McClintock v. City of Phoenix

• Decision Date: 09 June 1922
• Docket Number: Civil 2057
• Parties: JAMES H. McCLINTOCK, Appellant, v. THE CITY OF PHOENIX, a Municipal Corporation, Appellee
• Court: Arizona Supreme Court

207 P. 611

24 Ariz. 155

JAMES H. McCLINTOCK, Appellant, v. THE CITY OF PHOENIX, a Municipal Corporation, Appellee

Civil No. 2057

Supreme Court of Arizona

June 9, 1922

APPEAL from a judgment of the Superior Court of the County of Maricopa. R. C. Stanford, Judge. Judgment reversed and cause remanded, with directions.

Mr Henry W. Miller, for Appellant.

Mr. R W. Kramer, City Attorney, for Appellee.

OPINION

PER CURIAM.

This is what may be termed a "friendly suit" brought to test the power of the city of Phoenix to issue and sell its negotiable coupon bonds to aid in purchasing a site and building thereon, to be located in said city, the title to be taken in the name of the state, and to be used and possessed by the state as an armory for the National Guard; the city to have no right or title or interest in the premises or in the use or possession thereof.

At a regular election in May, 1921, held in the city, the city was authorized to issue bonds for said purpose in the sum of $70,000, and it is proceeding to exercise such authority, by issuing and selling said bonds, and will do so unless restrained.

The plaintiff asserts in his complaint:

"That the said bond issue is unlawful and void for the reason that it is prohibited by the provisions of sections 1 and 7, art IX, of the Constitution of the State, and for the reason that the said armory is a state institution and is not a public improvement of the defendant, and for the further reason that the said defendant was without authority to issue said bonds for the aforesaid purpose, and that Senate Bill No. 57 of the First Special Session of the Fifth Legislature is invalid for the reason that such legislation was not within the call of the Governor of the State of Arizona pursuant to which the First Special Session of the Fifth Legislature was called and for the reason that it attempts to amend the charter of the city of Phoenix."

An injunction was asked for, restraining the defendant, its officers, agents, and employees, from selling said bonds. The defendant demurred to the complaint for want of sufficient facts. From an order sustaining the demurrer and a judgment denying any relief, the plaintiff appeals and assigns four errors, only two of which we need consider. These are:

"(1) That the charter of the city of Phoenix does not authorize the city to invest its funds in the purchase of property the title whereof does not and is not intended to vest in the city.

"(2) That Senate Bill No. 57 of the First Special Session of the Fifth Legislature of the State is invalid for the reason that it is not within the specifications in the governor's call of such special session. . . "

We will consider these two assignments in the order given.

The city of Phoenix was first incorporated by a special act of the territorial legislature in 1881, found at page 105 of the Laws of 1881. In article 13, subdivision 1, section 1, thereof, the common council of the city was given power "to erect, purchase or hire necessary buildings for the use of the corporation." In 1913 the city, acting under the authority of article 13 of the state Constitution, adopted a new charter which became its organic law and superseded the charter theretofore existing, as well as all amendments thereto. By the terms of section 1, chapter 2, of the new charter, it is provided, among other things:

"(a) That the city of Phoenix shall . . . exercise and enjoy . . . all . . . powers . . . belonging to, possessed or exercised by the municipal corporation known as the common council of the city of Phoenix."

And --

"(c) It may . . . acquire and hold real, personal or mixed property for the purposes for which it is incorporated. . . ."

Section 2 of the new charter particularizes the purposes for which the city may acquire property as: (a) For libraries, reading-rooms, art galleries, etc.; (b) for waterworks, gasworks, electric light plant, etc.; (c) for telephone and telegraphic systems, etc.; and (e) for any public utility, etc.

We cannot find in the general laws, concerning cities and towns, any extension of powers, beyond those above set forth. If, then, neither the original act of incorporation nor the present charter of the city empowers it to issue and sell its bonds to purchase, or build an armory for the National Guard of the state, and no such power is found in the general law affecting municipal corporations, what the city undertook to do by ordinance, not being for a corporate use or purpose, is without any legal sanction.

"Being a creature of the state and continuing its existence under the sovereign will and pleasure, a municipal corporation possesses such powers and such only as the state confers upon it, subject to addition or diminution at its supreme discretion." 28 Cyc. 258.

In Von Schmidt v. Widbur, 105 Cal. 151, 38 P. 682, the power of the city of San Francisco to purchase a piece of land for a smallpox site was involved. The court, after quoting at considerable extent from Mr. Dillon's work on Municipal Corporations, said:

"As the power of raising money by taxation is conferred for the purpose of...