City of Tucson v. Stewart

• Citation: 40 P.2d 72,45 Ariz. 36
• Decision Date: 14 January 1935
• Docket Number: Civil 3470
• Parties: CITY OF TUCSON, a Municipal Corporation; GEORGE K. SMITH, as Mayor of the City of Tucson; FRED STEGER, HARRY DeFORD, EDWARD T. CUSICK, HENRY A. DALTON, CHARLES H. KROEGER and HENRY O. JAASTAD, Each and All as Members of the Common Council of the City of Tucson; ROBERT E. BUTLER, as City Manager of the City of Tucson; GEORGE A. SLIGHT, as City Electrician of the City of Tucson; and CHARLES C. IRVIN, as City Clerk of the City of Tucson, Appellants, v. ROY R. STEWART, Appellee
• Court: Supreme Court of Arizona

40 P.2d 72

45 Ariz. 36

CITY OF TUCSON, a Municipal Corporation; GEORGE K. SMITH, as Mayor of the City of Tucson; FRED STEGER, HARRY DeFORD, EDWARD T. CUSICK, HENRY A. DALTON, CHARLES H. KROEGER and HENRY O. JAASTAD, Each and All as Members of the Common Council of the City of Tucson; ROBERT E. BUTLER, as City Manager of the City of Tucson; GEORGE A. SLIGHT, as City Electrician of the City of Tucson; and CHARLES C. IRVIN, as City Clerk of the City of Tucson, Appellants, v. ROY R. STEWART, Appellee

Civil No. 3470

Supreme Court of Arizona

January 14, 1935

APPEAL from a judgment of the Superior Court of the County of Pima. Fred W. Fickett, Judge. Reversed in part and judgment directed.

Mr Thomas J. Elliott, for Appellants.

Mr George O. Hilzinger, for Appellee.

OPINION

ROSS, J.

Roy R Stewart, a practical electrical contractor in the city of Tucson, seeks by this action to have Ordinance No. 693, adopted by the mayor and council of said city on November 7, 1932, declared null and void on the grounds that it is monopolistic, arbitrary, unreasonable, and oppressive, and on the further ground that it was not published as required by the city charter.

The material provisions of the ordinance may be summarized as follows: It authorizes the city manager to appoint a city electrician whose duty it is to inspect and re-inspect all electrical wiring, devices, apparatus or equipment used for the generation, transmission, distribution, and utilization of electrical energy installed, or to be installed, in the city, and upon application in writing to grant permits for such installations. He must order the discontinuance of electrical service when he finds the installation not in conformity with the provisions of the ordinance and "the Electrical Code of the City of Tucson." No installation or alteration, with minor exceptions, can be made without first securing a permit from the city electrician. An applicant for a permit must be the holder of a certificate of registration as an electrical contractor, and accompany his application with plans and specifications of the proposed installation, so that it may be determined therefrom whether the installation is in accordance with the ordinance and the electrical code of the city. Upon the completion of an installation, if the city electrician finds it fully complies with the provisions of the ordinance and the electrical code of the city, he must issue a certificate of final approval; but if upon inspection he finds it not in compliance with the ordinance and the electrical code of the city and approved methods of construction for safety to life and property, he must refuse his approval. Section 11 of the ordinance provides:

"No certificate of approval shall be issued unless the wiring, devices, apparatus or equipment installations conform with the provisions of this Ordinance, the Electrical Code of the City of Tucson, as adopted by the Mayor and Council by Resolution Number 1309 and as the same may be amended, the statutes of the State of Arizona, and with approved methods of construction for safety to life and property. The regulations contained in the present National Electrical Code, and subsequent editions thereof, and in the present National Electrical Safety Code, and subsequent sections thereof, shall be prima facie evidence of such approved methods, provided that the Electrical Code of the City of Tucson shall govern in all cases where there are conflicting provisions."

The ordinance provides for supervising electricians and creates a board of electrical examiners to examine persons applying for licenses as to their qualifications to supervise the installation of electrical equipment. The applicant must be at least twenty-five years of age and have had not less than six years' experience as a journeyman electrician, and must submit to an examination as to his "knowledge of approved methods of electrical installation as contained in this Ordinance and in the Electrical Code of the City." If he passes and pays the board of examiners $5, he is issued a license as a supervising electrician.

Any person, firm or corporation desiring to do any electrical contracting in Tucson must apply in writing to the board of examiners, stating the name of the supervising electrician to be employed, for a certificate of registration as an electrical contractor; pay a fee of $60 (and $30 per year thereafter for renewals); and give a bond in the sum of $1,000 for the benefit of the city and any person, firm or corporation who has suffered damages by reason of the violation of any provision of the ordinance or of the electrical code of the city, or any amendments thereto

Under the provisions of the ordinance, no contractor may do any electrical installation except under the supervision of a supervising electrician. Such supervising electrician, if the contractor is a person, may be himself if licensed, or if not licensed someone employed by him. If the contractor is a firm, the supervising electrician may be a member of the firm or someone employed by the firm who is licensed, and if the contractor is a corporation the supervising electrician may be an officer or employee of the corporation if licensed.

Section 7 gives a schedule of inspection fees to be paid the city by contractors.

Some other facts stipulated in the record are: That plaintiff had some experience as a journeyman electrician and took a course of electrical engineering with the International Correspondence School and has been for twelve years engaged in the business of electrical contracting in the city of Tucson, doing the largest part of his work himself and calling in a helper only when absolutely necessary; that he is a small contractor, his contracts not averaging over $75; that he carries a small stock of materials at his place of business; and that there are in Tucson fifteen other electrical contractors similarly situated to himself.

In the complaint it is charged that the ordinance is invalid and void for the following reasons: (1) The failure to publish the electrical code; (2) that it is discriminatory and in restraint of trade; (3) that it is monopolistic in that it was adopted and passed at the instigation of certain large electrical contractors for the purpose of preventing plaintiff and others in the same situation from following their business or trade; (4) that the original registration fee of $60 and $30 for yearly renewals thereof is unreasonable, arbitrary and oppressive, as is also the requirement of a $1,000 bond; and (5) that it is unreasonable, arbitrary and oppressive to require to contractor to designate a supervising electrician to supervise his work.

Ordinance No. 693 was published as provided by the city charter, but the Resolution passed on the same day adopting the electrical code of the city was not nor was the electrical code published.

We think we have given enough of the substance of the ordinance and other facts to present the respective contentions of the parties.

The judgment of the trial court was that the ordinance was null and void because the electrical code was not published. The court also found that the ordinance was invalid and void for the reason that it is discriminatory, in restraint of trade, arbitrary, oppressive, unjust and unreasonable.

The city has appealed, contending that the court erred in its findings and judgment.

We will first consider whether it was necessary to publish the electrical code. Unfortunately that instrument is not in the record and we can only surmise its contents from the references made to it in the ordinance. That it was considered by the mayor and council vital is obvious from the repeated requirements in the ordinance that electrical installations should be in conformity with its provisions. Its provisions and those of the ordinance are interdependent. Without the electrical code the kind, size or make of wires, gadgets and other devices to be used and their proper placement in an installation cannot be known by the contractor or his supervising electrician. It and its amendments are to be and remain a continuous, permanent guide to the city and superving electrician and contractor. Section 22 of Ordinance No. 693 makes any person, firm or corporation violating any of its provisions guilty of a misdemeanor. In other words, if a contractor or supervising electrician in installing electrical fixtures should use other fixtures or devices than those designated in the electrical code, or fail to observe the terms of the code in their placement or connections, he would be liable criminally.

Section 8, chapter IX of the Charter of the City of Tucson, provides that ordinances and resolutions having the effect of ordinances must be published at least three consecutive times in the official newspaper of the city and a copy thereof posted in front of the city hall before they become effective and operative. The question then is: When an ordinance constructively consists of two independent parts, but interdependent in their functioning, does a publication of the adopting part meet the requirements of the charter as to publication? Ordinance No. 693 undertakes to adopt the provisions of the electrical code by reference. This method of making laws by the legislative bodies of both the state and municipalities is quite common. The right of the legislature to adopt statutes of the state by reference was sustained by this court in Clements v Hall, 23 Ariz. 2, 201 P. 87 (also State v. Roseberry, 37 Ariz. 78, 289 P. 515), and in a later case a law adopting the New York standard form of fire insurance policy was upheld, on the theory that such form of policy was so well and universally known that the court would take judicial notice of it and its...