City of Globe v. Willis

• Decision Date: 20 February 1915
• Docket Number: Civil 1400
• Citation: 146 P. 544,16 Ariz. 378
• Parties: CITY OF GLOBE, a Municipal Corporation, G. W. M. CARVILL, Mayor of Said City of Globe, A. W. SYDNOR, I. O. LOWTHIAN, WAKEFALL KITZMILLER, ANDRE MAUREL, E. F. KNOWLES and T. G. LOYD, Members of the Common Council of the City of Globe, H. C. HOUSER, City Clerk of Said City, and R. L. PINYAN, City Marshall, Assessor and Tax Collector of Said City, Appellants, v. J. A. WILLIS, Appellee
• Court: Arizona Supreme Court

146 P. 544

16 Ariz. 378

CITY OF GLOBE, a Municipal Corporation, G. W. M. CARVILL, Mayor of Said City of Globe, A. W. SYDNOR, I. O. LOWTHIAN, WAKEFALL KITZMILLER, ANDRE MAUREL, E. F. KNOWLES and T. G. LOYD, Members of the Common Council of the City of Globe, H. C. HOUSER, City Clerk of Said City, and R. L. PINYAN, City Marshall, Assessor and Tax Collector of Said City, Appellants, v. J. A. WILLIS, Appellee

Civil No. 1400

Supreme Court of Arizona

February 20, 1915

APPEAL from a judgment of the Superior Court of the County of Gila. G. W. Shute, Judge. Affirmed.

Mr Neil M. Allred, for Appellants.

Messrs Chalmers & Kent, Amici Curiae.

Mr George R. Hill, Messrs. Rawlins & Little, Mr. A. C. McKillop and Mr. F. C. Jacobs, for Appellee.

OPINION

ROSS, C. J.

The appellee, Willis, as plaintiff, brought his action against the appellant city to restrain its mayor, common council and certain of its administrative officers from constructing a main-trunk sanitary sewer and septic tank, and to enjoin said officers of the city from assessing, equalizing, levying and collecting taxes upon his property and the property of others in like situation to defray the expenses of said construction.

It is shown that the mayor and common council, on August 18, 1913 adopted a resolution of intention as provided by law, wherein it was declared that the public health, interest and convenience of the city of Globe and its people required such sewer and septic tank, and that the improvement was of more than local or ordinary benefit, and was of general benefit to the whole city and its people, and made and constituted the city a district for the assessment of the costs thereof, providing for the issuance of interest-bearing bonds for assessments amounting to more than $25; that thereafter, on September 11, 1913, the mayor and common council passed another resolution ordering the construction of said sewer and septic tank as provided by law. To both of these resolutions appellee filed petitions of referendum praying that the question of the improvement proposed and ordered be submitted "to a vote of the qualified electors of said city" for their approval or rejection. It is alleged that the city authorities, notwithstanding said referendum, were proceeding to make the said improvement.

The appellants demurred to the complaint both specially and generally. The demurrers were overruled, and judgment was entered in favor of appellee as prayed.

The proceedings of the mayor and common council are conceded to have been regular and in conformity with the provisions of chapter 14, title 7, Civil Code, entitled "Construction of Sewers, Waterworks and Lighting Plants, by Cities and Towns, the Assessment of the Cost Thereof on Property Benefited, and the Issuance of Bonds to Represent Such Assessment." This chapter does not provide for a referendum in matters of local improvements by special assessments, but appellee contends that subdivision 8, section 1, article 4, of the state Constitution is applicable, and is authority for referring the question to the qualified electors of the city of Globe. It is as follows:

"The power of the initiative and the referendum are hereby further reserved to the qualified electors of every incorporated city, town, and county as to all local, city, town, or county matters on which incorporated cities, towns, and counties are or shall be empowered by general laws to legislate."

In construing this provision of the Constitution as it affects the question before us, it should be borne in mind that there are some subjects of legislation by a city in which all the residents are alike interested, and others that directly affect particular persons or property, and in which the citizenry generally is not concerned. Judge Dillon, Municipal Corporations, volume 1, section 24, says:

"If we analyze the complex powers usually conferred upon a municipality in this country at the present time, we shall discover that these are of two general classes, namely: (1) Those which relate to health, good government, efficient police, etc., in which all the inhabitants have an equal interest and ought to have an equal voice. (2) Those which directly involve the expenditure of money, and especially those relating to local improvements, the expense of which ultimately falls upon the property owners. As respects these, the controlling voice ought to be with those who have to bear the burden."

The undertaking by the council in this case was to impose on the real property situate in the city of Globe a special assessment to be apportioned according to benefits received. Only those persons owning realty in the city are affected, and they only, unless the Constitution provides a different rule, should be consulted. Those who pay no taxes and contribute nothing for the improvement certainly have no pecuniary interest in the matter.

It would be a reasonable and a workable construction of said provision of the Constitution if by it all the "qualified electors" of the city are held to have the power to invoke the referendum and to be entitled to vote thereon, when the questions involved are of a general character, such as those affecting the public health, good government or efficient police regulations, and we think that is the force and effect of such provision. If this provision be given the meaning urged by appellee, it runs counter to section 13, article 7, of the Constitution, reading as follows:

"Questions upon bond issues or special assessments shall be submitted to the vote of property taxpayers, who shall also in all respects be qualified electors of the state and of the political subdivision thereof affected by such question."

according to this provision, where a special assessment is sought to be imposed, the question shall be submitted to qualified electors who are property taxpayers, and, while in terms eligibility to vote is not confined to those who pay property tax in the political subdivision affected by the question, unquestionably that is what it means. Therefore a "qualified elector," as used in the general referendum provision of the Constitution, would not be entitled to vote on the question of a special assessment or bond issue without the additional qualifications of residence and ownership of taxable property within the city of Globe.

Bonds issued by a municipality as evidence of its obligations are included within the terms of this provision, as also special assessments for the payment of which it becomes liable, for in both cases the municipality, as such, is "affected by such question." But a municipality is not "affected" by a bond issue or a special assessment when it in no way incurs liability for their payment, even though it be constituted under the law the agency by and through which the bonds are issued or the special assessment is made. "Questions upon bond issues or special assessment" -- that is, questions affecting the primary liability of the municipality -- must be submitted to the property taxpayers therein, otherwise qualified as electors. Bond issues and special assessments that do not become a direct charge against the municipality, and do not increase its indebtedness, cannot be said to "affect" it, and are not under this provision of the Constitution to be submitted to a vote as therein prescribed. That the first state legislature understood section 13, article 7, to mean what we have indicated is clearly shown by its legislation. Chapter 15, title 7, Civil Code, provides that cities and towns may issue investment bonds as personal obligations, but before doing so the question must be submitted to and approved by a majority of the qualified electors in and for any such city who shall also be property taxpayers thereof. Chapter 9, title 11, paragraph 2736, authorizes school districts to issue bonds as personal obligations in certain cases, after the question is submitted to and approved by a majority of the bona fide taxpayers in all other respects qualified electors of the district. Chapter 2, title 52, paragraph 5266-5285, provides that counties, school districts, cities, towns or other municipal corporations may in certain contingencies issue bonds as personal obligations when thereto authorized by "a majority of the property taxpayers, who must also, in all respects, be qualified electors, therein voting at said election." A like provision is made for the issuing of bonds of irrigating districts in chapter 4, title 55.

All this legislation and section 13, article 7, of the Constitution irrefutably indicate the policy of leaving to those, and those only, who bear the burdens, the right, in the first instance, to say whether the obligation shall be assumed by the municipality. They deny as certainly as it is possible, the right of the general elector to participate in an election involving the question of bond issues, and from what is said hereafter it will be seen that the general elector is not entitled to vote on "special assessments or special taxation of property benefited" for the purpose of making local improvements. The construction given by the legislature to section 13, article 7, of the Constitution is the reasonable and natural one, and fully preserves its meaning and purpose. Nor do we think it contravenes the general referendum provisions of the Constitution, but harmonizes and upholds both provisions, and gives the reasonable and fair intendment of both.

The Sewer Act (chapter 14, supra) provides that the real property benefited by the improvement shall be liable for all expenditures made for such improvement. It makes the amount assessed against each lot of land a lien thereon, and authorizes its sale for delinquency; creates a special fund designated by the number or name of...