City of Tucson v. Tucson Sunshine Climate Club, 4792

• Decision Date: 21 December 1945
• Docket Number: 4792
• Citation: 64 Ariz. 1,164 P.2d 598
• Parties: CITY OF TUCSON v. TUCSON SUNSHINE CLIMATE CLUB
• Court: Arizona Supreme Court

164 P.2d 598

64 Ariz. 1

CITY OF TUCSON v. TUCSON SUNSHINE CLIMATE CLUB

No. 4792

Supreme Court of Arizona

December 21, 1945

Appeal from Superior Court, Pima County; Wm. G. Hall, Judge.

Suits by the Tucson Sunshine Climate Club, a corporation, against the City of Tucson, a body politic and corporate, to recover certain advertising expenditures. From a judgment for the plaintiff, the defendant appeals.

Affirmed.

Thos J. Elliott, of Tucson, for appellant.

Clifford R. McFall, of Tucson, for appellee.

Morgan Judge. Stanford, C. J., and LaPrade, J., concur.

OPINION

Morgan Judge.

For the fiscal year 1943-44, the City of Tucson, operating under a home rule charter, included and adopted in its annual budget an item of $ 17,500 for advertising purposes. From the previous annual budget it had on hand unexpended $ 3,792.08, leaving the net amount to be raised by taxation $ 13,707.92, of which $ 13,670.42 was collected during the year. On account of back taxes for prior years levied for advertising purposes, there was also collected during the fiscal year 1943-44 the sum of $ 710.92. The unexpended balance and the amount collected as back taxes were unencumbered, and the aggregate of these items, plus the taxes collected under the current levy, exceeded the amount of the budget item for advertising. For the fiscal year the total amount of advertising expenditures and obligations incurred by the city was the sum of $ 15,123.88. Of this total, $ 11,421.62 was paid, leaving a balance of $ 3,702.26, for which suit was brought by plaintiff (appellee here) as assignee. From a judgment in favor of plaintiff, the city appeals.

It is urged here, as it was in the trial court, that the court erred in entering judgment, for the following reasons: First, under the provisions of section 16-607, ACA 1939, the city is limited in making expenditures for advertising purposes during the fiscal year to one-twentieth of one per cent of its assessed valuation $ 24,087,590, or the sum of $ 12,043.79, and that therefore the judgment could not be for more than $ 622.17, it having already paid $ 11,421.62. Second, under the provisions of the city charter and the law, the only money in the advertising fund available for advertising expenditures was the amount actually collected for taxes during the fiscal year $ 13,670.42, and the court, in any event, was without power to enter a judgment for more than $ 2,248.80, the balance then remaining after deducting the payments mentioned above.

The determination of this controversy requires a consideration of the constitutional provision relating to home rule charters, various legislative measures, and certain sections of the charter itself.

Article 13, section 2, Arizona Constitution, provides in part: "Any city containing, now or hereafter, a population of more than three thousand five hundred may frame a charter for its own government consistent with, and subject to, the constitution and the laws of the state, * * *." Specific provisions are made for the preparation, recording and publication of the proposed charter. When ratified by a majority of the qualified electors of the city it is submitted to the governor, "and the governor shall approve it if it shall not be in conflict with this constitution or with the laws of the state. Upon such approval said charter shall become the organic law of such city. * * * Thereafter all courts shall take judicial notice of said charter."

It will be observed that such a charter is of constitutional origin. It does not exist subject to the will of the legislature. It is a constitutional grant and is usually referred to as a freeholders' or home rule charter. It may be amended only by the qualified electors of the city. All its provisions are valid and enforceable if consistent, not in conflict, with and subject to, the Constitution and the laws of the state.

Article 3, chapter 16, ACA 1939, originally adopted in 1912, provides for incorporation of cities, under home rule charters, in conformity to the Constitution. In addition to the constitutional features, the Legislature adopted chapter 11, section 4, Laws 1912, Special Session, now section 16-303, ACA 1939, in substantially the original form:

"Charter to supersede inconsistent general laws. -- When the charter of such city has been framed, adopted, and approved according to the provisions of this article, and any provisions of such charter are in conflict with any law relating to cities containing a population of more than three thousand five hundred (3,500) inhabitants, in force at the time of the adoption and approval of such charter, the provisions of such charter shall prevail notwithstanding such conflict, and shall operate as a repeal or suspension of such law to the extent of such conflict, and such law shall not thereafter be operative as to such conflict; provided that such charter shall be consistent with and subject to the state constitution, and not in conflict with the constitution and laws relating to the exercise of the initiative and referendum and other general laws of the state not relating to cities." (Italics ours.)

In 1915 the Legislature enacted as section 1, chapter 16, Laws 1915:

"In addition to the powers already vested in cities and incorporated towns in this state by their respective charters and the general laws of the state, common councils or commissions in cities and incorporated towns shall have the power to appropriate annually from the general fund of the city or incorporated town an amount not to exceed one twentieth of one percent of the assessed valuation of the city or incorporated town for the purpose of encouraging immigration, new industries and investment in said city or incorporated town, and to print and distribute books, pamphlets and maps advertising the advantages of said city or incorporated town, and the common council may, in its discretion, pay said sum to the chamber of commerce, board of trade, or other commercial organization of said city or incorporated town to be expended for the purposes herein enumerated under the direction of the board of directors of said commercial organization."

In the 1928 compilation this section was revised, and now appears as section 16-607, A.C.A. 1939. It is substantially the same as originally enacted, except that the first part of section 1, "In addition to the powers already vested in cities * * * by their * * * charters * * *", is eliminated.

The freeholders' or home rule charter of the City of Tucson was adopted and approved in 1929, and the following sections in Chapter XIII are material here:

"Sec. 8. The Mayor and Council shall have the power to levy and collect taxes in addition to the taxes herein authorized to be levied and collected, sufficient to pay * * * for advertising the advantages of the City."

"Sec. 13. At the end of each fiscal year any and all amount or amounts, balance or balances, remaining unexpended in any budget item or items, account or accounts, fund or funds, other than funds for the payment of interest upon or redemption of City bonds, shall no longer be available for expenditure for the purpose or purposes for which budgeted, but shall be and become a part of Treasurer's balance on hand, and shall be deducted from the amount or amounts required to be raised by taxation for the ensuing year."

The effect of section 16-303 has been directly or indirectly considered by this court in a number of previous cases. In Clayton v. State, 38 Ariz. 135, 146, 297 P. 1037, 1041, we find this statement: "Supplementing section 2 of article 13 of the Constitution, the Legislature, in section 398 of the Revised Code of 1928, has provided that in case of conflict the charter provisions shall prevail over existing laws and shall operate as a repeal or suspension of such laws to the extent of such conflict, but 'that such charter shall be consistent with and subject to the state constitution, and not in conflict with the constitution and laws relating to the exercise of the initiative and referendum and other general laws of the state not relating to cities.' (Italics ours.) This recognizes the supremacy of the 'general laws of the state not relating to cities.' The Highway Code is such a law. It does not relate to cities, but to the public highways of the state generally."

On rehearing, 38 Ariz. 466, 468, 300 P. 1010, it was said: "* * * Where the subject is one of local interest or concern, or where though not of local concern the charter or legislation confers on the city express power to legislate thereon, both jurisdictions may legislate on the same subject. Where, however, the subject is of state-wide concern, and the Legislature has appropriated the field and declared the rule, its declaration is binding throughout the state."

Again, in Hislop v. Rodgers, 54 Ariz. 101, 115, 92 P.2d 527, 533, the following appears, in commenting on the rule of the Clayton case: "We have followed this rule in City of Phoenix v. Breuninger, 50 Ariz. 372, 72 P.2d 580, 583, holding in substance that where municipalities are given express power to legislate upon a certain subject, they may do so even though the same subject is covered by statewide law, '* * * provided, always, of course, that such legislation did not contradict some rule laid down by the state.' In other words the municipal legislation cannot contradict the state law, but it may parallel it, or even go beyond it, so long as the two are not in conflict. * * *" (Italics ours.)

The Breuninger case referred to involved a city ordinance authorized by its charter, which imposed stricter regulations upon the sale of milk products than provided by the legislative act on the subject. It was held that the imposition of stricter regulations by the...