State of Washington v. Maricopa County, Ariz.

• Decision Date: 14 December 1945
• Docket Number: No. 11087.,11087.
• Citation: 152 F.2d 556
• Parties: STATE OF WASHINGTON et al. v. MARICOPA COUNTY, ARIZ. et al.
• Court: U.S. Court of Appeals — Ninth Circuit

152 F.2d 556 (1945)

STATE OF WASHINGTON et al. v. MARICOPA COUNTY, ARIZ. et al.

No. 11087.

Circuit Court of Appeals, Ninth Circuit.

December 14, 1945.

Smith Troy, Atty. Gen. of Washington, Harold A. Pebbles and Lyle L. Iversen, Assts. to Atty. Gen., for appellant State of Washington.

David M. Wood, of New York City, and Gust, Rosenfeld, Divelbess & Robinette, of Phoenix, Ariz., for appellant Equitable Life Ins. Co.

John L. Sullivan, Atty. Gen. of Arizona, and Earl Anderson, Asst. Atty. Gen., for appellees Osborn et al.

Edwin Beauchamp, Co. Atty., and Leslie C. Hardy, Sp. Counsel, both of Phoenix, Ariz., and George Herrington and Orrick, Dahlquist, Neff, Brown & Herrington, all of San Francisco, Cal., for appellees Maricopa County et al.

Before GARRECHT, MATHEWS, and HEALY, Circuit Judges.

HEALY, Circuit Judge.

Appellants are holders of highway improvement bonds issued by Maricopa County, Ariz., in the years 1919 and 1921. Incorporated in the bonds are specific due dates. Some of the bonds have matured, others have not. On demand of Maricopa County the Loan Commissioners of the state instituted proceedings to refund the unretired portions of the two issues on the view that the bonds were legally subject to call and refunding whenever such operation is to the profit of the state.¹

Appellants sued in the district court asking that it be adjudged that the right to call the bonds prior to maturity did not exist when they were issued, and that the county is accordingly obligated to pay interest at the agreed rate until maturity. The claim is, primarily, that the refunding was had under authority of statutes first enacted in 1928 as part of a revision of the laws undertaken in that year. The findings and judgment below were to the contrary.

The call and refunding proceedings have been upheld by the Arizona Supreme Court in two cases, Maricopa County v. Osborn, 59 Ariz. 244, 125 P.2d 703, and Id., 60 Ariz. 290, 136 P.2d 270. These were mandamus suits to compel the Loan Commissioner to refund the county's indebtedness. On the basis of statutes in existence at the time of issue the court held the bonds subject to call. While appellants were not parties to these suits, briefs amici curiae were filed by counsel representing appellant Equitable Life Insurance Company. Later, one of the counsel for that company, in his capacity as a taxpayer, sued in the superior court of Maricopa county to restrain the delivery of the refunding bonds, in which action judgment went against him. There was no appeal. In each of the suits mentioned the principal contentions raised by the parties and amici curiae were identical with those here urged.

The statutes thought by the Arizona court to authorize the call were contained in Ch. I, Title LII, Ariz.R.S.1913. These statutes, in a more or less altered form, were subsequently codified in the Arizona Revised Code of 1928,² and are currently to be found in Art. 4, Ch. 10, Ariz.Code Ann.1939, in the language in which they appeared in the 1928 compilation. Appellants assert that these code provisions effect an impairment of the obligation of their contract.³

We set out on the margin in parallel columns the material portions of the two sets of statutes.⁴

Each of the bonds in question contains a declaration that it is issued "pursuant to and in strict compliance with the Constitution of the State of Arizona, and the statutes thereof, including among others Chapter II of Title LII of the Revised Statutes of Arizona, 1913, Civil Code, and Chapter 31 of the Session Laws, Regular Session, 1917, and acts amendatory thereof and supplementary thereto."

The Arizona court in the first of the Maricopa cases pointed out that Title LII of the Revised Statutes of 1913 contained two chapters relating to state, county, and municipal indebtedness. The first chapter, embracing paragraphs 5251 to 5265, dealt with funding and refunding, the second with the original issuance of county, school district, and municipal bonds, no mention being made therein of their refunding. Both chapters were held to be in full force and effect when the bonds involved here were issued. Under paragraph 5252, contained in the first chapter, any bonds of the state issued while that section was in effect were held "redeemable and refundable whenever state bonds could be issued at a rate of interest sufficiently lower than that previously paid to render it profitable and beneficial to the state to issue them." 59 Ariz. 244, 125 P.2d 205. As regards authority to refund in that contingency, the court found no difference between indebtedness of the state and indebtedness of the county, which latter included "any indebtedness now allowed, or that may be hereafter allowed by law," and not merely such as has matured. Paragraph 5260, authorizing the redemption of county bonds "in the same manner as other state indebtedness," was held to have the clear purpose of making it "the duty of the loan commission to refund a county's indebtedness, whether evidenced by bonds, or otherwise, when officially requested by the board of supervisors to do so and the bonds of the state can be sold at a rate of interest sufficiently lower than that the county was theretofore paying to render it profitable and beneficial to the county to issue them."

The court's references to the law as subsequently revised were incidental, the references consisting variously of statements to the effect that the 1913 statutes were carried, in form or substance, into the 1939 code. The opinions infer that the revision effected no change in substance. If this be true no impairment can be spelled out, for it is a settled principle that where there is no subsequent legislation there can be no impairment of contract in the constitutional sense. Const.U.S. art. 1, § 10. Contracts are made with reference to existing law and can not be impaired by it, Cross Lake Shooting & Fishing Club v. Louisiana, 224 U.S. 632, 638, 639, 32 S.Ct. 577, 56 L.Ed. 924, even if the law has been given a changed construction by the state court. Tidal Oil Co. v. Flanagan, 263 U.S. 444, 44 S.Ct. 197, 68 L.Ed. 382.

It has been held, Bacon v. Texas, 163 U.S. 207, 225, 16 S.Ct. 1023, 41 L.Ed. 132, that the question whether a subsequent codification of an existing statute was or was not a mere revision and continuation of existing law, and whether the changed phraseology properly called for a change of construction, are questions for the state court to determine. The holding there involved the contract clause. We have, however, independently considered the question, and are not persuaded that that later revision constituted new legislation on the subject. The presumption, certainly, is to the contrary, as will be evident from a reading of the appended note.⁵

In the effort to establish their point that there is subsequent legislation appellants stress alterations in the phraseology of paragraph 5260. This provided for the refunding of county indebtedness "in the same manner as other state indebtedness * * * now allowed, or that may be hereafter allowed by law, to said county," whereas the current codification provides for "the redeeming or refunding of such indebtedness in the same manner as other state indebtedness * * * allowed by law to be incurred by such county." The difference in phraseology appears to lie merely in the choice of words. We are not able to discover a distinction in principle.⁶

Another point urged is that in the codified statute relating to refunded county and municipal bonds it was, for the first time, expressly provided that they shall be issued upon the faith and credit of the state only to the extent that the latter will cause the necessary taxes to be levied for the payment of principal and interest. Appellants argue that this provision effected a change in substance. However, it appears that under the 1913 statute, also, the county continued after refunding to be the primary debtor. It was held in Boyce v. Pima County, 1922, 24 Ariz. 259, 208 P. 419, that the taking up of county bonds by the territory and its issuance to the holders thereof of territorial bonds did not relieve the county of the obligation to care for the indebtedness, the latter being still the debtor. And in the first of the two Maricopa cases the court held that under the 1913 statute the state did not pledge its faith and credit to the payment of county refunding bonds issued by the commission, the only obligation of the state being to see that taxes for their payment are levied and collected by the county. In any event it is not possible to see how this change, if there was one, can prejudice appellants, who are not entitled to refunding bonds but to cash.

What has been said serves at least to exhibit the questionable force of the contention that there is any subsequent law. We need not further pursue that inquiry. Even if doubts on the subject be resolved in favor of appellants' viewpoint, still we find no case of impairment under the contract clause. A study of the two Maricopa opinions discloses that decision was reached solely on consideration of the statutes as they existed at the time the bonds were issued. Neither in terms nor by necessary implication was effect given to the provisions of the later codes. There remains only the claim, vigorously urged by appellants, that the Arizona court misconstrued the 1913 statutes. Of itself, however, this claim presents no federal question.

The applicable principle, frequently declared by the Supreme Court, has not perhaps been better stated than by Mr. Justice Van Devanter speaking for the Court in Cross Lake Shooting & Fishing Club v. Louisiana, 224 U.S. 632, 638, 639, 32 S.Ct. 577, 579, 56 L.Ed. 924. After quoting the clause of the constitution declaring that no state shall pass any law impairing the obligation of contracts, he said: "This clause, as its terms disclose, is not directed against all impairment of contract obligations, but only...