Schuerman v. Territory of Arizona

STREET, C. J.

The appellants constitute the board of supervisors of Yavapai County. The territory, by Charles P. Ainsworth, its attorney-general, on the second day of September, 1899, obtained from the district court an alternative writ of mandamus against the defendants, members of said board, requiring them to levy and assess upon the taxable property of the county of Yavapai the sum of thirty-two cents on each one hundred dollars valuation for the years 1898 and *65 1899, and the sum of thirty-seven cents on each one hundred dollars of valuation for the year 1900, for the purpose of paying interest on two hundred and fifty-eight territorial funding bonds, of the denomination of one thousand dollars each, issued by the territorial loan commission on the seventeenth day of September, 1897. Upon the return of the writ and the filing of defendant’s answer, a statement of facts was submitted, which statement of facts the court adopted as its findings; and, as a result arising from the conclusions of law and the findings of fact, judgment was rendered for the plaintiff, and defendants were required to make such levy for the years 1898, 1899, and 1900. The defendants appeal, and present to this court three questions for consideration: “First. Were said bonds legally funded, without any demand from the board of supervisors of Yavapai County upon the territorial loan commission for such funding? Second. Could said bonds be legally funded after January 1, 1897 ? Third. Were said bonds legally funded at a meeting of said board of loan commissioners of the territory of Arizona, at a meeting at which only two members of said board were present; the third member being absent from the territory, and not in any manner consulted with reference to such funding?”

The history of these bonds is fully set out in former decisions of this court, to wit: Gage v. McCord, 5 Ariz. 227 , 51 Pac. 977 ; Coconino County v. Yavapai County, 5 Ariz. 385, 52 Pac. 1127 ; Yavapai County v. McCord, 6 Ariz. 423 , 59 Pac. 99 . The first and second questions presented for our view in this ease were therein discussed and settled, as also in the case of Bravin v. City of Tombstone, another territorial funding bond case, reported in 6 Ariz. 212 , 56 Pac. 719 . The district attorney for Yavapai County gracefully admitted the binding force of these decisions, but invited the court’s attention again to the questions, because of the grave results embodied in their solution. The discussion of those questions in his brief is full and explicit, but a study of it does not enable this court to change its views upon the questions referred to. In those cases this court held that the bonds were valid; that they were regularly issued; that a demand from the holders of the bonds was sufficient, without a demand from the municipal authorities. We also held that the limit of January 1, 1897, mentioned in the act permitting the refunding of bonds, was *66 intended to be restrictive only of the indebtedness which could be funded, and made the act applicable to such obligations as existed and were outstanding prior to that time, but that it did not terminate on that day the authority of the territorial officers to fund said obligations.

The third question: “Were said bonds legally funded at a meeting of said board of loan commissioners of the territory of Arizona, at a meeting at which only two members of said board were present; the third member being absent from the territory, and not in any manner consulted with reference to such funding?” is answered by our statute (par. 2932, subd. 2): “All words purporting to give a joint authority to three or more public officers or other persons, shall be construed as giving such authority to a majority of such officers or other persons, unless it shall be otherwise expressly declared in the law giving the authority.” The case cited by appellants (People v. Coghill, 47 Cal. 361 ), in which it was held that two members of the board of commissioners were not legally empowered to act in the absence of the third, is not in point; for it was the provision of that act that “the board of supervisors to whom the report shall be made, shall appoint three commissioners, who shall jointly view and assess upon each and every acre to be reclaimed or.benefited thereby,” etc. There is no provision in the Funding Act of 1887, as amended by Congress in 1890, that the commissioners should jointly act, but the board was tréated as a unit. The Funding Act is not strictly a Congressional act. It is a territorial act passéd by the legislature of the territory, and embodied in the Revised Statutes of 1887. For the purpose of assuring the validity of the act, and of placing any issuance of bonds under it beyond dispute, the act was presented to Congress for its affirmative approval, which it gave with some few amendments, generally verbal in their nature, and evidently for the purpose of making the act more specific. The title of the act passed by Congress clearly carries out that view, for the first provision of that act is “that the act of the Revised Statutes of Arizona of 1887, known as title XXXI, ‘Funding,’ be and is hereby amended so as to read as follows; and that as amended the same is hereby approved and confirmed, subject to future territorial legislation.” The act being a territorial act, and tlm commission being the creation of the territory, it is direeth *67 affected by paragraph 2932, supra. The judgment of the district court is affirmed.

Davis, J., and Doan, J., concur.