City of Scottsdale v. Superior Court In and For Maricopa County
| Decision Date | 28 March 1968 |
| Docket Number | No. 9111,9111 |
| Citation | 439 P.2d 290,103 Ariz. 204 |
| Parties | The CITY OF SCOTTSDALE, a municipal corporation, B. L. Tims, O. D., William C. Jenkins, Leonard Johnson, Robert L. Jones, Doris T. McCauley, Charles Ken Murray, and John Senini, Jr., as members of and constituting the City Council of the City of Scottsdale, Petitioners, v. The SUPERIOR COURT of the State of Arizona, IN AND FOR the COUNTY OF MARICOPA, William H. Gooding, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondents. |
| Court | Arizona Supreme Court |
Richard Filler, City Atty., Scottsdale, for petitioners.
Kramer, Roche, Burch, Streich & Cracchiolo, Phoenix, for respondents.
We have accepted this matter on petition for certiorari from a judgment rendered by the Superior Court in and for Maricopa County against the City of Scottsdale, a municipal corporation and its City Council.
On July 3, 1967 the Scottsdale City Council adopted an ordinance rezoning a 7 1/2 acre parcel located on the southwest corner of Scottsdale Road and Lincoln Drive from single family residence usage to neighborhood commercial usage. Immediately after adoption of the ordinance the Council adopted a resolution purporting to voluntarily refer the ordinance to a vote of the electors of the City of Scottsdale.
On August 1, 1967 the City Clerk accepted an initiative petition proposing that the subject property and another parcel not be rezoned to the neighborhood commercial district in the one instance or to a shopping center in regard to the other parcel. The City of Scottsdale has not enacted this initiative measure.
On August 2, 1967 the owners of the 7 1/2 acre parcel filed complaint seeking to enjoin the election called for in the resolution and a declaratory judgment that the resolution was void and that the City Clerk exceeded her jurisdiction in accepting the application for an initiative measure dealing with rezoning which did not comply with the statutory requisites.
After simultaneous trial memoranda were filed and argument heard the trial judge ruled the landowners were entitled to relief, that cities did not have the power to Voluntarily refer ordinances to a vote of the people, that referendum could not be applied to zoning ordinances, and that a zoning ordinance could not be the subject of an initiative petition, and that in any event the initiative petition here filed did not comply with the statutory form.
Whether the city council or the governing body of the city has the power to voluntarily refer ordinances to the electors, or whether zonign ordinances are subject to the initiative and referendum are matters of great public concern to the cities in Arizona which do not provide by ordinance or charter the manner of exercising the initiative and referendum powers. We have therefore seen fit to grant certiorari in this case.
The petitioner, City of Scottsdale contends, of course, that its council has the power to Voluntarily refer an ordinance to the electors. We cannot agree. The cities and towns of this state are municipal corporations created by the state and possessory of no greater powers than those delegated to them by the constitution and the general laws of the state, City of Phoenix v. Arizona Sash, Door and Glass Co., 80 Ariz. 100, 293 P.2d 438; City of Flagstaff v. Associated Dairy Products Co., 75 Ariz. 254, 255 P.2d 191. The powers of a city may be further restricted or limited by its organic law, the city charter, which under the constitution, Art. 13, § 2, A.R.S. 'supersede(s) any charter then existing (and all amendments thereto), and all ordinances inconsistent with said new charter,' and a proposed city charter is approved by the governor only if it is not in conflict with 'this Constitution or with the laws of the State.' City councils have only those powers which are vested in them by the provisions of their city charter, Williams v. Parrack, 83 Ariz. 227, 319 P.2d 989.
Art. 13 § 2 of the Arizona Constitution also provides that 'all courts shall take judicial notice of said charter.' The charter of the City of Scottsdale at Article 10, Section 1, provides:
'No initiative measure, however, may change or alter, or remove or limit, any power, right, duty, privilege or immunity conferred by or established by this charter, and no initiative measure which in any way conflicts with a provision of this charter or responsivilities conferred by it, shall, to the extent of such conflict be operative.' (Emphasis added.)
It is clear that there is no express authority in the charter provisions for the council to voluntarily refer an ordinance. The express language reserves the powers of the initiative and referendum to the electors and provides further that the 'provisions of the constitution and general laws of the state * * * shall apply in the city.'
Under the Constitution, Art. 13 § 2, it is expressly provided that a City charter may 'be amended by amendments proposed and submitted by the legislative authority of the city to the qualified electors thereof;' but there is no express constitutional provision for the legislative authority of a city to refer any matter other than the charter to the electors. Art. 4, pt. 1 deals with the subject of 'Initiative and Referendum' and Art. 4, pt. 1 § 1(3) provides that the state 'Legislature, or five per centum of the qualified electors may order the submission to the people at the polls of any measure * * * enacted by the Legislature * * *.' On the other hand Art. 4 pt. 1, § 1(8) which deals with local, city, town or county matters makes no such proviso for voluntary referral by their respective legislative authorities (i.e., city council) and expressly states that 'ten per centum of the electors may propose the Referendum on legislation enacted within and by such city, town, or county.'
The general laws of the state dealing with the subject of initiative and referendum are found in A.R.S. § 19--141 et seq. Nowhere in this chapter do we find that the legislative body of the city is authorized to voluntarily refer matters before it to the electors. A.R.S. § 19--141 concerns itself strictly with procedural matters and advises that 'In cities and towns which do not provide by ordinance or charter for the manner of exercising the initiative and referendum powers reserved by the constitution to the people thereof, the provisions of this chapter shall apply to the legislation of such municipalities * * *.' Thereafter the duties of various city officers are analogized to their respective state counterparts, e.g.; secretary of state, city clerk; governor, mayor; attorney general, city attorney; but no parallels are drawn as to the legislature and council and § 19--141 is silent as to the power of a city council 'to order the submission of any measure' to a vote of the people at the polls. Thus by implication a corresponding power to that granted the state legislature under the Arizona Constitution, Art. 4, pt. 1 § 1(3), supra, is not delegated to the city council. A.R.S. § 19--142, subsec. A relates specifically to the filing of a referendum by the people (as opposed to a voluntary referral by the council); A.R.S. § 19--143, subsec. A deals with municipal measures proposed by initiative petition, and A.R.S. § 19--143, subsec. B, in conformity with Art. 13, § 2 of the Constitution, supra, expressly provides for voluntary referral or submission to the people On amendments to the charter.
Thus it appears abundantly clear that under the charter of the City of Scottsdale and the 'provisions of the constitution and general laws of the state' the voluntary submission of the ordinance by the council to a special vote of the people, in the absence of a referendum petition therefor, was wholly without authority and outside the delegated powers of the city council.
Since no petition for referendum was filed in this case we need not now consider the question of whether zoning ordinances are proper subjects for the referendum process.
The City of Scottsdale also urges that the trial court erred in ruling that the city clerk exceeded her jurisdiction in accepting an application for initiative dealing with a zoning matter and that the proposed initiative matter was invalid because it did not comply with the notice and public hearing provisions of the state statute or the local ordinance dealing with the subject of municipal zoning.
The petitioner contends that such rulings of the trial court were in excess of the court's jurisdiction because of...
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