ELTON E. WELLER and ADALINE WELLER, His Wife, Appellants,
CITY OF PHOENIX, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.
Mr. John W. Ray, for Appellants.
Mr. Charles A. Carson, Jr., City Attorney, Messrs. Kibbey, Bennet, Gust, Smith & Rosenfield and Mr. James E. Nelson, for Appellee.
[39 Ariz. 149] LOCKWOOD, J.
Elton E. Weller and Adaline Weller, his wife, hereinafter called plaintiffs, brought suit against the city of Phoenix, hereinafter called defendant, seeking to enjoin the latter from assessing against plaintiffs' homestead any of the costs of certain paving improvements ordered by defendant to be constructed on a portion of Thirteenth Street, between Harrison and Van Buren. Defendant demurred to the complaint, which demurrer was by the court sustained, and, plaintiffs standing on the complaint, judgment was rendered in favor of defendant. From the judgment, this appeal has been taken.
There is but one question necessary for us to determine, and that is whether as a matter of law a homestead duly selected and declared under the provisions of chapter 33, Revised Code of 1928 (sections 1731-1739), is subject to a lien for paving costs assessed under article 16 of chapter 12, Revised Code of 1928 (sections 511-550), which provides for the making of public improvements by special assessments. A similar question has been before the courts of a number of states, and with one exception the [39 Ariz. 150] uniform holding has been that homesteads are subject to such special assessments. Perine v. Forbush, 97 Cal. 305, 32 P. 226; Nevin v. Allen, 15 Ky. Law Rep. 836, 26 S.W. 180; Todd v. Atchison, 9 Kan. App. 251, 59 P. 676; Patterson v. Wallace, 47 Okl. 267, L.R.A. 1915E 662, 147 P. 1034; Reed v. Athens, 146 Tenn. 168, 240 S.W. 439; Shibley v. Ft. Smith, etc., 96 Ark. 410, 132 S.W. 444.
The sole exception is found in the state of Texas. Higgins v. Bordages, 88 Tex. 458, 53 Am. St. Rep. 770, 31 S.W. 52, 803.
Homesteads and paving assessments are always creatures of constitutional or statutory provisions, and not of common law, and the language of the Constitutions and statutes governing them varies in each state. We think, however, the California law, while not identical with ours, is nearer thereto than that of any other state. Article 17, paragraph 1, of the Constitution of California provides that "the Legislature shall protect, by law, from forced sale, a certain portion of homestead and other property of all heads of families."
In pursuance of such constitutional mandate, the legislature adopted a homestead statute (Civ. Code Cal., § 1237 et seq.) defining what the homestead should consist of, and providing that it should be "exempt from execution or forced sale, except as in this title provided." Section 1240. The statute then enumerates certain classes of judgments under which the homestead is subject to execution and forced sale, but does not expressly mention either taxes or special assessments as one of them. Notwithstanding this, the Supreme Court of California held that special assessments under the Vrooman Act (Stats. 1885, p. 147, as amended), from which our paving law was undoubtedly taken, were a lien on the homestead, and could be enforced by the sale thereof. Perine v. Forbush, [39 Ariz. 151] supra. But since our homestead and paving statutes, although more like those of California than any other state, are not identical therewith, we discuss the case from the standpoint of our own statutes, as interpreted in the light of logic, as well as from the weight of authority.
The first thing we note is that there is no reference whatever in our Constitution to homesteads, and the only provision regarding special assessments is section 6 of article 9, which reads as follows:
"Incorporated cities, towns, and villages may be vested by law with power to make local improvements by special assessments, or by special taxation of property benefited. For all corporate purposes, all municipal corporations may be vested with authority to assess and collect taxes."
If a "special assessment" is a "tax" in the ordinary sense of the term, there is no question that homesteads are subject ...