City of Tucson v. Walker, Civil 4540

• Decision Date: 15 March 1943
• Docket Number: Civil 4540
• Parties: CITY OF TUCSON, a Municipal Corporation; HENRY O. JAASTAD, Mayor of Said City; J. O. NIEMANN, WILLIAM H. CODD, W. S. NICHOLAS, FRED D. LEE, HALBERT W. MILLER and HOMER L. SHANTZ, JR., Members of the Council of Said City; JOE CONWAY, Attorney General of the State of Arizona, Appellants and Cross-Appellees, v. MILO W. WALKER, DAVID I. PUTNEY, JOSEPH E. RICE, on Behalf of Themselves and all Other Taxpayers of the City of Tucson, Appellees and Cross-Appellants
• Court: Arizona Supreme Court

135 P.2d 223

60 Ariz. 232

CITY OF TUCSON, a Municipal Corporation; HENRY O. JAASTAD, Mayor of Said City; J. O. NIEMANN, WILLIAM H. CODD, W. S. NICHOLAS, FRED D. LEE, HALBERT W. MILLER and HOMER L. SHANTZ, JR., Members of the Council of Said City; JOE CONWAY, Attorney General of the State of Arizona, Appellants and Cross-Appellees, v. MILO W. WALKER, DAVID I. PUTNEY, JOSEPH E. RICE, on Behalf of Themselves and all Other Taxpayers of the City of Tucson, Appellees and Cross-Appellants

Civil No. 4540

Supreme Court of Arizona

March 15, 1943

APPEAL from a judgment of the Superior Court of the County of Pima. Evo De Concino, Judge. Judgment affirmed on principal issue and declaratory opinion rendered as to other points.

Mr John D. Lyons, Jr., City Attorney, and Mr. Beverly B Williamson, Assistant City Attorney, for Appellants and Cross-Appellees City of Tucson, Mayor and Councilman.

Mr. Joe Conway, Attorney General, and Mr. Edward P. Cline, Assistant Attorney General, for Appellant and Cross-Appellee, Joe Conway, as Attorney General.

Mr William F. Kimball, for Appellees and Cross-Appellants Milo W. Walker, et al.

OPINION

STANFORD, J.

Plaintiff brings this action on four grounds asking that the court below adjudge and declare Ordinance No. 691, of the defendant City of Tucson, void, invalid and unconstitutional in so far as it provides:

(1) For death benefits payable in part by the City.

(2) For joint survivorship annuities payable in part by said City.

(3) For the investment of the pension fund created under said Ordinance in the purchase of the annuities and other benefits therein provided.

(4) For a pension fund for members of the Police Department of the City of Tucson in lieu of the Police Pension Act of 1937, Laws 1937, c. 40, enacted by our legislature.

The defendant City of Tucson is a municipal corporation duly organized and existing under its Charter and the laws of the State of Arizona, specifically Article 13, Sections 1, 2 and 3 of the Constitution of the State. That said Charter has been in full force and effect since 1929. That Chapter XXIII of said Charter provides:

"PENSION FUND

"The Mayor and Council shall, within one (1) year after the creation of the Civil Service Commission, establish a fund or funds for the pensioning of persons in the classified service of the City; may retain a reasonable amount from the monthly salary of, and may make necessary regulations for contributions to the pension fund by, such persons; may receive gifts, devises, bequests of money or property for the benefit of such fund or funds, may make contribution of public moneys thereto on such terms and conditions as it may see fit; and shall make rules and regulations for the management, investment and administration of such fund or funds."

That for the purpose of complying with the above quoted Chapter XXIII of the Charter of the City of Tucson, the Mayor and Council of said City did, on July 18, 1932, duly pass and adopt Ordinance No. 691 of the Ordinances of the City of Tucson. The Ordinance is lengthy and apparently covers the field of pensions very fully to the extent of setting forth how payments are to be made; for the insurance of employees; for retirement annuities; for death and total permanent disability benefits; and, indeed, for a great many other things.

That on the 21st day of July, 1941, the Mayor and Council of the defendant City of Tucson did, by Ordinance duly passed and adopted, repeal said Ordinance No. 691 in so far as it applied to employees of the Police Department of the City of Tucson, and did thereupon adopt for the City of Tucson the Police Pension Act of 1937 of the State of Arizona, and the said City of Tucson continued to operate under the Police Pension Act of 1937 for its policemen until October 6, 1941, when it adopted a new Ordinance which revoked its action in adopting the Police Pension Act of 1937 of the state, and reinstated Ordinance No. 691 as its pension plan for its policemen.

Section 16-1803, Arizona Code Annotated 1939, is as follows:

"Police pension fund. -- In each city of the state having a population, according to the last federal census, of not less than twenty thousand (20,000) inhabitants, there is hereby created, and in any incorporated city or town having a population of less than twenty thousand (20,000) inhabitants there may be created by ordinance, a Police Pension Fund, which shall be managed, controlled and distributed in accordance with the provisions of this act."

Under the agreed statements of facts and briefs submitted, the trial court below held:

(1) That Ordinance No. 691 of the Ordinances of the Mayor and Council of the City of Tucson, was void and invalid in so far as it provides for a pension fund for members of the Police Department of the City of Tucson in lieu of the Police Pension Act of 1937, and in its decision of April 30, 1942, the court purposely did not rule on the other three points raised by the plaintiff below for the reason that the court believed its decision on that one point negatived the necessity of deciding the three other points raised, but counsel for both sides urged the court to render a declaratory judgment in order that the City of Tucson might be guided in the future on the other matters, and accordingly the court held in its declaratory judgment:

"2. That those certain provisions of said ordinance which provide for death benefits, payable in part by said City, are in themselves invalid and void.

"3. That the following provisions of said Ordinance are not in themselves invalid or void, to-wit: (a) The provisions for joint survivorship annuities payable in part by said City; (b) The provisions for the investment of the pension fund created by said Ordinance in the purchase of the annuities and other benefits therein provided."

The judgment of the court below now makes it necessary that in this appeal the defendants below appear herein as appellants and cross-appellees, and the plaintiffs below as the appellees and cross-appellants, and all counsel in the cause join in now requesting this Court to make a declaratory judgment on the other three matters just above stated.

The appellants, the City of Tucson and others, appeal herein from the following judgment of the court below:

(1) That since the discarding of its own Ordinance for the pensioning of policemen and the adoption of the state law for that purpose, the City of Tucson now has no right to revert to an Ordinance of its own and must abide by its selection of the State Police Pension Act.

(2) That the pension Ordinance of the City of Tucson may not provide death benefits, payable in part by the city.

Appellant, the City of Tucson, relies on its right to return to its old Ordinance for the giving of pensions to its policemen, claiming that the City is warranted in doing so under the exception of Section 16-1822, Arizona Code Annotated 1939, which reads as follows:

"Exception. -- This act shall not apply to any city having and maintaining, by charter or ordinance, a pension or retirement plan foraged or physically disqualified members of the police department."

Counsel for appellant ably present the view that the word "having" of Section 16-1803, of the Police Pension Act of 1937, should read like the words "now or hereafter having," but we cannot agree, but hold that our legislature in enacting the Police Pension Act of 1937 was merely being considerate for such city where a...