Mayor & Common Council of City of Prescott v. Randall

• Decision Date: 15 July 1948
• Docket Number: 5053
• Citation: 196 P.2d 477,67 Ariz. 369
• Parties: MAYOR & COMMON COUNCIL OF CITY OF PRESCOTT v. RANDALL
• Court: Arizona Supreme Court

196 P.2d 477

67 Ariz. 369

MAYOR & COMMON COUNCIL OF CITY OF PRESCOTT v. RANDALL

No. 5053

Supreme Court of Arizona

July 15, 1948

Appeal from Superior Court, Yavapai County; M. T. Phelps, Judge.

Action between the Mayor & Common Council of the City of Prescott and William S. Randall involving the validity of ordinance attempting to limit the number of liquor licenses which may be issued within the corporate limits of the City of Prescott.From a judgment for William S. Randall, the Mayor &amp Common Council of the City of Prescott appeal.

Judgment affirmed.

E. C Locklear, of Prescott, for appellants.

Byrne &amp Byrne, of Prescott, for appellee.

LaPrade, Justice.Stanford, C. J., and Udall, J., concur.

OPINION

LaPrade, Justice.

This is an appeal from a judgment of the superior court invalidating OrdinanceNo. 350 of the city of Prescott, Arizona, which ordinance, adopted October 25, 1937, attempts to limit the number of liquor licenses which may be issued within the corporate limits of the city.The city for its authority to enact the ordinance in question looks to its charter.Prescott, since its incorporation in 1883, has existed and operated by virtue of the charter granted to it by the territorial legislature in that year, being Act.No. 37, Laws 1883, entitled "An Act to incorporate the City of Prescott, to define its limits and rights, to specify its privileges and powers, and provide for an efficient government for the same."By section 4 of article 2 of the act the mayor and common council are specifically granted the power to provide by ordinance "for the licensing, regulating, restraining, suppressing and prohibiting, or either, any and all hawkers, peddlers, * * * gambling houses, * * * bawdy houses, the sale of spirituous or malt liquors in quantities less than one quart, by keepers of saloons or any other person or persons; houses of prostitution or assignation, * * * and if licensed, to fix the amount of license tax thereon. * * *."(Emphasis supplied.)

It is the contention of the appellee that the licensing and regulating of the traffic in intoxicating liquors has been fully covered by the legislature in chapter 72, A.C.A.1939, and that by such legislation the field has been pre-empted.By section 72-102, there is created the department of liquor licenses and control and the office of superintendent of such department.The general principles involved are elaborately considered and discussed in Clayton v. State,38 Ariz. 135, 297 P. 1037;Northeast Rapid Transit Co. v. Phoenix,41 Ariz. 71, 15 P.2d 951;State v. Anklam,43 Ariz. 362, 31 P.2d 888;State v. Jaastad,43 Ariz. 458, 32 P.2d 799;Highland Park Realty Co. v. Tucson,46 Ariz. 10, 46 P.2d 641;Keller v. State,46 Ariz. 106, 47 P.2d 442;Phoenix v. Drinkwater,46 Ariz. 470, 52 P.2d 1175;American-La France, etc., Corp. v. Phoenix,47 Ariz. 133, 54 P.2d 258;City of Phoenix v. Breuninger,50 Ariz. 372, 72 P.2d 580;Home Owners' Loan Corp. v. Phoenix,51 Ariz. 455, 77 P.2d 818;Luhrs v. City of Phoenix,52 Ariz. 438, 83 P.2d 283;City of Phoenix v. Kidd,54 Ariz. 75, 92 P.2d 513;Hislop v. Rodgers,54 Ariz. 101, 92 P.2d 527;Trigg v. City of Yuma,59 Ariz. 480, 130 P.2d 59;City of Tucson v. Tucson Sunshine Climate Club,64 Ariz. 1, 164 P.2d 598;City of Tucson v. Arizona Alpha of Sigma Alpha Epsilon, Inc.,67 Ariz. 330, 195 P.2d 562.

The rule established in all of these cases is that a charter city is sovereign in all of its "municipal affairs" where the power attempted to be exercised has been specifically or by implication granted in its charter.As above pointed out, the charter of the city of Prescott specifically grants to the municipality the power to license, regulate, and tax "the sale of spirituous or malt liquors in quantities less than one quart."The question now is: Is there any limitation upon the exercise of this power?By section 16-303, A.C.A.1939, any laws relating to cities having a charter in force at the time of the adoption and the approval of such charter are repealed or suspended insofar as they conflict with charter provisions, "provided that such charter shall be consistent with and subject to the stateconstitution, 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."(Emphasis supplied.)

In practically all of the foregoing cases the effect of section 16-303, supra, has been directly or indirectly considered by this court.In Clayton v. State,supra, [38 Ariz. 135, 297 P. 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(section 16-303, A.C.A. 1939), 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 stateconstitution, 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."(Emphasis supplied.)

On rehearing, 38 Ariz. 466, 300 P. 1010, it was said: "* * * It is not a novelty in the law to find the same act punishable by statutes and by city ordinance.Indeed it is quite common for the two jurisdictions to legislate concurrently on the same subject.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."(Emphasis supplied.)

In Hislop v. Rodgers,supra, [54 Ariz. 101, 92 P.2d 533]we had occasion to comment on the rule laid down in the Clayton case, as follows: "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. * * *"(Emphasis supplied.)

By way of summation of the rule, Justice Morgan, speaking for this court in City of Tucson v. Tucson Sunshine Climate Club, supra, said [64 Ariz. 1, 164 P.2d 601]: "From the foregoing it will be seen that where a home rule city has power by its charter it may act in conformity with such power not only in matters of local concern, but also in matters of state-wide concern, within its territorial limits, unless the Legislature has appropriated the field, and directly or by necessary implication established a rule, beyond which the city may not go."

Counsel for the city of Prescott earnestly contends that the rule laid down in the Clayton case and in the cases following it has no application to the city of Prescott for the reason that the legislature in enacting chapter 72 relating to spirituous liquors in section 72-112 specifically reserved to incorporated cities and towns the power to license, tax, and regulate the sale of spirituous liquors.The section relied upon reads as follows: "72-112.Incorporatedcities and towns authorized to regulate the manufacture, sale, and disposal of spirituous liquors.-- In addition to the license, taxes, and regulations herein provided for, incorporated cities and towns, shall have the power to license, tax, and regulate the manufacture, sale, possession, and disposal of spirituous liquors, within their corporated limits, providing the foregoing provisions shall not apply to wholesalers licensed under section 5(§ 72-110); provided this section shall not be construed to give to incorporated cities and towns, the power to prohibit the manufacture, sale, and disposal of intoxicating liquors."

The contention that the specific grant of power to incorporated cities and towns to license, tax, and regulate the sale and disposal of spirituous liquors presents a difficult question.If we are to give a literal interpretation to the language of this section it would seem that the position of appellant is well taken for the section specifically and unambiguously says "In addition to the license, taxes, and regulations herein provided for, incorporated cities and towns, shall have the power to license, tax, and regulate the manufacture, sale, possession, and disposal of spirituous liquors, within their corporated limits, * * *."

In Lane v. Ferguson,62 Ariz. 184, 156 P.2d 236, 238, there was presented for determination whether or not the superintendent of liquor licenses and control of the state of Arizona was a proper and necessary party to an appeal to the superior court from an order of the superintendent denying the issuance of a license.The argument there made was that the superintendent was a quasi-judicial officer or judge and had no interest in the appeal.We disposed of this contention by saying:

"* * * We conclude that the superintendent is the real partydefendant in interest for the reason that the legislature, in creating the Department of Liquor Licenses and Control,...