Ronald Gene MOORE, a qualified elector of the City of Page, Arizona, Plaintiff-Appellant, v. The CITY OF PAGE, Arizona; David A. Pape, Mayor, George Koury, Pam Everhart, Harold Johnson, Jo Ellen Bingham, Don Thibodeaux and Scott Orrock, Councilmen; and Pat McCourt, Clerk, Defendants-Appellees.
No. 1 CA-CIV 8316.
Court of Appeals of Arizona, Division 1, Department C.
Jan. 16, 1986.
713 P.2d 813
KLEINSCHMIDT, Judge.
O‘Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, P.A. by John H. Westover, Richard E. Mitchell, Scott E. Boehm, Alan A. Meda, Phoenix, for defendants-appellees.
KLEINSCHMIDT, Judge.
Ronald Gene Moore, an elector of the City of Page, challenges the judgment entered against him in an action he filed to invalidate the results of a bond election held in Page on January 29, 1985. Although certain irregularities with respect to the election occurred, we affirm the court below and validate the election because we are convinced that there was no fraud or chicanery practiced against the voters of Page, and we feel certain that the result of the election was unaffected by the irregularities.
FACTS
Arizona Public Service Co. supplies electricity used by the residents of the City of Page. Since 1976, the year after the city was incorporated, the city has considered acquiring the electrical distribution facility which services the city. In late 1983 or early 1984, a petition bearing the signatures of 400 citizens of Page was submitted requesting the city council to look into the acquisition. Following submission of the petition, the city council set up a citizens’ committee and hired an attorney and a consulting firm from Washington, D.C. to advise the committee. The committee conducted a feasibility study and in December 1984, recommended to the city council that the city acquire the electrical distribution system owned by Arizona Public Service.
On December 19, 1984, the Page City Council adopted Resolution No. 294, which called for a special bond election to be held on January 29, 1985. The council wanted to have the election as soon as possible so that the city would be eligible to acquire supplemental power from Hoover Dam, an acquisition that was believed would save the rate payers a large sum of money. The specific question to be voted on was:
Shall the City of Page, Arizona be authorized to incur indebtedness by the issuance of electric utility revenue bonds in the principal amount of $10,000,000.00 dollars for the purpose of providing funds to acquire the existing electric distribution system providing the City‘s inhabitants and others with electric power and light, including all right-in-land, properties, facilities and equipment necessary for the operation of said system and to pay all legal, financial, engineering consulting and other necessary costs in connection therewith, said bonds to be in denomination of $5,000.00 each, or any multiple thereof, to bear interest at a rate not to exceed 13% per annum payable semi-annually on the first day in July and January of each year (except that the first payment may be in a period not to exceed one year) until the maturity of each bond and the bond to mature over a period not to exceed thirty (30)
years from the date of issuance and to be payable solely from the revenues of the electric distribution system?
The resolution to hold the election passed without the three-fourths vote of the city council necessary for it to take immediate effect as an emergency measure. Therefore, under the terms of
On January 9 and on January 16, 1985, notice of the election was published in the Lake Powell Chronicle. The notice was a copy of Resolution 294, except the words “and declaring an emergency” were erroneously left in the title, which was printed in bold-face.
Pursuant to
During negotiations for the contract, the county recorder told the mayor and city clerk that
On January 1, 1985, the Coconino County Recorder, as required by
The results of the January 29, 1985, election were 1,570 in favor of the bonds and 149 against. The results were canvassed and ratified on February 5. On February 8, Moore filed an action to contest the results of the election. After trial, judgment was entered against Moore and the election was confirmed. Moore filed a timely appeal.
Moore raises five issues:
1) Whether the election is invalid because the city used registration lists which contained names of unqualified electors;
2) Whether calling the election after the registration deadline resulted in a disenfranchisement of voters which invalidates the election;
3) Whether the trial court correctly upheld the results of the special bond election where on both the notices and ballot the city represented that the bonds could be issued at up to 13% interest;
4) Whether the city misrepresented the election as an emergency measure and undertook action pursuant to the authority of the resolution prior to the effective date of the resolution; and
5) Whether the trial court applied the proper standard of proof in this case.
For their part, the appellees contend that Moore is not legally entitled to bring this action because he supposedly failed to assert any grounds for relief under
Arizona Revised Statutes
- For misconduct on the part of election boards or any members thereof in any of the counties of the state, or on the part of any officer making or participating in a canvass for a state election.
- That the person whose right to the office is contested was not at the time of the election eligible to the office.
- That the person whose right is contested, or any person acting for him, has given to an elector, inspector, judge or clerk of election, a bribe or reward, or has offered such bribe or reward for the purpose of procuring his election, or has committed any other offense against the elective franchise.
- On account of illegal votes.
- That by reason of erroneous count of votes the person declared elected or the initiative or the referred measure, or proposal to amend the constitution, or other question or proposal submitted, which has been declared carried, did not in fact receive the highest number of votes for the office or a sufficient number of votes to carry the measure, amendment, question or proposal.
The gist of the appellant‘s claims fits within one of the two following grounds: “the person whose right is contested, has committed any other offense against the elective franchise,” or “on account of illegal votes.”
Earlier decisions have considered the following as grounds for an election contest: that unregistered voters have voted, Territory ex rel. Sherman v. Board of Supervisors of Mohave County, 2 Ariz. 248, 12 P. 730 (1887); that the election was held in a building other than that designated in the election notice, Chenoweth v. Earhart, 14 Ariz. 278, 127 P. 748 (1912); that ineligible electors were allowed to vote and that the ballot was not in the form required, Abbey v. Green, 28 Ariz. 53, 235 P. 150 (1925). Certainly, the failure, on January 1, 1985, to purge from the registration lists those who had not voted in the preceding general election would support a contest “on account of illegal votes.” We think this, as well as the call for an election after registration had closed and the inclusion of misleading or irrelevant material on the ballot and in the notices of the election, constitute a sufficient allegation of offenses against the elective franchise to come within the statute.
We further find, contrary to the city‘s contention, that Moore is not estopped from raising these issues after the election. Our supreme court ruled in Griffin v. Buzard, 86 Ariz. 166, 342 P.2d 201 (1959), that estoppel is not a defense to an election contest. In Griffin, the contestor challenged the results of a primary election, asserting that the winner of the election had confused the voters by placing the name of a sham candidate on the ballot. The defense asserted that the contestor was estopped from challenging the election because he knew of the fraud two months before the election. The court held that if estoppel were a defense in an election contest, the statutory provision allowing a contest after an election would be nugatory. Griffin, 86 Ariz. at 173, 342 P.2d at 205.
None of the four cases appellees cite applied the estoppel doctrine in an election contest suit. Two of them, Renck v. Superior Court of Maricopa County, 66 Ariz. 320, 187 P.2d 656 (1947) and Allen v. State, 14 Ariz. 458, 130 P. 1114 (1913), were not election contests but were cases challenging the validity of particular laws by collaterally attacking the procedures by which the laws came to be voted on by the people. Nor is Kerby v. Griffin, 48 Ariz. 434, 62 P.2d 1131 (1936), an election contest. It cites the estoppel doctrine in dicta for the proposition that it is proper to challenge
FAILURE TO PURGE VOTER REGISTRATION LIST
A political subdivision of the state may contract with the county recorder under
The city relies on the testimony of the county recorder that she had followed her normal procedure, a procedure she believes is followed state-wide, when she prepared the list based on the county rolls as they existed on December 10, 1984. This procedure was accepted as correct by the trial court.
The procedure used by the Coconino County Recorder is contrary to our statutes governing voter eligibility in special elections. Arizona Revised Statutes
A person whose name appears on the general register of voters for the last preceding general state and county election and who has not been canceled out for failure to vote . . . shall, if otherwise qualified, be entitled to vote at any such special election authorized by law.
Arizona Revised Statutes
The county recorder shall, on January 1 of the year following each general election, remove and cancel from the general county register the registration of any elector who did not vote in the preceding general election.
Pursuant to
Moore has failed to establish, however, that any of these ineligible citizens actually voted in the election. One who contests an election has the burden of proving that if illegal votes were cast the illegal votes were sufficient to change the outcome of the election. In Morgan v. Board of Supervisors, 67 Ariz. 133, 143, 192 P.2d 236, 243 (1948), our supreme court quoted with approval the general rule as expressed in 29 C.J.S. Elections § 274:
Where an election is contested on the grounds of illegal voting, the contestant has the burden of showing that sufficient illegal votes were cast to change the result, and of showing for whom or for what they were cast.
We cited the same principle in Millet v. Board of Supervisors of Maricopa County, 6 Ariz.App. 16, 19, 429 P.2d 508, 511 (1967), and went on to say that “[o]ur Court, by the pronouncements in Morgan, is committed to the general rule of law that where an election is contested on the grounds of illegal voting, contestant has the burden of showing that sufficient illegal votes were cast to change the result, and of showing for whom or for what they
As previously noted, Moore has not established that any of the ineligible electors cast a ballot in the special election. Further, considering the overwhelming number of votes by which the bonds were approved, the outcome of the election could not have differed even if every illegal vote had actually been cast in favor of the bond issue. The inclusion of the ineligible names on the voters list is not grounds alone to set aside the election.
VOTER DISENFRANCHISEMENT
Moore also alleges that the election should be invalidated because Page disenfranchised an undetermined number of city voters by holding the election only forty-one days after it was called, thereby preventing unregistered voters from registering before the fifty-day cutoff provided for by
When a municipal corporation wishes to call a special election for the purpose of issuing bonds, it has a choice of procedures. One option, provided for in
Another option is
Another option is for the city to use county registration rolls as provided for in
Any political subdivision of this state conducting an election pursuant to the laws of this state, which lies within a county, may use the county registration rolls to conduct such an election. The governing body of such a political subdivision shall negotiate a contract with the county recorder to reimburse the county recorder for his actual expenses in pre-
paring the necessary lists. . . . Such contracts shall be negotiated at least sixty days in advance of the election.
If a city chooses to use this option, the qualifications of electors are as found in
A person whose name appears on the general register of voters for the last preceding general state and county election and who has not been canceled out for failure to vote, or a person who voted in the last preceding general election for presidential electors only and has subsequently met the residency requirements for voting in all elections, or a person who has registered on or before the fiftieth day preceding a special primary, special general, special recall or other special elections, shall, if otherwise qualified, be entitled to vote at any such special election authorized by law.
Moore argues that
Finally, we note there is nothing in
Moore argues that we should avoid finding that the statutory scheme for municipal bond elections does not guarantee registration opportunities for all elections. He says that “[r]egistration laws should be construed so as to uphold and sustain the citizen‘s right to vote.” Abbey v. Green, 28 Ariz. 53, 72, 235 P. 150, 157 (1925). While this maxim may be true, we do not believe it allows us to superimpose a non-registration statute,
Even if Moore were correct that
[t]here are two cardinal rules which, in the absence of specific statutory provisions to the contrary, always have governed election contests, not only in Arizona, but elsewhere. The first is that general statutes directing the mode of proceeding by election officers are deemed advisory, so that strict compliance with their provisions is not indispensable to the validity of the proceedings themselves, and that honest mistakes or mere omissions on the part of election officers, or irregularities in directory matters, even though gross, if not fraudulent, will not void an election, unless they affect the result or at least render it uncertain.
Findley v. Sorenson, 35 Ariz. 265, 269, 276 P. 843, 844 (1929). Since Moore challenged Page‘s procedure through an election contest, he is entitled to his requested relief only upon a showing of fraud or upon a showing that had proper procedures been used, the result would have been different.
Moore does not allege that Page city officials acted fraudulently, and we accept that the haste with which the election was held was due to the city‘s eagerness to qualify for supplemental power from Hoover Dam at an advantageous rate. Moore contends that if we permit cities to call bond elections without giving time for citizens to register, such will encourage proponents of a bond issue to insure that all in favor of it are registered, wait until the fifty-day deadline passes, and then disarm opponents by calling an election without providing an opportunity to register. Had such a stratagem been employed in this case, Moore would have a good case for fraud. Since it did not occur, Moore‘s argument is best addressed to the legislature.
Given that there was no fraud, Moore is obliged to show that the alleged disenfranchisement may have affected the result of the election. The vote was overwhelmingly in favor of the bonds. Information derived from precinct workers showed that at most, ten people who presented themselves at the polls were not allowed to vote. Only one person who was not allowed to vote testified that he would have voted against the bonds. Moore claims, however, that it was impossible for him to prove the full extent of the harm caused by the city calling the election after registration had closed. While the burden might be difficult to carry it would by no means be impossible. Page is a small community. Moore could have attempted to present at least a reasonable estimate, based on census data and reliable population projections of how many persons could have been eligible to vote, and compared that number with the number of those who were eligible to vote. If a great many potential voters were unregistered Moore could argue that the possibility the result would have been different was great, or at least enhanced. Moore presented no evidence of why it was impossible to quantify the harm.2 The burden of proof in an election contest falls on the contestor; all reasonable presumptions must favor the validity of an election. Millet v. Board of Supervisors of Maricopa
The only case Moore cites in which an election was voided because of a retroactive registration cutoff is Stephens v. Mayor of Albany, 84 Ga. 630, 11 S.E. 150 (1890). In Stephens, the city council of Albany, Georgia, called a special bond election without allowing any registration beforehand. The city claimed that only those who had registered to vote for mayor and aldermen in a previous election were qualified to vote. The court ruled that the act specifying the qualifications for electors for mayor and aldermen were inapplicable to special bond elections because applying the qualifications would disenfranchise unwary citizens who were given no notice that failure to register to vote for mayor and aldermen meant disqualification from voting in any city election until the registration lists reopened almost one year later.
This case is distinguishable from Stephens. First, the applicable statute,
In summary, because nothing in the statutes required Page to provide citizens an opportunity to register before the special bond election, the city did not offend the elective franchise by calling the election after registration was cut off. Even if the procedure were improper, Moore has failed to prove fraud or that the result would have been different if proper methods had been followed.
RATE OF INTEREST ON BONDS
Moore contends that
To decide the point requires us to negotiate a maze of statutory provisions which do not mesh perfectly. The conflict revolves around whether the bonds must be issued under Article 2, Title 9, Arizona Revised Statutes, of which
Moore points to three statutes for support:
A. A municipal corporation may engage in any business or enterprise which may be engaged in by persons by virtue of a franchise from the municipal corporation, and may construct, purchase, acquire, own and maintain within or without its corporate limits any such business or enterprise. A municipal corporation may also purchase, acquire, and own real property for sites and rights of way for public utility and public park purposes, and for the location thereon of water works, electric and gas plants, municipal quarantine stations, garbage reduction plants, electric lines for the transmission of electricity, pipe lines for the transportation of oil, gas, water and sewage, and for plants the manufacture of any material for public improvement purposes or public buildings.
B. The municipality may exercise the right of eminent domain either within or without its corporate limits for the purposes as stated in Subsection A of this section, . . . .
* * * * * *
A. The municipal corporation, for any and all purposes provided in
* * * * * *
Arizona Revised Statute
There is vested in a municipality by this article full power:
1. To issue revenue bonds for the purpose of paying the cost of the improvement, reconstruction, extensions and additions to any existing revenue-producing utility of any kind or class at the time owned and operated by the municipality, however acquired.
* * * * * *
Moore argues that the words in
The City of Page, on the other hand, bases its argument on
A. In addition to its other powers, a municipality may:
1. [W]ithin or without its corporate limits, construct, improve, reconstruct, extend, operate, maintain and acquire, by gift, purchase or the exercise of the right of eminent domain, a utility undertaking or part thereof, and acquire in like manner land, rights in land or water rights in connection therewith.
* * * * * *
A. Bonds issued under this article . . . shall bear interest, payable semi-annually, at the rate set by the accepted bid which rate shall not exceed the maximum rate of interest set forth in the resolution calling the election, . . . .
* * * * * *
In so far as the provisions of this article are inconsistent with any other provision of law, the provisions hereof shall be controlling. The powers conferred by this article shall be in addition and supplemental to the powers conferred by any other law. Except as expressly provided in this article, the utility undertaking may be constructed, improved, reconstructed, extended and acquired, notwithstanding any other law providing for the construction, improvement, reconstruction, extension or acquisition of a like utility undertaking and without regard to the requirements, restrictions or other provisions contained in any law, including, but not limited to,
* * * * * *
The city argues that the words “construct” and “acquire” in both
The rules of statutory construction require us to reconcile, if possible, the existence of Article 2 with the sweeping provisions of Article 3. Moore argues, and we agree, that if a city wishing to begin operating a utility for the first time is entitled to proceed under Article 3, then Article 2 would be meaningless, as there would be no situation in which it would be proper to issue bonds under Article 2 but improper to issue them under Article 3. We must avoid holding that
Case law does not help us. The cases cited by the city in favor of its position deal with situations in which municipalities with existing utilities sought to expand operations by acquiring utilities which were operating in areas a city wished to serve. See City of Mesa v. Salt River Project Agricultural Improvement & Power District, 92 Ariz. 91, 373 P.2d 722 (1962); Desert Waters, Inc. v. Superior Court of Pima County, 91 Ariz. 163, 370 P.2d 652 (1962); City of Scottsdale v. Municipal Court of the City of Tempe, 90 Ariz. 393, 368 P.2d 637 (1962); and Sende Vista Water Co. v. City of Phoenix, 127 Ariz. 42, 617 P.2d 1158 (App.1980). None of these cases discuss whether the provisions of Article 3 may be used when a city initially desires to acquire a utility.
The city attempts to harmonize the statutes by arguing that the purpose of Article 3 was to authorize municipalities to finance the acquisition of utility undertaking through the issuance of revenue bonds, whereas the purpose of Article 2 is merely to grant cities the power to operate utilities. When one considers, however, that revenue bonds may be issued under Article 2, see
Moore‘s hypothesis that Article 2 applies when a city first seeks to acquire a utility and that Article 3 applies when it improves or extends that utility preserves the vitality of Article 2. It is necessary to decide if this hypothesis is reasonable in light of the applicable statutes. We are immediately confronted with the inconsistencies of various statutes in Article 3, namely, between
We believe that
That the legislature intended to preserve Article 2 notwithstanding the broad provisions of Article 3 is evidenced by Ariz.Laws 1970, ch. 89 wherein the legislature amended both
We thus hold that when a municipality seeks initially to acquire a utility, it must follow the provisions of Article 2. We believe this makes sense although, in the absence of legislative history, our explanation of the reasons for the statutes is necessarily speculative. The legislature could have intended that a municipality seeking to acquire a utility for the first time should act with caution. Thus, the nine percent interest ceiling either helps prevent an undue burden on the taxpayers if general obligation bonds are issued, or deters municipalities from charging exorbitant rates to repay the bonds if issued as revenue bonds. Once a utility has been acquired, however, there is a greater public interest in guaranteeing that it operates efficiently, especially since once a municipality obtains a utility, it operates it as a monopoly. See
Moore must demonstrate, however, that the city representing to the voters that the bonds could be issued at thirteen percent somehow affected the result of the election. In an election contest it is not the substance which was voted on which concerns the court but whether the procedure by which the election was carried out was fair. Moore did not show by evidence, and cannot show by logic, that those who voted for the bonds at thirteen percent would have voted against them were they to be issued at nine percent. Further, Moore does not allege that the mistake on the
EFFECT OF THE PASSAGE OF THE RESOLUTION WITHOUT AN EMERGENCY CLAUSE
Moore makes two arguments growing out of the fact that the election resolution was passed without an emergency clause. The first is that the election should be overturned because the notice of election was published with the words “and declaring an emergency” included in the bold print title. The second is that since the resolution of election was not an emergency measure and under the terms of
As to the notice of election having been published with the words “and declaring an emergency” in the title, Moore has presented no evidence to support his claim that these words, which were not on the ballot, confused voters or led anyone to vote for the measure that would not otherwise have done so. Moore never even proved that any voters actually read the notice of election. As he did not present any such proof, his argument fails. Allison v. City of Phoenix, 44 Ariz. 66, 77, 33 P.2d 927, 931 (1934).
More difficult to resolve is Moore‘s contention that the bond election was invalid because it was held without legal notice, the notice actually given being void because it was published prematurely. The question on this issue is whether we are obliged to pretend that nothing was printed in the Lake Powell Chronicle on January 9 and January 16, 1985, and thereby further pretend that the voters in Page had no notice of the election, and consequently invalidate an election wherein a vast majority of persons voting clearly expressed their will in favor of the acquisition of the utility.
Moore relies on State ex rel. Mittag v. Mayor of Borough of Park Ridge, 61 N.J.L. 151, 38 A. 750 (1897) and Shinall v. City of Catersville, 144 Ga. 219, 87 S.E. 290 (1915), both of which invalidated elections because the notices thereof were unauthorized. We decline to follow these decisions, however, because we believe that Arizona case law requires a different result.
There is apparently no statutory requirement that notice of the election was necessary in this case. Moore asserts that
The sole purpose of publishing notice of an election “is to warn the electors that an election is to be held. . . . [S]ubstantial compliance with the statute is all that is required.” McLoughlin v. City of Prescott, 39 Ariz. 286, 292, 6 P.2d 50, 52 (1931). After an election, statutory notice requirements become directory, and an election will be invalidated only if:
it appears that the failure to give notice for the full time specified by the statute has prevented electors from giving a full
and free expression of their will at the election, or unless the statute contains a further provision, the necessary effect of which is that failure to give notice for the statutory time will render the election void.
McLoughlin, 39 Ariz. at 294, 6 P.2d at 53. Neither
A common thread throughout Moore‘s arguments is that he seeks a means to overturn the election automatically without regard to whether fraud occurred or an irregularity affected the result. The importance of validating an election wherein a majority of voters has spoken requires Moore to bear his burden of proof to show quantifiable harm with regard to all his claims. He has failed to do so on this issue; therefore, his argument falls. Some irregularities might automatically invalidate an election, but this case simply does not present such a situation. Further, we do not believe that the publication of the notice of election was premature in any but the most technical sense. The gist of the resolution was to authorize the holding of an election. The giving of notice was a preparatory and peripheral act.
Another reason that the “unauthorized” publication of notice of the election should not vitiate the election has to do with the purpose of
BURDEN OF PROOF
Finally, Moore argues that the cumulative effect of the irregularities complained of casts a suspicion of fraud over the election, or at least is enough to shift the burden of proof from Moore to those who seek to uphold the results of the election. Assuming that everything that Moore complains of was indeed an election irregularity, given the irrefutable and innocent explanation of the need for haste on the city‘s part and Moore‘s quite proper refusal to allege fraud in fact, we do not
For the foregoing reasons, we affirm the judgment below. We vacate the finding of the trial court that the bonds can bear interest in excess of nine percent. We award appellees costs but reject their claim for attorney‘s fees under
Affirmed.
CORCORAN, J., concurs.
EUBANK, Judge, specially concurring:
I concur in the result.
KLEINSCHMIDT
Judge