Schultz v. City of Phoenix

• Decision Date: 13 March 1916
• Docket Number: Civil 1511
• Citation: 18 Ariz. 35,156 P. 75
• Parties: R. R. SCHUTLZ, Appellant, v. CITY OF PHOENIX, Appellee
• Court: Arizona Supreme Court

156 P. 75

18 Ariz. 35

R. R. SCHUTLZ, Appellant, v. CITY OF PHOENIX, Appellee

Civil No. 1511

Supreme Court of Arizona

March 13, 1916

APPEAL from a judgment of the Superior Court of the County of Maricopa. R. C. Stanford, Judge. Reversed and remanded.

Mr. J B. Woodward and Mr. I. D. Shamhart, for Appellant.

Mr George D. Christy, City Attorney, for Appellee.

OPINION

ROSS, C. J.

An action to recover damages for personal injuries alleged to have been caused by the defendant's negligence on the seventh day of November, 1914. The general demurrer to the complaint was sustained, and, the plaintiff standing upon his complaint, judgment was entered against him, from which he appeals.

It is the contention of the appellee city that it is not liable in an action for damages for personal injury, and to sustain the city's position reliance is had upon section 7, article 18, of Act 61 of the Sesseion Laws of the Legislative Assembly of Arizona of 1885, and the decision of the supreme court construing said section 7 as exempting the city from liability for personal injuries resulting from the negligence of its officers and agents. There have been two of such decisions. Fifield v. Common Council of City of Phoenix, 4 Ariz. 283, 24 L.R.A. 430, 36 P. 916, and Morrell v. City of Phoenix, 16 Ariz. 511 147 P. 732.

If section 7 of article 18, Act 61, of the Session Laws of 1885, has not been repealed or abrogated, we think the contention of the city attorney is correct, and that the decisions in the Fifield and Morrell cases are determinative of the case. In the Morrell case was said:

"It seems quite certain that it was the intention of the legislature of the territory of Arizona, judging by the language used, that Phoenix should be immune from damages for injuries or loss occasioned by or through the malfeasance, misfeasance or neglect of duty of any of its officers or other authorities. The city received its charter from the territorial legislature in February, 1881 (Laws 1881, No. 58). In 1885 the legislature amended the charter (Laws 1885, No. 61), and one of the sections of the amendatory act was section 7 of article 18, which provides as follows: 'The said corporation shall not be liable to anyone, or for any loss or injury to person or property growing out of, or caused by the malfeasance, misfeasance, or neglect of duty of any officer, or other authorities of said city; or for any injury or damages happening to such person or property on account of the condition of any zanja, sewer, cesspool, street, sidewalk or public ground therein; but this does not exonerate any officer of said city, or any other person, from such liability, when such casualty or accident is caused by the willful neglect of duty enforced upon such officer or person by law, or by the gross negligence or willful misconduct of such officer or person in any other respect.'"

On December 31, 1913, the city of Phoenix adopted a new charter under the provisions of section 2, article 13, of the Constitution of the state. Said section provides that, if the proposed new charter is ratified by a majority of the qualified electors voting thereon, it shall be submitted to the Governor for his approval, and that the Governor shall approve it, if it be not in conflict with the Constitution or the laws of the state. It further provides that:

"Upon such approval said charter shall become the organic law of such city and supersede any charter then existing (and all amendments thereto), and all ordinances inconsistent with said charter."

The statutory law (chapter 16, title 7, Civil Code 1913) provides the procedure to be followed by a city desiring to frame a new charter for its own government, and in paragraph 2033 thereof is incorporated the same language as to the effect of a new charter upon any pre-existing charter of such city. The preamble to the new charter of the city of Phoenix states:

"We, the people of the city of Phoenix, . . . have framed, adopted and ordained, and do hereby frame, adopt and ordain, the following as the charter of said city, which shall supersede, as provided in the Constitution of the state, the charter of the said 'common council of the city of Phoenix,' and all laws amendatory thereof and supplementary thereto."

Section 1 of the charter provides:

"The municipal corporation now existing and known as 'the common council of the city of Phoenix' . . . shall have all the powers necessary, proper or convenient for the government and regulation of its inhabitants and its local affairs, the exercise of which are not forbidden by the Constitution of the United States or the Constitution or laws of the state of Arizona, including those hereinafter enumerated in subsequent chapters of this charter. . . ."

It would seem quite clear from the language of the Constitution and the statutory law that a city adopting a new charter must surrender the old charter, and look solely to the new charter for its range of action, and that this was fully understood by the inhabitants of Phoenix is evidenced by the preamble of the new charter. The framers of the new charter, in section 1, supra, have undertaken to enumerate and limit what things the city of Phoenix may do. It "shall have all the powers necessary, proper or convenient for the government and regulation of its inhabitants and its local affairs, the exercise of which are not forbidden" by the federal or state Constitution or laws of the state "including those hereinafter enumerated." The self-restraint here placed upon the city by its charter is but the announcement of the general rule of law. Dillon on Municipal Corporations, volume 1, section 59, says that the charter of a corporation is its constitution and gives to it all the powers it possesses, unless other statutes are applicable to it. The same author, at section 237, says:

"It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation -- not simply convenient, but indispensable. Any fair, reasonable, substantial doubt, concerning the existence of the power is resolved by the courts against the corporation, and the power is denied. Of every municipal corporation the charter or statute by which it is created is its organic act. Neither the corporation nor its officers can do any act, or make any contract, or incur any liability, not authorized thereby, or by some legislative act applicable thereto. All acts beyond the scope of the powers granted are void. Much less can any power be exercised, or any act done, which is forbidden by charter or statute. These principles are of transcendent importance, and lie at the foundation of the law of municipal corporations."

We quote thus largely these propositions of law for the purpose of emphasizing the idea that not only the powers and duties, but also the liabilities or exemptions from liability, of a municipal corporation, must be found in its fundamental law.

The liabilities of a municipal corporation are an incident to and grow out of, the powers and duties conferred or exacted. It follows that if the corporation, in the exercise of any of its powers or the performance of any of its duties, incurs in contractu or in delicto any liability, whether it arises from express ...