White v. Kaibab Road Imp. Dist., 1
| Decision Date | 01 July 1975 |
| Docket Number | CA-CIV,No. 1,1 |
| Parties | Edgar F. WHITE, Plaintiff, Appellee and Cross-Appellant, v. KAIBAB ROAD IMPROVEMENT DISTRICT, Robert Stark, B. W. Burns and Henry Haws, constituting the Board of Directors of Kaibab Road Improvement District, RheaWoodall, Clerk of the Board of Directors of Kaibab Road Improvement Districtand RobertEsterbrooks, Superintendent of Streets of Kaibab Road Improvement District,Defendants, Appellants, and Cross-Appellees. 2559. |
| Court | Arizona Court of Appeals |
This appeal requires resolution of two issues of law: (1) the sufficiency of a title to a bill which promulgated an 'alternate procedure for the formation of county improvement districts' and (2) the constitutionality of the alternate procedure.
In 1945, Chapter 43 was enacted; the chapter was entitled:
'An Act
Relating To The Organization Of Districts To Make Street, Sewer And Other Local Inprovements By Special Assessments In Unincorporated Towns Or Settlements, Authorizing The Issuance Of Bonds For Such Improvements, Providing For The Collection Of Said Assessments And The Guarantee And Payment Of Said Bonds, And Authorizing Such Districts To Levy And Collect Taxes For The Operation And Maintenance Of Said Improvements And The Streets Within Such Districts.'
This chapter now appears as Title 11, Chapter 5, Article 1 (§ 11--701 et seq.). In substance, it affords a procedure by which an unincorporated territory may create an improvement district governed by a board of supervisors. The district then calls for bids and lets the contract to the 'lowest responsible bidder.' Prior to bidding on a job, a contractor must arrange to finance himself during the course of construction. This is necessary because Article 1 provides for assessment on the benefited landowners only after the improvement is completed. After completion of the improvements, the assessment is made and a warrant is delivered to the contractor authorizing him to demand cash payment from the landowners. At the end of a 45 day period, interest bearing bonds are issued to the contractor; these bonds, coupled with the cash payments received, constitutes full payment.
As noted previously, the contractor must negotiate financial commitments prior to his submission of a bid. Generally, the contractor will find a financier who will commit construction funds and purchase the bonds when the project is complete. The financier, in making the commitment is unable to accurately predict the stability of the money market when he ultimately obtains possession of the bonds. Because of this unpredictability the one committing himself to take the bonds after initial delivery to the contractor 'hedges his bet' and writes into the commitment a 'safety factor,' the resultant effect of which is to substantially increase the cost of construction.
An alternate procedure was proposed to encourage the elimination of the 'safety factor,' thereby significantly reducing the cost of the improvement. Under this proposal, assessments for the improvement are made prior to the commencement of construction. Once the assessments are made a cash payment period transpires in which those to be benefited by the improvement pay their respective share. Any deficiency is made up by the issuance of bonds. The net result of this procedure is to provide a cash supply for the contractor to execute the improvement. Since money is available to the contractor at the start of the project, the need for outside financing is obviated. The streamlining of this procedure results in an estimated one-third savings in the total cost of the improvement.
This proposed procedure was expressed in Senate Bill 283, now existent in the form of Title 11, Chapter 5, Article 1.1, § 11--761, A.R.S. 1 It is commonly referred to as 'front end assessment.'
The Kaibab Road Improvement District was formed pursuant to § 11--761, A.R.S., and undertook construction of certain road improvements with the assessment of the benefited lands. Appellee Edgar F. White brought an action, protesting the front end assessment and stating that the title was insufficient in that it violateed Article 4, Part 2, § 13 of the Arizona Constitution, A.R.S., which requires that every act embrace but one subject matter and that such subject must be expressed in the title. In the alternative, he contended that even if the title was sufficient the act still must fail because of various other constitutional infirmities. The trial court held in favor of appellee White on the insufficiency of title issue; however, on the remaining constitutional issues, found in favor of appellant Kaibab.
Kaibab pursued this appeal, claiming that the trial court erred in its ruling on the title issue. Appellee White filed a cross-appeal from the unfavorable determination of the remaining constitutional issues. Forest Lake Estates Water Improvement District was permitted to file an amicus brief, buttressing those arguments presented by Kaibab.
Chapter 127, Senate Bill 283, Laws of 1971, which is the basis of this title controversy, states:
'An Act
Relating To Counties: Providing An Alternate Procedure For The Formation Of County Improvement Districts, And Amending Title 11, Chapter 5, Arizona Revised Statutes, by Adding Article 1.1.'
Appellee White urged before the trial that the act, now in the form of Title 11, Chapter 5, Article 1.1, was violative of Article 4, Part 2, § 13 of the Arizona Constitution. Section 13 states:
'Every Act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title; but if any subject shall be embraced in an Act which shall not be expressed in the title, such Act shall be void only as to so much thereof as shall not be embraced in the title.'
The trial court concluded that the Act provided a new method
'. . . by which an improvement district may order the construction of improvements and an alternative method of levying assessments and the issuance of bonds for the construction of the improvements.'
The court determined that '(t)he substance of the Act (did) not relate, directly or indirectly, to an alternative method for the formation of improvement districts,' and consequently that the title violated the relevant provision of the Arizona Constitution.
Appellant urges this court to reverse the trial court. It is contended that the title is sufficient, as written, and not violative of Article 4, Part 2, Section 13. In support of the position, alternate grounds are advocated upon which the title can be sustained. Temporarily casting aside subsidiary arguments, appellants' primary contentions are that the title embraces only one subject and all matters in the Act are properly connected with that subject.
We have determined that, although this title problem is a close legal question, the trial court's determination that the title violated Article 4, Part 2, Section 13 of the Arizona Constitution cannot be upheld.
The Arizona Supreme Court has repeatedly expressed its interest in sustaining the acts of our legislature. In Re Lewkowitz, 70 Ariz. 325, 220 P.2d 229 (1950); Board Of Regents v. Sullivan, 45 Ariz. 245, 42 P.2d 619 (1935). Illustrative of this policy is the court's statement that it will not strike down an act 'unless satisfied beyond a reasonable doubt of its unconstitutionality. . . .' State v. Gastelum, 75 Ariz. 271, 255 P.2d 203 (1953). In a further clarification of that standard the court also stated that:
'The burden therefore is . . . to convince us that the subject of the act is not reasonably embraced in the title thereof, by as great a weight of evidence and reasoning as would be required to be presented by the state to convict a defendant of murder.' State v. Davey, 27 Ariz. 254, 258, 232 P. 884, 885 (1925).
Acceptance of this stringent burden has led the court to sustain titles to enactments when they are: germane to or properly connected with the general subject, In Re Miller, 29 Ariz. 582, 244 P. 376 (1926); sufficiently full and comprehensive as to indicate what is to follow in the way of legislation, Morris v. State, 40 Ariz. 32, 9 P.2d 404 (1932); directly or indirectly related to the body of the act, In Re Lewkowitz, 69 Ariz. 347, 213 P.2d 690 (1950), reversed on other grounds, 70 Ariz. 325, 220 P.2d 229 (1950).
On review we are of the opinion that while the main thrust of the title is the formation of a county improvement district, the financing necessary to accomplish the formation is germane to and properly included within the title. The sole reason a district is formed is to accomplish a specified improvement. It is difficult for us to conceive that the matter of assessment, which is the means of paying for the improvement, is somehow foreign to the concept of formation.
As previously noted, the purpose of the constitutional provision is to
'. . . fairly . . . apprise legislators, and the public in general, of the subject matter of the legislation, and of the interests that are or may be affected thereby, and to put anyone having an interest in the subject matter on inquiry.' In Re Lewkowitz, 70 Ariz. at 331, 220 P.2d at 233.
We are not convinced beyond a reasonable doubt that the title fails to put an interested party on adequate notice of the contents of the bill and therefore we hold the title to be constitutionally sufficient. State v. Harold, 74 Ariz. 210, 246 P.2d 178 (1952). The...
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Home Builders Ass'n of Cent. Arizona v. City of Scottsdale
... ... No. 1 CA-CV 92-0210 ... Court of Appeals of Arizona, ... See, White v. Kaibab Road Improvement Dist., 24 Ariz.App ... ...