Cronly v. City of Tucson

• Citation: 6 Ariz. 235,56 P. 876
• Decision Date: 15 March 1899
• Docket Number: Civil 646
• Parties: ANDREW CRONLY, on behalf of himself and all other taxpayers of the City of Tucson, Plaintiffs and Appellants, v. CITY OF TUCSON et al., Defendants and Appellees
• Court: Arizona Supreme Court

56 P. 876

6 Ariz. 235

ANDREW CRONLY, on behalf of himself and all other taxpayers of the City of Tucson, Plaintiffs and Appellants, v. CITY OF TUCSON et al., Defendants and Appellees

Civil No. 646

Supreme Court of Arizona

March 15, 1899

APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Pima. George R. Davis Judge. Affirmed.

The facts are stated in the opinion.

S. M Franklin, for Appellants.

C. W Wright, for Appellees.

OPINION

SLOAN, J.

-- Appellant, Andrew Cronly, on behalf of himself and other taxpayers of the city of Tucson similarly situated, brought suit in the court below against the mayor and common council of the city of Tucson to restrain the latter from issuing bonds of the city for the purpose of constructing a water and sewerage system. By the provisions of the act of Congress of March 4, 1898, any city in any of the territories having a bona fide population of not less than one thousand persons is authorized to issue bonds "for sanitary and health purposes, the construction of sewers, waterworks and the improvement of streets." It was provided in the act that before the issuance of such bonds "the mayor and common council of said chartered municipal corporation shall cause an election to be held in such city or town, and the mayor and common council of such municipal corporation shall cause to be published in a newspaper of general circulation, published in such city or town, a notice of the time and place or places of holding such election. Such notice shall be given at least thirty days before such election. On the question of the issuance of said bonds, no person shall be qualified to vote except he be in all respects a qualified elector and owner of real or personal property subject to taxation within the municipality. In case two thirds of the qualified voters, as above described, shall vote affirmatively for the issuance of said bonds, then the mayor and common council shall issue the same, and not otherwise." In pursuance of said act, on May 5, 1898, an election was held in the city of Tucson for the purpose of determining the question whether or not bonds to the amount of one hundred thousand dollars for the purpose of constructing sewers and waterworks for said city should be issued. At this election more than two thirds of the votes cast were in favor of the issuance of the bonds. The complaint attacks the validity of this election upon the ground that female taxpayers qualified to vote at said election were by the election officers denied the right, and prevented from voting, and that there were sufficient of these to have changed the result of the election, had they been permitted to exercise their right to vote thereat. It was also charged in the complaint, as an additional ground for enjoining the issuing of bonds, that there were in the city of Tucson at the time of the election over eight hundred electors qualified to vote on the question submitted; that of these but two hundred and thirty actually voted, one hundred and ninety-six having voted for, and twenty-eight against, the issuing of said bonds, and six having cast blank ballots; that, therefore, "two thirds of the qualified voters" did not vote affirmatively for the issuance of the bonds. The complaint was held bad on demurrer, the trial court finding that neither of the grounds stated in the complaint constituted a valid objection to the issuance of said bonds. It was contended by appellant that the trial court erred in sustaining the demurrer, and that upon both of the alleged grounds the court should have held the bond election void.

Upon the first point, appellant relied upon the second section of act No. 76 of the Laws of 1897, as conferring upon female taxpayers the right to vote at all municipal elections. Said section reads as follows: "At any city election every taxpayer shall be entitled to vote without distinction of sex, but nothing herein shall be considered as abridging the right of elective franchises possessed by any person." The limitation prescribed by the organic law upon the power of the legislature to grant the elective franchise is found in section 1860 of the Revised Statutes of the United States. This section, in so far as it applies to the subject we are now considering, reads as follows: "At all subsequent elections in any territory...