City of Phoenix v. Superior Court

• Decision Date: 11 December 1946
• Docket Number: 4949
• Citation: 175 P.2d 811,65 Ariz. 139
• Parties: CITY OF PHOENIX et al. v. SUPERIOR COURT OF MARICOPA COUNTY et al
• Court: Arizona Supreme Court

175 P.2d 811

65 Ariz. 139

CITY OF PHOENIX et al. v. SUPERIOR COURT OF MARICOPA COUNTY et al

No. 4949

Supreme Court of Arizona

December 11, 1946

Original proceeding in prohibition on the petition of the City of Phoenix and others against the Superior Court of the State of Arizona in and for the County of Maricopa and M. T Phelps, acting as one of its judges.

Judgment amended and petition of the city denied, and petition of Del E. Webb Construction Company and Shumaker-Evans, Contractors, for a peremptory granted.

Jack Choisser, City Atty., Frank E. Flynn, U. S. Atty., Charles B McAllister, Ass't U. S. Atty., Jennings, Salmon & Trask, and J. A. Riggins, all of Phoenix, for petitioners.

V. L. Hash, of Phoenix, for respondents.

OPINION

PER CURIAM

This action arises out of an effort on the part of the city of Phoenix to provide housing for veterans and their families. It appears that three of the five members of the city commission met at a regular meeting on February 19, 1946, and attempted to adopt an emergency ordinance, Resolution No. 8332 of City Ordinances, which directed and authorized the execution of an agreement with the Federal Public Housing Authority, generally designated as FPHA, for the construction of temporary housing for veterans and their families in a district bounded by Portland Street on the north, Roosevelt Street on the south, 16th Street on the west, and 20th Street on the east, city of Phoenix. In compliance with the supposed authority of this resolution and on the same day a contract was entered into with FPHA providing for the construction of temporary dwellings on the tract. At the same meeting the Commission adopted a separate resolution (8333) authorizing and directing the City Manager to lease such acreage as in his opinion would be necessary to provide a location for the dwelling units. This resolution did not carry the emergency clause. The city on the first day of March entered into a lease for the tract with the owner, Ottilia Linsenmeyer. This lease was for a period of one year, expiring February 28, 1947, at a rental of $ 1,500, payable $ 125 per month, with right of renewal for an additional year. The lease provided that the premises were to be used solely for the construction of "Veterans Emergency Housing Project," and that upon the termination of the lease all housing units should be removed.

The contract with FPHA called for the erection of 148 units at the expense of the federal government, save and except that the city was required to furnish access streets or roads, with sidewalks along streets within the boundaries of the site, and to extend necessary utilities, including such items as storm sewers, water, electricity and gas. It was also required to furnish grading except such as was provided by FPHA under the terms of the contract. Substantially the whole cost of the project was to be borne by the federal government. Following the execution of the agreement, the FPHA entered into contracts with Del E. Webb Construction Company, a corporation, and Shumaker-Evans, Contractors, a corporation, and at the time of the institution of the action herinafter mentioned, it had paid the contractors the sum of $ 132,000 expended by them for labor and services and not for materials, the latter having been supplied by the United States.

On September 5, 1946, O. T. Brockman, in a representative capacity as a taxpayer and property owner of the city of Phoenix, brought suit in the Superior Court of Maricopa County, against the city, its commissioners, the contractors, the Federal Public Housing Authority, an instrumentality of the United States Government, Frank W. Rose, the regional director, and Ottilia Linsenmeyer, for declaratory judgment and for a decree adjudging the emergency ordinance above referred to (8322) to be void, and the contract and lease to be void and of no force and effect, and that the defendants be perpetually enjoined from carrying out the terms of the contract and from erecting houses on said tract or using funds of the city of Phoenix for such purpose. Upon the ground that no suit could be maintained against a federal instrumentality or officer, the action was dismissed against FPHA and Frank W. Rose, regional director. No judgment was taken against Ottilia Linsenmeyer.

After hearing, the court found that the contract between the city and the FPHA was void for the reason that the ordinance adopted with the emergency clause was not approved by the affirmative vote of four-fifths of the commissioners as required by the charter (Sec. 14, Ch. IV, City Charter). The court also found that the lease made and entered into between the city of Phoenix and the defendant Linsenmeyer was void and of no force and effect for the reason that the ordinance authorizing the lease had not been adopted as an emergency matter and was not effective until 30 days after its passage (Sec. 14, Ch. IV, City Charter). The court also found that provisions of the Lanham Act, 42 U.S.C.A. § 1521 et seq., under which the FPHA had entered the contract, had not been complied with in that consultations with local authorities had not been held, that the defendants had failed to show the planning and designing of the buildings to be in conformity with surrounding structures, and that the buildings did not conform, as far as practicable in location and design, to local planning and tradition. The further finding was made that no evidence had been offered that the President of the United States had found an emergency to exist locally respecting shortage of housing. Other findings were made which need not be considered, however. The court then perpetually enjoined the city, its commissioners, manager, officers and servants, and the contractors, their agents and servants, from proceeding further with the construction of buildings upon the premises.

It seems to have been conceded in the court below, and is conceded here, that the ordinance adopted, No. 8332, was void in that it was not adopted by the necessary vote of the commissioners. Objection was made by defendants to the judgment and restraining order in that as drawn it prohibited the city from proceeding further in connection with such housing project by the adoption of a valid ordinance, and that upon further hearing it might be shown that the Veterans Emergency Housing Project was found to exist in accordance with the provisions of Title 5 of the Lanham Act, 42 U.S.C.A. § 1571 et seq. It was suggested that the injunction be limited by the following provision "until such time as may be shown to this court that the defects hereinabove found by the court to exist have been remedied." This objection and the amendment to the judgment was denied by the court. Thereupon the remaining defendants in the action filed petition for writ of prohibition in this court, the basis of the petition being that (1) the superior court had exceeded its jurisdiction in that it had no power to enjoin the contractors since they were agents and servants of the United States, nor to restrain and enjoin the United States in the use and benefit of its property; (2) the city may not be restrained and enjoined from performing a legislative function, to wit, to correct any defects in connection with the transaction involved by the adoption of a valid ordinance.

It has been strongly urged that the defendants in the action below have a remedy by appeal and that, therefore, this court should not entertain this proceeding. If the remedy by appeal is adequate, the writ of prohibition will not ordinarily lie. Miller v. Superior Court of Mohave County, 21 Ariz. 61, 185 P. 357; Bank of Arizona v. Superior Court of Yavapai County, 30 Ariz. 72, 245 P. 366. But if it appears that the remedy by appeal is not adequate, the writ may issue. Hislop v. Rodgers, 54 Ariz. 101, 92 P.2d 527. Furthermore, the remedy by prohibition is within the sound discretion of the court. City of Phoenix v. Rodgers, 44 Ariz. 40, 34 P.2d 385. Here it would appear that the project restrained grows out of an emergency due to a housing shortage. The buildings being constructed are for temporary purposes only and to meet a present existing condition. Delay incident to an appeal will defeat the object of the transaction, the speedy housing of veterans and their families. The remedy by appeal is not adequate.

The writ primarily lies where the lower court has no jurisdiction or has exceeded its jurisdiction. Hislop v. Rodgers, supra; Bank of Arizona v. Superior Court of Yavapai County, supra; City of Phoenix v. Rodgers, supra. The questions are presented: 1. Did the court have jurisdiction to issue the restraining order against the contractors 2. Was the court's order perpetually enjoining the city in excess of its jurisdiction?

It is axiomatic that the United States cannot be sued without its consent. Such consent must be evidenced by an Act of Congress. Such has been the holding of the Supreme Court of the United States since McCulloch v. Maryland, 17 U.S. 316, 4 Wheat. 316, 4 L.Ed. 579, nor is there a distinction between a suit directly against the United...