Bartlett v. MacDonald

ROSS, C. J. This is an appeal from an order and judgment sustaining a demurrer to plaintiff’s complaint praying an injunction restraining defendant, MacDonald, as treasurer and ex-officio tax collector, from collecting certain taxes levied for the year 1914 against his property for the construction and maintenance of the public highways in road district No. 3 of Maricopa county. This road district was organized in 1909 under the provisions of chapter 66 of the Laws of Ari [195] zona of 1907, and included in its territory an area about 8 miles wide by 13 miles in length. In 1912, chapter 66, supra, was re-enacted with immaterial changes of verbiage, but added two paragraphs, as follows: “5115. No road district shall be more than ten miles in length nor more than one mile in width. “5116. The provisions of this chapter so far as they are substantially the same as existing statutes, shall be construed as continuations thereof, and not as new enactments; and all road districts heretofore formed under existing statutes and in conformity with this chapter are hereby declared valid and continued in existence under this chapter; and all bonds of such road districts legally issued under existing statutes shall be unaffected by this chapter.” It is the contention of appellant that paragraph 5115 had the force and effect of dissolving or abrogating road district No. 3, so that it no longer exists, and that therefore the tax levy is authorized by no law, and its collection should be restrained. It is a well-grounded and settled rule that statutes will not be given a retroactive effect unless it clearly appears that the legislature so intended, and even then the intention must be manifest or the exigencies of the case compelling. When not otherwise indicated, the fair and reasonable assumption is that the intention of the lawmaker was that the statute should be prospective. As was said in Southwestern Coal Co. v. McBride, 185 U. S. 499, 503, 46 L. Ed. 1010, 22 Sup. Ct. Rep. 763: “The function of the legislature is to prescribe rules to> operate upon the actions and rights of citizens in the future. While, in the absence of a constitutional inhibition, the legislature may give to some of its acts a retrospective operation, the intention to do so must be clearly expressed, or necessarily implied from what is expressed. ’ ’ The dimensions of a road district as prescribed in paragraph 5115 are much less than the dimensions of road district No. 3, but the boundaries of district No. 3 were in accordance with the law at the time of its organization. It is quite clear that the legislature intended by the language of paragraph 5115 that no more road districts should be organized with dimensions greater than ten miles in length and one mile in [196] width, but it is far from being evident that it was intended to abolish districts theretofore organized with areas in excess of that prescribed. We think the contrary intention is manifest by the next paragraph, 5116. Therein, by express language,' it is said: “All road districts heretofore formed under existing statutes and in conformity with this chapter are hereby declared valid and continued in existence under this chapter. ’ ’ The condition of the preservation of a road district is not, as we view it, that it must have conformed in boundaries to the new law, but that the steps taken in its organization must have been in conformity with the new law, which is to all intents and purposes the same as the old law. The method or procedure of organizing a road district is practically the same under both, and, of course, it was not the purpose or intention of the legislature to validate a road district that was not organized in conformity to any law. The old law did not limit the boundaries of road districts, and we cannot, any more than the legislature could, assume that any of the districts theretofore organized were no longer than ten miles nor wider than one mile. If the fact should be that all road districts theretofore organized violated the new law in width or length, and we should hold, as we are asked to do, that paragraph 5115 is retroactive, and that the saving feature of paragraph 5116 is limited to such districts as conform in dimensions with the new statute, then it would follow that all road districts were abolished when the last act took effect. We will not ascribe to the legislative act a result so unreasonable and absurd. We think the fair and reasonable import of the language used by the legislature is that all road districts theretofore legally organized should be continued as valid. The validity of the tax sought to be restrained depends, according to the appellant’s complaint, solely upon the existence of road district No. 3. His contention is that it is nonexistent, and that the tax is therefore invalid. The real question we are asked to" decide is, then, whether there is any such quasi municipal corporation as road district No. 3. The existence of the corporation is brought into question collaterally by a private individual. As a general proposition, this is not permissible. ■ Municipal and quasi municipal corporations [197] are agencies, in the exercise of their public functions, of the state. 28 Cyc. 174, says: “The general rule is that, so long as the state does not see fit to forfeit the charter of a de facto municipality, or to oust it from the exercise of corporate powers, its existence is not subject to collateral attack at the private suit of any person. Suit by owners of property to enjoin the collection of taxes, or to recover taxes paid under protest, or to remove a tax cloud from the title, or to replevin or recover for the conversion of personalty distrained for taxes, or defenses in an action by the municipality, cannot be maintained on the ground of defect of incorporation or organization, unless such defect is so fatal as to render the incorporation absolutely void.” The existence of a corporation organized under a law afterward declared unconstitutional cannot, in a proceeding by it for the collection of a tax, be questioned by the taxpayer. For reasons of public policy, it will be permitted to do those things for which it was created, until the creator by proper direct proceedings challenges its right to exist. The authorities sustaining this proposition are abundant, and may be found collated under the following eases: Topeka v. Dwyer, 70 Kan. 244, 3 Ann. Cas. 239, 78 Pac. 417; School Dist. No. 2103 v. Board of County Commrs., 15 Wyo. 73, 11 Ann. Cas. 1058, 86 Pac. 24; People v. Ellis, 253 Ill. 369, Ann. Cas. 1913A, 589, 97 N. E. 697; McQuillin on Municipal Corporations, secs. 158, 159. The judgment is affirmed and ease remanded. FRANKLIN and CUNNINGHAM, JJ., concur.