State ex rel. Budge v. Snyder

Kimball, Justice.

This is an action in mandamus commenced in this court. The respondent is the state treasurer, who, it appears, has in his hands forest reserve funds which he is required by law to apportion to the counties containing forest reserve lands. Secs. 137, 138, Wyo. C. S. 1920. In making the apportionment he has awarded a part of the funds to the new county of Teton. The forest reserve landd and all other lands in this county were formerly included within the boundaries of Lincoln County from which the new county was carved. The action is brought in the name of the state, on the relation of seven citizens and taxpayers residing in the new county. They deny, however, that the new connty has been legally organized, allege that they are still citizens and taxpayers of Lincoln County, and, as such, seek by this action to have us require the Treasurer to apportion said funds so that Lincoln County will receive the amount how apportioned and about to be paid to the new county.

Counsel for respondent contend that the relators have not sufficient interest in the result of the action to invoke the relief asked. They might have contended, further, that Teton County, which is not a party to this action, is a de facta county, and that the legality of its organization cannot be attacked collaterally, but only by qua warranto. School District v. Commissioners, 15 Wyo. 73; 86 Pac. 24; 11 Ann. Cas. 1058; 15 C. J. 418; 19 R. C. L. 703. A consideration of either of the questions just suggested might lead to a judgment for the respondent, without a decision as to the legal existence of Teton County, a point which has been fully and ably argued and which we think the public interest requires to be settled. Accordingly, we have first investigated the grounds for challenging the validity of the organization of the county, and as we are clearly of opinion that they are insufficient, that will be the reason! for our judgment, and we shall not decide whether the relators have sufficient interest to maintain the action, nor whether we would have a right in this action to hold that a county' de facto is not one de jure.

The case has been submitted on the pleadings and an agreed statement of facts. The facts which we deem necessary to an understanding of our views will be noticed as we proceed.

In Budge v. Board of Commissioners (Wyo.) 208 Pac. 874, it was held that Teton County was legally formed by an act of the legislature of February 15, 1921 (Laws 1921, c. 53). We do not understand that the correctness of that conclusion is now questioned, but our attention is called to a mistake in the description of the west boundary line of the new county as set forth in section 1 of the act, viz: “beginning at the southwest comer of the Yellowstone National Park,” and thence “south along the western boundary line of the State of Wyoming” etc. This point of beginning is in Idaho and it is not possible to run a line south from that point along the western boundary line of Wyoming. It is not urged that any one has been deceived by this description. No one could have been misled unless willing to believe that the legislature intended to include in the new county a part of our neighbor state. We have no doubt that every person interested in the new comity could tell from the language of the act the intention of the legislature that the western boundary line of the county should be identical with the western line of the state from the Yellowstone Park south. We think, therefore, that Teton County was sufficiently déseribed and legally formed by the act of 1921.

As stated in Budge v. Board of Commissioners, supra, there is a clear distinction under our constitution between the “forming” and the “organization” of a new county. The state constitution (Art. XII, Sec. 2) provides that:

“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 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, and in case any portion of an organized county or counties is stricken off to form a new county, the new county shall assume and he holden for an equitable proportion of the indebtedness of the county or counties so reduced. No county shall be divided unless a majority of the’ qualified electors of tbe territory proposed to be cut off voting on the proposition shall vote in favor of the division. ’ ’

The forming of a county is a legislative function and may be done by special act. The organization of a county is a matter of administration and is effected with the consent of the people of the formed county by administrative or executive officers, acting under a general law. Commissioners vs. Perkins, 5 Wyo. 166, 172; 38 Pac. 915; Commissioners vs. Woods, 18 Wyo. 316, 331; 106 Pac. 923, 107 Pac. 753.

When Teton County was formed in 1921 the general law for the organization of new counties was contained in Chapter 91 (Secs. 1279-1293) Wyoming Compiled Statutes for 1920. Section 1281 provides that, “No new county shall be organized, nor shall any organized county be so reduced as to contain a population of less than 3000 bona fide inhabitants ; nor unless the new county shall contain within the limits thereof property of the value of $5,000,000, as shown by the last preceding assessment for taxation, and not then unless the remaining portion of the old county, or counties, shall each contain property of at least $7,000,000 of assessable valuation, as shown by the last preceding assessment for taxation.”

It is admitted that after Teton County was formed by the act of 1921 the steps required by the general law for the organization of the new county were taken, and that Lincoln County has been left with a population of more than 3000 and property of the assessed value of more than $7,-000,000. It is also admitted that Teton County did not have a population of- 3000, nor assessable property of the value of $5,000,000, but did have a population of more than 1500 and property of the assessed value of more than $2,-000,000. It appears, then, that the newly formed county, having the constitutional qualifications of a county, but not able to meet the statutory requirements in excess of those demanded by the constitution, did, nevertheless, organize under the general law for the organization of counties. Thereafter, at tbe regular primary and general elections in 1922 the people of the new county elected county officers who duly qualified and became acting officers some time before February 15, 1923. In the meantime some steps in the organization of the county were called in question in Budge v. Board of Commissioners, supra, in which we held, among other things, that section 1281, supra, was a valid legislative enactment. As such, it was an obstacle in the way of the organization of the new county unless it had been repealed or its operation in some way suspended by the act of 1921 forming the new county. On the remand of Budge v. Board of Commissioners to the District Court it was there held that the act of 1921 did not repeal or suspend the operation of section 1281. Accepting as correct the decisions in that case both by this court and the District Court, the organization of Teton County as it existed on February 15, 1923, had been accomplished in violation of a statute but without running counter to any provision of the constitution, and nothing had been done that might not have been authorized in advance by the legislature.

The statutory inhibition as declared by section 1281, insofar as it forbade the organization of a formed county having a population of between 1500 and 3000 and assessable property of a valuation of between $2,000,000 and $5,000,-000, was not a necessary part of the general law for the organization of counties1, and the constitutional mandate that the legislature enact a general law for that purpose could have been fully obeyed without that inhibition. The act as originally passed did not contain it (Laws 1895, Ch. 59), but it was inserted by amendment, in 1917 (Laws 1917, Ch. 58).

On February 15, 1923, the governor approved an act jvhieh appears as Chapter 21, Laws of 1923, entitled, “An Act to declare the organization of Teton County as herein set forth valid and declaring that said county of Teton is fully created, established and organized for all purposes and to repeal all acts and parts of acts in conflict herewith. ’ ’

Tbe purpose of tbe act is declared in a preamble as follows:

1 ‘ WHEREAS, Chapter 53 Session Laws of Wyoming of 1921, provided for tbe creation and organization of Teton County, and pursuant thereto, upon petition presented, tbe Governor of Wyoming duly appointed Commissioners for the organization of said County of Teton, and said Commissioners duly called and held an election within and throughout said Teton County upon the proposed division of counties so as to form said County of Teton, and at said election the proposition in favor of organizing the said County was carried; and,

WHEREAS, The primary election provided by law was held within and throughout the said Teton County on August 22nd, 1922, and candidates were then duly nominated for the various offices of said County, and

WHEREAS, The general election provided by law was held within and throughout said County on the 7th day of November, A. D. 1922, and County Commissioners and other officers of said County were then duly elected to take office January 1st, 1923, and said officers so- elected have qualified as provided by law; and,

WHEREAS, The geographical conditions surrounding said Teton County are such that it is expedient, necessary and proper that said County with an assessed valuation at the time of the organization of said County of Two Million, Two Hundred and Thirty-five Thousand Dollars and a population at that time, of sixteen hundred and twenty, which said valuation and population have since increased, be at this time organized and established for all purposes as an existing county of the State of Wyoming, therefore, be it enacted,” etc.

It is then enacted, by Section 1, that: .

‘‘ All acts and proceedings aforesaid for the establishment and organization of said Teton County are hereby ratified and confirmed and declared legal, valid and binding, and said Teton County, described as follows: * * * is hereby declared to be a duly created, formed, established and organized County of the State of Wyoming and to exist as such fori all purposes from and after the first day of January, 1923, and the officers so as aforesaid elected and qualified are hereby declared to be the officers of said county, with full power as such. ’ ’

The omitted description will be noticed later.

Section 2 provides that Teton County shall be a part of the Third Judicial District and that one term of court shall be held therein each year at a time to be fixed by the Judge, and section 3 temporarily attaches the new county to Lincoln County for purposes of representation in the legislature.

At the same legislative session, by an act approved February 28, 1923, (Laws 1923, c. 77) defining judicial; districts and fixing the time for holding terms of court therein, it was again provided that Teton County should be included in the Third Judicial District, and the time for holding the annual term of court in said county was definitely fixed.

The legislative purpose to recognize the new county and to ratify its organization is too plain to require discussion. That purpose should be given effect unless in so doing some constitutional provision will be violated. In claiming that the organization is invalid the relators attack the constitutionality of the act of February 15,1923 on several grounds. The substance of their principal contention is that Teton County, lacking the qualifications for organization prescribed by section 1281, supra, could not be legally organized, and that the challenged act by which the legislature attempted to validate its organization is a special act for the organization of Teton County contrary to section 2 of Article XII, supra, of the constitution.

'The act in question was evidently intended as curative and fails within that class of statutes of which Judge Cooley in his work on Constitutional Limitations (7th Ed. p. 531) said:

“The rule applicable to cases of this description is substantially the following: If the thing wanting or which failed to be done, and which constitutes the defect in the proceedings, is something the necessity for which the legislature might have dispensed with by prior statute, then it is not beyond the power of the legislature to dispense with it by subsequent statute.! ’

This general statement of the rule has been quoted innumerable times and is amply sustained by cases of which we now cite only a few wherein the rule is applied to sustain the right of the legislature by such an act to validate the organization of public corporations. State vs. Pauley, 83 Kans. 456; 112 Pac. 141; Alatalo vs. Shaver, 45 S. D. 163, 186 N. W. 872; People vs. Stitt, 280 Ill. 553 117 N. E. 784; Richman v. Muscatine County, 77 Ia. 513; 42 N. W. 422, 4 L. R. A. 445; 14 Am. St. Rep. 308; State v. Larkin, 41 Tex. Civ. App. 253; 90 S. W. 912; Schultz v. State, 80 Fla. 564; 86 So. 428; Charlotte Harbor & N. Ry. Co. v. Wells, 78 Fla. 227 82 So. 770, affirmed 260 U. S. 8, 43 Sup. Ct. 3; 67 L ed 100.

There is no claim that our constitution contains any provision against retrospective legislation that prevents the enactment of curative laws; nor is it claimed that the invalidity of the transaction which the legislature intends to ratify can be urged as an objection to the curative act, for, of course, there would be no occasion for such an act if the transaction to be ratified were valid without it.

It is conceded that the legislature of 1921 which passed the act forming the county might have provided by general law for the organization of new counties having no more than 1500 inhabitants, and, therefore, it had the power to provide by general law.for the organization of Teton County. The legislature did not then exercise that power, and the new county, wanting a qualification “the necessity for which the legislature might have dispensed with by prior statute, ’ ’ was defectively, or to be more exact, incompetently, organized. This would seem, under the rule, to present a proper case for legislative correction by a curative act. In passing such an act we do not think that it can be justly said that the legislature undertook to organize a county or to permit a county to organize under special law. The act purports neither to organize Teton County nor to provide any machinery for its organization. On the contrary it declares that the county has already been organized by certain steps taken under a general law enacted long before. We think we should view it as a curative act legalizing the defective organization of a county. Tifft v. Buffalo, 82 N. Y. 204; Johnson v. Wells County, 107 Ind. 15; 8 N. E. 1; State v. Squires, 26 Ia. 340.

State v. Squires, last cited, is an instructive case by a very able court, and, as appears from the opinion, decided after careful and elaborate attention at the hands of counsel. By a general law of Iowa for the organization of independent school districts it was provided that such districts might be organized to cover territory containing 300 inhabitants after giving ten days’ notice of the proposed organization. In a proceeding by quo warranto against the officers of a district organized under this law, an issue arose which required a decision whether, if the district did not contain 300 inhabitants, and the required ten days’ notice had not been given, the legislature could by curative act validate the district. It was conceded that under the Iowa constitution such a district could not be created by special act, but only under general laws. It was claimed that the curative act relied on gave to the district its only legal vitality, and since the legislature could not do this by a direct creative act, it could not do it indirectly under the guise of a curative act. Tbe court answered tbis by saying that tbe legislature in passing tbe curative act. was doing indirectly that- only wliicb it might have done directly, and summarized its conclusions thus:

“We have already referred to tbe point, that, in order to the rightful exercise of tbe legislative power to cure a defective proceeding, the legislature must have possessed tbe power to authorize the result by prior legislative enactment. But it is not necessary that it might have accomplished the result in the precise manner it has adopted to cure the defect. In the ease at bar, the legislature might, by a general law providing for the incorporation of independent school districts, have authorized their organization in districts having less than three hundred inhabitants, and upon less than ten days’ notice. Having this power, it may rightfully legalize or cure the organization which was defective only because of a failure to comply with the particular requirements which it was competent for the legislature to have waived entirely in the original law. It was a matter of discretion with the legislature to require the performance of these precedent conditions,- hence, it may waive a failure to perform them. ’ ’

This reasoning upon issues and contentions almost identical with those which we are now considering in the case at bar is quite convincing. In our examination of other authorities we have found no reason to question the decision in State v. Squires, but find it cited, often with express approval, in many cases, among which are: Independent Dist. v. Independent Dist., 62 Ia. 616; 17 N. W. 895; McSurely v. McGrew, 140 Ia. 163; 118 N. W. 415, 132 Am. St. Rep. 248; Reed v. Plattsmouth, 107 U. S. 568; 2 Sup. Ct. 208, 27 L. ed. 414; State v. Brown, 97 Minn. 402; 106 N. W. 477; 5 L. R. A. (NS) 327.

The Iowa case was also the precedent relied upon for the decision of a similar point in Indiana in Johnson v. Wells County, supra, where an act to legalize the laying out of a

road was beld not to be a special statute for the laying out and opening of a road. In a later case in Indiana, wliere municipal corporations may not be incorporated except under general laws (Longview v. Crawfordsville, 164 Ind. 117; 73 N. E. 78, 68 L. R. A. 622, 3 Ann. Cas. 496), a curative act legalizing the incorporation of a town has been approved, citing Johnson v. Wells County, supra, Stembel v. Bell, 161 Ind. 323; 68 N. E. 589.

In State v. Larkin, 41 Tex. Civ. App. 253, 90 S. W. 912, it was contended that an act validating the incorporation •of the city of Athens was “authorizing the incorporation of said city. ’ ’ It was held that, “while the legislature could not under the constitution by special act create a municipal corporation having a population of 10,000 inhabitants, or less, nevertheless, it had the power by special act to pass a curative act legalizing the defective incorporation of a city already in existence under the general laws. ’ ’ The decision of this point in State v. Larkin is expressly approved in a note to section 68 of Dillon on Municipal Corporations (5th edition).

In at least two cases it has been held that a curative act legalizing a de facto private corporation does not violate the constitution by creating the corporation by special act. Bank v. Davis, 16 Barb. (N. Y.) 188; Central etc. Ass’n. v. Alabama Gold Life Ins. Co., 70 Ala. 120.

We think, as already hinted, that the parties to this action admit that Teton County was a de facto county at the time of the passing of the curative act, and from the language of the act it appears that the legislature acknowledged that condition. The commissioners to organize the county were appointed by the Governor of the State, and the executive department has taken no steps to prevent the organization nor to test its legality. Since the approval of the curative act a term of the district court has been held in the county at the time fixed by the legislature by Chapter 77, Laws of 1923, supra, and there are now pending in that court criminal, civil and probate cases. So the county is not only functioning as a county but is doing so after recognition by all three departments of the state government. It might be that in these circumstances, even without the curative act, the state itself, and for better reasons, an individual, would now be precluded from questioning the legal existence of the county, but we do not place our decision on that ground, nor undertake to lay down a rule on the point thus suggested. See: Note to State v. Harris, 102 Minn. 340, 113 N. W. 887 as reported in 13 L. R. A. (N. S.) 534.

Our opinion is that the curative act is not a special act organizing or providing for the organization of a county, and, therefore, is not, for any reason thus far noticed, viola-tive of section 2 of Article XII of the state constitution.

It is also contended that the said act is void because it is a special act regulating county affairs contrary to section 27 of Article III of the state constitution. Muck that we have already said can be used in answer to this contention, for the argument in support of it is based on the premise that the act provides for the organization of a county. We may add that if the act were to be held an act for the or-' ganization of a county, it would not be a regulation of county affairs within the meaning of that phrase as used in this section of the constitution. Hankins v. Mayor, 64 N. Y. 22; Holliday v. Sweet Grass County, 19 Mont. 364; 48 Pac. 553; Fragley v. Phelan, 126 Calif. 383, 58 Pac. 923. Any suggested reason why the organization of a county is a regulation of county affairs would be equally applicable to the forming of a county, and comities have always been formed in this state with judicial approval by special act.

There are authorities that intimate that a curative act to be valid must be general in form, and that point is pertinent here in considering whether the act in question violates the closing sentence of section 27, Article III, supra, that “In all other cases where a general law can be made applicable no special law shall be enacted,” or section 34 of Article I, that “All laws of a general nature shall have a uniform operation.”

Undoubtedly tbe curative act is special in form, for it applies to Teton county only, and cannot be made to apply to any other. But is this fact controlling ? It was said in Budd v. Hancock, 66 N. J. L. 133, 48 Atl. 1023 that:

“A law is special in a constitutional sense when, by force of an inherent limitation, it arbitrarily separates some persons, places or things from others upon which, but for such limitation, it would operate. The test of a special law is the appropriateness of its provisions to the objects that it excludes. It is not, therefore, what a law includes that makes it special, but what it excludes. If nothing be excluded that should be contained the law is general. ’ ’

This language was quoted by the same court in Van Cleve v. Passaic Valley Sewerage Commrs., 71 N. J. L. 183, at page 207, 58 Atl. 571, at page 580, where it was further said that:

“The purpose of the prohibition against ‘special or local’ laws is not to prevent legislation where there is but one individual to be dealt with. The purpose is to prevent unfounded discrimination where there are two or more individuals to be dealt with. ’ ’

There are several well considered eases which illustrate the reluctance of courts to hold curative acts to be special or local when they ‘ ‘ apply to all persons, things or subjects affected by the conditions to be remedied. ’ ’ State v. Brown, supra; Cole v. Dorr, 80 Kans. 251, 101 Pac. 1016, 22 L. R. A. (NS) 534; Pollock v. Kansas City, 87 Kans. 205, 123 Pac. 985, 42 L. R. A. (NS) 465. The conditions to be remedied in the case at bar, as recited in the preamble to the curative act, existed in only one case, and are not likely ever to recur. If the law had been drawn so as to be general in form by setting forth the state of facts and then declaring that when those facts arose certain results should follow, it would in that form have had no other or greater operation than the act in question. State v. Squires, supra; Richman y. Muscatine County, supra. In these circumstances the evil which the constitution sought to provide against by prohibiting special laws in certain eases did not exist. We-think, therefore, that the curative act is not special in a constitutional sense, and, as it operated upon the only county to be dealt with, it is not affected by the section requiring uniformity. If we were to be convinced that we are mistaken in this view, we would hold that this is a case where the legislature has decided rightly that a general law was not applicable. McPherren v. Carter (Wyo.) 215 Pac. 477.

A metes and bounds description of the new county, as set forth in section one of the curative act, has been omitted from our quotation, supra, of that section. That description differs in two particulars from the description of the county in the act of 1921 by which the county was formed. It is not necessary to quote either description. The first difference is in the location of the point of beginning, the curative act placing that point where it should have been, and evidently was intended to be, by the earlier act. This mistake in the earlier act has already been noticed. Its correction by the curative act is not made the basis of any contention. The second difference is in the southern boundary line. If the description in the curative act controls the county does not include a territory referred to in this case as Alpine Election Precinct, which was included within the lines described in the act forming the county. It is agreed that this precinct contains a population of 46 and property of the assessed value of $34,300.00.

The issues in this case neither require nor warrant a decision which will determine the correct lines of the new county. If in the future a judicial inquiry be necessary to settle the county lines, parties not now before the court will probably be entitled to be heard, and the decision may be influenced by facts not shown in this action. If the county be now legally organized and existing, either with or without Alpine precinct, the relators are entitled to no relief under the allegations of their petition.

It is contended, however, that the last mentioned difference between the metes and bounds description in the curative act and the description in the act forming the county shows that the legislature of 1923 did not intend to recognize the county that had been previously formed and organized and which then existed de facto, but intended to establish a new county that had neither been formed nor organized and which had no1 de facto existence. We cannot accept this view. We think it clear that the main purpose of the curative act was to validate the county that had been formed by the act of 1921 and organized by the procedure described in the quoted preamble. If that were the only purpose, the metes and bounds description was unnecessary, for the coun-. ty was clearly and definitely identified without it, and we should treat as surplusage so much of that description as is not in harmony with the legislative intention gathered from the act as a whole. 36 Cyc: 1127; Sedgwick on Construction of Stat. & Const. Law (2nd Ed.) p. 354; Black on Int. of Laws, p. 83. But this main purpose may not have been the only purpose. The legislature of 1923 may have believed that the inclusion of Alpine Precinct within the boundaries of the new county was the result of a mistake which it had a right to correct, and may have inserted the metes and bounds description for the purpose of making the correction. Whether, under the constitution, that purpose could be accomplished in the manner in which it was attempted is a question we need not decide. If we were to hold that it could not, we would not on that account declare the whole act void, but would uphold it insofar as it effects what we believe to have been its main purpose as above stated. 36 Cyc. 976; State v. Shelton (Wyo.) 213 Pac. 93.

We are of opinion that Teton County is a legally organized and existing county entitled to receive the funds in question, and the relators’ prayer for a peremptory writ of mandamus must be denied.

Denied

PotteR, Ch. J., and Blume, J., concur.