City of Phoenix v. Michael

• Citation: 61 Ariz. 238,148 P.2d 353
• Decision Date: 17 April 1944
• Docket Number: Civil 4609
• Parties: THE CITY OF PHOENIX, a Body Politic and Corporate, NEWELL W. STEWART, J. R. FLEMING, CLAUDE C. JONES, FLOYD A. FORD, ALICE MOSIER, THOMAS SULLIVAN, and JOHN H. UDALL, Appellants, v. E. W. MICHAEL, a Taxpayer of the City of Phoenix, Arizona, for Himself and for All Others Similarly Situated, Appellee
• Court: Supreme Court of Arizona

148 P.2d 353

61 Ariz. 238

THE CITY OF PHOENIX, a Body Politic and Corporate, NEWELL W. STEWART, J. R. FLEMING, CLAUDE C. JONES, FLOYD A. FORD, ALICE MOSIER, THOMAS SULLIVAN, and JOHN H. UDALL, Appellants, v. E. W. MICHAEL, a Taxpayer of the City of Phoenix, Arizona, for Himself and for All Others Similarly Situated, Appellee

Civil No. 4609

Supreme Court of Arizona

April 17, 1944

APPEAL from a judgment of the Superior Court of the County of Maricopa. W. E. Ferguson, Judge. Judgment affirmed.

Mr Hess Seaman, City Attorney, and Mr. George D. Locke, of Counsel, for Appellants.

Mr Lester Hayt, and Mr. Edwin Beauchamp, for Appellee.

Mr Walter J. Thalheimer, Amicus Curiae.

Mr. E G. Frazier, Amicus Curiae.

OPINION

ROSS, J.

The plaintiff, E. W. Michael, a taxpayer of the city of Phoenix, brought this action to enjoin such city and its officers from expending the city's public funds in the payment of its dues and assessments as a member of the Arizona Municipal League.

The Arizona Municipal League is a voluntary association of thirty-one of the state's incorporated cities and towns. The objects for which the League is organized, as stated in its constitution, are:

"A. To perpetuate and develop the League as an agency for the co-operation of all cities and towns in the state in the practical study of city and town affairs.

"B. To promote the application of the best methods in all branches of municipal service by holding at least one convention annually for the discussion of problems in municipal administration and by circulating information and experience thereon.

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

Each of the cities and towns belonging to the League pays League dues and assessments in proportion to its population, which are used to maintain the League's activities in furnishing services to the member cities and towns of the League. The officers of the League receive no compensation for their services except for travel away from home, when they are paid $5 per day and actual cost of transportation. On its pay roll is a full time field representative or executive secretary, and a part time stenographer.

From December 1, 1935, to April 1, 1942, the city of Phoenix enacted ordinances appropriating its money to pay its proportion of the dues and assessments of the League, in the aggregate amounting to $9,709.04. There is no limit, however, on the amount that may be expended by the Arizona Municipal League.

It is alleged in the complaint that the city officers threaten to enact similar ordinances appropriating its public moneys to the League to enable the League and its officers to conduct various and sundry activities deemed of benefit to the members of the League, and threaten to issue warrants in payment of amounts appropriated. It is alleged that such expenditures, or proposed expenditures, made or to be made by the city and its officers, are not authorized or permitted under the city charter or any law of Arizona, and are in violation of section 7, article 9 of the state constitution.

The defendants moved the action be dismissed on the ground that the complaint failed to state a cause of action. This motion was denied. Thereafter plaintiff's motion for judgment on the pleadings was granted, and from such judgment defendants have appealed.

There are two principal questions involved in this appeal: (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?

Plaintiff contends that section 7, article 9 of the constitution is intended as a limitation on the power of cities and towns to expend public money or to lend their credit to corporations for private purposes, and is not intended to prohibit or forbid cities and towns from incurring indebtedness or expending public funds for a public purpose. Such section of the constitution prohibits the state or any county or city from giving or loaning its credit in aid of, or from making any donation or grant by subsidy, or otherwise, to any individual, corporation or association, or from becoming a subscriber to or shareholder in any company or corporation, or from becoming a joint owner of property with any person, company or association, except when it is acquired by the state by operation of law. But what the city of Phoenix and its officers have done, or intend, or threaten to do, does not fall within any of the acts prohibited by such provision of the state constitution. "Such provisions are generally construed as directed against benefits at public expense attempted in behalf of individuals, corporations, or associations, acting independently and conducting some enterprise of their own such as are usually conducted for profit and are commercial in nature." 38 Am. Jur. 94. Day v. Buckeye Water Cons. & Drainage Dist., 28 Ariz. 466, 237 P. 636; Wise v. First Nat. Bank of Nogales, 49 Ariz. 146, 65 P.2d 1154; Humphrey v. City of Phoenix, 55 Ariz. 374, 102 P.2d 82; Stanley v. Jeffries, 86 Mont. 114, 284 P. 134, 70 A.L.R. 166.

We conclude that the incurrence of the expenses here sought to be enjoined is not prohibited by section 7, article 9 of the constitution.

It is fundamental that the city may not expend public money except for public purposes, and then only when directly or impliedly authorized to do it. The purposes for which the city of Phoenix and other cities of the state are asked to finance the Arizona Municipal League, as defined in the League's constitution, are twofold: (1) The education and training of city officers in city affairs, and teaching and familiarizing such officers as to how such affairs may best be managed or carried on; and (2) to work to secure legislation beneficial to the municipalities of the state, and to oppose any legislation injurious to such municipalities.

The charter of the city of Phoenix, section 9, article 18, provides that "all taxes shall be uniform upon the same class of property within the corporate limits, and shall be levied and collected for public purposes only." Section 1, article 9 of the constitution has a like provision. The vital question for decision then is whether the public money expended by the Municipal League, to maintain its activities as enumerated, is for a public purpose.

Phoenix is a home rule city, organized under the provisions of the state constitution, section 2, article 13, and as such may exercise any powers of government "consistent with, and subject to, the constitution and laws of the state." That means that the powers exercised by the city must be in accord with the constitution and laws of the state, and not in conflict therewith.

If, under the constitution, the legislature may appropriate public moneys to educate and train its public officers and servants for their duties, and to influence legislation considered beneficial by said officers, then, by analogy, the cities and towns of the state may do so with their public funds.

As said above, the Municipal League is a voluntary organization of officers of the incorporated cities and towns of the state. These officers have assumed that name and under it operate. They might just as well operate under any other fictitious name. The fact is that it is made up of the officers of such municipalities. These officers are of the conviction that they, and their successors, are entitled to educational training by the public for their duties. They also feel that legislation affecting incorporated cities and towns is peculiarly their concern and, therefore, they should exercise their influence for legislation that is beneficial, and against legislation that is injurious to such cities and towns.

The mere statement of these propositions we think condemns them. No greater affront can be offered an aspirant to public office than that he is not qualified. It seems to be the rule that qualification to get in office is a guarantee of qualification to fill it competently. That is the American idea. The officers of the state's incorporated cities and towns, in seeking office, doubtless would most strenuously resent, as would their constituents, a suggestion that they were not qualified to discharge the duties of the office.

The police power of the incorporated cities and towns of Arizona is coextensive with that of the state, except when limited or restricted by the constitution or laws of the state. 37 Am Jur., at page 925, sections 288, 289, enumerates the many things that may be regulated or suppressed by municipal...