Do contracts for the Wyoming Capitol building reconstruction project need approval from the Governor and State Treasurer under article 3, section 31 of the Wyoming Constitution?

Subject

Wyoming Attorney General Formal Opinion 2016-001 (issued February 12, 2016) addressed the scope of article 3, section 31 of the Wyoming Constitution and asked whether the Governor and State Treasurer had to approve contracts for the Capitol Building Rehabilitation and Restoration Project.

Plain-English summary

A 19th-century Wyoming constitutional clause says certain state contracts have to go to the lowest responsible bidder and are "subject to the approval of the governor and state treasurer." The clause lists what it covers: stationery, printing, paper, fuel, lights, the printing and binding of laws and reports, and the repairing and furnishing of "the halls and rooms used for the meeting of the legislature and its committees."

In 2016, the State was in the middle of a major Capitol reconstruction. Someone asked whether that project's contracts had to clear the Governor and Treasurer under this clause. The AG said no.

The AG read the clause narrowly. It limits the Legislature's power, and limitations on legislative power get read narrowly. The list of covered items is short and concrete: office supplies, fuel and lights, printing and binding, and routine fixes to the legislative halls and rooms. Tearing apart and rebuilding an entire Capitol is not "repair" of halls and rooms. The framers in 1889 picked the word "repairing" rather than "rebuilding," "remodeling," or "renovating," and the Capitol building itself was still under construction at the time, so they would have said "Capitol" if they meant Capitol.

The AG also addressed how the Governor's and Treasurer's "approval" works for contracts that do fall under the clause. The opinion concluded that "subject to the approval of" did not require the Governor or Treasurer to personally bless every contract before it took effect. They had a right to review and reject contracts that failed the section's requirements, but no constitutional duty to sign off on each one in advance. That contradicted a 1936 AG opinion, which the 2016 opinion expressly walked back on this point.

The opinion does not stop the Legislature from passing statutes that involve the Governor or Treasurer in Capitol procurement. It just says article 3, section 31 itself does not require their involvement in Capitol reconstruction contracts.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Article 3 of the Wyoming Constitution governs the Legislative Department. Section 31 sits among several sections that limit legislative power, mainly to head off self-dealing and corrupt procurement practices common in the late 1800s.

The text of section 31 has two sentences. The first lists what must be furnished or performed under contract awarded to the lowest responsible bidder, "below such maximum price and under such regulations as may be prescribed by law." The covered items are: stationery, printing, paper, fuel, and lights used in the legislature and other departments; the printing and binding of laws, journals, and department reports plus other printing and binding; and the repairing and furnishing of the halls and rooms used for the Legislature's meetings and committees. The second sentence bars any government member or officer from being "in any way interested" in such a contract, and adds that "all such contracts shall be subject to the approval of the governor and state treasurer."

Wyoming borrowed constitutional language from contemporaries. Alabama (art. 4, § 69), Mississippi (art. 4, § 107), Pennsylvania (art. 3, § 12 of the 1874 constitution), Colorado (art. 5, § 29), Montana (art. 5, § 30 of the 1889 constitution, since repealed), and West Virginia (art. 6, § 34) all have or had similar provisions. The historical concern, as the Mississippi Supreme Court put it in Dixon-Paul Printing, was the practice of an elected "Public Printer" handed business by the Legislature without competitive bidding. In Wyoming, territorial-era printing contracts had been steered to a politically connected paper, the Wyoming Tribune, owned by the territorial secretary. Section 31 attacks that pattern.

The Legislature's first implementation of section 31 came in the 1890-1891 session laws as the "Public Printing" statute, which required bids for furniture, stationery, fuel, lights, and other articles, with contracts subject to Governor and Treasurer approval. Capitol construction was not in that scheme; the Capitol was actively being built and operated under separate Capitol Building Commission statutes. In 1919, the Legislature added a State Board of Supplies, which included supplies "for repairing, furnishing, heating and lighting the Capitol Building." Today the General Services Division of the Department of Administration and Information handles state procurement under Wyo. Stat. Ann. § 9-2-1016, and only the Governor (or designee), not the Treasurer, must approve agency contracts over $1,500.

For the 2016 reconstruction, the Department of Administration and Information operated under Wyo. Stat. Ann. § 9-5-112, which expressly authorized "renovation, rehabilitation, restoration and addition to the state capitol building." The opinion treats the legislative use of "renovation, rehabilitation, restoration" in § 9-5-112 as deliberately distinct from the constitutional word "repairing."

Historical analysis: what the opinion said

What the AG concluded for state procurement officials at the time

At the time of this opinion, state procurement officials managing Capitol reconstruction contracts were told that those contracts did not need Governor or Treasurer approval under article 3, section 31. The constitutional approval requirement applied only to four narrow categories of contracts:

1. Stationery, printing, paper, fuel, and lights used in the Legislature and other departments.
2. Printing and binding of laws, journals, and department reports plus other state printing and binding jobs.
3. Procuring the Legislature's furniture and other furnishings.
4. Routine repairing of damaged halls and rooms used for the Legislature's meetings and conferences within whatever building it occupied, short of full reconstruction.

For category-(1)-through-(4) contracts, even the Governor's and Treasurer's review duty was bounded. The AG read "subject to the approval of" to mean the Governor and Treasurer had a power to approve, modify, or veto, exercised through express approval, express ratification, or implied ratification, not a duty to bless every contract before execution. The opinion treated this as overruling, on this specific point, a 1936 AG opinion that said contracts lacking advance Treasurer and Governor approval were invalid.

What the AG concluded for the Legislature at the time

The opinion was careful to note that section 31 does not bar the Legislature from passing statutes that involve the Governor or the Treasurer in Capitol contracting. The Legislature can choose to put either or both officials in the process by statute. The point of the opinion was that the Constitution itself does not require their involvement for major Capitol reconstruction.

What the AG concluded for the Governor and Treasurer at the time

The Governor and Treasurer, at the time of this opinion, had a constitutional right to review covered contracts to confirm that the four section-31 requirements had been met: contracting was used, the lowest responsible bidder rule was followed, the maximum price (if set by statute) was respected, and no government insider had a disqualifying interest. They could disapprove a non-compliant contract and prevent its performance. They had no obligation to actively review contracts they had not reason to question, and no obligation to act before execution.

Common questions

What is article 3, section 31 about, in plain terms?

Section 31 is a 19th-century anti-corruption rule. It says certain types of state purchases (office supplies, fuel, lights, printing and binding, and the routine fix-up of legislative meeting rooms) have to go through competitive bidding to the lowest responsible bidder, no government insider can have a financial stake in such a contract, and the Governor and Treasurer can sign off on or reject those contracts.

Did the Governor and Treasurer have to approve Capitol reconstruction contracts?

No, according to this 2016 opinion. The AG read the section narrowly, applying it only to a short list of categories that does not include reconstructing or renovating an entire Capitol building. Capitol reconstruction was governed by a separate procurement statute (Wyo. Stat. Ann. § 9-5-112) and the standard Department of Administration procurement framework.

Why didn't "repairing the halls and rooms" cover the Capitol project?

The AG looked at how words were used in 1889. "Repair" then meant restoring something to a sound state after decay, injury, or partial destruction, like fixing a damaged wall. The framers used "repair," not "rebuild," "remodel," or "renovate." The Capitol building was actively under construction at the time of the constitutional convention, so the framers would have said "Capitol" if they meant Capitol. And section 31 talks about "halls and rooms" used for legislative meetings, in the plural, not an entire building. The AG also pointed out that current Wyoming statutes elsewhere distinguish "major building and facility repair and replacement" (Wyo. Stat. Ann. § 21-15-109(a)(iii)) from "routine maintenance and repair" (§ 21-15-109(a)(vi)), and section 31's "repairing" is closer to the routine end.

Did the Governor or Treasurer have to approve every covered contract?

No. The opinion concluded that "subject to the approval of" gave the Governor and Treasurer a power to approve, modify, or reject, similar to a veto, but did not require them to personally examine every contract before it took effect. They could approve expressly, ratify expressly, or ratify implicitly. The opinion looked to Oklahoma (Elledge v. Stillwater Med. Ctr.) and New Mexico (Makemson v. Dillon) for the same construction.

What about the 1936 AG opinion that said unapproved contracts were invalid?

The 2016 opinion expressly disagreed with that part of the 1936 opinion. The 1936 opinion was short, lacked legal analysis, and the underlying question posed to the AG that year was unclear from the record. The 2016 opinion concluded, after a much fuller analysis, that "subject to the approval of" does not require advance approval, so a contract is not automatically invalid just because the Governor or Treasurer never signed off on it.

Could the Legislature still put the Governor or Treasurer into Capitol procurement by statute?

Yes. The opinion was careful on this point. Section 31 does not require it, but nothing in section 31 stops the Legislature from passing a law that puts either or both of them in the process. The conclusion was about the Constitution, not a ceiling on what the Legislature could choose to do.

Why does it matter that section 31 is a "limit on legislative power"?

Wyoming follows the rule that legislative power is presumed plenary and only restricted by express constitutional limits, which means courts read those limits narrowly. The opinion cited Stilp v. Commonwealth and the general Wyoming rule from People ex rel. Richardson v. Henderson. The narrow-construction principle pushes against reading "repairing the halls and rooms" as something as sweeping as full Capitol reconstruction.

Citations

The opinion's central authorities, drawn directly from its text:

• Wyoming Constitution: art. 3, § 31 (the operative provision).
• Wyoming statutes: Wyo. Stat. Ann. § 9-2-1016 (modern state procurement); Wyo. Stat. Ann. § 9-5-112 (Capitol building reconstruction); Wyo. Stat. Ann. § 21-15-109 (school building repair definitions used by analogy); Wyo. Stat. Ann. § 28-8-105 and § 28-8-106 (legislative printing and supplies).
• Comparable state constitutions: Ala. Const. art. 4, § 69; Miss. Const. art. 4, § 107; Pa. Const. art. 3, § 12 (1874); Colorado Constitution art. 5, § 29; Mont. Const. art. 5, § 30 (1889, repealed); W. Va. Const. art. 6, § 34.
• Constitutional construction cases: Powers v. State, 2014 WY 15, 318 P.3d 300; Witzenburger v. State ex rel. Wyo. Cmty. Dev. Auth., 575 P.2d 1100 (1978); Geringer v. Bebout, 10 P.3d 514 (Wyo. 2000); State, Dep't of Corr. v. Watts, 2008 WY 19, 177 P.3d 793.
• Narrow-construction-of-legislative-limits cases: People ex rel. Richardson v. Henderson, 35 P. 517 (1894); Stilp v. Commonwealth, 974 A.2d 491 (Pa. 2009); State ex rel. Mitchell v. Holmes, 274 P.2d 611 (Mont. 1954); Indep. Cmty. Bankers Ass'n of S.D. v. State ex rel. Meierhenry, 346 N.W.2d 737 (S.D. 1984).
• Other-state interpretations of similar provisions: Dixon-Paul Printing Co. v. Bd. of Pub. Contracts, 77 So. 908 (Miss. 1918); Mulnix v. Mut. Ben. Life Ins. Co., 46 P. 123 (Colo. 1896); Smith-Brooks Printing Co. v. Young, 85 P.2d 39 (Colo. 1938); Op. Pa. Att'y Gen. 1887-1888, 62-68 (June 6, 1888); Op. W. Va. Att'y Gen. (August 12, 2015) (2015 WL 4886950).
• "Subject to the approval of" cases: Goodwin v. Upper Crust of Wyo., Inc., 624 P.2d 1192 (Wyo. 1981); Makemson v. Dillon, 171 P. 673 (N.M. 1918); Elledge v. Stillwater Med. Ctr., 62 P.3d 793 (Okla. 2002); George W. Condon Co. v. Bd. of Comm'rs of Natrona Cty., 103 P.2d 401 (1940).
• Other Wyoming authorities: Dir. of Office of State Lands & Inv. v. Merbanco, Inc., 2003 WY 73, 70 P.3d 241; Bd. of Comm'rs of Natrona Cnty. v. Casper Nat. Bank, 56 Wyo. 132, 105 P.2d 578 (1940); Peterson v. Wyo. Game & Fish Comm'n, 989 P.2d 113 (Wyo. 1999); Dworkin v. L.F.P. Inc., 839 P.2d 903 (Wyo. 1992); Thomson v. Wyo. In-Stream Flow Comm., 651 P.2d 778 (Wyo. 1982).

The 1936 Wyoming Attorney General opinion to State Auditor William Jack (April 10, 1936), found in Report and Official Opinions of Attorney General 1932-1946 at 396, was discussed and partially walked back.

Secondary source: Robert B. Keiter & Tim Newcomb, The Wyoming State Constitution (1993).

Source

• Landing page: https://ag.wyo.gov/formal-opinions
• Original PDF: https://drive.google.com/file/d/1nWXTfP4LbCgLX47Sz3fLKttICKTQSug0/view

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Office of the Attorney General

Governor Civil Division Chief Deputy Attorney General

Matthew H. Mead Kendrick Building / John G. Knepper
2320 Capitol Avenue

Attorney General Cheyenne, Wyoming 82002 Division Deputy

Peter K. Michael 307-777-7886 Telephone / Ryan T. Schelhaas

307-777-3687 Fax

February 12, 2016

FORMAL OPINION 2016-001

The question has arisen as to the general role of the Governor and the State Treasurer under article 3, section 31 of the Wyoming Constitution in the context of the current Capitol reconstruction project. Specifically, the question is what types of contracts for goods and services fall within the section. An ancillary question involves the roles of the Governor and the Treasurer as to contracts that fall within the section.

Summary of Analysis

Article 3, section 31 was crafted to limit the power of the Legislature and other departments of government to prevent unfair and corrupt practices in procurement. The provision's scope, however, is limited to contracting for: stationery, printing, paper, fuel and lights used in the Legislature and other departments of government; the printing and binding of the laws, journals and department reports and other state printing and binding jobs; procuring the Legislature's furniture and other furnishings; and routine repairing of damaged halls and rooms used for the Legislature's meetings and conferences within whatever building it is housed but not when the entire building is being reconstructed.

Article 3, section 31 provides that the Governor and the Treasurer each have a right to review contracts for these specific goods and services to ensure that they are being procured under contract, that procurement processes are followed that reward the "lowest responsible bidder," that payments under such state contracts are kept "below a maximum price" that may be specified by law, and that government representatives with conflicting interests are fenced out of the contracting process. Article 3, section 31 also provides that other contracting processes prescribed by law, of which there are now many within the Wyoming Statutes and A & I rules, are followed when contracts are let for the goods and services covered by section 31. The section does not specifically state what actions the Governor or Treasurer might take if either or both of them decide these requirements are not met, but given the historical context in which the section was adopted, a strong argument can be made that either of them could disapprove a contract for non-compliance with Wyoming public contracting law, preventing performance of such contract. However, neither the Governor nor the Treasurer has a duty under the section to personally review every contract either before or after formal execution of the contracting document.

Given the limited scope of the contracts expressly covered by article 3, section 31, given the section's silence as to construction or major renovation contracts (at a time when the state was building its Capitol), and given the section's silence as to the leasing of space for state government functions, we believe the section does not require approval or oversight by the Governor or Treasurer for Capitol Building Rehabilitation and Restoration Project contracts or leases. This is not to say that the section would somehow bar the Legislature from passing statutes that would include the participation of the Governor or Treasurer or other elected officials in the process. Rather, it is merely to say that their participation is not constitutionally required by this section.

Analysis

A. Article 3, section 31 of the Wyoming Constitution.

Article 3, section 31 provides:

All stationery, printing, paper, fuel and lights used in the legislature and other departments of government shall be furnished, and the printing and binding of the laws, journals and department reports and other printing and binding, and the repairing and furnishing the halls and rooms used for the meeting of the legislature and its committees shall be performed under contract, to be given to the lowest responsible bidder, below such maximum price and under such regulations as may be prescribed by law. No member or officer of any department of the government shall be in any way interested in any such contract; and all such contracts shall be subject to the approval of the governor and state treasurer.

Wyo. Const. art. 3, § 31.

B. The intent of article 3, section 31.

Article 3 of the Wyoming Constitution is entitled "Legislative Department," and among other particulars, it describes who can sit in that body, how they are elected, and how they go about their business. Wyo. Const. art. 3. The article also imposes limitations on the powers of the Legislature. These limitations are important because unlike the powers of the executive and judicial departments which are created by express grant in the constitution, "the powers of the legislative department are absolute, except as restricted and limited by the constitution which the people have adopted." People ex rel. Richardson v. Henderson, 35 P. 517, 520 (1894).

Section 31 is one of the many sections of article 3 that is designed to restrict the power of the Legislature, although it also expressly reaches the other departments of government as well. Generally, section 31 imposes processes for the purchasing of certain goods and services for the State, and also allows for oversight of those processes by two executive branch officers, the Governor and Treasurer. The issues at hand require us to interpret several of the goods and services that are covered by the section, specifically the repairing and furnishing of the halls and rooms used for the meeting of the Legislature and its committees. In that analysis we cannot lose sight of the overarching concept that section 31 is a limitation on the Legislature's power, and as such, it should be interpreted narrowly. Stilp v. Commonwealth, 974 A.2d 491, 494-95 (Pa. 2009); State ex rel. Mitchell v. Holmes, 274 P.2d 611, 618 (Mont. 1954) overruled on other grounds State ex rel. James v. Aronson, 314 P.2d 849 (Mont. 1957). The Legislature is the branch of state government closest to the people, and because this is so, the people can frequently invoke the ballot box to rein in legislative excess. Indep. Cmty. Bankers Ass'n of S.D. v. State ex rel. Meierhenry, 346 N.W.2d 737, 745 (S.D. 1984). This is not to say that honest procurement constitutional provisions, such as section 31, have no purpose, only that they should be construed as would any other limitation on legislative power.

Generally, constitutional construction is unnecessary when the language of the provision is unambiguous. Powers v. State, 2014 WY 15, ¶ 8, 318 P.3d 300, 304 (Wyo. 2014). But we recognize that this specific issue is one of first impression, so we also consider the intent of the framers. To interpret constitutional provisions, "[w]e are guided primarily by the intent of the drafters." Id.; Witzenburger v. State ex rel. Wyo. Cmty. Dev. Auth., 575 P.2d 1100, 1111-12 (1978); Thomson v. Wyo. In-Stream Flow Comm., 651 P.2d 778, 782 (Wyo. 1982). "Every statement in the constitution must be interpreted in light of the entire document, rather than as a series of sequestered pronouncements." Powers, ¶ 9, 318 P.3d at 304.

Article 3, section 31 has not been interpreted by the Wyoming Supreme Court. But the plain language of the section requires the State to furnish certain supplies; requires state government to use bidding and contracting in specific areas; and "authorizes the legislature to adopt regulations governing these public contracts[.]" Robert B. Keiter & Tim Newcomb, The Wyoming State Constitution 99 (1993); Wyo. Const. art. 3, § 31. The framers did not specifically debate the provision at Wyoming's 1889 Constitutional Convention. See Journal and Debates of the Constitutional Convention of the State of Wyoming 1-864 (1889). But the Constitution's text and the debates shed light on the likely intent of the provision for they demonstrate that the convention's "delegates were determined to limit legislative power and to protect against corruption." Keiter & Newcomb, The Wyoming State Constitution at 6. In fact, many state constitutions written during the last half of the nineteenth century "included provisions imposing specific constraints on their legislative bodies; these provisions prescribed detailed legislative processes, precluded legislation in certain areas, and sought to eliminate corruption and influence peddling. . . . Wyoming was no exception." Id. (emphasis added).

"[T]o avoid conflict of interest problems, this section [article 3, section 31] effectively forbids any member or officer of state government from bidding on these contracts." Id. at 99 (emphasis added). And "[t]he governor and state treasurer have final approval authority over all such contracts." Id.

Since Wyoming borrowed provisions and language from proposed constitutions of other states, including Idaho, Montana, North Dakota, South Dakota, and Washington, legal analysis from other states is instructive. See Dworkin v. L.F.P. Inc., 839 P.2d 903, 910-11 (Wyo. 1992); Keiter & Newcomb, The Wyoming State Constitution at 1. Indeed, article 3, section 31 is almost identical to provisions of other state constitutions.

Montana had a nearly identical provision, but it was eliminated from its new 1972 constitution. Mont. Const. art. 5, § 30 (1889). A provision in Alabama's Constitution is almost indistinguishable from article 3, section 31. See Ala. Const. art. 4, § 69. Significantly, the Alabama Constitution has included the language of article 4, section 69 in identical language, as article 3, section 31 in its constitution. Miss. Const. art. 4, § 107. Mississippi's highest court opined: "We think that this section of the Constitution was probably adopted by the Convention was [sic] mainly for the purpose of doing away with the Public Printer, who was elected by the Legislature, and to substitute therefor competitive bidding for the state's printing." Dixon-Paul Printing Co. v. Bd. of Pub. Contracts, 77 So. 908, 909 (1918) (emphasis added).

In Wyoming, while there does not appear to have been an elected state public printer, the framers likely harbored a similar intent:

The Wyoming Tribune, established and owned by Edward M. Lee, the first territorial secretary, was naturally favored with the printing business of the territorial government. Thus, in spite of the fact that President Grant removed Lee from office in February, 1870, we find the imprint of "S. Allan Bristol, Public Printer, Tribune Office" on the volume of General Laws, Memorials and Resolutions of the Territory of Wyoming, passed by the first territorial legislature, which was printed early in 1870.

McMurtrie, Douglas C., Early Printing In Wyoming and the Black Hills 47, 49-50 (1943). See 1869 Wyo. Gen. Laws 1. A petition signed by 600 Wyoming women voters sought Lee's removal from office for misconduct; sixteen days later President Grant removed him as Territorial Secretary. McMurtrie, Early Printing In Wyoming at 24. The laws of the Territory in 1887 gave the Secretary the duty to publish the Territorial Legislature's acts, resolutions, and memorials in the session laws. Wyo. Rev. Stat. 1420 (1887).

Colorado has a nearly identical provision, Colorado Constitution art. 5, § 29, and its Supreme Court opined, "It is too plain for argument that the object of this constitutional provision was to protect the state against extortion and oppression from unscrupulous contractors, and as far as possible, to withdraw from its own officers the opportunity and power to assist in such schemes." Mulnix v. Mut. Ben. Life Ins. Co., 46 P. 123, 125 (1896). The original provision allowed for approval of both the Governor and the State Treasurer, but it was amended in 1974 to eliminate approval by the Treasurer. Colo. Const. art. 5, § 29 (1876); Smith-Brooks Printing Co. v. Young, 85 P.2d 39, 40-41 (1938); Colo. Laws 1974 at 450.

Given this evidence of intent, we see three general, narrow purposes of article 3, section 31: (1) to limit legislative power regarding stationery, paper, fuel, lights, printing, binding, and repairing and furnishing legislative halls and rooms; (2) to prevent legislators and other government employees from being involved in conflicts of interest in those areas; and (3) to favor competitive market bidding in those areas. Because these items or services are all personally used or enjoyed by legislators or other State employees, and conceivably could be sold by any of them when not acting in their official roles, they hold potential for conflicts of interest, self-dealing, coercive tactics, or lack of competition. "It is a well-established and salutary doctrine that he who is intrusted with the business of others cannot be allowed to make such business an object of pecuniary profit to himself." Bd. of Comm'rs of Natrona Cnty. v. Casper Nat. Bank, 56 Wyo. 132, 105 P.2d 578, 584 (1940) (emphasis in original).

C. Legislative implementation of article 3, section 31.

Laws enacted or adopted by Wyoming's first state Legislature in 1890-1891 demonstrate a narrow implementation of article 3, section 31 that did not encompass major Capitol construction, renovation, or repair. A court "will give much, though not conclusive, weight to legislative interpretation, and although the legislature's interpretation of the constitution is not binding on [the] Court, [it] would be loath to interpret the constitution otherwise." Geringer v. Bebout, 10 P.3d 514, 522 (Wyo. 2000). The Legislature created a "Public Printing" statute which enacted the supplies and printing procurement requirements of article 3, section 31. 1890-1891 Wyo. Sess. Laws 181-187. This statute required "bids to provide furniture, stationery, fuel, light and other articles required by the legislative and executive departments of the state and the supreme court." 1890-1891 Wyo. Sess. Laws 183. The statute further required "[s]aid contract and bond shall be subject to the approval of the governor and state treasurer." Id. at 184.

This Legislature did not enact a provision implementing article 3, section 31 regarding the repair of legislative halls and rooms or of the Capitol. This might be due to the fact that the Wyoming State Capitol building was still being built at the time the first state Legislature convened in November 1890. The Capitol's cornerstone was laid in 1887. The first two of three phases were completed on July 10, 1890. The first state Legislature adopted all non-conflicting and constitutional revised statutes and 1888 and 1890 session laws. 1890-1891 Wyo. Sess. Laws 157-158. Since we can find no provision for Capitol construction or repair in the 1890-1891 session laws, the Legislature implicitly adopted most of the 1888 territorial law on capitol construction except for composition of the Capitol Building Commission which was changed in 1890 to include the Auditor, Territorial Engineer, and Territorial Treasurer. 1890 Wyo. Terr. Sess. Laws 112-113 (repealing provision requiring Governor, after advice and consent of the Legislature, to appoint five persons to the Capitol Building Commission); 1888 Wyo. Terr. Sess. Laws 56; 1890-1891 Wyo. Sess. Laws 157-158. Nothing in the Capitol building statutes and laws requires the Governor or the Treasurer to approve contracts for Capitol construction or repair and furnishing of the halls and rooms of the Legislature. 1890 Wyo. Terr. Sess. Laws 112-113; 1888 Wyo. Terr. Sess. Laws 55-59; 1890-1891 Wyo. Sess. Laws 157-158.

Later, in 1919, the Legislature implemented the repair provision of article 3, section 31 by creating the State Board of Supplies to buy all supplies, including printing and other services. 1919 Wyo. Sess. Laws 128-130. The Board comprised the Treasurer, Auditor, and State Engineer. Id. at 128. "Supplies" included "all furniture and fixtures, stationery, printing, paper, fuel and equipment of every kind required for use in the Offices, service and functions performed by the several offices, boards and departments subject to this chapter, and shall include supplies for the legislative department and for repairing, furnishing, heating and lighting the Capitol Building." Id. at 130 (emphasis added). The Board approved contracts, with two members constituting a quorum. Id. at 128-29. The statutes did not require that the Treasurer be part of the quorum issuing the approval. All acts in conflict with this statute were repealed. Id. at 130.

Since then, the statute has changed demonstrably. Now the General Services Division of the Wyoming Department of Administration and Information is responsible for procuring services and supplies, including, "all property, including but not limited to, furniture, fixtures, stationery, printing, paper, fuel and equipment of every kind required for use in the offices, service and functions performed by agencies, and for repairing, heating and lighting the state buildings." Wyo. Stat. Ann. § 9-2-1016(a)(iii) (emphasis added). "No agency shall procure supplies or services except in compliance with the rules adopted by the department." Wyo. Stat. Ann. § 9-2-1016(b)(i). The Governor or his designee, but not the Treasurer, must approve of all agency contracts over $1,500. Wyo. Stat. Ann. § 9-2-1016(b)(iv)(D).

The Legislature and the Judiciary are not subject to the contracting and approval requirements of the procurement statute. See Wyo. Stat. Ann. § 9-2-1002(a)(i). But General Services must "[p]rovide assistance requested by the legislature or the judiciary in the procurement of supplies and services." Wyo. Stat. Ann. § 9-2-1016(b)(xiv). In addition, the Legislature's "management council may negotiate with any responsible publisher for" the printing of its laws and "may accept bids from such publishers and award contracts for the preparation and printing of such publications, to the bidder most nearly meeting the requirements of the council." Wyo. Stat. Ann. § 28-8-105(c). The Director of the Legislative Service Office is to "keep a record of all expenditures of the legislature, and keep a correct inventory and act as custodian of all legislative supplies and property." Wyo. Stat. Ann. § 28-8-105(a)(iv). The Office also "shall purchase such number of copies of statutes, supplements, and session laws as the management council may direct." Wyo. Stat. Ann. § 28-8-106.

In 1936, the Wyoming Attorney General issued an opinion to State Auditor William Jack concerning article 3, section 31. Op. Wyo. Att'y Gen. (Apr. 10, 1936) (found in: Report and Official Opinions of Attorney General 1932-1946 at 396). It noted that: (1) the section covers all stationery, printing, paper, fuel and lights used in the Legislature and other all departments of state government; (2) the section requires low bidding on all contracts subject to article 3, section 31; (3) even though the Legislature may regulate the letting of these contracts, it "would have no authority to alter the provisions that such contract must be given to the lowest responsible bidder"; (4) contracts lacking Treasurer and Governor approval are invalid; and (5) any conflicting legislation would be unconstitutional. Id. This opinion may be persuasive and, if it was relied upon by the Auditor, may be entitled to some weight. Dir. of Office of State Lands & Inv. v. Merbanco, Inc., 2003 WY 73, ¶ 46, 70 P.3d 241, 256 (Wyo. 2003). However, all that is known of the question posed by the Auditor is: "I have your inquiry of April 8, 1936, relative to our interpretation of Section 31, Article 3 of the Wyoming Constitution." Op. Wyo. Att'y Gen. (April 10, 1936). We do not know whether the Attorney General was actually asked to opine on each of the numbered points that he made in the opinion, and the opinion is lacking in legal analysis of these points. Moreover, below we call into doubt the part of this 1936 opinion which states that contracts lacking approval by the Treasurer and Governor are invalid, because based on extensive legal research, we believe that "subject to the approval of" does not require advance approval. In addition, the 1936 opinion could not have directly addressed the Capitol reconstruction project 80 years later and contains no analysis related to the scope of the matters subject to the Treasurer's approval.

D. The meaning of article 3, section 31.

To determine exactly what needs to be contracted under the terms of section 31 and subject to approval by the Treasurer and Governor, we must look at its specific terms and phrases. Powers, 2014 WY 15, 318 P.3d at 304. The Constitution, like a statute, must be read so as to not "render any portion of it meaningless, with all portions of it read in pari materia and every word, clause and sentence considered so that no part will be inoperative or superfluous." Id. The Constitution's "language is to be understood in the sense in which it was used at the time when it was adopted." Witzenburger, 575 P.2d at 1112.

"In analyzing the clarity or ambiguity of the statute, we turn to the guidance of grammarians." Peterson v. Wyo. Game & Fish Comm'n, 989 P.2d 113, 117 (Wyo. 1999). A clause has a subject and predicate, and forms part of a sentence or constitutes a whole simple sentence. Random House Webster's Unabridged Dictionary 382 (2001). An independent clause "grammatically could stand alone as a complete sentence." Richard Wydick, Plain English for Lawyers 81 (3rd ed. 1994). A modifier is "a word, phrase, or sentence element that limits or qualifies the sense of another word, phrase, or element in the same construction." Random House Webster's Unabridged Dictionary 1236 (2001). "Adding modifiers is a good way to clarify a sentence that is too brief or lean. Often some key word will require additional explanation, one or more modifiers, in order to make its meaning clear." Peterson, 989 P.2d at 118 (citation omitted).

Article 3, section 31 has two sentences:

1. "All stationery, printing, paper, fuel and lights used in the legislature and other departments of government shall be furnished, and the printing and binding of the laws, journals and department reports and other printing and binding, and the repairing and furnishing the halls and rooms used for the meeting of the legislature and its committees shall be performed under contract, to be given to the lowest responsible bidder, below such maximum price and under such regulations as may be prescribed by law."

2. "No member or officer of any department of the government shall be in any way interested in any such contract; and all such contracts shall be subject to the approval of the governor and state treasurer."

The first sentence contains two clauses. The first clause provides that certain items and services (stationery, printing, paper, fuel, and lights) "shall be furnished" and the second clause provides that certain services (printing and binding of laws, journals and department reports, other printing and binding, and the repairing and furnishing the Legislature's halls and rooms) "shall be performed." The modifiers ("under contract," "to be given to the lowest responsible bidder," "below such maximum price" and "under such regulations as may be prescribed by law") merely state how these items and services shall be furnished or performed. This interpretation is akin to a very recent opinion by the West Virginia Attorney General. Its constitutional provision states, "The Legislature shall provide by law that the fuel, stationery and printing paper, furnished for the use of the state; the copying, printing, binding and distributing the laws and journals; and all other printing ordered by the Legislature, shall be let by contract, . . ." W. Va. Const. art. 6, § 34. The West Virginia Attorney General noted the provision required contracting for all of the above, including stationery and paper. Op. W. Va. Att'y Gen. (August 12, 2015) (available 2015 WL 4886950).

The key issue is whether rebuilding a capitol building equates to furnishing and repairing the halls and rooms of the Legislature. At the time the Constitution was drafted, "furnishing" meant, "[t]he act of providing with furniture or fittings of any kind." The Century Dictionary 2416 (1889). "Repair" meant "[t]o restore to a sound or good state after decay, injury, dilapidation, or partial destruction; as to repair a house, a wall or a ship." American Dictionary of the English Language 457 (1828) (italics in original); The Century Dictionary 5080 (1889). "Decay" meant, "[g]radual loss of soundness or perfection; a falling by degrees into an impaired condition or state." The Century Dictionary 1480-1481 (1889).

It is important to consider that the framers did not use the words rebuilding, remodeling, or renovating instead of repairing. A court "will not enlarge, stretch, expand or extend a statute to matters not falling within its express provisions." State, Dep't of Corr. v. Watts, 2008 WY 19, ¶ 19, 177 P.3d 793, 798 (Wyo. 2008). In 1889 "rebuild" meant, "[t]o build or build up again; build or construct after having been demolished; reconstruct or reconstitute: as, to rebuild a house, a wall, a wharf, or a city []." The Century Dictionary 4994 (1889) (emphasis in original). Rebuilding halls and room envisions an entire reconstruction, vastly more than a repair. "Remodel" meant, "[t]o model, shape, or fashion anew; reconstruct." The Century Dictionary 5071 (1889). Re-shaping or remodeling envisions new designs, which article 3, section 31 does not expressly contemplate. In 1889 "renovate" meant, "[t]o renew; render as good as new; restore to freshness or to a good condition: as, to renovate a building." The Century Dictionary 5078 (1889) (emphasis in original).

In 1889, a "hall" was "[a] building or a large room or compartment in a building, devoted to some public or common use," or "[a]n entranceway or passageway in a house leading to or communicating with its different parts." The Century Dictionary 2690-2691 (1889). A "room" was "[a]ny inclosure or division separated by partitions from other parts of a house or other structure; a chamber; an apartment; a compartment; a cabin, or the like: as, a drawing-room: a bedroom." The Century Dictionary 5223 (1889) (italics in original).

We do not think the framers intended "halls and rooms used for the meeting of the Legislature and its Committees" to mean the entire Capitol building because: the framers used the plural of "halls" demonstrating they were not referring to a single Capitol building; they referred just to the Legislature's halls and rooms and not all the halls and rooms; the Capitol building was already being built at that time, and had they meant the Capitol building, they would have said it; and statutes at the time demonstrated occupancy of the building did not necessarily include the Legislature. In 1888, the Capitol Building Commission was authorized to "contract for its occupancy by such federal officers and appointees as it may deem advisable, and shall designate the rooms therein to be occupied by the various territorial and other officers." 1888 Wyo. Rev. Stat. 57-58. In 1899, the Capitol Building Commission was to "designate the rooms therein to be occupied by the various state and other officers, and shall keep the building in repair and maintain the same in a suitable condition for occupancy." Wyo. Rev. Stat. 246-247 (1899).

We think there is a distinction in the law between renovation of an entire building and routine repair of "halls and rooms." Under the Capitol building reconstruction statutes, the Department of Administration and Information must "proceed with the level III design and construction for renovation, rehabilitation, restoration and addition to the state capitol building." Wyo. Stat. Ann. § 9-5-112(a). The Department may expend funds for "design, renovation, restoration, rehabilitation, construction and other project components which have been included in the final design plans." Wyo. Stat. Ann. § 9-5-112(f). As such, these Capitol building reconstruction statutes expressly contemplate major reconstruction of an entire building, and not merely repair of halls and rooms used by one department of government. Conversely, other statutes distinguish between "major building and facility repair and replacement" and "routine maintenance and repair." An example of the former encompasses "the repair or replacement of complete or major portions of school building and facility systems at irregular intervals which is required to continue the use of the building or facility at its original capacity for its original intended use." Wyo. Stat. Ann. § 21-15-109(a)(iii). But "routine maintenance and repair" encompasses "activities necessary to keep a school building or facility in safe and good working order so that it may be used at its original or designed capacity for its originally intended purposes, including janitorial, grounds keeping and maintenance tasks done on a routine basis." Wyo. Stat. Ann. § 21-15-109(a)(vi). We think that because article 3, section 31 discusses repair only of the halls and rooms used by the Legislature and its committees, and not the entire building, the repair activities contemplated by the constitutional provision are narrow and akin to those under Wyo. Stat. Ann. § 21-15-109(a)(vi), for "routine maintenance and repair" of legislative halls and rooms. As such, we do not think that renovating, rehabilitating, restoring or adding to the State Capitol building is subject to the approval of either the Governor or Treasurer under article 3, section 31, even though legislative halls and rooms will be renovated.

In light of the above, we think the language of article 3, section 31 was meant to require contracting for: (1) stationery, printing, paper, fuel and lights used in the Legislature and other departments of government; (2) the printing and binding of the laws, journals and department reports and other state printing and binding jobs; (3) procuring the Legislature's furniture and other furnishings; and (4) routine repair of damaged halls and rooms used for the Legislature's meeting and conferences within whatever building they are housed, but not when the entire building is being reconstructed. This interpretation is consistent with the maxim that constitutional limitations on legislative power should be interpreted narrowly. Stilp, 974 A.2d at 494-95.

An Attorney General opinion from Pennsylvania also supports this interpretation. In 1888, Pennsylvania had a constitutional provision nearly identical to article 3, section 31. The Pennsylvania Attorney General interpreted that provision when issuing an opinion that answered the question of whether the Board of Commissioners of Public Grounds and Buildings could make contracts for supplies, permanent improvements, alterations, and new furniture for the legislature without appropriation. Op. Penn. Att'y Gen. 1887-1888, 62-68 (June 6, 1888); Pa. Const. art. 3, §12 (1874).

In so doing, the Pennsylvania Attorney General discussed "repairs" and "furnishing" of the halls and rooms: "These repairs are such repairs as are reasonably necessary to supply the waste and deterioration resulting from wear and tear, and to put and keep such places in substantially the same condition, from time to time, as originally constructed and arranged." Op. Pa. Att'y Gen. 1887-1888 at 66 (June 6, 1888) (emphasis added). Furnishing "may be by supplying such articles as are worn out by use, and may include a total change of furniture, or supply of new furniture, where such furnishing is reasonably necessary for the convenient and comfortable occupancy of said halls and rooms." Id. (emphasis added). An 1885 statute permitted the Board of Commissioners to authorize alterations, additions, and improvements, as opposed to repairs. The Pennsylvania Attorney General wrote that this statute enlarged the Board's authority; as such, the Board could authorize and enter contracts for changes, additions and improvements without needing to comply with the approval and contracting provisions of the constitution. Contracting for repairing and furnishing would still be subject to the contracting provisions and approval provisions of the constitution. Id. This Pennsylvania Attorney General formal opinion supports our interpretation of article 3, section 31, namely, that repair of the legislative halls and rooms does not encompass the current reconstruction of the Capitol building.

Next we address the meaning of the phrase in the second sentence of article 3, section 31 that "all such contracts shall be subject to the approval of the governor and state treasurer" to determine what the phrase requires of the Governor or Treasurer with respect to those contracts, unlike the Capital Project, that are governed by article 3, section 31. We conclude that simply because a contract is "subject to" approval by the Treasurer does not mean he must give prior approval or disapproval to each contract. In 1889, "subject" meant, "[e]xposed or liable, as to what may confirm or modify: with to: as, subject to your approval; subject to correction." The Century Dictionary 6020 (1889) (emphasis in original). That "subject to" meant "exposed . . . to what may confirm or modify" demonstrates that the Governor or Treasurer need not approve or disapprove every contract under article 3, section 31, but rather means that the contract is merely exposed to confirmation, modification, ratification by the Governor or Treasurer. "Approval" meant, "[t]he act of approving; approbation; commendation: sanction; ratification." The Century Dictionary 279 (1889). To "approve" meant "[t]o sanction officially; ratify authoritatively: as, the decision of the court martial was approved." The Century Dictionary 279 (1889) (emphasis in original). These definitions indicate that in 1889, contracts "subject to the approval of" the Governor and Treasurer meant that these contracts could be confirmed, modified or ratified by the Treasurer or Governor but it did not require either or both of them to act on each contract.

In 1889 "ratify" meant, "[t]o validate by some formal act of approval[,] confirm as a valid act or procedure." The Century Dictionary 4970 (1889). "Ratification may be express or implied. . . . It relates back to and is in effect the equivalent of previous authorization." George W. Condon Co. v. Bd. of Comm'rs of Natrona Cty., 103 P.2d 401, 403-04 (1940). We think the Governor or Treasurer can approve contracts in three ways: (1) by explicitly approving a contract; (2) by expressly ratifying an existing contract; and (3) by impliedly ratifying an existing contract.

Next we consider how the Governor or Treasurer should fulfill his duties under the phrase stating that "all such contracts shall be subject to the approval of the governor and state treasurer." We think this phrase means the Governor or Treasurer, when reviewing these contracts, need only consider whether the specific requirements of article 3, section 31 have been met. The Wyoming Supreme Court has addressed "subject to the approval of" language in a contract noting that it can be read two ways, creating either a condition precedent requiring approval before performance is due, or a condition subsequent so rejection of the contract "would have relieved the parties of any of their obligations still remaining due under the agreement." Goodwin v. Upper Crust of Wyo., Inc., 624 P.2d 1192, 1195 (Wyo. 1981). But Goodwin addressed "subject to the approval of" language appearing in a contract, and courts from other jurisdictions have interpreted the phrase as it is used in a statute. The New Mexico Supreme Court addressed "subject to the approval of the Secretary of the Interior" language in that state's Enabling Act. Under that Act, to become a State, New Mexico would give up land the Federal Government wanted, and New Mexico could select other "lieu lands" subject to the approval of the Secretary of the Interior. Makemson v. Dillon, 171 P. 673 (N.M. 1918). In this case, New Mexico had selected lieu land, the local land office had approved it, and the State had leased it. The lease was contested on the basis that the lieu land had not been approved by the Secretary. Id. 676. The Court disagreed:

The words "subject to the approval" we do not regard as giving the Secretary of the Interior discretion to arbitrarily refuse a selection for no reason at all. These words are to be understood to mean that the Secretary of the Interior shall investigate and pass upon and render judgment as to whether the lands selected are within the terms of the grant, and, if so, it is his duty to list them to the state.

Makemson v. Dillon, 171 P. 673, 676.

A court in Oklahoma reached a similar conclusion when it analyzed whether the control exercised by a hospital's trustees was "subject to the approval of" a city. Elledge v. Stillwater Med. Ctr., 62 P.3d 793, 795 (Okla. 2002). The Court noted that approval meant "the authority to veto an action, not compel it." Elledge at 795. The Court continued:

The fact that a statute provides that a party's right to act is subject to the approval of some higher authority does not mean that approval is a condition precedent to the action becoming valid or effective. Instead, it places the right to act under the "inquisitorial power" of the higher authority to ensure that any challenged or questionable act is consistent with the statutory purpose.

Elledge v. Stillwater Med. Ctr., 62 P.3d 793, 795-96.

So too with article 3, section 31. The Governor and Treasurer have a right to review contracts, for state government stationery, printing, paper, fuel and lights, printing and binding, and repairing and furnishing the Legislature's halls and rooms, to ensure they have been entered under circumstances meeting the strictures of article 3, section 31. They have the right to approve them, or to disapprove them for failure to meet the article 3, section 31 contracting requirements. However, they need not review each and every contract, and need not formally approve or reject them in advance of their execution by the parties.

Conclusion

Article 3, section 31 narrowly limits the Legislature's power to prevent conflicts of interest and favor competitive market bidding in specific areas. It requires specified contracting for: (1) stationery, printing, paper, fuel and lights used in the Legislature and other departments of government; (2) the printing and binding of the laws, journals and department reports and other state printing and binding jobs; (3) procuring the Legislature's furniture and other furnishings; and (4) routine repairing of damaged halls and rooms used for the Legislature's meeting and conferences within whatever building they are housed, but not when the entire building is being reconstructed. The Governor and Treasurer may review these contracts to ensure the lowest responsible bidder, below a maximum price and disinterested contracting, and other regulatory requirements imposed under article 3, section 31 have been met. However, the Governor and Treasurer have no duty to review each contract. And article 3, section 31 does not require the Governor's and Treasurer's approval for Capitol Building Rehabilitation and Restoration Project contracts.

Peter K. Michael, Attorney General

Ryan Schelhaas, Deputy Attorney General

Karl Anderson, Senior Assistant Attorney General

Alice Jerde Spillman, Senior Assistant Attorney General