Secrist v. Diedrich
| Decision Date | 20 July 1967 |
| Docket Number | No. 1,No. 2,CA-CIV,1,2 |
| Citation | 6 Ariz.App. 102,430 P.2d 448 |
| Parties | Dr. Delbert L. SECRIST, Nan E. Lyons, Dan C. McKinney, Katle Dusenberry and Dr. Russell C. Ewing, Duly elected and acting members of the Board of Education and Board of Trustees of School Districtof Pima County, Arizona, and Florence Reece, School Superintendent of Pima County, Arizona, and Carroll H. Christian, Treasurer of Pima County, Arizona, Appellants, v. Robert DIEDRICH, Wayne A. Voss and Howard Peabody, on behalf of themselves and all other taxpayers of School Districtof Pima County, Arizona, Appellees. 339. |
| Court | Arizona Court of Appeals |
William J. Schafer, III, County Atty., Pima County, Lawrence Ollason, Special Deputy County Atty., Tucson, for appellants.
Robertson, Childers, Everett, Burke, & Drachman by Peter Johnson, Tuscon, for appellees.
Appellants, members of the School Board of Tuscon School District No. 1, appeal from a declaratory judgment in which the appellants were held to be violating statutory law (A.R.S. § 34--201) in performing landscaping work at new school buildings without advertising for competitive bids.
It was admitted by the appellant school board that, in connection with the construction of each of three new schools, it had performed site improvements at a cost in excess of $2500. This work was contemplated at the time of the letting of the school construction contract but was not included therein. According to the opening brief, and there is no refutation from appellees, 'plans and specifications for the work in question were prepared by regular employees of the school board.' It was established at the trial that the school board employed a full-time architect.
The judgment rendered below is attacked on appeal on three basis. The first is that the plaintiffs established no standing to bring an action for declaratory judgment for the reason that only a taxpayer's interest was established without any showing of special damage as to any of the plaintiffs. Though there is authority to the contrary, we believe the weight of authority and the better view to be that a taxpayer has sufficient standing to question in an appropriate action illegal expenditures made or threatened by a public agency. Ethington v. Wright, 66 Ariz. 382, 189 P.2d 209 (1948); 22 Am.Jur. 2d Declaratory Judgments § 83, pp. 946--47; 79 C.J.S. Schools and School Districts § 420(c), p. 294; 47 Am.Jur. Schools § 106, pp. 371--72; Anno.: Statutes--Validity--Who May Question, 174 A.L.R. 549, 555--58. We hold that the plaintiffs, taxpayers within the defendant-school district, had sufficient standing to maintain the subject action.
The second attack made is that inasmuch as the landscaping of the three new schools as to which the evidence was directed was fully completed and paid for at the time of trial, the case was moot and a declaratory judgment was not proper. It is well-established law in this state that a declaratory judgment action may not be based upon a future controversy which may or may not arise. Maricopa County v. Leppla, 89 Ariz. 220, 360 P.2d 227, 84 A.L.R.2d 1129 (1961); Merritt-Chapman & Scott Corporation v. Frazier, 92 Ariz. 136, 375 P.2d 18 (1962). However, here we have a genuine dispute as to the construction of a statute, which is reasonably sure to pertain to factual situations which will develop in the future. At the trial, and on appeal, the appellant-school board has taken the position that if plans and specifications for construction work are prepared by its own employees, and if an independent architect or engineer is not employed for this purpose, it has the discretion, regardless of the cost of the work to be performed, to do the work, using its own employees, without advertising for competitive bids. This interpretation of the law is disputed by the plaintiffs who contend that public bidding is required for all capital improvements when the work to be performed has a total cost in excess of $2500.
The controversy is one of statutory construction and lies within the encompassment of our declaratory judgments action. A.R.S. § 12--1831 et seq. Calhoun v. Moore, 69 Ariz. 402, 214 P.2d 799 (1950). Having an 'actual controversy,' Podol v. Jacobs, 65 Ariz. 50, 55, 173 P.2d 758 (1946), we find it appropriate that the trial court proceeded to render declaratory judgment settling the controversy before it, even though the expenditures for the particular landscaping which precipitated this action were so far completed as to be beyond specific relief, because of the public interest involved in the dispute. State v. Superior Court, 86 Ariz. 231, 344 P.2d 736 (1959).
The fact that the landscaping work in question was contemplated when the contract for the new school building was let is not determinative of the question before us. The applicable law appears to be that a residuum of discretion is reposed by bidding statutes such as the one under consideration in the public agency in control of the work. The division of work into separate units for purposes of execution, when not done for the purpose of avoiding the bidding statutes, should be upheld if such division has any reasonable basis:
53 A.L.R.2d Anno.: Public Contract--Competitive Bidding § 2, p. 499.
Here, there appears to be a reasonable basis for separating the landscaping work from the new school construction, in that the landscaping work could be performed by regular employees of the school district, with a possible saving in cost to the school district. Landscaping is not such an integral part of a school building as to suggest bad faith in separating its performance from the construction of the building itself. In the absence of showing of such bad faith, the judgment of the school board in this regard should be upheld. Cf. Sulphur Springs Val. Elec. Coop. v. City of Tombstone, 1 Ariz.App. 268, 401 P.2d 753 (1965).
We now reach the question of statutory construction. The plaintiffs contend that the expenditures in question were in violation of A.R.S. § 34--201, subsecs. A and C, reading as follows:
(Emphasis supplied)
The school board argues that these provisions must be read in connection with other sections of our code, and particularly the following:
' § 34--102.
(Emphasis supplied) 11 A.R.S.
' § 34--103.
' § 34--104.
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...A.R.S. §§ 34-201 and 34-102 must be construed together "in order to derive [their] true meaning." Secrist v. Diedrich, 6 Ariz.App. 102, 105-06 & n. 1, 430 P.2d 448, 451-52 & n. 1 (1967). From the plain language of the statutes, we conclude that proposed work encompasses at least buildings a......
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...for the deficiency which would be caused by the misappropriation." 66 Ariz. at 386, 189 P.2d at 212. See also Secrist v. Diedrich, 6 Ariz.App. 102, 430 P.2d 448 (1967). Since the instant case does not involve either the expenditure or the proposed use of tax revenues, Smith is Armer was an ......
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