City of Globe v. Willis

CUNNINGHAM, J.,

Specially Concurring.—I concur in the order affirming the judgment of the lower court, but for very different reasons than those stated in the majority opinion.

The questions presented in the case, in my opinion, arise from the matters of establishing a sewer district and defining its boundaries to conform to the corporate limits of the city of Globe, and the enactment of the resolution of intention to construct the sewer and septic tank upon the determination by the city council that such improvement is necessary, and after the city council has officially, declared that the public health, interest and convenience of the city of Globe and its people required such sewer and septic tank, and that the improvement was of more than local or ordinary benefit and was of general benefit to the whole city and its people. The question is whether such matters are matters upon which the city authorities are empowered by general laws to legislate. *393These are the matters against which the referendum petitions were interposed. The matter of establishing special assessment districts and the levying of a special assessment upon a certain class of property within such district to pay for the construction of the improvement is a matter incidental to the main question. ,The power of the city council to cause the improvement to be made, when that power exists, necessarily carries the power to provide for payment of construction, as a necessary consequence to the power to cause to be constructed. If the acts of the city authorities in establishing the sewer district coextensive with the incorporated limits of the city—the determining and declaring that the public health, interest and convenience of the city and its people require the improvement, and that the improvement is more than local, but general in its nature—are matters legislative in their nature, then they are matters upon which the city is empowered by general law to legislate, and subdivision 8, section 1, article 4, of the state Constitution clearly is applicable, reserving the right to the qualified electors to invoke the referendum against them.

It is my opinion such matters are matters upon which the city of Globe is empowered by the general laws to legislate, and that the power of the city authorities to proceed with the legislation was suspended by the filing of the referendum petitions against the resolution of intention, including the matters establishing the sewer district and determining the necessity of the construction of the improvement. The referendum petition filed against the legislation, in effect, questioned the public policy of those matters, and required that issue to be submitted to a vote of the qualified electors for decision. .According to the authority cited from (1 Dillon Municipal Corporations, sec. 24), these matters directly affect the first class mentioned, who ought to have an equal voice therein, as Judge Dillon says, because the matters in question directly relate to, and are determined by the city council, and declared by the council such as the public health, interest and convenience of the city of Globe and its people require to be done, and of general benefit to the whole city and its people.

The matter of providing for the payment of the expense of the improvement follows, of course, but is dependent upon the power to make such improvement. When the power to *394make the improvement exists, and is ordered, then provision for the payment of the costs is authorized. The city council of Globe assumed the power to make the improvement existed, and could not be suspended by the filing of the referendum petitions, and upon such presumption provided for the paying of the cost of construction by a special assessment laid upon the real estate of the city of Globe. Such action affected the second class of the inhabitants of the city mentioned by Judge Dillon, to which class the powers of the referendum reserved in the constitutional provision do not apply, and properly, because the real estate may not be owned by all the qualified electors. The General Sewer Improvement Act recognizes this distinction, and provides that the owners of property liable to be assessed for the work may make written protest against the proposed work or against the extent of the district assessed or both. These protests must be made within a specified time after notice given of the intention of the city authorities to make the improvement, and they must be filed with the city clerk. The council must then proceed to hear and pass upon the protests, and its decision thereon is made final and conclusive. When the protest is against the proposed work and the cost thereof to be assessed upon the property within a district, and the council shall find that such protest is made by more than one-half of the owners in number and in and of the property within a district to be assessed for the proposed work, then no further proceedings shall be taken for a period of six months. Paragraph 1984, Civ. Code 1913.

The statute clearly recognizes the owners of the property to be assessed as a separate class from the qualified electors of the city, but a right to protest does not depend upon qualifications of electors. The statute does not require the protestant to be inhabitant of the city. The only qualification prescribed is that he be the owner of the property within the district assessed to pay the cost of the work. The Constitution reserves the right of the referendum to the qualified electors of the city, but not to the owners of a class of property about to be assessed to pay for local improvements.

I am of the opinion that the judgment should be affirmed upon the grounds that the powers of the city council to proceed with the ordering of the work proposed were suspended *395by tbe timely filing of tbe referendum petitions by a sufficient number of the qualified electors against the matters above stated, and the further proceedings of the city council in the matters were without authority of law.

For these reasons, I concur in the order affirming the judgment.

NOTE.—On the question of assessment for drains and sewers, see note in 60 L. R. A. 227. And as to persons and property liable for assessments for drains and sewers, see note in 58 L. R. A. 353. And for property liable for assessment for construction of drains and sewers, see note in 26 L. R. A. (N. S.) 973.