Luhrs v. City of Phoenix, Civil 3963

• Decision Date: 03 October 1938
• Docket Number: 3964,Civil 3963
• Parties: GEORGE LUHRS, Appellant, v. CITY OF PHOENIX, a Municipal Corporation; JOHN H. UDALL, as Mayor of the City of Phoenix; and WALTER THALHEIMER, CHARLES G. SULLIVAN, HARRY T. DUFFY and W. A. CLARK, as Members of the City Commission of the City of Phoenix, a Municipal Corporation of the State of Arizona, Appellees
• Court: Arizona Supreme Court

83 P.2d 283

52 Ariz. 438

GEORGE LUHRS, Appellant, v. CITY OF PHOENIX, a Municipal Corporation; JOHN H. UDALL, as Mayor of the City of Phoenix; and WALTER THALHEIMER, CHARLES G. SULLIVAN, HARRY T. DUFFY and W. A. CLARK, as Members of the City Commission of the City of Phoenix, a Municipal Corporation of the State of Arizona, Appellees

Civil Nos. 3963, 3964

Supreme Court of Arizona

October 3, 1938

APPEAL from a judgment of the Superior Court of the County of Maricopa. William G. Hall, Judge. Judgment affirmed.

Mr Terrence A. Carson, for Appellant.

Mr. I A. Jennings, City Attorney, Mr. Hess Seaman, Assistant City Attorney, Messrs. Laney & Laney (of Counsel), for Appellees.

Mr. Joe Conway, Attorney General, and Mr. J. M. Johnson and Mr. W. E Polley, Assistant Attorneys General, in Support of the Constitutionality of laws Here Questioned.

OPINION

ROSS, J.

The appellant, as a taxpayer of the city of Phoenix, in his own behalf and in behalf of others similarly situated, brought two suits against the city of Phoenix and the members of its commission, one challenging the constitutionality of chapter 40, Laws of 1937, known as "the Police Pension Act of 1937," and the other challenging the constitutionality of chapter 43, Laws of 1937, known as "the Police, Peace Officers' and Firemen's Minimum Wage Act of 1937." General demurrers to the complaints were sustained and judgments entered for the defendants. Plaintiff appealed.

By stipulation, the cases were consolidated for the purposes of brief and argument on appeal. The principles governing in both cases are, in the main, the same and we shall dispose of them in one opinion.

Reference to the parties as they were in the trial court will be made.

Chapter 40 is entitled:

"An Act relating to pensions for aged and physically disqualified members of police departments, and for the creation of police pension funds and police pension boards."

This act creates in each city of the state having a population, according to the last federal census, of not less than 20,000 inhabitants, a police pension fund which shall be managed, controlled and distributed in accordance with its provisions. The act authorizes incorporated cities and towns having a population of less than 20,000 inhabitants to come under the police pension plan fund. It creates a pension board and prescribes its powers and duties, and provides for collection of a pension fund, and fixes eligibility of those entitled to pensions.

Chapter 43 is entitled:

"An Act relating to counties, cities, and towns, and prescribing minimum wages to be paid to police, peace officers, and professional fire-fighters."

It provides that any city or town having more than 7,000 inhabitants, as shown by the last federal census, having, or thereafter creating, a salaried police or fire department, shall pay to every regularly appointed member thereof a minimum monthly wage in accordance with the classifications, periods of service, and corresponding minimum monthly wages as prescribed: Foot patrolman, third year and every year thereafter, $180 per month; hoseman, third year and every year thereafter, $180 per month. The act makes its violation a misdemeanor.

The theory of the complaint is that the city, of Phoenix, having theretofore adopted a freeholders' charter under section 2 of article 13 of the Constitution, has the exclusive power over pensions for its police officers and over wages of its policemen and firemen and that, therefore, chapters 40 and 43, supra, in attempting to provide for pensions for policemen and minimum wages for policemen and firemen in said city, transgress the Constitution. A freeholders' charter such as defendant's was intended to give its possessor certain rights and privileges free from interference by the legislature, which rights and privileges have been variously described in legislation and decisions and in constitutions as of local concern or as municipal affairs. We first stated the rule in Clayton v. State, 38 Ariz. 466, 300 P. 1010:

"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."

This seems to be the general rule. The courts differ as to what activities of the city are of local interest or concern and therefore free from legislative interference. Some of such activities are so noticeably local or state-wide that they are easily assignable, while in others the line of demarcation is very difficult of discernment, because the activity may be neither predominantly local nor state-wide but may partake of both. Whether it is one or the other in such case depends upon whether the activity is carried on by the municipality as an agent of the state. If it is, it is of general or public concern. If it is exercised by the city in its proprietary capacity, it is a power incidental to home rule. State v. City Council of Helena, 102 Mont. 27, 55 P.2d 671. As to whether police and fire protection in municipalities are functions peculiarly local and, in home-rule cities matters of local concern or of state-wide concern subject to regulation by the state, the courts are not in agreement. The following jurisdictions hold that such functions are local: Popper v. Broderick, 123 Cal. 456, 56 P. 53; Jackson v. Wilde, 52 Cal.App. 259, 198 P. 822; City of Pasadena v. Charleville, 215 Cal. 384, 10 P.2d 745; City of Wewoka v. Rodman, 172 Okl. 630, 46 P.2d 334; Smith v. City Com. of Flint, 258 Mich. 698, 242 N.W. 814; City of Lexington v. Thompson, 113 Ky. 540, 68 S.W. 477, 101 Am. St. Rep. 361, 57 L.R.A. 775.

There are a number of jurisdictions that take a contrary view and, since our constitutional provision for freeholders' charters is practically the same as that of the state of Missouri, we quote from one of the decisions of that state:

"It would be a step backward for us now to say that the state of Missouri cannot provide a police system for its great cities. It is a mistaken view to urge that the cities alone are interested in this matter of a police force adequate to maintaining the public peace and safety of our citizenship. The state has a vital interest. The citizens of the state, and all parts of it, are forced to these metropolitan centers for business and other reasons. They may not linger long, but, while there, they are entitled to that protection which only an adequate and efficient police force can give. It is not for the cities to say to the state: We will give your citizens just such protection as we think is best. Nor can such cities say to the state: You may man and control the police force if you desire, but if so we will starve your system to death. We hold the purse strings. These municipal corporations are subordinate to the sovereign power of the state, and whilst they do, in a sense, hold the purse strings, they do so by the consent of the state. Without the authority of the sovereign, they would not even have a purse, much less the strings of one. The power which gave them the purse can limit the use of it. The power which placed upon that purse the strings can loosen the strings." State ex rel. Reynolds v. Jost, 265 Mo. 51, 175 S.W. 591, 594, Ann. Cas. 1917D, 1102.

The Missouri cases are reviewed in the recent case of Kansas City, Missouri, v. J.I. Case Threshing Machine Co., 337 Mo. 913, 87 S.W.2d 195, and therein it is stated (p. 202):

"It is, of course, sometimes difficult to determine the border line between governmental functions and corporate functions. It is not necessary to attempt to discuss and define such various functions here. However, certain functions have, by this court, definitely been determined governmental, the control of which remains in the state. The police power is one. A municipal corporation has no inherent police power, but derives it solely from delegation by the state. 19 R.C.L. 800, § 108; 43 C.J. 205, § 204. 'The protection of life, liberty, and property, and the preservation of the public peace and order, in every part, division, and subdivision of the state, is a governmental duty, which devolves upon the State, and not upon its municipalities, any further than the state, in its sovereignty, may see fit to impose upon or delegate it to the municipalities.' State ex rel. Hawes v. Mason, 153 Mo. 23, loc. cit. 43, 54 S.W. 524, 529; see, also, State ex rel. Reynolds v. Jost, 265 Mo. 51, 175 S.W. 591, Ann. Cas. 1917D, 1102; Strother v. Kansas City, 283 Mo. 283, 223 S.W. 419; State ex rel. Beach et al., Board Of Police Commissioners v. Beach, 325 Mo. 175, 28 S.W. (2d) 105. Some of the other matters, which are purely governmental functions, are those pertaining to suffrage and elections, education, regulation of public utilities, and administration of justice. Ewing v. Hoblitzelle, 85 Mo. 64; State ex rel. Garner v. Missouri & K. Tel. Co., 189 Mo. 83, 88 S.W. 41; State ex rel. Kirkwood v. Public Serv. Comm., 330 Mo. 507, 50 S.W.2d 114; see, also, cases cited; St. Louis v. Dorr, 145 Mo. 466, loc. cit. 481, 41 S.W. 1094, 46 S.W. 976, 42 L.R.A. 686, 68 Am. St. Rep. 575. These may be delegated to or taken away from the city in whole or in part, within the wisdom of the Legislature."

In Van Gilder v. City of Madison, 222 Wis. 58, 267 N.W. 25, 268 N.W. 108, 105 A.L.R. 244, it was held that the matters of police and fire protection were of state-wide concern and subject to regulation by the legislature, and not the city of Madison under its home-rule charter, the court stating (p. 32):

"The...