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McLoughlin v. City of Prescott

Supreme Court of Arizona

December 14, 1931

T. F. McLOUGHLIN and A. W. ROBINSON, Taxpayers of the City of Prescott, Arizona, Appellants,
v.
CITY OF PRESCOTT and BERT TILTON, Mayor; R. O. BARRETT, WILLIAM BYERS, FLOYD WILLIAMS and W. E. SCOTT, Councilmen of the City of Prescott, Arizona, the Foregoing Mayor and Councilmen Constituting the Governing Body of the City of Prescott; E. A. McSWIGGIN, City Assessor and Tax Collector of the City of Prescott, Arizona; PAUL E. LODGE, City Clerk of the City of Prescott, Arizona; and R. B. WESTERVELT, City Attorney of the City of Prescott, Arizona, Appellees

APPEAL from a judgment of the Superior Court of the County of Yavapai. Richard Lamson, Judge. Judgment affirmed.

Messrs. Favour & Baker, for Appellants.

Mr. R. B. Westervelt, City Attorney, for Appellees.

OPINION

Page 51

[39 Ariz. 288] ROSS, J.

Pursuant to an order of the mayor and common council of the city of Prescott, a majority of the taxpayers voting, who were also qualified voters of said city, at an election held on August 22, 1931, on a proposal to issue $200,000 in bonds of the city to enlarge and improve its water system, voted in favor of said bond issue. Thereafter T. F. McLoughlin and A. W. Robinson, as taxpayers and voters of said city, brought an action against the city, mayor, and common council, the city assessor, clerk and attorney, challenging the validity of the election and seeking to enjoin the defendants from issuing or selling the bonds so voted. A like suit, raising the same issues, was commenced by A. L. Thomas and wife a few days later. The cases were consolidated at the trial. After hearing the evidence, the court entered judgment for defendants, and from such judgment plaintiffs McLoughlin and Robinson have appealed.

The parties have joined in asking us to advance the case, suggesting as reasons therefor the urgent necessity for the improvement and enlargement of the city's water system, and the availability of the fund to relieve unemployment in case the election should be upheld. For these reasons we have taken the case up out of its order.

There are two questions involved. One is as to whether the election was advertised according to law; and the other is as to whether the ballots were preserved [39 Ariz. 289] served and guarded in the manner provided by law, and, if not, the effect the departures had on the election.

The order for the election was made by the mayor and common council on July 6, 1931, and in it the date of the election was fixed for August 22, 1931. No objection has been made to the contents, form, or sufficiency of the order. This order was published in the "Prescott Courier," a daily newspaper published in the City of Prescott, on July 7th, 11th, 16th, 22d, 28th, August 1st, 6th, 16th, 17th and 21st, ten times, or for a period of forty-five days from the first to the last publication. Five copies of such order were posted in public places in said city for at least twelve days prior to the date of the election and one copy at the polling place where the election was held.

The City of Prescott is operating under a special charter granted it by the territorial legislature in 1883 (Act No. 37, page 66, Laws of Arizona 1883). Sections 21 and 25 of article 10 of said act of incorporation, which we think are the only provisions bearing on the question, read as follows:

"Sec. 21. In addition to what may be especially required by other provisions of this Act to be published, the following proceedings and acts of said municipal authorities shall be published in English by at least ten insertions in some newspaper printed and published in said city:

"First. All ordinances adopted in accordance with the provisions of this Act.

"Second. All resolutions of the Common Council required by this Act to be in writing."

"Sec. 25. Whenever the Common Council shall desire to make any improvements authorized by this Act, and to carry out such improvements find it necessary to issue bonds

Page 52

in excess of the amount authorized by section 3 (2), Article X of this Act, they shall give notice of the same to the taxpayers of said city by publishing in some ...


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