Frye v. South Phoenix Volunteer Fire Co.

• Decision Date: 13 November 1950
• Docket Number: No. 5332,5332
• Citation: 71 Ariz. 163,224 P.2d 651
• Parties: FRYE et al., constituting Board of Supervisors of Maricopa County v. SOUTH PHOENIX VOLUNTEER FIRE CO.
• Court: Arizona Supreme Court

Page 651

224 P.2d 651

71 Ariz. 163

FRYE et al., constituting Board of Supervisors of Maricopa County v. SOUTH PHOENIX VOLUNTEER FIRE CO.

No. 5332.

Supreme Court of Arizona.

Nov. 13, 1950.

Warren L. McCarthy, County Atty., Anthony O. Jones, Deputy Co. Atty., Phoenix, for appellants.

Robert C. Moore, of Phoenix, for appellee.

PHELPS, Justice.

The South Phoenix Volunteer Fire Department, plaintiff-appellee, seeks to compel the members of the Maricopa County Board of Supervisors, defendants-appellants, to pay to appellee a sum certain as fixed by the provisions of section 16-2007, A.C.A.1939 as amended, for required equipment of the fire department and its maintenance, claiming that the provisions in said section relating thereto are mandatory. Upon the refusal of the board to make such payment the company instituted this action in mandamus. After a hearing, judgment was entered by the court granting the writ requiring appellants to make the payment claimed by the company. From this judgment the board appeals and assigns the order and entry of such judgment as error.

The question presented to the trial court, as well as here, is one of law and the results reached by this court must rest exclusively upon the interpretation of section 16-2007, as amended, supra. This section as amended reads as follows:

'16-2007. County Contribution--Estimate of expenses and tax levy.--The board of supervisors may ascertain the value of all vehicles registered between January 1 and July 1 of each year from within the boundaries of the territory described in the order of the board authorizing the organization of a volunteer fire company, and on or before July 10 of each year may pay into the volunteer fire company fund of such territory an amount equal to one and two-tenths [1.2] per cent of such value. Not more than ten days after the organization of a volunteer fire company is perfected, and thereafter not later than July 10 of each year, the chief and the secretary-treasurer of such company may submit to the board of supervisors an estimate, certified by items, of the amount of money required for the equipment and maintenance of the company for the ensuing year, less the amount derived from the county as hereinabove provided. (Emphasis supplied.)

'The board shall approve the estimate or modify the same, and shall levy a tax, not to exceed twelve mills on each dollar of taxable valuation, against all property situated within the boundaries of the territory described in the order of the board authorizing the organization of said company and appearing upon the last assessment roll. The levy shall be made and the taxes collected in the manner, at the time, and by the officers provided by law for the collection of state and county taxes. The county treasurer shall keep the money received from said taxes in a separate fund known as the 'Volunteer Fire Company Fund' of the town or settlement of which collected.' (Emphasis supplied.)

The organization of volunteer fire companies was first provided for under the provisions of chapter 69, Session Laws of 1913, Third Special Session. The organization of such fire companies was first restricted to unincorporated towns but the law was amended by chapter 98, Session Laws of 1919 to include outside areas.

We may safely assume from the early enactment of this law and the provisions therein for the maintenance of such a company through taxation levied as other taxes are levied, at first only upon improvements on real property within the district but from 1919 to date levied on both real and personal property located therein, that the legislature deemed such organizations to be necessary for the protection of property in the densely populated areas. The law has, from its inception, made it mandatory that the cost and maintenance of the equipment of voluntary fire companies be borne by taxes levied on property within the territory benefitted thereby, and that the board was required to make a tax levy sufficient to cover such expenses not in excess, however, of seven (7) mills per taxable dollar value up until 1939 when the maximum levy was fixed at twelve (12) mills of each dollar of taxable value. In 1919 the law was amended to contain a provision requiring officers of the fire companies to furnish an estimate of the cost and maintenance of equipment used by it to the board of supervisors. This requirement was likewise made mandatory. The tax was levied upon that estimate until 1939 when the board of supervisors was empowered to modify the estimate furnished by the officers of the company but the law as then amended still made it mandatory upon the board to levy the tax therein provided for based upon the estimate as approved by it. No other material changes were made in the law until in 1941 when the act was again amended to include the provisions above set out haec verba.

We believe the above historical background of the act is a proper matter for our consideration along with other factors in arriving at the intent of the legislature in amending the section thereof, here under consideration.

Appellants claim that the word 'may' as used in the first paragraph of this section is permissive only and vests a discretion in the board to make the payment to the company for which provision is therein made, or refuse to make it as the judgment of its members dictates. The appellee on the other hand claims that the word 'may' as used is mandatory and that if it is treated as permissive only the act is unconstitutional as being in violation of section 19, article 4, part 2 of the Arizona Constitution and of section 13, article 2 thereof. Section 19, article 4, part 2 so far as here material reads as follows:

' § 19. [Local or special laws.]--No local or special laws shall be enacted in any of the following cases, that is to say:

'9. Assessment and collection of taxes.

'13. Granting to any corporation, association, or individual, any special or exclusive privileges, immunities, or franchises.

'20. When a general law can be made applicable.'

Article 2, section 13 of the constitution reads as follows:

' § 13. [Equal operation of laws.]--No law shall be enacted granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which, upon the same terms, shall not equally belong to all citizens or corporations.'

The meaning of the word 'may' has been interpreted by this court in a number of cases, in some of which it was held to mean 'must' while in others it was considered to be permissive only depending upon the legislative intent as ascertained by the court in applying the ordinary rules of statutory construction. It follows, therefore, that its meaning must always depend upon the legislative intent as determined by rules of statutory construction.

In determining whether the word 'may' as used in the act under consideration is permissive or mandatory, if it cannot be gathered from the language used therein, the court must look to the words, context, subject-matter, effects and consequences as well as to the spirit and purpose of the law. Coggins v. Ely, 23 Ariz. 155, 202 P. 391 (citing cases). We must also, if possible, give meaning to each word, clause or sentence, considered in the light of the entire act itself and the purpose for which it was enacted into law. State v. Airesearch Mfg. Co., Inc., 68 Ariz. 342, 206 P.2d 562, 567. We also said in that case:

'* * * The aim of the court likewise should be to give it (the law) a sensible construction such as will accomplish the legislative intent and if possible avoid an absurd conclusion or avoid making the statute invalid. * * *'

We find no difficulty in reaching a conclusion as to the purpose of the art itself. It recognized the need of fire protection in thickly settled communities outside the protection of a municipal fire department, both from the standpoint of the individual and the public. It intended that such protection to the people residing within the territory affected should be at public expense and provided that such...