42 P.2d 413 | Wyo. | 1935
This case is here upon reserved constitutional questions. The plaintiff, J.P. McFarland, brought this action in January, 1934, under the Declaratory Judgment Act of this state, to determine his rights. The petition alleges:
The City of Cheyenne is a municipal corporation, incorporated as such under a special charter (having a population of about 18,000). The defendant Archie Allison is its Mayor, and the defendant T. Joe Cahill is the duly appointed Chief of Police of the city. The plaintiff, during 1933 and for many years prior thereto, was a member of the paid police department regularly organized and maintained by the City of Cheyenne, receiving a salary of $145 per month; thereafter, and on the first day of January, the defendant Archie Allison and the defendant T. Joe Cahill attempted to remove and did remove the plaintiff from his position as such policeman, without any cause arising out of the good of the service and without serving or causing to be served upon the plaintiff a written notice, and *93
without giving the plaintiff any opportunity to answer any written cause or demand a public hearing before the City Commission of the City of Cheyenne. All this was done in violation of Sections 22-201 to 203, Rev. St., Wyo. 1931. Plaintiff accordingly prayed that his rights in the premises be declared and that he be reinstated and adjudged to be entitled to his regular compensation as a member of the police department during the time of his suspension. A demurrer to the petition was overruled. Thereupon the defendant answered, alleging, among other things, the physical incapacity of the plaintiff to serve as a member of the police department of Cheyenne, and that Sections 22-201 to 203 above mentioned are unconstitutional. The plaintiff filed a reply, denying the affirmative allegations contained in the answer. By stipulation, entered into by the parties, the essential facts alleged in the petition were agreed to be true, except that the mayor believed the removal of the plaintiff to be for the good of the service. Upon request of the attorney for the defendants, the trial court has submitted certain questions to this court for determination. Among these questions are some which relate purely to matters of statutory construction. These must first be passed upon by the lower court, and have no place in the record before us. In re Gillette Daily Journal,
The statute which is claimed to be unconstitutional is Article 2 of Chapter 22, Revised Statutes of 1931, being Sections 22-201 to 204, both inclusive. The first of these sections provides as follows:
"No member of the paid police department regularly organized and maintained by any city in this State whether such city is governed by general law or special charter, shall hereafter be removed, discharged or suspended; nor shall he be reduced in grade or in compensation except for cause arising out of the good of the service or the violation by such member of any law of the United States or of the State of Wyoming, or of any ordinance of such city. Such cause shall be stated in writing and a copy thereof shall be served upon the person affected who shall have the right within ten days of the service of such copy to answer the charges and to demand a public hearing before the city council or commission of such city. The written statement of cause together with any answer that may be made thereto shall be filed with the clerk of such city."
The next section provides that it shall be unlawful to remove, discharge or suspend any member of the police department in violation of the chapter and that any attempt to do so shall be without effect. Section 22-203 provides that any person who shall remove, discharge or suspend any such member of the police department or reduce him in grade without complying with the provisions shall be guilty of a misdemeanor and shall be subject to a fine of not less than $100 nor more than $500, or imprisonment in the county jail for a period of not less than one month nor more than six months or both, provided "that this act shall not affect any town or city having a population of less than 8,000." In other words, by this exception the act *95 is made applicable to all cities in the state which are governed by general law or by special charter, having a population of not less than 8,000.
The inquiry is as to whether or not the law above mentioned is in violation of Section 1, Article XIII of the Constitution, reading as follows:
"The legislature shall provide by general laws for the organization and classification of municipal corporations. The number of such classes shall not exceed four (4) and the powers of each class shall be defined by general laws, so that no such corporation shall have any powers or be subject to any restrictions other than all corporations of the same class. Cities and towns now existing under special charters or the general laws of the territory may abandon such charter and reorganize under the general laws of the state."
Other reserved questions are as to whether or not the law above mentioned is in conflict with Section 34 of Article I of the Constitution, providing that all laws of a general nature shall have a uniform operation, or in conflict with Section 27 of Article III of the Constitution, forbidding amendment of charters of cities and towns by special law where a general law can be made applicable; or in conflict with Section 35 of Article I of the Constitution, forbidding any law impairing the obligation of contracts, or in conflict with Section 1 of Article V of the Constitution, vesting the judicial power of the state in the courts thereof and in certain other bodies therein mentioned.
1. The legislature has not as yet seen fit to create, by general law, more than two classes of municipal corporations, namely, towns, which may be organized in any territory having not less than 150 population (with no maximum population mentioned), and cities of the first class, it being provided by Section 22-301, Rev. St. 1931, that "all cities having more than four thousand inhabitants shall be governed by the provisions *96
of this article, and be known as cities of the first class." Some of the cities of the first class, heretofore organized as such, are included in the legislative act in question, namely, Casper, Sheridan, and Rock Springs, but the act excludes all the cities of the first class between 4,000 and 8,000 population, and, at present, excludes the city of Rawlins. All the cities of this class, accordingly, do not have the same powers, and are not subject to the same restrictions, as specifically required by Section 1, Article XIII of the Constitution, and the act is therefore plainly in violation thereof at least as to this class of cities. State v. Sheldon,
"However, if it (the commission form of government) be undertaken to apply it to towns * * *, it would not operate uniformly throughout that class, but only upon those towns of more than 1,000 population to which we think it would grant powers not had by towns of less population in the same class, and this would be contrary to the provisions of Section 1 of Article XIII."
A like point was discussed in the case of Murnane v. City of St. Louis,
That classification by population is reasonable can not be an excuse for violating the provision of the constitution above quoted. Nor can the fact that the larger cities in this state demanded the legislation. On that point the Supreme Court of Pennsylvania in Perkins v. Philadelphia, 156 Pa. St. 554, 27 A. 356, 361, after pointing out that hundreds of bills relating to municipalities had been vetoed and several scores of enactments had been held unconstitutional, said as follows:
"Another point made in the argument before us — that the public sentiment of Philadelphia with practical unanimity demanded the passage of this law, was doubtless more effectively urged before the Legislature. But the question presents itself to us in a different shape; we do not believe the intelligent public sentiment of the greatest city of the commonwealth demands the accomplishment of a lawful purpose by unlawful means; unconstitutional statutes are the very essence of lawlessness. Even if the unanimous public sentiment of the city demanded the enforcement of this act, we could not heed it. Public sentiment, properly, may move courts, in matters wholly discretionary, such as the adoption of rules to speed causes, afford quick relief to suitors, and eradicate abuses in the administration of justice; but such sentiment can have no place in the interpretation of a constitution; the public *98 sentiment expressed in that instrument is the only sentiment of which a court can take notice; it contains the deliberate, emphatically expressed sentiment of the whole people; they, and they alone, can change or amend it in the way provided in it, but even they cannot trample upon it. If laws in conflict with it be passed by the legislature, be approved by the governor, and sustained by this court, that is revolution. It is no less revolution because accomplished without great violence. It matters little to the house owner, whether the structure intended to shelter him be blown up by dynamite or the foundation be pried out, stone by stone, with a crowbar; in either case he is houseless. There can be no stability in a free government, if successful assaults in any department be made on the fundamental law; — the supreme law, deliberately established by the whole people as a rule of action in all governmental matters affecting their welfare."
We accordingly answer that the legislative act in question is in violation of Section 1 of Article XIII of the Constitution, in so far at least as cities operating under general laws are concerned.
2. But a law void in part is not necessarily void as a whole. 59 C.J. 639; 6 R.C.L. 121; State v. Sheldon, supra, and others of our cases. That rule, sometimes overlooked, is as well settled as the rule that the courts may declare a statute to be unconstitutional. We must, accordingly, direct our inquiry further and determine whether that is true in this case — whether, speaking specifically, the legislative act in question is also void as to cities operating under special charter, even though, as held in McGarvey v. Swan,
The rule has been laid down that as to whether or not a legislative act shall be declared unconstitutional as a whole when a portion thereof is invalid depends primarily upon the intention of the legislature. 6 R.C.L. 123. In that rests the ultimate test. If the invalid portion is severable from the remainder, and constitutes but an incidental or unimportant part of the law, the remainder may stand, but if it is not severable, and the several parts are so interdependent that the main purpose of the law would fail by reason of the invalidity of a part, then the whole of the law must be declared invalid. 6 R.C.L. 124-127. The test of severability is, it would seem, but one of the rules guiding the courts in determining the intention of the legislature. That rule is not applicable here. Severability, at least in the sense of divisibility, is not applicable here. The law in question here deals with two or more classes. It may be effectually applied to one of these classes, and in fact in each of the cities contemplated by the act, without reference to any other. But the ultimate test, that of the intention of the legislature, still remains. No provision, however unobjectionable in itself, can stand, unless it appears that, standing alone, the provision can be given legal effect and that the legislature intended the unobjectionable feature to stand in case other provisions held bad should fail. Lynch v. United States,
"In seeking the legislative intent, the presumption is against any mutilation of a statute, and the courts will resort to elimination only where an unconstitutional provision is interjected into a statute otherwise valid, and is so independent and separable that its removal will leave the constitutional features and purposes of the act substantially unaffected by the process."
In case of doubt the statute must fall as a whole. Illinois C.R. Co. v. McKendree,
Courts have held in a variety of cases that a statute may be upheld as to one class embraced therein, but not as to another (6 R.C.L. 130; 1 Cooley's Constitutional Lim., 8th Ed., 366), and additional tests to arrive at the legislative intention may be gathered therefrom. A number of our own decisions belong to this class of cases. State v. Sheldon,
Let us consider another phase in testing the probable intention of the legislature, namely, importance or unimportance of the invalid part in relation to the remainder. Minor details and unimportant parts, which are severable, will not, as already stated, if unconstitutional, ordinarily render the whole act void. Hale v. McGettigan,
The subject of law enforcement, and the quality of the police force, is of equal importance in all the cities embraced within the act. Their situation and condition in that respect is not different. But the act, if upheld in part, could at most be applied to Cheyenne, and perhaps Laramie. The most important part of the act is clearly unconstitutional. Casper, Sheridan and Rock Springs, the greater number of cities contemplated in the act, are by reason of that fact excluded from its operation, and if we follow the foregoing authorities — and we have no reason not to do so — we must, we think, hold the entire act to be void. *105
Another important fact appears in the case at bar. Section 3 of the legislative act in question makes it a crime for any person who violates the provision of the act, and fixes a heavy penalty therefor. The act introduces a new policy into the state. The conditions in the various cities embraced in the act being the same, as stated, is it likely that the legislature had in mind that persons having control of the police force in Cheyenne and Laramie should be subject to this penalty, when persons similarly situated in Casper, Sheridan and Rock Springs should go scot free for doing the identical act? We think not. Section 3 is an integral part of the act. It is said in 6 R.C.L. 132, Sec. 131, that "courts incline towards treating a penal statute as void in its entirety whenever one section or clause is clearly unconstitutional." In State v. Cudahy Packing Company,
"This case involves the construction of a statute highly penal. To such statutes the strict rule is to be applied — not so strict as to defeat the plain intent of the legislature, but so strict as to give the words of the statute the sense in which they are obviously used. * * * If applying this rule the legislative intent cannot be given effect, the particular law must fall. In other words, it must stand as enacted, or must be declared void as a whole. Wynehamer v. People,
In Butts v. Transportation Company,
"The real question is whether the sections in question, being in part — by far the greater part — in excess of the power of Congress, are invalid in their entirety. Their words, as also those of the preamble, show that Congress proceeded upon the assumption that it could legislate, and was legislating, in respect of all persons and all places `within the jurisdiction of the United States.' It recognized no occasion for any exception and made none. Its manifest purpose was to enact a law which would have a uniform operation wherever the jurisdiction of the United States extended. But the assumption was erroneous, and for that reason the purpose failed. Only by reason of the general words indicative of the intended uniformity can it be said that there was a purpose to embrace American vessels upon the high seas, the District of Columbia, and the territories. But how can the manifest purpose to establish a uniform law for the entire jurisdiction of the United States be converted into a purpose to create a law for only a small fraction of that jurisdiction? How can the use of general terms denoting an intention to exact a law which should be applicable alike in all places within that jurisdiction be said to indicate a purpose to make a law which should be applicable to a minor part of that jurisdiction and inapplicable to the major part? Besides, it is not to be forgotten that the intended law is both penal and criminal. Every act of discrimination within its terms is made an offense and misdemeanor, and for every such offense it gives to the aggrieved party a right to a penalty of $500, and subjects the offender to a fine of not less than $500 nor more than $1,000, or to imprisonment for not less than thirty days nor more than one year."
A number of previous decisions of the same court, exhibiting a similar situation and the same conclusion, are cited in that case. It is unnecessary to review them here. The Supreme Court of Arkansas in State ex rel. v. Dry Goods Co.,
"In the application of this well-settled rule to the case at bar, we are of the opinion that the statute is unconstitutional as to domestic corporations. It will be observed that the language of the act refers to all corporations. If it had contained separate sections concerning foreign corporations and domestic corporations, it might be said that the statute was separable, and the unconstitutional part as to foreign corporations might be stricken out and leave enforceable that part relating to domestic corporations. Such is not the case, however. The language is plain, and refers to all corporations. The act prescribed a severe penalty for the failure of the officer of the corporation to comply with its terms. To sustain the act as to domestic corporations would require us to strike out the words `all corporations,' and to disregard their plain and ordinary meaning, and substitute therefor the words `domestic corporations.' To limit the statute in this manner would require us to amend the statute, and, as has been said, this is no part of our duty. It is our duty to interpret the statute as it is written, and we cannot limit or restrict the plain meaning of the words used so as to make constitutional a statute which, when construed according to the plain and ordinary meaning of the language used, would be unconstitutional."
See further North Tintic Mining Co. v. Crockett, 75 Ut. 259,
Applying the foregoing rules, we cannot escape the conclusion that the whole act under consideration is void because in violation of Sec. 1, Article XIII of our Constitution. This obviates the necessity of answering the other constitutional questions submitted to us; for instance, as to whether or not, as applied to Cheyenne, the act is a local law or would be of uniform operation, a point considered in McGarvey v. Swan,
The case will, accordingly, be remanded to the district court of Laramie County, with one of the questions answered as above set forth, and with the remaining questions left unanswered.
KIMBALL, Ch. J., and RINER, J., concur.