In re Annexation to City of Phoenix, Civil 3945

CourtSupreme Court of Arizona
Writing for the CourtLOCKWOOD, J.
Citation79 P.2d 347,52 Ariz. 65
PartiesIn the Matter of the Annexation to the CITY OF PHOENIX of Certain Contiguous Territory (Annexation District "A"). JOHN H. UDALL, as Mayor of the City of Phoenix, a Municipal Corporation of the State of Arizona, Appellant, v. W. E. SEVERN, CHARLES A. ADLAM, PATRICK J. SHAUGHNESSY, AMELIA BASWITZ, HOVAL A. SMITH, S. B. SHUMWAY, C. M. VANDERFORD, GEORGE C. GIBSON, ROSE GIBSON, FRANK E. MILLER, GLENN E. MINER, HELEN E. STERMER and ROY K. MARSH, Appellees
Decision Date09 May 1938
Docket NumberCivil 3945

79 P.2d 347

52 Ariz. 65

In the Matter of the Annexation to the CITY OF PHOENIX of Certain Contiguous Territory (Annexation District "A"). JOHN H. UDALL, as Mayor of the City of Phoenix, a Municipal Corporation of the State of Arizona, Appellant,
v.

W. E. SEVERN, CHARLES A. ADLAM, PATRICK J. SHAUGHNESSY, AMELIA BASWITZ, HOVAL A. SMITH, S. B. SHUMWAY, C. M. VANDERFORD, GEORGE C. GIBSON, ROSE GIBSON, FRANK E. MILLER, GLENN E. MINER, HELEN E. STERMER and ROY K. MARSH, Appellees

Civil No. 3945

Supreme Court of Arizona

May 9, 1938


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

Mr. I. A. Jennings, City Attorney, Mr. Hess Seaman and Mr. Richard F. Harless, his Assistants; Messrs. Snell, Strouss & Salmon, Mr. J. Early Craig, Messrs. Kibbey, Bennett, Gust, Smith & Rosenfeld, Mr. T. G. McKesson, Mr. Frank J. Duffy, Mr. T. A. Carson, Mr. Emmett R. Fighner and Mr. Evan S. Stallcup, for Appellant.

Messrs. Dougherty & Dougherty, Mr. Darrell R. Parker and Mr. J. A. Riggins, for Appellees Severn, Adlam, Shaughnessy, Baswitz, Smith, Shumway and Vanderford; Mr. V. L. Hash, for Appellees Gibson; Messrs. Palmer & Cornelius and Messrs. Cunningham & Carson, for Appellees Miller, Miner, Stermer and Marsh.

Mr. E. C. Locklear, City Attorney, Prescott; Mr. G. H. Drumm, City Attorney, Winslow; Mr. William H. Westover, City Attorney, Yuma; Mr. Stephen D. Monahan, City Attorney, Nogales; Mr. Cullen A Little, City Attorney, Globe; Mr. George F. Senner, City Attorney, Miami; Mr. James A. Walsh, City Attorney, Mesa; Mr. Martin Gentry, City Attorney, Willcox; Mr. A. Van Wagenen, Jr., City Attorney, Casa Grande; Mr. Edward R. Byers, Town Attorney, Williams; Mr. I. F. Wolpe, Jr., Town Attorney, Wickenburg; Mr. James T. Gentry, City Attorney, Bisbee; Mr. Orinn C. Compton, City Attorney, Flagstaff; Mr. B. G. Thompson, City Attorney, Tucson, and Mr. Arthur Henderson, of Counsel, for City of Tucson, Amici Curiae.

OPINION [79 P.2d 348]

[52 Ariz. 67] LOCKWOOD, J.

The city of Phoenix filed a petition in the superior court of Maricopa county, through its mayor, John H. Udall, hereinafter called plaintiff, reciting that said city, desiring to annex a certain area lying immediately adjacent and contiguous to its corporate limits, had adopted a resolution under the provisions of sections 416, 417, and 418, Revised Code of 1928, authorizing him to petition to the superior court of Maricopa county to order such annexation to be made. The court fixed a time for hearing [52 Ariz. 68] the petition and a number of citizens of the area which was sought to be annexed, whose names it is not necessary to give, but whom we shall hereafter call defendants, appeared and objected to the jurisdiction of the court, on the ground that the sections, under which the annexation was sought, violated the Constitution of Arizona, in that they constituted an attempt to delegate to the courts the exercise of powers properly belonging to the legislature, and for that reason the statute conferred no jurisdiction upon the court. The matter was heard at length, and the court concluded that the sections were a delegation of legislative power to the judiciary, and therefore unconstitutional and void, and dismissed the petition, whereupon this appeal was taken.

One of the fundamental principles of the governmental system of our federal republic is what is known as the rule of divided powers. As a corollary to this principle it has usually been accepted, even in the absence of an express constitutional provision to that effect, that neither of the three great departments of state should exercise the powers of either of the other two. The makers of our Constitution were not satisfied with an implied limitation and placed in that instrument article 3, which reads as follows:

"The powers of the government of the State of Arizona shall be divided into three separate departments, the Legislative, the Executive, and the Judicial; and, except as provided in this Constitution, such departments shall be separate and distinct, and no one of such departments shall exercise the powers properly belonging to either of the others."

The power to create and to destroy municipal corporations, and to enlarge or diminish their boundaries is universally held to be solely and exclusively the exercise of legislative power. We do not know of any well-considered cases which hold to [52 Ariz. 69] the contrary. Lyon v. City of Payette, 3, Idaho 705, 224 P. 793; 1 Dillon, Mun. Corp., 5th ed., P. 61; 19 R.C.L. 700; 12 C.J. 856. And indeed our Constitution has, in substance, so stated. Article 13, § 1; Article 4, Pt. 2, § 19, subd. 17. When, therefore, the question before the court is whether or not a statute which confers upon the courts the final power to determine whether land should be annexed to an existing municipal corporation is constitutional, and the only limitation upon the exercise of that power is that the court shall determine the issue without any standard or rule to guide it but its own view as to the political and economic expediency of the annexation, it would seem axiomatic that the power so to be exercised by the court was legislative in its mature, rather than judicial. Strange as it may seem, however, there are courts which have upheld the right of the legislature to delegate such a power to the judicial department of the government. An analysis of the cases which thus hold shows clearly the conditions and the reasoning which led up to these conclusions.

In the absence of a constitutional restriction the power of the legislature over municipal corporations is practically unlimited. It may incorporate or disincorporate them; it may add to or take away from their territorial area; it may grant to or take away from them such powers as it may see fit. The earlier American Constitutions placed no limit upon this power, but as time went on it became apparent to the people of many of the states that it was being abused by the granting of special privileges to particular cities on terms different from those required of other municipalities. In the territory of Arizona this condition obtained from its organization until July, 1886, when the Harrison Act (48 U.S.C.A., sections 1471-1473, 1475, 1478 1479), was passed, which provided, in substance, that no local [79 P.2d 349] or special laws [52 Ariz. 70] should be passed incorporating cities, towns, and villages. In 1912, the makers of the Constitution were convinced, after some 25 years of experience, that this was a wise and salutary policy, and wrote the same provision into the Constitution in even more stringent form. As a result, all municipalities created in Arizona since statehood owe their existence and development to general statutes, and not to special charters, except such as were organized under section 2, article 13 of the Constitution, usually known as the "home rule" cities, and a similar condition existed in a great many other states. But the same desire for special privileges which led to the granting of special charters before the various constitutional restrictions were adopted still existed, and, as is always true when the desire of some individual or group is in conflict with the law declared by the entire citizenship, a means was sought for avoiding, if not evading, the principle laid down in the Constitution. Many, if not most of the courts which have held acts of the character of the one in question to be constitutional, have admitted more or less clearly in their opinions that the reason for their departure from the natural and logical conclusion which would be drawn from an application of the usual rules of constitutional construction was an attempt to evade the effect of those principles. Their argument is that since the legislatures were limited to the incorporation and regulation of municipalities by means of general laws, and since general laws could not cover the subject sufficiently to meet the various exigencies of the situation in regard to the different municipalities, that it was necessary in some way to get around the constitutional provision so as to permit what was in fact special legislation to fit the particular case. As the exercise of discretion as to a particular municipality by the legislature would openly violate the constitutional [52 Ariz. 71] provision, it was concluded that perhaps a delegation of that discretion to the judicial department of the government might be a constitutional method of "whipping the devil around the stump."

We have examined the various cases cited in support of the position taken by plaintiff, and, in so far as they sustain that position, they are based upon two considerations, (a) the inconvenience which might be caused to some municipalities if they were forced to conform to general laws, and (b) that while such acts do delegate legislative power to the judicial department of the government, the delegation was, after all, only of a "modicum" of such powers. So far as the argument of inconvenience is concerned, it seems to us that the courts can hardly say, with good grace, that a restriction deliberately imposed by the people in their Constitution, after experience with a contrary rule, is an inconvenience of the kind they should assist the legislature in evading. Constitutional mandates are not lightly to be disregarded by any of the departments of the government, and particularly not by that one which has always been considered in our system as peculiarly the guardian of the Constitution.

A determination of whether the delegation of what is called by some of the cases a "modicum" of legislative powers to the judiciary is constitutional is one of more difficulty. Chief Justice MARSHALL, in speaking of the division of powers, in Wayman v. Southard, 10 Wheat. 1, 6 L.Ed. 253, said:

"The difference between the department undoubtedly, is that the legislature makes,...

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29 practice notes
  • Koike v. Board of Water Supply, City and County of Honolulu, No. 4081
    • United States
    • Supreme Court of Hawai'i
    • 23 Febrero 1960
    ...courts and constitutional authorities. Union Bridge Co. v. United States, 204 U.S. 364, 387, 27 S.Ct. 367, 51 L.Ed. 523; Udall v. Severn, 52 Ariz. 65, 79 P.2d 347, 350; 1 Story, Constitution of the United States (4th Ed.) § 525, p. 380. 'Thus, it is not a correct statement of the principle ......
  • De Mello v. Fong, 2627.
    • United States
    • Supreme Court of Hawai'i
    • 7 Diciembre 1946
    ...Bridge Co. v United States, 204 U.S. 364, 387. Of necessity, there must be some overlapping and interplay of functions. Udall v Severn, 52 Ariz. 65, 79 P.2d 347, 350. Eminent constitutional authorities have recognized this. The conception was epitomized by Justice Holmes in one of his disse......
  • City of Aurora v. Bryant, No. 29780
    • United States
    • Indiana Supreme Court of Indiana
    • 9 Marzo 1960
    ...Klise v. Town of Riverdale, 1953, 244 Iowa 423, 57 N.W.2d 63; City of Galesburg v. Hawkinson, 1874, 75 Ill. 152; Duall v. Severn, 1938, 52 Ariz. 65, 79 P.2d 347; In re Village of North Milwaukee, 1896, 93 Wis. 616, 67 N.W. 1033, 33 L.R.A. 638; Taylor v. City of Augusta, 1926, 120 Kan. 42, 2......
  • De Mello v. Fong, No. 2627.
    • United States
    • Supreme Court of Hawai'i
    • 7 Diciembre 1946
    ...Bridge Co. v United States, 204 U.S. 364, 387. Of necessity, there must be some overlapping and interplay of functions. Udall v Severn, 52 Ariz. 65, 79 Pac. 2d 347, 350. Eminent constitutional authorities have recognized this. The conception was epitomized by Justice Holmes in one of his di......
  • Request a trial to view additional results
29 cases
  • Koike v. Board of Water Supply, City and County of Honolulu, No. 4081
    • United States
    • Supreme Court of Hawai'i
    • 23 Febrero 1960
    ...courts and constitutional authorities. Union Bridge Co. v. United States, 204 U.S. 364, 387, 27 S.Ct. 367, 51 L.Ed. 523; Udall v. Severn, 52 Ariz. 65, 79 P.2d 347, 350; 1 Story, Constitution of the United States (4th Ed.) § 525, p. 380. 'Thus, it is not a correct statement of the principle ......
  • De Mello v. Fong, 2627.
    • United States
    • Supreme Court of Hawai'i
    • 7 Diciembre 1946
    ...Bridge Co. v United States, 204 U.S. 364, 387. Of necessity, there must be some overlapping and interplay of functions. Udall v Severn, 52 Ariz. 65, 79 P.2d 347, 350. Eminent constitutional authorities have recognized this. The conception was epitomized by Justice Holmes in one of his disse......
  • City of Aurora v. Bryant, No. 29780
    • United States
    • Indiana Supreme Court of Indiana
    • 9 Marzo 1960
    ...Klise v. Town of Riverdale, 1953, 244 Iowa 423, 57 N.W.2d 63; City of Galesburg v. Hawkinson, 1874, 75 Ill. 152; Duall v. Severn, 1938, 52 Ariz. 65, 79 P.2d 347; In re Village of North Milwaukee, 1896, 93 Wis. 616, 67 N.W. 1033, 33 L.R.A. 638; Taylor v. City of Augusta, 1926, 120 Kan. 42, 2......
  • De Mello v. Fong, No. 2627.
    • United States
    • Supreme Court of Hawai'i
    • 7 Diciembre 1946
    ...Bridge Co. v United States, 204 U.S. 364, 387. Of necessity, there must be some overlapping and interplay of functions. Udall v Severn, 52 Ariz. 65, 79 Pac. 2d 347, 350. Eminent constitutional authorities have recognized this. The conception was epitomized by Justice Holmes in one of his di......
  • Request a trial to view additional results

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