Alexander v. Phillips

• Decision Date: 11 April 1927
• Docket Number: Civil 2559
• Citation: 254 P. 1056,31 Ariz. 503
• Parties: J. L. B. ALEXANDER, Appellant, v. S. K. PHILLIPS, C. S. STEWARD and J. T. BONE, Composing the Board of Supervisors of Maricopa County, State of Arizona, J. A. RIGGINS, LOUIE GAGE DENNETT, R. C. STANFORD, AMOS A. BETTS, H. C. BALDWIN, Composing the Board of Education of Phoenix Union High School District of Maricopa County, State of Arizona, and PHOENIX UNION HIGH SCHOOL DISTRICT, a Municipal Corporation, Appellees
• Court: Arizona Supreme Court

254 P. 1056

31 Ariz. 503

J. L. B. ALEXANDER, Appellant, v. S. K. PHILLIPS, C. S. STEWARD and J. T. BONE, Composing the Board of Supervisors of Maricopa County, State of Arizona, J. A. RIGGINS, LOUIE GAGE DENNETT, R. C. STANFORD, AMOS A. BETTS, H. C. BALDWIN, Composing the Board of Education of Phoenix Union High School District of Maricopa County, State of Arizona, and PHOENIX UNION HIGH SCHOOL DISTRICT, a Municipal Corporation, Appellees

Civil No. 2559

Supreme Court of Arizona

April 11, 1927

APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Affirmed.

Mr. J L. B. Alexander (Mr. Will E. Ryan, of Counsel), for Appellant.

Mr George T. Wilson, County Attorney, Mr. Henry J. Sullivan Deputy County Attorney, Messrs. Cunningham & Carson and Mr E. S. Clark, for Appellees.

OPINION

LOCKWOOD, J.

Plaintiff brought this action for the purpose of restraining the issue of some $80,000 in bonds of the Phoenix union high school district of Maricopa county, Arizona. After setting up the necessary formal matters in regard to parties plaintiff and defendant, his complaint, in substance, is as follows:

On the second day of December, 1925, the board of education of Phoenix union high school district, at a regular meeting, adopted a resolution whereby an election was called for the purpose of submitting to the electors qualified to vote thereon the following question:

"Shall the bonds of the Phoenix union high school district be issued in the amount of eighty-thousand and no-100 dollars ($80,000.00) for the purpose of erecting a stadium for the Phoenix union high school?"

The election was held on the twenty-eighth day of December, and, of the total number of votes cast, 652 were in favor of issuing the bonds, and 630 against such issue. The result was duly canvassed and certified to the board of supervisors as provided by law. The complaint then alleged that in one of the precincts of said union high school district "sixty or more of said votes cast therein and thereat were illegally cast by persons who were not bona fide taxpayers of the said Phoenix union high school district and had not paid in their own name a county or state tax on property situated within said Phoenix union high school district, other than poll, road, or school tax during the preceding year," and that the judges of the election made no effort to see whether such persons were qualified as set forth in the above quotation, and that, if such illegal votes had not been cast and counted, the bonds would not have carried. It was further alleged that, under the laws of the state of Arizona, the bonds of a union high school district cannot be issued for the purpose set forth in the proposition submitted to the voters, and plaintiff as a taxpayer prayed for an injunction against the issuance of the bonds or the incurring by defendants of any further expense whatever, to be paid by the district, for the planning or building of a stadium.

Defendants interposed several demurrers, general and special, to the complaint, and set up in answer that a stadium was within the purpose for which union high school districts are authorized to issue bonds and expend public money. The lower court sustained a demurrer to the first part of plaintiff's complaint, being that relating to the casting of illegal votes, and the matter was tried before the court without a jury, on the issue as to whether or not the district was authorized by law to issue bonds for the purpose of building a stadium. After taking the matter under advisement, the court filed its findings of fact and conclusions of law, and entered judgment in favor of defendants, and plaintiff has brought the matter before us for review.

There are some seven assignments of error, but they raise only two questions of law which we need to consider. The first is as to the sustaining of the demurrer to plaintiff's allegations of illegal votes. Under the law of Arizona, persons voting at an election, where the question of issuing the bonds of a school district are concerned, must have had, on December 28, 1925, the following qualifications, as set forth in chapter 24, Session Laws of 1925:

"...Only such persons may vote at such election as have paid in their own name a county or state tax upon property situated within such district, other than poll, road or school tax, during the preceding year, and who are in all other respects qualified electors for the purpose of voting at regular school elections; provided, however, that whenever a husband and wife are the owners of community property, each of them, if otherwise qualified, may vote at said election without regard to whether or not the title to such community property is held in the name of the husband or the wife, by exhibiting to the election board, (a) a tax receipt showing the taxes have been paid on such community property for the preceding year, or, (b) the assessment notice of the county assessor or tax collector for the same period."

It is evident from the foregoing quotation that the demurrer was properly sustained. Plaintiff's allegation was that sixty votes were cast by persons who "were not bona fide taxpayers . . . and had not paid in their own name a county or state tax on property situated within said . . . district during the preceding year. . . ." These sixty voters may have lacked the qualifications which plaintiff claims they lacked and still have been entitled to vote at such election, as is evident from the statute above set forth. Since plaintiff did not amend his complaint to meet this situation, we must presume he could not truthfully do so. Further, this is a collateral attack on the validity of a school bond election, and we have held in Howard v. Luke, 18 Ariz. 563, 164 P. 439, such an attack cannot be made. The demurrer was therefore properly sustained.

The second question is the vital point in the case. In substance it is: May a high school district in Arizona issue bonds to build a "stadium"? The purpose for which school bonds may be issued is governed by the provisions of paragraph 2736, Revised Statutes of Arizona of 1913, Civil Code, as amended by chapter 24, Session Laws of 1925, which reads, so far as material to this feature of the case, as follows:

"2736. The board of trustees of any school district may, whenever in their judgment it is advisable, and must, upon petition of fifteen per cent of the school electors, as shown by the poll list at the last preceding annual school election, residing in the district, call an election for the following purposes:...

"(3) To decide whether the bonds of the district shall be issued and sold for the purpose of raising money for purchasing or leasing school lots, for building schoolhouses, and supplying same with furniture and apparatus, and improving grounds, or for the purpose of liquidating any indebtedness already incurred for such purposes." (Italics ours.)

The matter then for our determination is whether a stadium is a "schoolhouse" within the provisions of paragraph 2736. The word "stadium" comes from the Greek, and was originally a measure of distance. From this, by easy transition, the term was applied first to a footrace of that distance, and then to the place where the race was run, usually an open area some six hundred feet long, and flanked by terraced elevations providing seats for the spectators of the race. The modern definition follows the old one, but is somewhat broader in its scope and is technically given as:

"A similar modern structure with its enclosure used for athletic games," etc. Webster's New International Dictionary (1925 ed.).

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