Town of South Tucson v. TUCSON GAS, ELECTRIC LIGHT & POW. CO.

• Decision Date: 12 June 1945
• Docket Number: No. 10921.,10921.
• Citation: 149 F.2d 847
• Parties: TOWN OF SOUTH TUCSON v. TUCSON GAS, ELECTRIC LIGHT & POWER CO.
• Court: U.S. Court of Appeals — Ninth Circuit

149 F.2d 847 (1945)

TOWN OF SOUTH TUCSON v. TUCSON GAS, ELECTRIC LIGHT & POWER CO.

No. 10921.

Circuit Court of Appeals, Ninth Circuit.

June 12, 1945.

Harry O. Juliani, of Phoenix, Ariz., and Stover & Martin, of Tucson, Ariz., for appellant.

Darnell & Robertson, George R. Darnell, and Lawrence V. Robertson, all of Tucson, Ariz., for appellee.

Before DENMAN, HEALY, and BONE, Circuit Judges.

DENMAN, Circuit Judge.

This is an appeal from a final judgment of dismissal by appellant, an Arizona municipal corporation, located within Pima County, Arizona, hereinafter called the Town, seeking the exercise of the court's jurisdiction to condemn all of the properties of the appellee, a corporation of the State of Colorado, hereinafter called the Power Company.

The Town filed its complaint in the Superior Court of the State of Arizona, in and for the County of Pima. On the motion of the Power Company the case was removed to the United States District Court for the District of Arizona on the ground of diversity of citizenship. The case on the merits is concerned solely with the law of Arizona.

Appellant assigns several grounds of error in the judgment of the district court. That court filed no opinion. It is contended that the Power Company is urging here certain matters not presented in the court below and hence not within our cognizance. In this the appellant is in error, since we are required to seek the support of the judgment appealed from upon any ground disclosed in the record. Le Tulle v. Scofield, 308 U.S. 415, 421, 60 S.Ct. 313, 84 L.Ed. 355, and cases cited. Underlying all the contentions is the question of the court's jurisdiction to proceed to condemn appellee's properties as disclosed in the complaint seeking its exercise. This, if it were not urged in the Power Company's brief, this court would be required to consider sua sponte.

In Arizona the performance by the party seeking condemnation of the statutory conditions precedent to exercising the power to condemn is held to be essential to the court's jurisdiction to proceed with the litigation. In that state the question may be determined in a collateral attack upon the condemnation suit by the property owner, in a suit in the Arizona supreme court for a writ of prohibition addressed to the trial court in which the condemnation is sought, to prevent that court "from proceeding."

In Re Forsstrom, 44 Ariz. 472, 497, 38 P.2d 878, 888, such a writ was sought in the supreme court on the ground, inter alia, that the pleadings in the trial court showed that a resolution of the condemning body, the City Council, had not declared the necessity of the taking for a public use, claimed to be required by the statute.

The Arizona supreme court considered the resolution and other action of the City Council required by the statute to determine whether its action brought it "within the powers" of condemnation conferred upon the city. The supreme court held inter alia, that "since the ordinance providing for the condemnation * * * appears to be constitutional, and within the powers of the city of Tucson * * * the superior court has the jurisdiction to proceed with the said suit * * * under the provisions of chapter 23 of the Revised Code of Arizona of 1928."¹ (Emphasis supplied.)

The party against whom the court must exercise its jurisdiction to condemn also may raise that jurisdictional question in the state court by demurrer; in the federal district court by the equivalent motion to dismiss. County of Apache v. Udall, 38 Ariz. 488. In the event the demurrer be overruled by the Arizona superior court, the property owner need not wait until the final decision in the case but at once may seek certiorari in the Arizona supreme court. Bugbee v. Superior Court, 34 Ariz. 38, 267 P. 420.

To invoke the jurisdiction of the superior court, the statutory requirements of the Municipal Revenue Bond Act of 1943, with which the complaint must allege compliance, are

"16-2603. Powers of municipalities. — In addition to any powers it may now have a municipality shall have power: * * * to acquire, by * * * the exercise of the right of eminent domain, any utility undertaking or part thereof, and acquire in like manner land, rights in land, or water rights in connection therewith; 2. to issue its bonds to finance the cost thereof. * * *"

"16-2604. Vote on bond issues. — Questions of bond issues under this act shall be submitted to the real property taxpayers who are in all other respects qualified electors of the municipality. No bonds shall be issued without the assent of a majority of such qualified electors voting at an election held for that purpose, as provided in this act. * * *"

"16-2605. Election resolution. — (a) The governing body shall adopt an election resolution calling an election upon the question of the issuance of bonds. Such resolution shall state in substance: 1. the maximum amount of bonds to be issued; 2. the purpose for which the bonds are to be issued * * *." (Emphasis supplied.)

This court takes judicial notice of the outstanding importance of the election to determine whether a municipality shall engage in such quasi public functions as the service to its community of...