182 P.2d 28 | Wyo. | 1947
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"Within five (5) days after filing with the city clerk of a city, of a petition of electors of said city equal in number to ten (10) per centum of the number of registered electors of such city, the mayor thereof shall by a proclamation to be published in at least one newspaper in said city for three (3) times, submit the question of accepting the provisions of this Act (§§ 29-701, 29-921) at a special election to be held at a time specified therein not less than thirty (30) days and not more than sixty (60) days after said petition is filed. If the provisions of this act are not accepted at such special election, the question of accepting said provisions shall not again be submitted to the voters of said city for adoption within two (2) years thereafter. The signature(s) to the petition need not all be appended to one paper, but each signer shall state his place of residence and street number. One of the signers of each paper shall make oath that each signature to the paper appended is the genuine signature of the person whose signature it purports to be."
In accordance with the foregoing provisions a petition bearing 1770 signatures was filed with the clerk of the City of Cheyenne on April 27, 1945. The petition had been circulated by a number of parties and the separate papers of the several parties were then combined and thus presented to the City Clerk. Each of the papers circulated as above mentioned was headed as follows: "To the Mayor and City Commissioners of the City of Cheyenne: We, the undersigned Electors of the City of Cheyenne, respectfully petition that the following question be submitted to the voters of this City: `Shall the proposition to adopt the City Manager Form of Government be approved, and shall the proposition to accept the provisions of Chapter 22, Article 8, Wyoming Revised Statutes, 1931, as amended by Chapter 32, Session Laws of Wyoming, 1943, and Chapter 114, Session Laws of Wyoming, 1945, be adopted for the City of Cheyenne'?" The petitioners signed their *290
names, stating their place of residence and street number, as required by the statute, and an affidavit was attached to each of the papers to the effect that each signature to the paper appended is the genuine signature of the person whose signature it purports to be. The Mayor of the City refused to call the election and according to the evidence in this case he made no effort to determine as to whether or not a sufficient number of qualified electors had signed the petition. Thereupon the plaintiffs and respondents herein brought an action in mandamus to compel the mayor to call the election as above mentioned. The trial court thereupon submitted to this court certain constitutional questions. On August 3, 1945, this court handed down its mandate, refusing to answer these constitutional questions at that time for the reasons mentioned in the opinion. State ex rel. Keefe et al vs. Jones, Mayor, (Wyo.)
I.
It is contended by appellant that the petition was not signed by electors of said City equal in number to ten percent of the number of registered electors of such city, as required by the statute. It is agreed that the number of registered electors was 12,855; ten percent of that number is 1285. Appellant states in his brief that only 978 of the signers of the petition were in fact registered voters. That is not disputed and we shall accept that as a fact. It is the contention of the appellant that only registered electors were qualified to sign the petition. Some of the cases so hold. In re Initiative Petition No. 142, State Question No. 205, *291On the oral argument counsel for appellant argued that there is no provision under our statutes under which the petitioners could have voted at a special election called by the mayor, according to the provisions of the statute, unless they were registered at the time when the petition was presented to the City Clerk. We think that counsel are mistaken. Section 31-403, Wyoming Compiled Statutes of 1945, seems to make ample provision for a situation such as was presented in this case.
II.
Counsel for appellant claim that even though the signers of the petition were not necessarily required to be registered voters, it has not been shown by competent evidence that ten percent of the qualified electors *295 of the City have signed the petition in question; that aside from the 978 signers, 307 additional signatures of proper electors were required, and that it has not been shown by competent evidence that that many signers in addition to the 978 appear on the petition herein. It is contended by counsel for the respondents that the petition should be held prima facie sufficient unless the contrary is shown. Some of the authorities so hold. Wilson vs. Bartlett,Before proceeding to discuss the evidence presented herein it may be mentioned that the statute undoubtedly requires and contemplates that the signers of the petition should at least be residents of the City of Cheyenne in good faith. It is hardly probable, however, that the statute contemplates that all signers of the petition, 1770 in number in this case, should be compelled to go on the witness stand to testify to their own qualifications as signers of the petition. That would be wholly impractical, and we cannot attribute such an intention as that to the legislature. That means that resort must be had to secondary and less satisfactory evidence. There may, of course, be some difficulty in proving the qualifications of the signers in the absence of testimony by them personally and when the names do not appear on the registration books. There is a remarkable scarcity of decisions which have pointed out what evidence is competent in such case, and counsel for appellant herein have failed to enlighten us on the subject. In Re Coaldale Borough, 16 Pa. Dist. R. 288, it was held necessary to show the number of resident free holders and the assessment books were *297
offered in evidence. Whether these showed residence of the persons assessed does not appear. It was said of this offer that "this satisfies us, in the abence of proof to the contrary, that the perons whose names are signed to this petition are in point of fact resident freeholders." In Texas Power Light Co. vs. Brownwood Public Service Co., (Tex.Civ.App.),
In this case five electors who also signed the petition gathered in a group to determine who of the signers were qualified electors of the city. The group spent some fifteen hours in going over the lists. As the names were called and one of the group identified a person as a qualified elector the name was initialed or otherwise marked by or on his behalf. The total number of names thus identified as qualified electors, aside from those who were registered was 494. Of these the witness Farris identified 218; the witness Smalley 139; the witness Durning 89; the witness Dalene 43, and the witness Spear 5. These witnesses subsequently testified in court that to their own knowledge these signers thus identified by them respectively were qualified electors. It is objected by the appellant herein that such testimony is a conclusion of the witnesses. Strictly speaking that is probably true. Hindman vs. Boyd,
III.
Counsel for the appellant contend that the statute relating to the manager form of government does not include cities and towns organized under a special charter. The first section of that statute, now Sec. 29-701, Wyoming Compiled Statutes of 1945, provides: "The provisions of this Act (§§ 29-701 — 29-921) shall apply to all cities and towns, which shall adopt said provisions as hereinafter provided, and the word `city' wherever used in this act shall be construed to include towns." On its face the section is all inclusive. Wyoming has no municipalities except cities and towns. Cheyenne is a city. It is so denominated by Sec. 29-3401, Wyoming Compiled Statutes of 1945. Counsel for appellant call attention to the fact that a number of statutes have a provision similar to this: "The provisions of this Act shall apply to all incorporated cities and towns in the State of Wyoming, whether incorporated under a general law or a special charter," thus indicating clearly that specially chartered cities were included. But this addition was doubtless made merely out of an abundance of caution. The reading of a number of other statutory provisions, but which apparently are applicable to all municipalities in the state, is similar to that of Sec. 29-701, supra. Take Sec. 29-1901, Wyo. Compiled Statutes of 1945, for instance, which refers to zoning in cities and towns. It does not specifically *302 refer to specially chartered cities and yet it has been considered as applicable to the city of Cheyenne. Weber vs. City of Cheyenne,IV.
The City of Cheyenne was organized under a special charter from the legislature. Sec. 29-3401, et seq., Wyo. Compiled Statutes of 1945. Thereafter in 1914 it adopted the commission form of Government and has been operating under that form ever since. Appellant contends that before Cheyenne can adopt the manager form of government it must first abandon the commission form of government, although it is argued that that might be done at the same election pursuant to a combined petition signed by 15 percent of the voters. Sec. 29-529 provides that the commission form of government may be abandoned by any city three years after the adoption thereof. Sec. 29-530 provides that "within five (5) days after the filing with the city clerk of a petition of electors equal in number to fifteen (15) per centum of the number of registered electors of such city," the mayor shall call an election to determine as to whether or not the commission form shall be abandoned. Sec. 29-531 provides that if the majority of votes determine that it shall be abandoned then such city shall "revert to the form of government under which it was governed prior to the adoption of the commission plan of government." Counsel for appellant *303 argue that these provisions must be complied with, and that hence a petition signed by only ten percent of the qualified electors is insufficient in this case in order that only the question of the adoption of the manager form of government may be submitted to vote. They argue that the foregoing provision requiring fifteen percent of the voters for a petition to abandon the commission form of government has not been repealed or modified by the provision requiring only ten percent of the voters to petition for the manager form of government; that the two provisions should be harmonized and both permitted to stand if possible. We agree with that contention, but we see no inconsistency in these provisions. It is quite clear under the provisions of Sec. 29-531, supra, that the provisions for the abandonment of the commission plan of government are applicable only when it is desired to return to the former form of government — in this case to the form originally existing under the special charter. It is an entirely different matter when it is decided that the city shall adopt a new form of government instead of returning to the old. Hence a petition in this case signed by ten percent of the qualified electors is sufficient. We might say in this connection that Sec. 29-529, supra, providing that the city may abandon the commission plan of government three years after adoption thereof is, we think, a severable provision, and we need not determine whether the manager form of government could be adopted previous to the expiration of that time.V.
It is contended that the statute in question is unconstitutional in that (a) it violates Sec. 34 of Article 1 of our Constitution providing that "all laws of a general nature shall have a uniform operation"; (b) it violates Sec. 27, Article 3 of our Constitution which provides that no local or special law shall be passed for "incorporation *304 of cities, towns or villages; or changing or amending the charters of any cities, towns or villages"; (c) it is in violation of Sec. 1, Article 13 of our Constitution which provides: "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 power 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."Part of the argument of counsel is based on the contention that the statute creating a manager form of government creates a new class of cities because of the comprehensive nature of the powers conferred thereby, and counsel say that while heretofore the legislature has based its classifications of cities and towns on population, there is no reason that a new class may not be based on the form of government. We need not pass on that point. Sec. 29-735, Wyo. Compiled Statutes of 1945, providing that the existing laws of cities shall remain in force except in so far as inconsistent with the laws under the statute now considered in case a city should adopt the manager form of government, indicates, it would seem, that no new class of cities was intended to be created. We held in State vs. Sheldon,
Counsel for appellant argue that in some of our previous decisions the ruling of unconstitutionality was based on inequality of powers, but that the court could have based it upon lack of uniformity of operation. We are not certain that we have grasped the import of counsel's argument. They seemingly refer to the interrelation of some of the constitutional questions here involved, and their view in that respect seems to be correct. If the statement in 1 McQuillin Municipal Corporations, 635, is sound — and generally speaking it probably is — that the term "general law" is substantially equivalent to the term "law of a general nature", then the provision in Sec. 1, Article 13, supra, that statutes relating to municipalities organized under the general laws must grant the same powers and impose the same restrictions upon each class, seems merely to make a specific application of the provision that laws of a general nature must have uniform operation, as stated in Sec. 34, Article 1, supra. If unequal powers are granted to any class of cities or towns then there would seem to be an absence of uniform operation in the law. Conversely if the several classes each have been granted the identical powers no want of uniformity *306
of operation would seem to exist. See 1 McQuillin, supra, Sec. 212. Thus it was said in McConihe vs. The State of Florida,
If a law operates uniformly, as that term is understood by the courts, it is a general law. I McQuillin, supra, 644. The converse is not necessarily true; that is to say, if that uniformity of operation is absent the law is not necessarily special or local. That is shown quite clearly in the case at bar. Speaking briefly, a special law is one that relates to particular persons, places or things. 59 C.J. 733, Crawford Statutory Construction, Sec. 81. A local law is one which operates only over a particular locality of the state. 59 C.J. 737. If, in the case at bar, it were held that the specific objections hereinafter considered rendered the statute here considered unconstitutional, we would not be warranted in holding that it is a special or local law by reason thereof. The statute would still apply to all cities and towns, would not be limited to particular places, but would, because of the objectionable features, fail to give the same powers to various classes as hereinafter illustrated, and would, accordingly, as counsel please to call it, not be uniform in operation. In other words, a law may be general, but not of uniform operation, and while particular unconstitutional parts of a law do not necessarily make the law a special or local one because of the absence of such uniformity of operation, the presence of such uniformity makes *307 the law, as already stated, a general one. It follows from what we have said that the statute in question here does not violate Sec. 27, Article 3, supra.
The requirement of uniformity of operation is satisfied if the statute applies uniformly; that is to say, in the same way within a class, provided that the classification is based on a reasonable distinction. 59 C.J. 722, 1 McQuillin, supra, 624. The fact that the adoption of the form of government here considered is dependent upon the vote of the people of the respective municipalities does not make the law a special one. Uniformity of operation does not depend upon the exercise thereof. If the powers granted are the same, that satisfies the constitutional requirement. While the courts of Pennsylvania apparently hold the contrary (1 McQuillin, supra, 667), the rule as stated is well settled in many other jurisdictions, including our own. State vs. Sheldon, supra; Bryan vs. Voss,
(A)
Counsel claim that it is impossible for the mayor of the City of Cheyenne to determine in the period of five days whether or not the petition such as that involved herein contains the signatures of a requisite number *308 of qualified electors, while that is possible in most of the municipalities of the state. Because of this claimed impossibility and this difference, the statute here involved is said to be unconstitutional. Counsel cite the case of Sarlls vs. State ex rel. Trimble, supra, in which it appears that it was not shown that a sufficient number of electors had signed the petition involved in that case. That case is not applicable for the reason that in the case at bar it was shown that a sufficient number of electors had signed the petition. Counsel also cite Keane vs. Remy,(B)
Sec. 29-735, Wyo. Compiled Statutes of 1945, provides: "All provisions of any statute granting a charter to a city which may adopt the provisions of this Act (§§ 29-701 — 29-921), and all general statutes applicable to municipal corporations and elections therein, except as far as the same may be inconsistent with the provisions of this act, shall remain in force and effect and apply to any city which may adopt the provisions of this act, and all provisions of Chapter 84 of Laws of Wyoming for the year 1911 (§§ 29-501 — 29-528), except so far as the same may be inconsistent with the provisions of this act, shall apply to any city which may have adopted the same and which shall thereafter adopt the provisions of this act." Chapter 84 of the Laws of 1911 relates to the commission form of government. It is claimed that in view of the fact that the statute relating thereto is retained in force and effect, in so far as not inconsistent with the statute relating to the manager form of government, renders the whole of the latter invalid, since the law will not be of uniform operation in each of the various classes of cities, and that further, cities and towns organized under the general laws will not have the same powers. It is pointed out (a) that cities which have adopted the commission form of government will retain the power of recall, initiative and referendum provided for in the statute for the commission form of government, while those which have not adopted that form will not have that power, no mention thereof being made in the law relating to the manager form of government; (b) in cities now operating under the commission form of government when they later adopt the city manager government it will be unlawful to agree to work for a candidate *310 for public office for a valuable consideration, but in cities not having adopted the commission form of government before adopting the city manager government such agreement will be lawful. The second of these objections seems to be without force in view of the fact that Sec. 31-2409, Wyo. Compiled Statutes of 1945 makes a like provision applicable to everyone alike, so we shall confine ourselves to the first of these objections. It is pointed out that Sheridan, for instance, a city of the first class which is operating under the commission form of government, would retain the powers of recall, initiative and referendum, while other cities of the first class, such as Casper, Rawlins and Rock Springs, which have not adopted that form, would have no such power. Again Cheyenne and Laramie are specially chartered cities. The act is made applicable to both. No classification thereof is attempted. Since Cheyenne is operating under the commission form of government it would, should it be organized with a manager form of government, retain the powers of recall, initiative and referendum, while Laramie, which has never adopted the commission form of government, would not have these powers. It would seem that the contention made in this respect by counsel for appellant is correct, and hence, leaving in force the statute relating to the commission form of government, would prevent the uniform operation of the statute. The further question, accordingly, arises whether it is necessary to declare the whole statute here involved to be unconstitutional. We discussed that question in McFarland vs. City of Cheyenne,Counsel for appellant have also pointed out that in cities of the first class the mayor has the power of veto. Sec. 29-220, Wyo. Compiled Statutes of 1945. He does not have such power under the commission form of government, Sec. 29-511, Wyo. Compiled Statutes of 1945. And no provision for such veto is made under the manager form of government. Hence counsel contend that in some cities of the first class the mayor would have that power, in others not, and that this vitiates the whole law. In cities of the first class the mayor is elected as an official, independent of councilmen. *312 Sec. 29-212. Under the manager form of government he is merely one of the councilmen, elected by the council as its presiding officer, and is merely by courtesy called the mayor. Sec. 29-705. By Sec. 29-704 the entire legislative authority is vested in the council. Under the law governing cities of the first class that is not true, since the mayor has the power of veto. All of these provisions cannot stand. We think it clear that in all cities of the first class which choose to come under the manager form of government, the mayor would be without the power of veto. Furthermore, it is doubtful that the mayor of the City of Cheyenne has the right to raise this question for it is said that "it is a firmly established principle of law that the constitutionality of a statute or ordinance may not be attacked by one whose rights are not, or are not about to be, adversely affected by the operation of the statute." 16 C.J.S. 157 to 160.
Counsel for appellant say that illustrations other than those given by them, and mentioned herein, could be pointed out to show the statute in question to be unconstitutional. Courts are reluctant, as counsel know, to declare a statute unconstitutional and they will do so only when it is absolutely necessary. 16 C.J.S. 208. They will not ordinarily inquire into the constitutionality of a statute on their own motion. 16 C.J.S. 220. The keen insight of counsel for appellant into the case, and their clear understanding thereof, as shown in their brief, makes it probable that they have found what to them have appeared to be the most vulnerable points in the case, and we do not think that we are called upon to go over our statutes, one by one, to find other possible points, not mentioned by counsel, which might look dubious from a constitutional standpoint.
The judgment of the trial court is, accordingly, affirmed.
RINER, C.J., and KIMBALL, J., concur. *313