Amish v. City of Phoenix

• Decision Date: 14 November 1929
• Docket Number: Civil 2828
• Parties: GUY A. AMISH, Appellant, v. CITY OF PHOENIX and PACIFIC CONSTRUCTION COMPANY, a Corporation, Appellees
• Court: Arizona Supreme Court

282 P. 42

36 Ariz. 21

GUY A. AMISH, Appellant, v. CITY OF PHOENIX and PACIFIC CONSTRUCTION COMPANY, a Corporation, Appellees

Civil No. 2828

Supreme Court of Arizona

November 14, 1929

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Affirmed.

Mr. J C. Niles and Mr. John W. Ray, for Appellant.

Mr Charles H. Young, for Appellee City of Phoenix. Messrs Kibbey, Bennett, Gust, Smith & Lyman, for Appellee Pacific Construction Company.

OPINION

LOCKWOOD, C. J.

Guy Amish, hereinafter called plaintiff, brought this suit against the City of Phoenix, a municipal corporation, and Pacific Construction Company, a corporation, hereinafter called defendants, to enjoin the proposed improvement of Sheridan Street. The facts were stipulated in the lower court and a judgment was rendered there in favor of defendants whereupon plaintiff brought the matter before us for review.

There are three assignments of error which raise three legal questions. The first is that the court erred in holding the protest against the improvement insufficient. It appears that the improvement was to be made by assessing the cost to a district rather than merely to the property abutting on the street improved. A protest was filed in due time with the proper authorities, signed by the owners of a considerable majority of the frontage of property abutting on the proposed improvement, but it was not signed by the owners of a majority of the frontage of property fronting upon all the streets or parts of streets contained within the limits of the assessment district. Plaintiff urges that, since the Street Improvement Act (Civ. Code 1913, pars. 1953-1977, as amended) provides by its terms it should be liberally construed, and since by far the greatest cost of the improvement will be paid by the protesting owners of the property abutting on the improvement, we should hold the protest sufficient. It may be it would be fairer to allow a protest signed by those who will pay the majority of the cost of the improvement to prevent the work. The legislature, however, did not see fit so to provide, but enacted (Civ. Code 1913, par. 1957, as amended by Laws 1927 [4 Sp. Sess.], chap. 25) that a protest must be signed by a majority both of the abutting property owners and of the entire frontage in the district. The case of City of Phoenix v. Southwest Flour & Feed Co., 31 Ariz. 219, 250 P. 1060, is decisive on this point, and the first assignment of error is not well taken.

The third assignment of error is that the contract for the improvement should have been executed in the name of the City of Phoenix by the city manager, as provided by the city charter, rather than by the superintendent of streets, as provided by the general statutes (Civ. Code 1913, par. 1961, as amended by Laws 1917, chap. 34, § 1). If this were an ordinary contract of the city, there might be some merit in the contention, but contracts for paving which is to be paid for by special assessment of private property are executed under the provisions of subdivision 45, section 2, chapter 4 of the city charter, which expressly authorizes the use of the state law in force at the time of the improvement, unless otherwise provided by ordinance. A provision of this nature is valid as an adoption of the state law for the purpose intended. Buntman v. City of Phoenix, 32 Ariz. 18, 255 P. 490. Since the contract was executed as provided by the statute, the third assignment is without merit.

The second assignment of error presents a more serious question. The City of Phoenix in 1913 adopted a freeholders' charter under the provisions of section 2, article 13, of the Constitution of Arizona. Section 2, chapter 1, of such charter, defines the boundaries of the city. At the time of the adoption of the charter and the fixing of the boundaries therein, Sheridan Street, so far at least as the part involved in the present action is concerned, was not embraced within the city limits. After the adoption of the charter, and before the attempted improvement of the street, the city commission of Phoenix, by ordinance regularly adopted in conformity with paragraph 1908, Revised Statutes of 1913 (Civil Code), attempted to include said Sheridan Street within the city limits. It is contended, however, by plaintiff that such inclusion is in effect an amendment of the charter of the city, and that amendments to such charter can only be made in the manner set forth in section 2, article 13, of the Constitution, which method it is admitted was not followed in annexing the territory in question.

A similar question has been before the Supreme Courts of several states, and the authorities are not entirely harmonious. The case chiefly relied upon by plaintiff is that of City of Westport v. Kansas City, 103 Mo. 141, 15 S.W. 68. The facts in that case are much similar to those of the case at bar. Kansas City was governed by a freeholders' charter adopted under a constitutional provision in principle like ours. There was an attempt to extend its limits without amending the charter in the manner provided for in the Constitution. The court held, first, that the ordinance extending the limits of the city was an amendment to the charter, and, second, that the only way it could be amended was the one set forth in the Constitution.

The Supreme Court of California held in the case of People v. City of Oakland, 92 Cal. 611, 28 P. 807, that the annexation of additional territory was an amendment of the city charter, but did not therein pass on the method whereby such an amendment must be adopted. Subsequently thereto, but under a constitutional provision differing in important particulars from ours, that court held that changes might be made in the boundaries of cities having freeholders' charters by general laws adopted by the legislature. People v. City of Coronado, ...