier, noted the of we accord to state, the sion of created aid these its government. administration of State meaning. Comm’rs, 457 Bd. 642 P.2d of 35-10-203(a) Statute (Wyo.1982). The enforces state part: reads in statutes and laws. It does enact laws. not governing body shall Any have the hand, municipality A may, on other power grant permits, within the area penalties enact ordinances with criminal jurisdiction, supervised pub- under its for police depart which it enforces by individuals, lic displays of fireworks municipal ments and courts. As an arm of parks municipalities, amusement and oth- state, only powers has those er organizations groups, and to expressly granted by the or constitution adopt and regulations reasonable rules reasonably statutory implied law or from for granting permits. of such powers granted. Id.; Hyde v. Bd. of The language Comm’rs, Wyo. this section is 31 P.2d 77 clear. It Thus, any governing body, i.e., cities, (1934). authorizes counties enforce state stat towns county government per- regulating to issue utes fireworks but not en mits public for displays of providing fireworks and to act laws penalties criminal adopt regulations rules and grant- regulation. such

11 IS legislature seemingly recog- Deatherage, The 1993 (Wyo.1989); 773 P.2d 156 granted nized W.S. 35-10-205 no au- Equalization State v. Jackson Hole thority to counties to fireworks Corp., (Wyo.1987); Ski 745 P.2d 58 Brad when, session, during legislative the 1993 it Ragan Indus., Tire Co. v. Gearhart provide: amended W.S. 35-10-205 to now (Wyo.1987); P.2d 1125 Wyo Graham v. pro- This act shall not be construed to ming Peace Standards and Train Officer imposition by municipal hibit the ordi- Comm’n., (Wyo.1987); P.2d 1060 nances or county resolution of further Kurpjuweit v. Co., Northwestern Dev. regulations sale, prohibitions upon or Inc., (Wyo.1985); 708 P.2d 39 Reno Live possession use of fireworks within Corp. stock (Delaware), v. Sun Oil Co. corporate town, any city (Wyo.1981); P.2d 147 Hilzer, Knudson v. pro- nor shall this act be construed to (Wyo.1976); 551 P.2d 680 Wallace v. Cas imposition hibit the by any county of Serv., per Adjustment (Wyo.1972). 500 P.2d 72 regulations prohibitions further upon sale, Pursel, use and Tobin v. Cf . within the borders (Wyo.1975); Thomson, Cranston v. and outside the limits (Wyo.1975); P.2d 726 Willey, West v. any city city, but no such P.2d 883 or county permit town shall or authorize appeal by Holmes and &J G Whole- sale, use or fire- presented sale to this court relating issues works in violation of [emphasis this act. only to vagueness unconstitutional in viola- added] process tion of the due provisions of the We decline upon comment the effect of Wyoming Constitution and the Fourteenth except the amendment pro- to note that it Amendment to the Constitution the Unit- 35-10-205, vides further evidence that W.S. in effect County when the Laramie fire- ed States. The specifically district court drafted, works resolution was did not au- certify refused to this court the thorize counties to sale or authority commission- Therefore, ers fireworks. The must County declare the Laramie fire- County assumes the existence of works resolution invalid. authority, merely and it ruling attacks the We reverse the conviction of Leo Holmes of the district court that Laramie under the resolution and reverse authority had no sanctions for the district court’s to the extent regulation. Using violation of its these it upheld premise overruling prior issues as a regulate the sale or peculiarly case law is ill-advised. It works. that, case, proper appropri- it would be ate to reconsider the THOMAS, Justice, dissenting. regulate fireworks, of the counties to I must disposition dissent from the this is not such a case.

this case made in majority opinion. gone The majority has too far afield in I Legislature also think the should recon- endeavoring to overrule Haddenham v. Wyo.Stat. sider the amendment to § Bd. Comm’rs Carbon Coun adopted Wyo.Sess. Ch. ty, (Wyo.1984), and Gueke v. If majority correctly Laws. has over- County Comm’rs Teton Coun ruled Haddenham and I cannot ty, 728 majority P.2d 167 discern authorization to the counties opinion departs pre so far from the issues regulate in the amended statúte. A state- sented in controversy this as to create an prohibit ment that the statute does not advisory opinion. jurisprudential rule imposition regulation of further prohibí- advisory is that we do not furnish opinions. Services, E.g., Wyoming Health by county Inc. v. tion appro- resolution is not an grant authority doing to the coun- priate way negative preg- so virtue of a nant does not suffice. police power. Such ties to exercise affirmatively authority should be extended

Case Details

Case Name: Dunnegan v. Laramie County Commissioners

Court Name: Wyoming Supreme Court

Date Published: May 20, 1993

Citation: 852 P.2d 1138

Docket Number: 91-169, 92-88

Court Abbreviation: Wyo.