City of Glendale v. White

• Citation: 67 Ariz. 231,194 P.2d 435
• Decision Date: 01 June 1948
• Docket Number: 5079
• Parties: CITY OF GLENDALE et al. v. WHITE
• Court: Supreme Court of Arizona

194 P.2d 435

67 Ariz. 231

CITY OF GLENDALE et al. v. WHITE

No. 5079

Supreme Court of Arizona

June 1, 1948

Appeal from Superior Court, Maricopa County; Walter J. Thalheimer Judge.

Reversed and remanded.

John W Corbin, City Atty., of Glendale, and Kramer, Morrison, Roche & Perry, Special Counsel, of Phoenix, for appellants.

Richard S. Gilmore and C. A. McKee, both of Glendale, for appellee.

Francis J. Riley and George Read Carlock, both of Phoenix, amici curiae.

Udall Justice. Stanford, C. J., and La Prade, J., concur.

OPINION

Udall, Justice.

On this appeal we are presented again with the problem as to whether a municipality can lawfully expend its funds for membership dues in the Arizona Municipal League.

This action seeking declaratory and injunctive relief, was brought by Howard D. White (appellee), a citizen and taxpayer of the City of Glendale, against the city and certain of its officers (appellants) challenging the legality of contributing public funds toward the support and maintenance of the league. The trial court, doubtless deeming itself bound by the majority decision of this Court in the case of City of Phoenix v. Michael, 61 Ariz. 238, 148 P.2d 353, granted plaintiff's motion for summary judgment, declared such contributions illegal and enjoined the defendants from making further payments to the league. The facts are nowise in dispute.

The defendants make but one assignment of error which reads:

"The Superior Court erred in rendering judgment in favor of the plaintiff and against the defendants, because, under the undisputed facts and the law thereunto applicable, the City of Glendale has the right to be a member of the Arizona Municipal League, to avail itself of services rendered by the league, and to contribute proportionately to defray the necessary expenses of the League."

and submit in support thereof this single proposition of law:

"An incorporated city may lawfully expend its public funds for membership dues in a cooperative, non-profit association organized and existing for the sole purpose of furnishing municipal services to the cities and towns comprising its membership. Such disbursements are justified as expenditures for a lawful public purpose."

We are, therefore, confronted with the same questions that arose in the Michael case, supra; (1) is the purpose for which the city proposes to expend its moneys a public purpose; and (2) if this question be answered in the affirmative, does the city charter or the general law authorize the city to expend its moneys for such purpose?

In the Michael case, supra, the majority of this Court, as then constituted, held that such an expenditure was illegal as not being for a public purpose, hence there was no occasion to entirely pass upon the second question. If we are to blindly adhere to the rule of stare decisis the judgment of the lower court in the instant case should be affirmed as the only difference in the situation now and then is that the municipality there involved was a home-rule city and the league has since amended its constitution by omitting therefrom the offending Article "C" which read:

"To secure legislation which would be beneficial to the municipalities of the state and the citizens thereof and to oppose legislation injurious thereto."

which came in for particular condemnation by this Court in the Michael case, supra.

We readily agree with the late Justice Cardozo,

"* * * adherence to precedent should be the rule and not the exception. * * * labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one's own course of bricks on the secure foundation of the courses laid by others who had gone before him * * *." The Nature of the Judicial Process, by Cardozo, p. 149.

However where, as here, no property rights have become vested in reliance upon the old rule there is much less hesitancy upon the part of an appellate court to reconsider the correctness of its former decision particularly when it was decided by a divided court.

"The rules and principles of case law have never been treated as final truths, but as working hypothesis, continually retested in those great laboratories of the law, the courts of justice. Every new case is an experiment; and if the accepted rule which seems applicable yields a result which is felt to be unjust, the rule is reconsidered." The Nature of the Judicial Process, by Cardozo, p. 23.

"The final cause of law is the welfare of society. The rule that misses its aim cannot permanently justify its existence * * *." Ibid p. 66.

"* * * The general rule is that municipal corporations possess and can exercise only such powers as are granted in express words, or those necessarily or fairly implied in or incident to the powers expressly conferred, or those essential to the accomplishment of the declared objects and purposes of the corporation * * *." 37 Am.Jur. Municipal Corporations, sec. 112, p. 722. See also Municipal Corporations, Dillon, Fifth Edition, Vol. 1, Sec. 237, p. 448 et seq.

The defendants make no claim that the payment of dues which it proposes to pay to the league is expressly authorized by either the constitution, statute, or its charter. They wholly rely upon implied authorization.

It must be conceded that the City of Glendale has the following express authority: Article 13, Section 5, of the Arizona Constitution provides that every municipal corporation shall have the right to engage in any business which might be engaged in by a person, firm or corporation by virtue of a franchise from such municipality.

Article 2, Section 34 of the Arizona Constitution provides that every municipal corporation shall have the right to engage in industrial pursuits. In addition to which towns of the class of Glendale are, under Article 2, Chapter 16, A.C.A.1939, as amended, granted numerous additional powers, in fact the officers of a municipality are required to administer affairs touching a wide range of human activity, health and sanitation, fire control, safety and police protection, transportation, parks and playgrounds, and a score of other activities touching the daily life of every citizen. Some of these functions are purely governmental, while in others the municipality is acting strictly in a proprietary capacity.

The league is a non-profit cooperative association operated for the benefit of the thirty-five cities and towns within the state who comprise and compose its municipal membership. Within those cities and towns reside more than sixty per cent of the population of Arizona.

In connection with the discharge by the city officials of the multitudinous duties imposed upon them by law, it is well to determine what service the league offers its members. We quote from the articles of the league:

"2. The objects for which the league is organized and for which it exists and functions are the following:

"a- To promote the health, safety and general welfare of inhabitants and residents of cities and towns of Arizona by fostering the adoption by such cities and towns of sound methods of municipal government and sound methods of administration and conduct of municipal affairs.

"b- To promote improvement and efficiency in the municipal government and in the administration of municipal affairs in the cities and towns of Arizona.

"c- To promote cooperation between officials of cities and towns of Arizona and the interchange of experiences in the conduct of municipal government and municipal affairs to the end that each may profit from the experiences of the others.

"d- To promote periodical conferences or meetings of officials of cities and towns of Arizona for the discussion of municipal problems and by research and study to find solutions for the same.

"e- To render technical, informational and other services to cities and towns of Arizona in the conduct of their respective municipal governments and administration of their municipal affairs and for their general welfare.

"f- To publish, circulate and disseminate publications, articles and other information relating to conduct of municipal government and municipal affairs.

"g- To furnish the following services to its members, cities and towns:

"1. Technical services and advice for the planning and zoning governing the use of land;

"2. Uniform methods of accounting, traffic regulation, occupational licenses and operation of services rendered by member cities and towns in their proprietary capacity;

"3. Drafting of ordinances and issuing legal opinions approved by the League's City Attorneys' Committee on Law;

"4. Maintaining an information exchange for the use of such cities and towns and furnishing information to its member cities and towns which might affect their interest, rights and privileges under Federal and State government action; and

"5. The rendering of services in recodifying the statutes governing cities and towns of the State of Arizona, clarifying any conflict of laws and making their application uniform to all such cities and towns."

In grappling with our problem we realize full well that it is extremely difficult to determine in many cases what are and what are not "public purposes" for which public funds may be expended. See McQuillin, Municipal Corporations, Second Edition, Vol. 5, Sec. 2325, p. 938, for illustrations.

That the term "public purpose" is incapable of exact definition and changes to meet new developments and conditions of times was clearly stated by this Court in the case of City of Tombstone v. Macia, 30 Ariz. 218, 245 P. 677, 679, 46 A.L.R. 828:

"What is, and what is not, a public purpose? It is fundamental that taxes may not be levied for private purposes. * * *

"...