McLoughlin v. City of Prescott
| Decision Date | 14 December 1931 |
| Docket Number | Civil 3173 |
| Citation | 6 P.2d 50,39 Ariz. 286 |
| Parties | T. F. McLOUGHLIN and A. W. ROBINSON, Taxpayers of the City of Prescott, Arizona, Appellants, v. CITY OF PRESCOTT and BERT TILTON, Mayor; R. O. BARRETT, WILLIAM BYERS, FLOYD WILLIAMS and W. E. SCOTT, Councilmen of the City of Prescott, Arizona, the Foregoing Mayor and Councilmen Constituting the Governing Body of the City of Prescott; E. A. McSWIGGIN, City Assessor and Tax Collector of the City of Prescott, Arizona; PAUL E. LODGE, City Clerk of the City of Prescott, Arizona; and R. B. WESTERVELT, City Attorney of the City of Prescott, Arizona, Appellees |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Yavapai. Richard Lamson, Judge. Judgment affirmed.
Messrs Favour & Baker, for Appellants.
Mr. R B. Westervelt, City Attorney, for Appellees.
Pursuant to an order of the mayor and common council of the city of Prescott, a majority of the taxpayers voting, who were also qualified voters of said city, at an election held on August 22, 1931, on a proposal to issue $200,000 in bonds of the city to enlarge and improve its water system, voted in favor of said bond issue. Thereafter T. F. McLoughlin and A. W. Robinson, as taxpayers and voters of said city, brought an action against the city, mayor, and common council, the city assessor, clerk and attorney, challenging the validity of the election and seeking to enjoin the defendants from issuing or selling the bonds so voted. A like suit, raising the same issues, was commenced by A. L. Thomas and wife a few days later. The cases were consolidated at the trial. After hearing the evidence, the court entered judgment for defendants, and from such judgment plaintiffs McLoughlin and Robinson have appealed.
The parties have joined in asking us to advance the case, suggesting as reasons therefor the urgent necessity for the improvement and enlargement of the city's water system, and the availability of the fund to relieve unemployment in case the election should be upheld. For these reasons we have taken the case up out of its order.
There are two questions involved. One is as to whether the election was advertised according to law; and the other is as to whether the ballots were preserved served and guarded in the manner provided by law, and, if not, the effect the departures had on the election.
The order for the election was made by the mayor and common council on July 6, 1931, and in it the date of the election was fixed for August 22, 1931. No objection has been made to the contents, form, or sufficiency of the order. This order was published in the "Prescott Courier," a daily newspaper published in the City of Prescott, on July 7th, 11th, 16th, 22d, 28th, August 1st, 6th, 16th, 17th and 21st, ten times, or for a period of forty-five days from the first to the last publication. Five copies of such order were posted in public places in said city for at least twelve days prior to the date of the election and one copy at the polling place where the election was held.
The City of Prescott is operating under a special charter granted it by the territorial legislature in 1883 (Act No. 37, page 66, Laws of Arizona 1883). Sections 21 and 25 of article 10 of said act of incorporation, which we think are the only provisions bearing on the question, read as follows:
Section 8 of article 9 of the Constitution limits the amount of the indebtedness that a county, city, town, school district or other municipal corporation may contract to four per centum of its taxable property without the assent of a majority of the property taxpayers, who are also qualified electors. In pursuance of such section the legislature, by chapter 2, title 52, Revised Statutes of 1913 (), carried forward as amended into the Revised Code of 1928 as sections 2657-2677, provided the method by which such taxing units might increase their indebtedness above the four per centum of the value of the taxable property therein. Section 2660, Revised Code of 1928, reads as follows:
We think there can be no question but that this last legislation had the effect of repealing all those provisions of the act of 1883 (incorporating said city) concerning the publication of notice of an election, wherever there exists a conflict. In other words, the mayor and common council should have followed the provisions of section 2660, supra, in the matter of publishing notice of the election, instead of the provisions of its 1883 charter. That section provides that a copy of the order shall be published "in some newspaper for at least thirty days prior to the date of such election." The sufficiency of a publication to meet this provision is defined by section 2747, Revised Code of 1928, as follows:
"When notice is provided by law to be given for a specified number of days, or weeks, if published in a daily paper, it must be published six days out of seven in a week; if published in a weekly paper, it must be published one day in each week, and one insertion per week in weekly papers and six insertions per week in daily papers shall constitute seven days' notice."
It is quite clear that since the publication was in a daily paper it should have been published six days out of seven of each week during the period of thirty days in order to conform to the law. The statute, it will be noticed, makes publication in a weekly newspaper once a week for the required period of thirty days, or publication in a daily six times a week for the thirty days prior to the day of election, sufficient notice of the election. For the purpose of advising the voters of the election, it would seem that weekly publications of a notice in a daily would be quite as effective as in a weekly. This is said, not for the purpose of holding that weekly publication in a daily satisfies the statute, but for the purpose of showing that the departure could have made the notice no less general or public than if the law had been strictly complied with.
The fact that an election would be held on August 22d could as well have been learned by the voters from a weekly publication in the daily as if published once a week for the period in a weekly paper.
We have held that the sole purpose of publishing notice of an election is to warn the electors that an election is to be held and that a substantial compliance with the statute is all that is required. Hicks v. Krigbaum, 13 Ariz. 237, 108 P. 482. We have restated this rule in one form or another in Allen State, 14 Ariz. 458, 44 L.R.A. (N.S.) 468, 130 P. 1114, Findley v. Sorenson, 35 Ariz. 265, 276 P. 843, and McDonald v. Cochise County, 37 Ariz. 90, 292 P. 603. In the latter case we said:
"A fair election and an honest return are paramount considerations as compared to minor requirements which prescribe the formal steps to reach that end."
The general rule is stated in 20 Corpus Juris 99, section 84, as follows:
"Substantial compliance with a statutory provision that notice of a coming election shall be published in one or more newspapers for a certain time before election day is all that is required and an election which has been duly ordered will not be vitiated by a mere irregularity in...
To continue reading
Request your trial