Wiggs v. City of Albuquerque
| Decision Date | 02 December 1953 |
| Docket Number | No. 5661,5661 |
| Citation | 263 P.2d 963,57 N.M. 770,1953 NMSC 111 |
| Parties | WIGGS v. CITY OF ALBUQUERQUE et al. |
| Court | New Mexico Supreme Court |
Hannett & Hannett, Albuquerque, for appellant.
Vance Mauney, Thomas G. Cornish, Albuquerque, for appellees.
Plaintiff seeks injunctive relief against the City of Alburquerque, its commissioners, manager and treasurer, to forbid the use of funds collected under Ordinance 784 for the purpose of paving for the electric current used in lighting approximately two and one-half miles of East Central Avenue, Alburquerque, New Mexico, a downtown area of the city, and a portion of the residential area.
The ordinance was adopted March 25, 1952, providing for a tax on gasoline and motor fuel sold and delivered in Albuquerque. Section 14-3901, 1941 Comp., enacted in 1931, provides for such a tax:
Section 14-3906, 1941 Comp., provides as follows for the disposition of the proceeds of such tax:
The 1952 ordinance levying the tax, section 6 thereof, provides as follows for the use of this particular tax money:
Plaintiff, appellant, asserts that the proposed use of these funds is a diversion from and misuse of the funds so collected, contrary to the terms of the ordinance; that the diversion is discriminatory and a misuse because the expenditure is for a particular area already adequately lighted, when many sections of the City have streets in disrepair, unpaved and unimproved.
Issues were framed which, in substance, may be stated as follows: (1) Does the use of this money for payment for electric current to light streets come within the language of section 6 of the ordinance, namely 'expenditure for the purposes of street maintenance, improvement, opening and widening only'? (2) In the event such use is proper under section 6 of the ordinance, is the lighting of the particular area involved discriminatory or an abuse of discretion?
The exact use to which the City intends to put this money is reflected by three agreements between the City and the Public Service Company of New Mexico, two made in May, 1952, and the third in November, 1952. The first of these agreements provided that the City, in the interest of public safety and for the purpose of decreasing traffic hazards, would cooperate in the construction of a concrete medial divider project and maintain street lighting in connection therewith, said project being located on a particular portion of East Central Avenue. The other two agreements which raise the issues here involved provide for payment by the City to the Public Service Company for the current involved in lighting the divider project and in lighting certain lamps in residential areas of Albuquerque. A final fact appears in the inclusion on the 9th day of September, 1952 of certain items in the annual budget of the City of the fiscal year 1952-1953, as follows:
'Gasoline Tax Fund City of Albuquerque
Fiscal Year Ending June 30, 1953
* * *
* * *
Expenses:
* * *
* * *
New Street Lighting:
East Central Lighting $10,300.00
Downtown Lighting (3 Mo.) 2,500.00
New Residential Lighting 5,000.00'
The trial court dismissed plaintiff's complaint with prejudice.
Appellant Wiggs does not contend that either the statute or the ordinance is unconstitutional. Such a contention would be untenable since the validity of the original legislative act of 1931 authorizing the tax by the city, and the city ordinance of 1952 levying the tax for the specific stated purpose, is amply sustained. 46 A.L.R. 609, at p. 710; Carley & Hamilton v. Snook, 281 U.S. 66, 50 S.Ct. 204, 74 L.Ed. 704, 68 A.L.R. 200; Stone v. City of Hobbs, 1950, 54 N.M. 237, 220 P.2d 704.
It is our conclusion that payment for electric current for street lighting falls within the scope of the word, 'improvement,' as used in section 6 of the ordinance. Much argument has been devoted to the position and meaning of the words, 'only' and 'improvement,' in said section. The ordinary and proper meaning of the word, 'only,' in this section is reached by reading the last portion of the section, as follows: '* * * for expenditure for only the purposes of street maintenance, improvement, opening and widening.' Any other construction requires unreasonable strain upon the language of the ordinance.
In support of our conclusion as to the word, 'improvement,' the following statutes and cases are relevant: (1) Section 14-1805, 1941 Comp., recites among other powers of cities and towns, the following:
* * *
* * *
(Emphasis ours.)
By such act, the legislature has stated in effect that the lighting of streets is an 'improvement.' (b) In City of Roswell v. Bateman, 1915, 20 N.M. 77, 146 P. 950, L.R.A.1917D, 365, this Court held that the sprinkling of streets was such an 'improvement' as would support a special assessment. A similar case is State v. Reis, 1888, 38 Minn. 371, 38 N.W. 97. Fisher v. City of Astoria, 1928, 126 Or. 268, 269 P. 853, 60 A.L.R. 261, holds street lighting to be a local improvement subject to special assessment. The many dictionary definitions of the word, 'improvement,' are sufficiently broad to include this item.
(c) Perhaps most persuasive and conclusive of this question is Ch. 122 of the Laws of 1947, a portion of which is shown as Secs. 14-4207 and 14-4208, 1941 Comp., 1951 Pocket Supp. Section 14-4207 reads as follows:
Immediately following this section is Sec. 14-4208, providing for special assessment certificates or bonds, reading in part as follows:
'Whenever the city council of any city, * * * contemplates grading, graveling, paving, macadamizing, sidewalking, lighting or otherwise improving any street or streets, * * *.' (Emphasis ours.)
This 1947 enactment by the legislature, having particular reference to funds collected under the gasoline tax contemplated by the original 1931 act, provides for the creation by ordinance of a 'Special Street Improvement Fund,' and in the following section, specifically includes the lighting of streets as a proper improvement to be made out of such fund. For this Court, in the face of that legislative act, to declare that street lighting is not included within the...
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