Southern Pacific Co. v. Pima County

ROSS, J. This is an action by the Southern Pacific Company against Pima county and J. W. Buchanan, treasurer and ex-officio tax collector of said county, to recover some school taxes paid to the treasurer under protest. On June 5, 1928, common school district No. 1 of Tucson and high school district No. 1 of Tucson were by an order of the board of supervisors of Pima county enlarged to take in additional territory in which was included 2.7 miles of plaintiffs railroad. Prior to such annexation the districts’ outstanding bonded indebtedness was the sum of $1,469,000 and their taxable property, as shown by the assessment for the year 1927, was valued at $27,911,350. The board of supervisors of Pima county, at the time of making the levy of taxes for county purposes for the year 1928, as provided by law, levied a tax upon the property of such school districts, including the 2.7 miles of railroad recently incorporated into the districts, to be applied on the above outstanding bonded indebtedness of the districts. Such taxes amounted to the sum of $1,435.38, and this action is to recover such sum. The plaintiff’s complaint after giving the facts, of which the above is a résumé, charges that the indebtedness of the districts, for the payment of which the taxes were assessed against its property, is in *13 excess of four per centum of the 1927 assessed valuation of taxable property of the districts, both before and after enlargement, and for that reason such assessment and levy upon the 2.7 miles of its railroad violates section 8 of article 9 of the state Constitution. It also charges that the 2.7 miles cannot be legally assessed for taxes to pay the outstanding indebtedness incurred by the old districts. It further charges that the assessment is invalid and illegal, particularly that made to apply on the outstanding bonded indebtedness of the high school district, for the reason that such high school district was never legally enlarged to take in the 2.7 miles of its railroad. To this complaint defendants filed special and general demurrers. The general demurrer was sustained, and the plaintiff has appealed. Plaintiff makes two assignments of error, but they are of the same import and embody the contention that the property included in the newly added territory cannot legally be taxed to pay any part of the indebtedness of the districts contracted before the annexation. This is the sole question before us. If the annexed territory was, at the time of its inclusion in said school districts, in or a part of another district, this contention would probably have to be sustained. If, however, it was in what may be designated as unorganized territory for school purposes, a different rule would apply. This conclusion is based upon the language of paragraph 5272 of the Revised Statutes of Arizona 1918, Civil Code, in force at the time of the annexation. Such paragraph reads: “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 *14 charged with, the payment of any of the principal sum or interest thereon evidenced by such indebtedness.” The complaint does not allege that the annexed territory is, or ever had been, any part of an organized school district. This omission, it seems, should be taken and treated as an admission that the added territory was unorganized territory. That is an admitted fact. We have no statute providing for a situation like the present, and, in determining whether the property in the annexed territory must contribute its proportion to the liquidation of the indebtedness of the districts, legally incurred before its inclusion therein, we must be governed by general principles and by the decisions of other courts, unless there be found in our Constitution a provision that takes care of the situation. Plaintiff points to section 8, article 9, and section 13, article 7, of the state Constitution, as controlling. Section 8 limits' the power of a county, city, town, school district and other municipal corporations to become indebted in any manner to an amount exceeding four per centum of its taxable property, without the assent of a majority of the property taxpayers, legally entitled to vote, voting at an election; but, if such majority gives its assent, a school district may become indebted to an amount not exceeding ten per centum of its taxable property, ascertained by the last assessment for state and county purposes previous to incurring such indebtedness. Plaintiff admits in its complaint and in its brief that the indebtedness of said school districts, towards the payment of which its property is assessed, is valid; that it was incurred by the districts in the manner provided by the Constitution and the law supplementary thereto. *15 Section 13, supra, provides that questions upon bond issues shall be submitted to a vote of the property taxpayers who are qualified electors of the political subdivision of the state affected by such question. It is not contended that said school districts did not conform their action in incurring the indebtedness with the provisions of this section of the Constitution. The assent to the districts’ incurring the indebtedness of a majority of the property owners of the districts legally entitled to vote at the time being confessed or admitted, the question is, Must the property of only those who assented, or had the opportunity to assent, be taken to pay the indebtedness, or may the property of others later brought into the districts by annexation in the manner provided by law be also taken to pay the indebtedness? Under the above provisions, the right and opportunity to vote on bond issues of a school district is limited to those legal voters who have property in the district at the time that will be subject to a tax to pay the bonds, and not those whose property is later by lawful methods incorporated into the district. And the fact that plaintiff’s property was annexed to the school districts without its consent is immaterial. Subject to such constitutional limitations as may exist, the power of the legislature over school districts is plenary. It may divide, enlarge, diminish or abolish them at pleasure. Pass School Dist. v. Hollywood, City School Dist., 156 Cal. 416, 20 Ann. Cas. 87, 26 L. R. A. (N. S.) 485, 105 Pac. 122; 1 Dillon on Municipal Corporations, p. 54; 24 R. C. L. 562, § 6. There is no serious contention, at least the question is not presented by an assignment, that the change of the boundaries of the districts was not effected in the manner provided by paragraphs 2721 and 2722 of the Revised Statutes of Arizona 1913, Civil Code, *16 nor that such change was not lawfully made. In Adriaansen v. Board of Education, 222 App. Div. 320, 226 N. Y. Supp. 145, 149, the court, after stating “ . . . it is conceded that there is no express provision of statute making the property in the annexed [school] districts subject to assessment for the payment of the bonds issued by old district No. 1 before the annexation of the other districts, ’ ’ said: *17 Municipal Corporations (4th ed.), p. 268. Many cases are collated, in those authorities, sustaining the statements of the texts. There is also an exhaustive note to the case of Blake v. Jacks, 18 Idaho 70, 108 Pac. 534, 138 Am. St. Rep. 177, in 27 L. R. A. (N. S.) 1147, in which many cases are digested. Decisions by the courts of this state are to the same effect. ’ ’ *16 “We do not understand that an express provision of statute is necessary to accomplish that result. “The law applicable to such a situation, as stated in many authorities, is that property in the territory annexed is liable to assessment for the payment of bonds and liabilities of the municipal corporation or district to which the territory is annexed. The authority of the Legislature over the boundaries of subdivisions of the state is absolute. It may consolidate, add to, or take from the territory of a municipality or district, without the consent of the municipality or district affected. By such action the rights of individuals in the territory affected are not violated. The fact .that persons and property in the territory annexed may be subject to taxation to pay bonds and obligations theretofore voted, without their having had any voice or vote in creating the liability, does not render the act of annexation void. There is no contract between citizens of a particular municipality and the corporation that the property within the particular territory shall not be taxed for the benefit of another municipal corporation or district to which it may be annexed, even though the tax is assessed to raise money to pay bonds or obligations voted and incurred by the municipality or district before the annexation. 43 Corpus Juris, p. 143, § 122, reads: “ ‘Debts of a municipality contracted before an annexation of territory become a burden upon the added territory as well as upon the original territory in the absence of statutory provision to the contrary.’ “See, also, section 123, same. “Similar statements are contained in other textbooks. 20 Am. & Eng. Enc. of Law (2d ed.) 1152; 26 Cyc. 224;. 19 Ruling Case Law, 732; Dillon on *17 Indeed, there seems to be no dissent from the above expression of the law. When, as here, neither legislation nor Constitution has provided that property in annexed territory to a municipality or school district shall be exempt from taxation to pay the corporate indebtedness incurred before annexation, the consensus of opinion seems to be that it is liable to the same extent as other property situate therein. Under the decisions, if it were not for paragraph 5272, supra, the newly incorporated territory, even though it had formerly been a part of another school district, would be subject to the tax. It is said in Blake v. Jacks, supra: “Where it is not prohibited by statute, the natural and legal result of annexation of one portion of a county to another is that such annexed portion must pay its ratable share of the indebtedness of the county to which it is annexed.” The limitation as to the amount a school district may become indebted and the method pursued in its incurring, as prescribed in the foregoing constitutional provision are not involved here. It is not necessary to determine whether that limitation of indebtedness therein provided includes debts both voluntarily incurred and those incurred by operation of law, as distinguished in Lake County v. Rollins, 130 U. S. 662, 32 L. Ed. 1060, 9 Sup. Ct. Rep. 651, and in People v. May, 9 Colo. 404, 12 Pac. 838, where the validity of the indebtedness itself was in question. The debts here incurred before the annexation are unquestionably valid. While those property owners *18 in a school district who are also legal voters therein are entitled to an opportunity to give or withhold their assent to the incurring of a bonded debt at an election on the question, the constitutional provisions above do not give the right to vote thereon to owners of property that later becomes by operation of law a part of the districts. In other words, there is no provision in our Constitution or statutes requiring that property owners must in all cases give their consent to a tax levy before it is legal. Except where restrained by the Constitution, the legislature’s power over taxation is plenary, just as it is over the enlarging, diminishing, or abolishing of school districts. Plaintiff states in its brief that Texas, under a provision of its Constitution “almost identical with ours . . . and framed for the same purpose,” has held that the owners of property in annexed territory are not taxable to pay debts of a school district contracted before the annexation. The case relied upon in support of this statement is Crabb v. Celeste Independent School Dist., 105 Tex. 194, Ann. Cas. 1915B 1146, 39 L. R. A. (N. S.) 601, 146 S. W. 528. Section 3, article 7, of the Constitution of Texas, after providing for a continuing tax and appropriation for each public free school in the state, in an amount sufficient to maintain and support it for not less than six months each year, states that “the legislature . . . 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 taxpaying voters of the district, voting at an election to be held for that purpose, shall vote such tax, not to exceed in any one year twenty cents on the one hundred dollars valuation of the property subject to taxation in such district. ...” *19 Now let us apply the facts to this provision of the Constitution. Several years prior to 1907 the property tax-paying voters of Celeste school district voted a tax of twenty cents on the one hundred dollars valuation of the property subject to taxation therein, and had thereafter annually collected such tax for the support of its schools. In May of 1907 new and additional territory was annexed to the district. ■ The question was whether a tax could be collected from the property owners in the added territory under the levy made some years before the annexation, or was it essential to a valid levy that it be made subsequent to the annexation. The court held, and very properly, that under the terms of the Constitution the tax-levying body of the district was the property tax-paying voters of the district and that taxpayers of the district as enlarged should have been given an opportunity to vote thereon. It will be noted that the above constitutional provision requires that the tax be voted by “two-thirds of the qualified property taxpaying voters” of the district, and that it is an annual tax to be fixed by those who pay it, or at least two-thirds of them, all having an opportunity to vote. The levying body are those taxpayers who are required to pay the current annual tax, and not just that portion of them who belonged in the district before its enlargement. As is said by the learned justice who wrote the opinion: “It is an accepted rule of construction that, where a power is expressly given by the Constitution, and the mode of its exercise is prescribed, such mode is exclusive of all others.” We have held that an assessment must be made by the officer designated by the law or it will be void. Southern Pac. Co. v. Graham County, 36 Ariz. 359, 285 Pac. 998. It can easily be seen that there is no *20 analogy between the facts and the law in the Crabb case and the facts and law in the present case. Gases involving fact situations the same as we have here were urged upon the court in the Crabb case by ■the school district to sustain its contention that the levy upon the property in the annexed territory was legal, and the court took the trouble to examine them all, and pointed out the constitutional and legal principles that distinguished them from the case in hand. One of such cases was from that state. It is Madry v. Cox, 73 Tex. 538, 11 S. W. 541, and it involved the same question we have. It was whether or not property within annexed territory was subject to taxation for a debt previously incurred by a vote of the people of the city of Bonham, to which such territory had been added. The court, after quoting from the Madry opinion, as follows: “ ‘When this is done, the indebtedness of the corporation continues; and persons within territory annexed will become, in the absence of legislation to the contrary, subject to taxation for all municipal indebtedness. existing before annexation, as well as that afterwards contracted’ ”— said: “This has ever been the law in this state, and, so far as we know, in all other jurisdictions, where there is an absence of legislation controlling the subject; but in what respect it throws light upon the question we are considering we are not able to determine. 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 constitutional provision, 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. In that case, a debt was created by a vote of the people; but the tax was levied by the municipality, and not by the property owners.” *21 Another ease is White et al. v. City of Atlanta, 134 Ga. 532, 68 S. E. 103, wherein .that court, in speaking of the duty of newly added territory to the city, said: “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.” If plaintiff’s contention should be sustained, it would produce unjust, not to say unreasonable results. The residents of the annexed territory would be and-remain in said school districts No. 1 of Tucson, and those of school age would be entitled to attend its free schools, with the same privileges as the children of those who had pledged their property to pay the bonds, the proceeds of which were used to build the schoolhouses. They would receive the benefits accruing to the districts by reason of the bond issue and enjoy the school facilities acquired by the districts with the bonds without paying a cent on any of the districts’ improvements made before such districts were enlarged. It is but common justice that the owners of property in the annexed territory should share the burdens of the districts legally assumed before the annexation, since they reap the benefits thereof. Educational benefits are not the only accretions from a fine system of public free schools in Tucson. In proportion as the standard of its schools is raised, its attractiveness as a playground and winter resort will be enhanced, so that even a transcontinental transportation line like plaintiff’s may be expected to benefit from an increase in traffic. We are satisfied that the plaintiff’s contentions are not justified under the above constitutional provisions or any law of the state. *22 The complaint fails to state a cause of action, and the demurrer was properly sustained. The judgment is affirmed. McAlister, C. J., concurs.