Board of Regents of Universities and State College v. City of Tempe

• Decision Date: 19 October 1960
• Docket Number: No. 7002,7002
• Citation: 356 P.2d 399,88 Ariz. 299
• Parties: BOARD OF REGENTS OF the UNIVERSITIES AND STATE COLLEGE of Arizona, Appellant, v. CITY OF TEMPE, a municipal corporation; Hugh E. Laird, its Mayor; Rudolph E. Campbell; Francis N. Connolly; L Alton Riggs; Clyde E. Gililland; Arthur L. Livingston; Dr. Ross R. Rice, members of and comprising its City Council; A. L. Bunger, its City Manager, E. M. Barbre, the City Clerk; Paul Wykoff, the City Building Inspector; Samuel Kees, City Magistrate; E. Worth Farley, its Chief of Police, and William Barnes, its City Attorney, Appellees.
• Court: Arizona Supreme Court

Page 399

356 P.2d 399

88 Ariz. 299

BOARD OF REGENTS OF the UNIVERSITIES AND STATE COLLEGE of Arizona, Appellant, v. CITY OF TEMPE, a municipal corporation; Hugh E. Laird, its Mayor; Rudolph E. Campbell; Francis N. Connolly; L Alton Riggs; Clyde E. Gililland; Arthur L. Livingston; Dr. Ross R. Rice, members of and comprising its City Council; A. L. Bunger, its City Manager, E. M. Barbre, the City Clerk; Paul Wykoff, the City Building Inspector; Samuel Kees, City Magistrate; E. Worth Farley, its Chief of Police, and William Barnes, its City Attorney, Appellees.

No. 7002.

Supreme Court of Arizona.

Oct. 19, 1960.

Rehearing Denied Nov. 15, 1960.

Wade Church, Atty. Gen., Leslie C. Hardy, Chief Asst. Atty. Gen., Stanley Z. Goodfarb, Asst. Atty. Gen., and J. Byron McCormick, Tucson, Advisor to Bd. of Regents, on the brief, for appellant.

William Barnes, City Atty., Lewis, Roca, Scoville, Beauchamp & Linton, by W. E. Patterson and John P. Frank, Phoenix, for appellees.

League of Arizona Cities and Towns, amici curiae.

BERNSTEIN, Justice.

Appellant Board of Regents of the Universities and State College of Arizona (hereinafter called the 'Board' or 'Board of Regents') appeals from a judgment of the Superior Court of Maricopa County denying its prayer for injunctive relief against the City of Tempe and officials thereof.

The record shows that the Board of Regents is engaged in an extensive construction and remodeling program to provide the buildings and other facilities necessary for the education of the increased number of students enrolled at Arizona State University. This program is carried on under the supervision and control of the Building and Grounds Department of the University. The City of Tempe, within whose boundaries the University is located, has promulgated various building codes and regulations which require that building, electrical and plumbing permits be obtained, and licensee fees paid, before construction may commence within the City. The Board having failed to secure these permits or pay the fees, the City in August 1959 served a Stop Order against further construction and advised the University that criminal sanctions would be strictly enforced if the University failed to comply with the City codes.

The Board of Regents thereupon commenced this action to enjoin the City of Tempe from interfering with the University's construction program, from demanding compliance with its building codes and from threatening or instituting civil or criminal proceedings. The Superior Court issued a temporary restraining order against the City, but, thereafter, held, as a matter of law, that the City had the power to regulate the construction and maintenance of the University's buildings. The restraining order was thereupon dissolved and judgment was entered denying injunctive relief to the Board.

The City urges preliminarily that, by virtue of A.R.S. § 12-1802, the Superior Court was without jurisdiction to entertain the Board's application for injunctive relief against the City and its officials. We consider this contention to be without merit.

A.R.S. § 12-1802 provides, in relevant part:

'An injunction shall not be granted:

* * *

* * *

'4. To prevent enforcement of a public statute by officers of the law for the public benefit.'

Although it is clear that the above section generally bars a party from obtaining injunctive relief against threatened civil or criminal proceedings predicated on a public statute, this Court has on several occasions held an injunction to be a proper remedy where it is alleged that the statute is invalid or is being applied in an unauthorized manner. See McCluskey v. Sparks, 80 Ariz. 15, 291 P.2d 791; Thrift Hardward & Supply Co. v. City of Phoenix, 71 Ariz. 21, 222 P.2d 994, 22 A.L.R.2d 810; Crane Co. v. Arizona State Tax Commission, 63 Ariz. 426, 163 P.2d 656, 163 A.L.R. 261; see City of Glendale v. Betty, 45 Ariz. 327, 332, 43 P.2d 206.

In Crane Co. v. Arizona State Tax Commission, supra, the Court, in affirming in part an injunction issued against the State Tax Commission, stated:

'Notwithstanding the statute, we believe it to be the law that if public officers exceed their authority and resulting injury cannot be adequately provided by proceedings at law, equity will enjoin the commission of such illegal act. * * *

'While it is true that courts will not interfere by injunction where officers are acting in the execution of a public statute, they may be enjoined from acts which are beyond their power.' 63 Ariz. at page 445, 163 P.2d at page 664.

See also McCluskey v. Sparks, supra, where the Court, in sustaining a complaint which sought to enjoin the assessor of Maricopa County, stated:

'Defendants present the proposition plaintiffs are attempting to enjoin the execution of a public statute in violation of section 26-104, A.C.A.1939 [now A.R.S. § 12-1802]. This section does prohibit the use of injunction to prevent the execution of a public statute by officers of the law. This case, however, does not come within the prohibition of the statute. Plaintiffs are not seeking to enjoin the assessor from assessing their property or the board of equalization from equalizing the same in accordance with the statutes applicable thereto. They are seeking to require these officials to comply with the statutes and constitutions of Arizona and of the United States. This court has held that the taxing officials cannot under the pretense of executing a taxing statute impose taxes not authorized thereby.' 80 Ariz. at pages 20-21, 291 P.2d at page 794.

In the instant case the Board of Regents contends that the City of Tempe is without power to enforce its building codes and regulations against Arizona State University. Implicit in that contention is the claim that such codes and regulations, in so far as they apply, expressly or impliedly, to the construction and remodeling program undertaken by the Board of Regents at the University, are improper and invalid on their face. Such contentions, if sustained, clearly warrant the injunctive relief sought herein.

Further, the City's threats to enforce its codes by criminal proceedings have apparently caused delays in the University's construction program, thereby imposing on the University and the public irreparable injury which makes damages at law totally inappropriate. In view of the public function fulfilled by the Board of Regents, we consider it highly undesirable to compel the Board to subject itself, the University or its employees to the risk of criminal or civil sanctions in order to obtain a judicial determination of the validity of the City's position.

The ultimate question is whether a city may apply its building codes and regulations to the construction and maintenance of a State university or college located within the city. Resolution of this question depends, in the main, on the legal status and powers of the university and of the city.

Article XI, Education, of the Arizona State Constitution provides in section 1, A.R.S.:

'The Legislature shall enact such laws as shall provide for the establishment and maintenance of a general and uniform public school system, which system shall include * * * a university * * *.'

Section 2 thereof provides:

'The general conduct and supervision of the public school system shall be vested in a State Board of Education, a State Superintendent of Public Instruction, county school superintendents, and such governing boards for the State institutions as may be provided by law.'

Section 5 thereof provides:

'The regents of the University * * * shall be appointed by the Governor, except that the Governor shall be, ex-officio, a member of the board of regents of the University.'

A.R.S. § 15-721 provides that the Board shall consist of the Governor, the State Superintendent of Public Instruction and eight members, appointed by the Governor with the advice and consent of the senate, who are required to execute a bond to the State. Section 15-723 sets forth the compensation of the appointed Board members.

A.R.S. § 15-724, as amended by § 15-729, provides:

'A. The board of regents shall be a body corporate with perpetual succession and shall have the name 'board of regents of the university and state colleges of Arizona.' The board shall have jurisdiction and control over the university and state colleges [including Arizona State University at Tempe].

'B. The board may:

'1. Adopt a corporate seal.

'2. Contract and be contracted with.

'3. Sue and be sued.

'4. Purchase, receive, hold, make and take leases of, and sell real and personal property, for the benefit of the state and for the use of the institutions under its jurisdiction.'

A.R.S. § 15-725, provides, in part, that the Board shall:

'1. Enact ordinances for the government of the institutions under its jurisdiction.'

The City of Tempe is a municipal corporation, without special charter, which derives its powers from Article XIII of the Constitution and Title 9 of the Arizona Revised Statutes. A.R.S. § 9-276, subdivision A, authorizes cities to:

'14. Prescribe the thickness, strength and manner of constructing stone, brick and other buildings, and construction of fire escapes.

'15. Fix and designate by ordinance fire limits within which no buildings having outside wooden walls shall be constructed or repaired so as to increase their value beyond a percentage to be fixed in the ordinance, and, by ordinance, prescribe special fire limits, within the general fire limits, requiring therein building material to be used and additional precautions to be observed in the construction of new buildings, and in the repairing and maintenance of buildings, as may from time to time be designated, for the prevention of fires and the spread thereof, and provide for the enforcement of the ordinance and for the appointment of a building inspector, his authority, his term of office and compensation.'

A.R.S. § 9-461, subdivision B,...