Moore v. Valley Garden Center

• Decision Date: 03 November 1947
• Docket Number: 5002
• Citation: 66 Ariz. 209,185 P.2d 998
• Parties: MOORE v. VALLEY GARDEN CENTER et al
• Court: Arizona Supreme Court

185 P.2d 998

66 Ariz. 209

MOORE v. VALLEY GARDEN CENTER et al

No. 5002

Supreme Court of Arizona

November 3, 1947

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

Judgment affirmed.

Fred V Moore, of Phoenix, in pro. per.

Jack Choisser, City Atty., Theodore G. McKesson, Thomas P Riordan, and Carl W. Divelbiss, all of Phoenix, for appellees.

Udall Justice. Stanford, C. J., and La Prade, J., concur.

OPINION

Udall, Justice.

The facts in this case are not in dispute. By two deeds (dated November 23, 1934, and January 12, 1935, both properly recorded in the office of the Maricopa County Recorder) the City of Phoenix acquired property for park purposes which comprises a portion of the area now known as Encanto Park. About ten years later (December 12, 1946) the Parks, Playgrounds and Recreational Board of the City of Phoenix (a board of five members appointed by the Mayor and City Commissioners to control, regulate and develop the city's parks) leased eleven lots and a tract in this area for 99 years to the Valley Garden Center, a nonprofit corporation. By the terms of this lease the lessee was obligated to: (1) Pay rent of $ 1 per year; (2) erect a clubhouse and horticultural gardens on the premises at an approximate cost of $ 25,000; (3) make the gardens available to the Phoenix Public School System for the study of Botany; (4) promote and sponsor junior garden clubs; (5) maintain in the proposed building a horticultural library open to the public at fixed hours and supervised by a librarian employed by and under the control of the lessee; (6) turn the premises and improvements thereon back to the City of Phoenix at the expiration of the lease.

The lease was executed by the Chairman of the Parks, Playgrounds and Recreational Board of the City of Phoenix on the one hand and the President and Secretary of the Valley Garden Center on the other, and it was approved as to form by the City Attorney of Phoenix.

On February 28, 1947, the plaintiff-appellant Fred V. Moore, as a resident and taxpayer, filed his complaint in the Superior Court of Maricopa County contesting the validity of the lease through a declaratory judgment action. Defendants filed their answer and later a motion for summary judgment, which motion was granted after a hearing, and formal judgment was entered thereon. It is plaintiff's appeal from that judgment that constitutes the case at bar.

Plaintiff bases his appeal on three assignments: First, he contends that the lease is invalid for the reason that it fails to comply with Ch. IV, Sec. 2, subsec. 39 of the Charter of the City of Phoenix which provides that the City Commission shall have the power:

"(39) To provide for the lease of any land or buildings now or hereafter owned by the city; but all leases shall be made at public auction to the highest responsible bidder at the highest monthly rent, after publication of notice thereof for at least ten (10) days, stating explicitly the time and conditions of the proposed lease; provided, that the Commission may in its discretion reject any and all bids."

Specifically, in this regard, plaintiff points to the admitted fact that there was no notice given, no public auction, and that therefore the lease was not awarded to the highest responsible bidder.

Second, plaintiff maintains the lease was executed in violation of Ch. XXIII (misprinted as Ch. XXII in the 1939 Municipal Code of the City of Phoenix), Sec. 2, subsec. 3 of the Charter of the City of Phoenix which, in providing for a Parks, Playground and Recreactional Board and designating its powers and duties states that it may: "* * * purchase real estate for park, playground or recreational purposes, and * * * sell or lease same if and when it be deemed no longer necessary for park, playground or recreational purposes." As to this assignment, plaintiff points out that no finding was made to the effect that the leased property was no longer necessary for park, playground or recreational purposes.

Third, plaintiff assigns as error the fact that the lease was to a private corporation for private purposes which he contends is contrary to Ch. XXIII, Sec. 2, subsec. 7 of the Charter which allows the Parks, Playgrounds and Recreational Board:

"To make and enter any contracts with others, for the lease or use of buildings or tracts of land for recreational purposes."

There can be no question of the fact that the Charter is controlling in this case over any inconsistent or contradictory law relating to cities containing a population of more than 3500 inhabitants so long as it is not in conflict with the State or Federal Constitutions. Sec. 16-303, A.C.A.1939; Gardenhire v. State, 26 Ariz. 14, 221 P. 228. Nor is there any disagreement over the fact that the Charter can be amended, Sec. 2, Art. 13, Constitution of the State of Arizona; and that it was amended by proper processes to provide for a Parks, Playgrounds and Recreational Board. Ch. XXIII of the Charter of the City of Phoenix.

Likewise it is a well settled law of construction of constitutions, statutes, charters, and similar instruments that the courts must, if consonant with reason, interpret such instruments in a manner such as will give effect to each and every provision thereof. Amish v. City of Phoenix, 36 Ariz. 21, 282 P. 42.

Defendants appear to rely upon a secondary rule of statutory construction to the effect that when two provisions in such an...