Southern Pac. Co. v. Pima County

I regret to say I cannot concur in the opinion of the majority of the court. That opinion, carried to its logical conclusion, seems to me of such vital and far-reaching effect that, although I realize my protest can have no legal value, I feel I cannot by silence appear to approve of what seems to me a narrow and logically unsound interpretation of one of the most important provisions of our Constitution. It affects only a small amount of property of a large corporation to-day, but to-morrow the rule laid down may encumber the homes of hundreds without their consent.

There is in effect but one question raised by this appeal, and that is whether territory included within a school district by action of the board of supervisors, without the assent, express or implied, of the qualified electors and property taxpayers of such included territory, is subject, ipso facto, to an indebtedness previously legally incurred by the original district, when such indebtedness exceeds four per cent of the value of the district as enlarged.

As is stated in the plaintiff's brief, "the gravamen of this action is not the power of the Board of Supervisors of Pima County to enlarge a school district, but it is the question of the power of the Board to impose upon the new territory the pre-existing indebtedness of the old district." It is contended that such imposition violates the provisions of section 8, article 9, and section 13, article 7, of the Constitution of Arizona, which read, respectively, as follows:

"Section 8. No county, city, town, school district, or other municipal corporation shall for any purpose become indebted in any manner to an amount exceeding four per centum of the taxable property in such county, city, town, school district, or other municipal corporation, without the assent of a majority of the property tax-payers, who must also in all respects be qualified electors, therein voting at an election provided by law to be held for that purpose, the value of the taxable property therein to be ascertained by the last assessment for State and county purposes, previous to incurring such indebtedness. . . ."

"Section 13. Questions upon bond issues or special assessments shall be submitted to the vote of property tax payers, who shall also in all respects be qualified electors of the State, and of the political subdivision thereof affected by such question."

The position of plaintiff is that no indebtedness in excess of the four per cent limit can in any manner whatever be imposed upon the territory within a school district unless the owners of such territory, who are also qualified electors of the district as it exists at the time such indebtedness becomes a liability on the specific land involved, have been given an opportunity to vote upon the question of whether such indebtedness shall be incurred.

The matter is one of more than passing importance, affecting not merely the situation existing in the case at bar, but many others analogous thereto which have arisen or may arise in the future. The first question which we should determine is whether the inhibition of section 8, supra, applies only to indebtedness incurred by the voluntary act of the municipal corporation affected, or whether it includes indebtedness of every character, no matter how imposed. The Supreme Court of California has had this question before it repeatedly, under a constitutional provision (article 11, § 18) that "no county, city, town, township, board of education, or school district shall incur any indebtedness or liability in any manner or for any purpose . . .," and it has held consistently that the word "incur" implies a voluntary act on the part of the municipal corporation concerned, and does not refer to an indebtedness arising from an act of the legislature. People v. SanBernardino High School Dist., 62 Cal. App. 67, 216 P. 959;Lewis v. Widber, 99 Cal. 412, 33 P. 1128; Welch v.Strother, 74 Cal. 413, 16 P. 22; Federal Const. Co. v.Wold, 30 Cal. App. 360, 158 P. 340.

The Supreme Court of Colorado, on the other hand, construing a constitutional provision that "the aggregate amount of indebtedness of any county for all purposes . . . shall not atany time exceed" a certain amount, held the limitation was not only on the voluntary act of the municipal corporation affected, but upon legislative action as well. People v. May,9 Colo. 404, 12 P. 838.

The same constitutional provision was before the Supreme Court of the United States in the case of Lake County v. Rollins,130 U.S. 662, 32 L. Ed. 1060, 9 Sup. Ct. Rep. 651, and it was therein held that under the Colorado Constitution the legislature could not impose a debt upon a county, nor could the county voluntarily assume it against the Constitution's prohibition.

What is the meaning of our Constitution? The exact language is "No . . . municipal corporation shall for any purpose becomeindebted in any manner." Constitutional provisions obviously intended for protection of the life, liberty, or property of the citizen should be liberally construed in favor of the citizen.State v. Birmingham S.R. Co., 182 Ala. 475, Ann. Cas. 1915D 436, 62 So. 77; Boyd v. United States, 116 U.S. 616,29 L. Ed. 746, 6 Sup. Ct. Rep. 524; Salter v. State,2 Okla. Crim. 464, 139 Am. St. Rep. 935, 25 L.R.A. (N.S.) 60, 102 P. 719. And it is plain this section was meant to protect the citizens of any municipal corporation against an indebtedness in excess of a certain amount "for any purpose" or "in any manner," without their consent.

It seems to me, therefore, that the language "become indebted in any manner" implies the result, as held by the Supreme Courts of the United States and Colorado, rather than the manner of arriving at the result, as held by the Supreme Court of California. This view is borne out by the general provisions of the Arizona Constitution. Section 5, article 9, prohibits the state itself from incurring indebtedness except to a very limited amount, and for certain special purposes, and this undoubtedly applies to legislative action. If the Constitution thus limits the power of the legislature as to indebtedness in regard to a matter peculiarly within its province, it is but reasonable to assume a similar intent as to matters usually left to the various localities affected, and that section 8, supra, was meant to protect the taxpayers of the different subdivisions of the state, not merely against their own action, but against that of the legislature as well.

I am of the opinion, therefore, that section 8, supra, applies to any indebtedness, no matter how incurred, whether by voluntary act of the municipal corporation, or through the legislature. And, if it be beyond the power of the legislature to impose a direct debt upon a municipal corporation, I think it is equally logical that what may not be done directly may not be done indirectly. I believe, therefore, that no act of the legislature can, either directly or impliedly, impose an indebtedness on the school district in question, if such debt is in excess of the four per cent limit set forth in section 8,supra, and that such debt only becomes valid through "the assent of a majority of the property taxpayers, who must also in all respects be qualified electors, therein voting at an election provided by law to be held for that purpose."

It is urged by defendants, however, that the indebtedness in question was approved by the taxpayers in the manner provided by section 8, supra, that it was a debt of school district No. 1 of Pima county, and that, since the legal entity of the district is unchanged, even though the area is different, all the property within the enlarged boundaries is subject to the debt. That the legislature itself intended to impose a different rule, and to relieve newly annexed territory from the burden of a debt incurred without the consent of the property owners in such new territory, is at least a reasonable contention. Paragraph 5272, Revised Statutes of Arizona, Civil Code 1913, in force at the time of the annexation, reads as follows:

"No political subdivision or municipal corporation other than the subdivision or municipal corporation wherein the election shall be held as above prescribed, for the creation of any indebtedness herein provided for, shall in any manner be responsible for, or charged with, the payment of any of the principal sum or interest thereon evidenced by such indebtedness."

While it is true the majority of this court hold this applies only to the annexation of territory already a part of some organized school district, and if we adopt a literal interpretation of the statute this is perhaps true, the immediately preceding paragraphs of the Code show clearly that the principle on which paragraph 5272, supra, is based is that no indebtedness should be imposed on real property without the consent of the owner. And, if this be true when the property is in an organized district, every principle of justice would require that the owners of property in unorganized territory be given equal protection.

Be that as it may, however, the real objection is not statutory, but constitutional, and the question is whether the constitutional provision limits the debt to the district as it existed at the time of the election, or extends it to the new area included in the district as it may afterwards be enlarged by law. I have examined carefully the authorities cited by counsel and the majority opinion, and have also investigated the Constitutions of every state in the Union having a provision in any manner resembling ours to determine whether such provisions have been construed on this point by the appellate courts of the respective states involved. I have found but two cases which appear to be even remotely in point. The Constitution of Georgia contains a clause which reads, so far as applicable to this matter:

"The debt hereafter incurred by any county, municipal corporation, or political division of this State . . . shall not exceed seven per centum of the assessed value of all the taxable property therein, and no such county, municipality, or division shall incur any new debt . . . without the assent of two thirds of the qualified voters thereof at an election for that purpose. . . ." Article 7, § 7, par. 1, Constitution of Georgia.

The Supreme Court of Georgia in the case of White v. City ofAtlanta, 134 Ga. 532, 68 S.E. 103, had before it the precise question involved herein. In that case it said:

"The Legislature has the power to extend the corporate limits of a city. In doing so they may provide for the holding of an election to determine whether or not the extension shall be made, but they are not compelled to do so. Beyond the publication required by the constitution to be made before the introduction or passage of a local act, there is no requirement for giving notice or obtaining the consent of persons residing in the unincorporated territory which is to be added to the city. When included within the city by legislative enactment, they take the advantages of being residents or taxpayers of the municipality, and they become subject to the corresponding proportionate burden, in the absence of lawful provision to the contrary. Receiving such benefits as may arise to residents of a city in connection with police protection, lighting, water, sewers, or the like, there is no injustice in requiring that they should share with other residents or taxpayers of the city in proportionately carrying the municipal burdens. Nor is it in violation of the constitutional provisions against the incurring of debts by counties or municipalities except by an election held for that purpose that the new residents become an integral part of the municipality, and as such may be subject to taxation to assist in paying debts already incurred. By way of illustration, suppose a system of waterworks had been established by means of the issuance of bonds, and residents of the added district were allowed, as the pipes could be extended, to make water connections therefrom to their property, certainly they ought not to be allowed to receive the benefits of the established system without assisting in the discharge of the burden entailed by it. To endeavor to keep separate accounts for different portions of a city might create great confusion. While to a certain extent the Legislature may make distinctive provisions legitimate in connection with adding the new territory to the city, an effort to make permanent discriminatory provisions as to different parts of a municipality would be more likely to raise constitutional questions than to allay them. We need not discuss the extent to which the Legislature may go in that direction. What we now hold is that the inhabitants in the newly added territory have not raised any valid constitutional objection to the act on the ground that the new inhabitants of the city and their property will be proportionately subject to taxation to meet the liabilities already existing [citing cases]."

The state of Texas has the following constitutional provision:

"And the legislature may also provide for the formation of school districts within all or any of the counties of this state, by general or special law, without the local notice required in other cases of special legislation, and may authorize an additional annual ad valorem tax to be levied and collected within such school districts for the further maintenance of public free schools and the erection of school buildings therein; provided, that two-thirds of the qualified property tax paying voters of the district, voting at an election to be held for that purpose, shall vote such tax. . . ." Article 7, § 3, Constitution of Texas.

A certain school district was organized under the constitutional provision above quoted. The property tax-paying voters of this particular district voted an ad valorem tax, and for some years had annually levied and collected such tax for the support of the school district. Some time thereafter certain new and additional territory was annexed to the district. An attempt was made to collect the special tax voted as above without resubmitting the question to the voters of the annexed property, and the plaintiffs, who were property holders within the additional territory, brought suit to enjoin its collection. The Supreme Court of Texas, in the case of Crabb v. CelesteIndependent School Dist., 105 Tex. 194, Ann. Cas. 1915B 1146, 39 L.R.A. (N.S.) 601, 146 S.W. 528, stated:

"By the terms of section 3, article 7, of the Constitution, above quoted, the power is given independent school districts to levy and collect a tax of 20 cents on the $100 valuation of all the property subject to taxation situated within its limits; and the mode of levying and collecting such tax is limited to a vote of two-thirds of the qualified property tax-paying voters of the district, voting at an election held for that purpose. The mode thus prescribed excludes all others; and it may be said that, not only is no authority conferred by the Constitution to otherwise levy and collect such special tax, but that any other method of so doing is positively prohibited. Making a practical application of this rule, where an independent school district is incorporated with a fixed area, and as thus formed votes the tax, and afterwards takes in additional territory and levies a tax on the property in such territory, it seeks in effect to collect a special tax by the method of territorial extension. This is clearly in violation of the Constitution; and hence cannot be done. The language of the Constitution is clear that independent school districts are permitted to levy the tax of 20 cents on the $100 valuation of property within its limits by submitting the proposition to the qualified tax-paying voters of such district, and then only upon a vote of two-thirds of such qualified voters. If the tax may be levied and collected on the property subject to taxation within the new territory without submitting the proposition to a vote of the qualified tax-paying voters of the district as altered and enlarged, then that which may not be done directly may be done indirectly. This is true, for the reason that, under the law, additional territory may be taken in by the independent school district by a petition, signed by a bare majority of the inhabitants of such new territory qualified to vote for members of the Legislature. Sayles' Supp. to Texas Civ. Stat. 1906, p. 441." (Italics ours.)

The court then proceeded to review the various cases cited by counsel for defendant; among them being that of White v.Atlanta, supra, and Madry v. Cox, 73 Tex. 538, 11 S.W. 541. It further points out clearly the difference between a statutory and a constitutional provision, stating:

"If we had no constitutional provision to grapple with, we would be constrained to hold that, where the legislative act gave the property owner the right to participate in the proceeding to determine whether or not the tax should be levied, another legislative act, authorizing an extension of the district where the tax had been voted, would subject the property within the extension subject to the tax, notwithstanding the nonparticipation of the property owner in the levy of the tax. This, however, is not the status of the case at bar; for here the right to participate in the levy of the tax is given the resident property owner by the Constitution, and the Legislature is denied authority to abridge that right. Where there is no constitutional inhibition, the power of the Legislature to enact laws is supreme and unlimited. But when the Constitution speaks, either by direction, negation, ornecessary implication, its voice must be heeded even by thesovereign power of the legislative branch of government." (Italics ours.)

This case has been consistently and repeatedly followed in Texas ever since its decision. The cases cited by defendants as being exceptions thereto are clearly on their faces not in point. That of Madry et al. v. Cox, supra, relied on in the majority opinion, is not in point, for nowhere in the Constitution of Texas at that date was there any limitation on the amount of indebtedness of a municipal corporation, or the manner of incurring such debt, and it is unquestioned that in the absenceof constitutional limitation the legislature may annex territory and impose indebtedness at will. But, in discussing the Madry case, the Supreme Court of Texas said in the Crabb case: "If, at the time a debt is created by a vote of the people of a city, a tax is likewise voted to pay the interest and create a sinking fund to pay such indebtedness, pursuant to some constitutionalprovision, a parallel case would be presented, and in such case we would not hesitate to rule the tax void as to property embraced in the subsequent extension of such city" (italics ours) — clearly indicating that, if the debt as well as the tax had been subject to the constitutional limitation, it would not have covered property subsequently annexed. It seems to me the majority of the court has failed to appreciate fully the difference between the power of the legislature in the absence and in the presence of constitutional restrictions on this point. I am of the opinion the reasoning in the Texas case is more logical than in that from Georgia. The whole argument of the Supreme Court of Georgia is apparently based on the theory that, when a community receives benefits, even though thrust on it against its will, it is bound, equitably speaking, to help pay for them. The chief grievance which led to the foundation of the American republic was the imposition of taxes without the right of the taxpayers to be heard on the issue. The English crown argued, as did the Supreme Court of Georgia, that the colonies received the benefits of the taxes imposed by Parliament, and therefore had no legitimate grievance because they had no voice in their imposition. But the stern arbitrament of war determined that "taxation without representation" was indeed tyranny. From time immemorial, the right of the taxpayer to be heard before he was burdened by taxes has been most jealously guarded by all English speaking peoples, and I believe that, when the interpretation of a constitutional provision, which on its face is meant to protect this right, is concerned, a proper construction of its spirit extends its protection not merely to the original territory of a taxing unit, but to territory subsequently added thereto.

I think, therefore, that debts incurred by the vote of the taxpayers under the provisions of section 8, supra, are limited in their effect to the territorial area of the political subdivision as it exists at the time the indebtedness is submitted, and that they cannot be extended to cover an area which did not have an opportunity to be heard on the original question, except by a resubmission of the issue. Were the inhabitants of the annexed territory given an opportunity to be heard on the question of annexation, it might perhaps be argued they were estopped from claiming a burden was imposed upon them without their consent, but under our law annexations are made by the board of supervisors without being submitted to the voters of the new territory.

For the foregoing reasons the judgment of the superior court should be reversed, and the case remanded, with instructions to overrule the demurrer to the amended complaint, and for other proceedings not inconsistent with this opinion.