Collins v. City of Phoenix

• Decision Date: 14 December 1931
• Docket Number: No. 6470.,6470.
• Citation: 54 F.2d 770
• Parties: COLLINS v. CITY OF PHŒNIX et al.
• Court: U.S. Court of Appeals — Ninth Circuit

54 F.2d 770 (1931)

COLLINS v. CITY OF PHŒNIX et al.

No. 6470.

Circuit Court of Appeals, Ninth Circuit.

December 14, 1931.

John W. Ray, of Phoenix, Ariz., for appellant.

Charles Carson, Jr., James E. Nelson, and Kibbey, Bennett, Gust, Smith & Rosenfeld, all of Phoenix, Ariz., for appellee.

Before WILBUR and SAWTELLE, Circuit Judges, and JAMES, District Judge.

WILBUR, Circuit Judge.

This is an appeal from judgment of dismissal given upon a motion to dismiss the complaint for lack of sufficient facts to justify the relief prayed for. The appellant predicating jurisdiction upon a diversity of citizenship brought this action in equity in the United States District Court for Arizona to enjoin the further improvement of First street between Van Buren and McDonald Road in the city of Phoenix, under proceedings thereto instituted by the city authorities of Phoenix by resolution No. 5065, and to enjoin the contractor to whom the performance of the street work therein specified had been let from proceeding with the work. Appellant claims that the proceedings are void for certain defects enumerated in the bill. The court had previously denied a motion for an interlocutory injunction and from this order an appeal was taken to this court, and decided in Collins v. City of Phoenix, 26 F.(2d) 753, 754. Appellant also petitioned the Supreme Court for a writ of mandamus to compel the calling in of two additional judges to sit with the District Judge in this case. This application was denied. Ex parte Collins, 277 U. S. 565, 48 S. Ct. 585, 72 L. Ed. 990.

The general nature of the proceedings for improving the streets under the law of the state of Arizona, effective in the city of Phoenix, is briefly stated in our previous opinion. Collins v. City of Phoenix, supra. We will endeavor to dispose of the numerous points urged by the appellant as briefly as may be.

Appellant is the owner of a block of land fronting upon the proposed improvement. The proceedings were initiated by resolution No. 5065 enacted in pursuance of the provisions of Revised Statutes of Arizona T. 7, ch. 13, and the Bond Act, Arizona Statutes 1919, c. 144. The first contention is that these legislative acts of Arizona do not apply to the city of Phoenix. The charter of the city of Phoenix provides that the legislative body thereof can adopt the laws of the state of Arizona in force at the time of the improvement and that when it does so the state statute is in force in Phoenix (charter of Phoenix, ch. 4, § 2, sub. 45), and it is conceded by the appellant that by appropriate action the city could adopt and apply this state law. It is contended, however, that it has not done so. The charter provision referred to is in part as follows: "Whenever in the judgment of the commission, or of the people, the cost and expense of any of the foregoing improvements is to be paid by special assessment on private property, the laws of the state of Arizona in force at the time of the improvement shall govern and control, and all proceedings shall be in conformity therewith. * * *"

Appellant says: "By resolution 5065, it is declared that the city intends to enact certain legislation concerning street improvement on First Street. * * * It is, what it pretends to be, a notice of intention to enact legislation. A notice that we will enact legislation adopting certain procedure contained in the Civil Code."

The point seems to be that this resolution of intention cannot be deemed to be a judgment or determination of the commission that the expense of the improvements should be paid by special assessment because objections might be made to the improvements, the protest might be sustained, the extent of the district might be altered, etc.

The next point is diametrically opposed to that just discussed, for it is claimed that the resolution of intention passed by the city is not really a resolution of intention. It is stated: "An examination of resolution No. 5065, the so-called resolution of intention, discloses that it creates an assessment district and orders the work done and nowhere provides for a time or place when objections may be made or protests filed. It is true that the title of the resolution recites, `A resolution of the Commission of the City of Phoenix declaring its intention to improve certain portions of First street, etc.'"

Section 2 of the ordinance is then quoted to the general effect that it is the opinion of the commission that the contemplated work is of more than local or ordinary public benefit, and that the said commission "hereby makes the costs and expenses of said work of improvement chargeable upon a district and hereby declares that the district in said city of Phoenix benefited by the said work or improvement, and to be assessed to pay the costs and expenses thereof, in proportion to the benefits," etc., is as thereinafter described.

Appellant states: "This is not a resolution of intention to do. It is a declaration by the legislative body that we have acted on this legislation and direct the improvement to be made."

It is clear, we think, that the resolution of intention is a sufficient declaration of the judgment of the commission within the meaning of the charter to make effective the state law within the city of Phoenix as it relates to this improvement. As to the contention that such a conclusion converts the so-called resolution of intention from a resolution of intention into an ordinance ordering the work to be done, we think it sufficient to say that the resolution of intention is characterized as a resolution of the commission "declaring its intention to improve certain portions of First Street in the City of Phoenix, and determining that improvement bonds shall issue to represent the costs and expenses thereof." Section 1 of the act declares it the intention of the commission of the city of Phoenix to order the work to be done. Section 2 provides that the assessment shall be chargeable on a district therein described. Section 3 provides for the issuance of bonds therefor under the state statutes which are therein referred to. Section 4 provides for the posting of notices of the proposed improvement and that the city clerk shall certify to the passing of a resolution of intention and cause it to be published, etc. These are the usual provisions of a resolution of intention.

Appellant cites Cooper v. City of Bozeman, 54 Mont. 277, 169 P. 801, by the Supreme Court of Montana; Shapard v. Missoula, 49 Mont. 269, 141 P. 544; and Hinzeman v. City of Deer Lodge, 58 Mont. 369, 193 P. 395, 396, as supporting the proposition that this is not a resolution of intention, but they do not do so.

We are not certain that we have apprehended appellant's point for the reason that the discussion takes rather a broad range. We have taken the view that the appellee takes of this proposition, namely, that it is contended that the commissioners of Phoenix did not act in such fashion as to adopt the state law as the basis for its assessment of the costs of the improvement. As we have pointed out the resolution of intention expressly refers to the statutory law and determines the cost of the improvement should be assessed upon the property benefited. This under the provisions of the charter hereinabove quoted is a sufficient adoption of the statutory method of procedure.

The next specification of appellant's brief is entitled "Objection B." The point herein made is that section 525 of Revised Code of Arizona adopted in 1928 which provides that the superintendent of streets shall assess the entire cost of work, including incidental expenses against the lots in the assessment district, is in violation of the Constitution of Arizona, art. 9, § 6, which authorizes the state Legislature to give power to incorporated cities, towns, and villages "to make local improvements by special assessments, or by special taxation of property benefited." The point is that a law which requires the total cost of the improvements to be assessed in a district to be benefited violates the Constitution which confines the amount of the assessment to the amount of the benefits. The argument is that the total benefits may not be as great as the total cost. To further illustrate the nature of the point made by the appellant, we cite the cases to which he calls our attention: Greeley v. People, 60 Ill. 19; City of Chicago v. Adcock, 168 Ill. 221, 48 N. E. 155; Dexter v. Boston, 176 Mass. 247, 57 N. E. 379, 79 Am. St. Rep. 306; White v. Gove, 183 Mass. 333, 67 N. E. 359; Detroit v. Chapin, 112 Mich. 588, 71 N. W. 149, 42 L. R. A. 638; Adams v. Shelbyville, 154 Ind. 467, 57 N. E. 114, 49 L. R. A. 797, 77 Am. St. Rep. 484; Walsh v. Barron, 61 Ohio St. 15, 55 N. E. 164, 76 Am. St. Rep. 354; Kettle v. Dallas, 35 Tex. Civ. App. 632, 80 S. W. 874; Smith v. Omaha, 49 Neb. 883, 69 N. W. 402; Norwood v. Baker, 172 U. S. 269, 19 S. Ct. 187, 43 L. Ed. 443. This question has been so often considered by the courts that it does not merit consideration in a case where the area of the district is determined by the proper legislative body after an opportunity to object to the inclusion or exclusion of territory benefited. Without discussion or further citation, we call attention to the numerous cases cited in the notes on Norwood v. Baker, 172 U. S. 269, 19 S. Ct. 187, 43 L. Ed. 443, in Rose's notes, vol. 18, pp. 102, 112, and supplement to Rose's notes, vol. 3, pp. 1007, 1008, 1009. See discussion of the general subject in my dissent in City of San Diego v. A., T. & S. F. Ry. Co. (C. C. A.) 45 F.(2d) 11, 13, 16, and decision of this court in Northwestern Pac. R. Co. v. Town of Larkspur, 36 F.(2d) 554, 556.

The next objection specified by the appellant is that the incidental expenses of doing the work are to be added to the assessment therefor in the first instance by the superintendent of streets. It is claimed that the superintendent of streets is not qualified to pass upon his own accounts in...