State v. Sheldon

Kimball, Justice.

In this suit it is sought by mandamus to require the legislative body of the City of Sheridan to order an election to vote upon the question of the adoption of the commission manager form of government. The case is here for our decision of the following reserved constitutional questions, viz:

First. Does the Act of the ’Wyoming Legislature, approved February 22, 1921, providing for the government of incorporated cities and towns in the state of Wyoming having a population of one thousand or more, ,and the adoption thereof by special election, which Act appears as Chapter 139 of the Wyoming 1921 Session Laws, contravene Section 1, Article XIII of the Wyoming Constitution ?

Second. Does said Act contravene Section 1 of Article XIY of the Wyoming Constitution, in so far as it provides that the Commission or Council shall fix the salary of the City or Town Treasurer, the City or Town Clerk, Attorney, and Director of Finance, and the compensation of the City or Town Manager ?

Third. Does said Act contravene Section 1 of Article XIY of the Wyoming Constitution in its failure to fix any salary or compensation for Police Judge ?

Fourth. If all, or any, of those parts of said Act are unconstitutional which provide that the Commission or Council shall fix the salary of the City or Town Treasurer, the City or Town Clerk, Attorney, and Director of Finance, and the compensation of the City or Town Manager, is the whole Act thereby rendered void?

Fifth. Does said Act contravene Section 37, Article III of the Wyoming Constitution?

Sixth. Does said Act contravene Section 27, Article III of the Wyoming Constitution ?

Seventh. Does said Act, in providing that the City or Town Manager need not be an inhabitant of this state, contravene Section 3, Article YI Elections ?

Eighth. If that part of said Act is unconstitutional which provides that the City or Town Manager need not be an inhabitant of this state, is the whole Act thereby rendered void ?

Ninth. Does said Act contravene Section 34- óf Article I of the Wyoming Constitution ?

By the terms of the act in question it applies only to those towns and cities having a population of 1000 or more, whether incorporated under general law' or special act, which shall vote to adopt it. Other provisions of the act will he noticed as they appear pertinent to the discussion of the questions for our decision. We shall not try to follow the order of the reserved questions.

It is contended that this is a special law offensive to one or more of the sections of the State Constitution which provide as follows:

Sec. 34, Art. I. "All laws of a general nature shall have a uniform operation. ”

Sec. 27, Art. III. "The legislature shall not pass local or special laws in any of the following enumerated cases, that is to say: For * * * incorporation of cities, towns or villages; or changing or amending the charters of any cities, towns or villages; * * * creating offices or prescribing powers or duties of officers in counties, cities, townships or school districts; * * *. In all other eases where a general law can he made applicable, no special law shall he enacted. ’ ’

Sec. 1, Art. XIII. ‘ ‘ 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 re-organize under the general laws of the state. ’ ’

Section 1 of Article XIII directs the classification of municipal corporations except those existing under special charter. These latter are authorized to continue their existence as a separate class or group distinct'from the four classes for which the legislature may provide. (McGarvey v. Swan, 17 Wyo. 120, 96 Pac. 697.) The Constitution clearly contemplates the enactment of different laws for different classes of municipal corporations, and so long as a law operates uniformly upon all cities of one class or upon all of several classes, recognized or authorized by the Constitution, it does not violate either Section 34 of Article 1 or Section 27 of Article III, supra. (McGarvey v. Swan, supra; Dillon, Municipal Corp., Sec. 141 et seq.)

But the act in question, though it be held applicable to all cities of one or more classes, may become operative only in those cities which decide to adopt it, and there is language in some of the cited cases suggesting the inquiry whether this does not create a class within a class, or grant to those cities which adopt the act powers not possessed by other cities in the same class which do not adopt it. (Ward v. Paving Co., 79 Fed. 390; Paving Co. v. Ward, 85 Fed. 27; Owen v. Baer, 154 Mo. 434.) These cases arose under the Missouri'constitution which contains a section almost identical with our Section 1 of Article XIII. But it seems that later cases have settled the construction of the Missouri constitution so far as it affects option laws of this kind. In Hall v. Sedalia, 232 Mo. 344, 353, considering an act which provided that every city of the third class, upon a vote of two-thirds of the qualified electors, should have power by ordinance to provide drains and sewers, etc., it was said:

“Certainly, the validity of the law cannot depend upon: whether one or all of the cities choose to exercise the power which the act confers upon all. This act gives the same power to all the cities of the class. It does not confer one sewer system upon some of the cities and another system upon others; but all the cities have the same power to adopt the same sewer system. The possession of the power does not depend upon its exercise; it depends upon the general law, which is in force equally upon all cities of the class, whether or not it is invoked. ’ ’

And in Barnes v. Kirksville, 266 Mo. 270, 281, considering tbe.constitutionality-.of the commission form of govern? ment act, the court said:

“As to the objection -that the act creates a -fifth class of cities, the answer is, that the bill does not alter the-'pre-exist-ing classification of the city of Kirksville- as- one' of -the third class, but leaves it, and all other cities which shall adopt, its provisions, in the same class to which they theretofore be: longed.”

The constitution of Kentucky also contains a .provision that all municipal corporations of the same class shall possess the same'powers and be subject to the same restrictions. In Bryan v. Voss, 143 Ky. 422, 425, passing upon the commission form of government act, a similar contention was disposed of as follows: '

“It is insisted that some of the cities of the second class may adopt the commission form of government -while others do not, and that thus there will not be a uniform law governing cities of the second class. But this argument overlooks the fact that each city of the second class is now governed by the act of Í894, and that each of them has the power to adopt the commission form of government under the act of 1910. They all are governed by the same law; they each have precisely the same powers; one may exercise the power and another may not, but the mere failure to exercise the power does not affect its existence. The Constitution does not require absolute uniformity in all cities of a given class; to illustrate, each city of the second class may pass ordinances on certain subjects, one may pass one ordinance, another, others. The ordinances although relating to the same subject, may be very different, and so in the government of the cities of a given class, the legislature by the acts now in force has given the cities numerous options, which one has exercised and another has not. The act is not special legislation, for it is applicable to all cities of the second class. “

We are convinced of the soundness of these views, and that they apply to the ease in hand. They are confirmed by authorities from other states where, however, the- constitutional provisions are not so similar to ours: (Adams v. Beloit, 105 Wis. 363; State ex rel Hunt v. Tausick, 64 Wash. 69, 116 Pac. 651; People v. Hoffman, 116 Ill. 587, 56 Am. Rep. 793; Datz v. Cleveland, 52 N. J. L. 188, 19 Atl. 17, 20 Atl. 317.)

We are therefore persuaded that if the act in question confers upon all cities of one or more authorized classes the right to adopt it, it is not objectionable for any of the reasons heretofore noticed.

To determine whether the act operates uniformly on one or more authorized classes, we must first inquire how many such classes there áre. Disregarding for a moment cities existing under special charters, it is clear,, as said in Me-Garvey v. Swan, supra, that there are at least two classes provided for by general laws pursuant to Section -1 of Article XIII. These are towns, having a population of not less than 150, created and existing under Chapter 125, Wyo. C. S. 1920, and cities of the first class, having a population of more than 4000, created and existing under Chapter 126. It is suggested that there are many more. Our attention is called to Chapter 127, Wyo. C. S. 1920, providing for the salaries, election and removal of officers in cities between 6000 and 9000 population, whether, incorporated under general law or special act, which are declared for the purposes of the chapter to be cities of the second class; to Sections 1951 and 1952 providing for terms of office and salaries of officers in towns of 3500 to 5000 population; to Section 1743 (amended by Ch. 129, S. L. 1921) and Section 1744 providing for terms of office and salaries of officers in towns of 1000 to 4000 population; to Section 1953 providing for the maintenance of libraries by towns and cities having a population of more than 5000; and it is claimed that each of these acts creates a class of cities or towns. We think none of them can be considered a general law as contemplated by Section 1 of Article XIII for the organization and classification of such corporations. It is plain that each of such acts contemplates that each of the towns or cities affected shall continue to be governed by the general law or special charter under which it theretofore existed. Whether those acts undertake to grant powers or impose restrictions so that some corporations shall have powers or be subject to restrictions other than all corporations of the same class, contrary to the constitutional restriction in that respect, we have no occasion now to decide. (See: People v. Earl, 42 Colo. 238, 94 Pac. 294; Paving Co. v. Ward, 85 Fed. 27, 33; Ex Parte Handler, 176 Mo. 383.) This much, at least, we think is clear; that the only general laws that have been enacted for the organization and classification of municipal corporations, within the intent of this section of the Constitution, are Chapters 125 and 126, and that towns existing under the former chapter, cities under thq latter, and cities under special charter, are the only classes of municipal corporations contemplated by the Constitution that have thus far been authorized.

It is also contended that those cities which have adopted the commission form of government (Ch. 132, Wyo. C. S. 1920) form another class, but the same reasons that induce us to hold that the challenged commission manager act does not make a classification of cities, causes us to believe that the commission form of government law does not do so.

We take judicial notice that all cities under special charters have moré than 1000 population. The questioned act, then, by its terms includes all cities under special charters and all cities of the first class, and as to both those classes the act is general and of uniform operation. However, if it be undertaken to apply it to towns existing under the provisions of Chapter 125, supra, it would not operate uniformly throughout that class, but only upon those towns of more than 1000 population to which we think it would grant powers not had by other towns of less population in the same class, and this would be contrary to the provisions of Section 1 of Article XIII. But, even though that be true, should the whole act therefore be declared unconstitutional, or may it not be sustained and enforced as to those classes of cities to which it can be applied without conflict with the Constitution? A statute unconstitutional as to a certain class, but constitutional as applied to other classes, may be held to have been intended to apply to the latter if that appear to be in harmony with the purpose of the legislature. This principle has been invoked in a great variety of cases, to a few only of which we shall take occasion to refer.

Statutes intended to affect both corporations and natural persons, though held or assumed to be invalid as to the latter, have been held valid as to the former. (Leep v. St. Louis, I. M. & S. R. Co., 58 Ark. 407, 25 S. W. 75; New York C. & H. R. R. Co. v. Williams, 199 N. Y. 108, 92 N. E. 404; Berea College v. Kentucky, 211 U. S. 45.)

A statute of New York authorizing service of summons upon foreign corporations was held valid in so far as it applied to such corporations doing business in the state, though unconstitutional as to those not doing business in the state. (Robert Dollar Co. v. Canadian Car & Foundry Co. (N. Y.) 115 N. E. 711.)

Acts affecting children of diverse conditions have been held applicable to some classes, and assumed or held to be invalid as to others. (Scott v. Flowers, 61 Nebr. 620; Milwaukee Industrial School v. Supervisors, 40 Wis. 328.)

In Illinois an act authorizing various custodians of public funds to retain a part of the interest derived, therefrom was .held invalid as to some custodians and funds, but valid as to others.. (Chicago v. Wolf, 221 Ill. 130.)

Other cases illustrating the same principle are Henderson v. State, 137 Ind. 552, 36 N. E. 257; Rockdale v. Cureton (Tex.) 229 S. W. 852; State v. Martin, 87 Kans. 817, 126 Pac. 1080; Supervisors v. Stanley, 105 U. S. 305.

We are of opinion that the inclusion in the act of the provision making it apply to towns of more than 1000 population was not such an inducement to its enactment that we-should say that the legislature would not have passed it without that provision. We can foresee no difficulty in enforcing the act as to those cities to which it may constitutionally apply. In these circumstances it seems our duty under the foregoing authorities to hold the act constitutional as applicable to all cities of the first class, which includes the City of Sheridan, and to all those under special charter.

Section 37 of Article III of the Constitution reads as follows :

“The legislature shall not delegate to any special commissioner, private corporation or association, any power to make, supervise or interfere with any municipal improvement, moneys, .property or effects, whether held in trust or otherwise, to levy taxes, or to perform any municipal function whatever. ’ ’

The contention that the act is violative of this provision is not argued at much length, and no authorities are cited. "We deem it is sufficient for the opinion, in disposing of this contention, to say that we think the city manager, who is conceded to be a municipal officer, cannot be considered a special commissioner to whom are granted powers prohibited by this section of the Constitution.

Section 3 of Article VI of the Constitution provides:

“No person except a qualified elector shall be elected or appointed to any civil or military office in the state.”

By the act in question it is provided that the city manager “need not, when appointed, be ail inhabitant of the municipality or of this state.! ’ It is conceded in argument that the office of city manager is an “office” within the meaning of this section of the Constitution, and .we agree that this is so. The distinction between an office and an employment is not always clear, but without engaging in an unnecessary discussion of the nature of this office, as defined by the act, we may say that it seems clear that the legislature intended to create an “office,” within the approved definitions, many of which will be found stated in McCormick v. Pratt, 8 Utah 294, 30 Pac. 1091, 17 L. R. A. 243.

It is suggested that the word “inhabitant,” as used in the act, is not synonymous with the word “elector,” used in the Constitution, and this, no doubt, is true, although, sometimes, where the right to vote is concerned, “inhabitant” may mean “elector.” (Walnut v. Wade, 103 U. S. 683, 693; State v. Deshler, 25 N. J. L. 177, 179.) In this case counsel admit that the legislature intended to authorize the appointment of city managers who, at the time of their appointment, were not qualified electors of the state. Notwithstanding this admission it might be our duty to construe the act so as to make it conform to the Constitution by holding that the quoted clause was intended to authorize the appointment only of those persons who are not “inhabitants” within the limited meaning of that word, but who are nevertheless “qualified electors” of the state, but we think it proper to dispose of this contention on another ground which will accomplish the same result.

In so far as the act authorizes the appointment to this office of persons who are not qualified electors of the state it is clearly void, but for even better reasons than those advanced in connection with the point previously discussed we should not hold that the whole act is thereby invalidated. This precise point has been ruled in Arkansas in McClendon v. Board of Health, 216 S. W. 289. Other cases to the same effect are State v. Ray, 153 Ind. 334; State v. Wright, 251 Mo. 325; State v. Clausen, (Wash.) 182 Pac. 610.

Section 1 of Article XIY of the Constitution provides:

“All state, city, county, town and school officers, (excepting justices of the peace and constables in precincts having less than fifteen hundred population, and excepting court commissioners, boards of arbitration and notaries public) shall be paid fixed and definite salaries. • The legislature shall, from time to time fix the amopnt of such salaries as are not already fixed by this Constitution, which shall in all cases be in proportion to the value of the service rendered and the duty performed. ’ ’

The act in question provides for a police judge, but neither fixes his salary nor makes any provision for it to be fixed. We see in this omission no violation of the constitutional provision. The creation of an office without a salary is not prohibited, and it may be that the legislature intended that the police judge, like some other officers known to our laws, should serve without compensation. (Taylor v. Commissioners, 11 Wyo. 106, 70 Pac. 107.)

A more serious question arises with respect to some other officers under the act. It is provided that the commission or council shall fix the salaries of the city or town clerk, attorney, director of finance and treasurer, and the “compensation” of the city manager. Assuming that these are “officers” within.the meaning of that word as used in this section of the Constitution, this attempted delegation by the legislature of a constitutional duty, without any maximum limit of the amounts of the salaries or compensation that nay be fixed, cannot be justified, and that much of the act is void. But here, again, arises the question whether the whole act should be held thereby to be invalidated.

In considering an act which delegated to the governor authority to fix the salary of an officer known as counsel to the governor, it was said in Childs v. State, 4 Okla. Crim. 474, 113 Pac. 543:

“Assuming that the power' to fix the salary of an office cannot be delegated to the Governor, and that this provision is therefore void, yet it does not follow that the whole section is void or that the office was not in fact created. Salary is merely incident to an office, and constitutes no part of the office; the office may exist without provision for compensation of any kind or character. Compensation is not indispensable to an office. (Throop on Public Officers, Section 8; Mechem on Public Officers, Sec. 7; State v. Stanley, 66, N. C. 66, 8 Am. Rep. 488; Howerton v. Tate, 68 N. C. 547; State v. Kennon, 7 Ohio St. 546; U. S. v. Hartwell, 6 Wall. 385, 18 L. Ed. 830.”

It is apparent as a practical matter that a law creating offices which require the more or less constant personal attention of the officers who fill them, without any provision for salaries or other compensation, could not long continue in effective operation. But we think we should not presume that this condition will be permitted to continue in the case at hand. The failure of the legislature to make a proper provision for these salaries may be regarded as an oversight growing out of a mistake as to its right to delegate the authority. This omission may be cured by amendment, and it would seem that the salaries may be fixed even after the offices have been filled. (Mechem on Public Officers, Sec. 858.)

To summarize with some repetition we hold the act in question void in so far as it applies to towns organized and existing under Chapter 125, Wyo. C. S. 1920; in so far as it attempts to give authority to.appoint a city manager who is not a qualified elector of the state, and in so far as it delegates to the city commission or council authority to fix salaries of municipal officers. As we think the parts of the statute which are unconstitutional can be separated from tlie remainder, and that we cannot presume that the legislature, if properly advised, would not have passed the law with the unconstitutional parts eliminated, we hold that the remaining parts of the act are not void for any reason called to our attention by.the reserved questions. Claiming that the court should not thus decide that parts of the act are valid, counsel for respondent relies upon the rule stated in State v. Peterson, 27 Wyo. 185, 212, 194 Pac. 342, 350, that the law must be tested, not by what has been or can be done under it, but by what the law authorizes to be done under its provisions. We do not question this rule as applied in that case and in Sterret v. Young, 14 Wyo. 146, 82 Pac. 946, but we see nothing in the rule to affect the duty of a court in proper cases, in accordance with the principles hereinbefore discussed, to uphold those parts of a law which do not authorize unconstitutional acts.

There are a few incidental points raised in the briefs which we do not think require specific notice in this opinion. We have given careful consideration to all of them, and think they afford no reason for a different view upon any of the questions submitted for our decision.

To reserved questions 1, 6 and 9 we answer that the act in question in so far as it affects Sheridan, a city of the first class, does not contravene the section of Wyoming Constitution mentioned in the question. To question 2 and 7 we answer “yes,” and to questions 3, 4, 5 and 8 we answer “no.”

Potter, Ch. J., and Blume, J., concur.