McClintock v. City of Phoenix ( 1922 )

PER CURIAM.

This is what may he 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 hy 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 of 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 Legis•lature 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 pur- ■ poses 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 (é) 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 Pac. 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 defraying the public expenditures, and is to be exercised only for tbe purpose of meeting sucb expenditures, the limitation upon tbis power is effected by limiting tbe objects for wbicb tbe moneys may be expended. Tbis power of taxation is one of tbe highest attributes of sovereignty, and, as a municipality seeking to exercise it must find express authority from tbe legislature, so its power to disburse tbe public moneys, being correlative to the power of taxation, must equally find express authority for its exercise. Tbe purchase of real estate, by itself considered, is not tbe exercise of any governmental function, and sucb purchase by a municipality can be sustained only by tbe production of an express authority from tbe legislature therefor, or upon its being shown that it is necessarily incidental to tbe exercise of some express function of government with wbicb tbe municipality is charged.”

It is clear tbe proposed bond issue is not for any purpose of tbe city nor in aid of any municipal function, and since at tbe time it voted in favor of tbe bond issue and directed tbe sale of tbe bonds, tbe state had not empowered tbe city to do so, it acted without authority of law.

It only remains to be seen if tbe defect of power in tbe city was cured by tbe validating act of tbe First Special Session of tbe Fifth Legislature introduced as Senate Bill No. 57, and to be published as chapter 13 of tbe Laws of tbe Special Session. Tbis special, or extraordinary, session of tbe legislature was convened upon tbe call of tbe Governor in tbe exercise of bis constitutional right as expressed in section 3 of subdivision 2, article 4, wbicb reads, in part, as follows:

“Tbe Governor may call a special session, whenever in bis judgment it is advisable. In calling sucb special session, tbe Governor shall specify tbe subjects to be considered at sucb session, and at sucb session no law shall be enacted except sucb as relate to tbe subjects mentioned in sucb call.”

The Governor in his call specified ten subjects to be considered by the special session, and none of the specifications referred to the power of municipalities of the state to issue bonds and invest the proceeds thereof in property owned, by the state, nor do they or any of them in the slightest degree relate to such subject. Eight of the subjects mentioned in the call are so foreign to the validating legislation in question that we pass them with the statement that by no possible construction could they be held to cover the matter. The other two are as follows:

“(5) To consider governmental machinery, state, county and municipal, with a view to more closely co-ordinating, or abolishing certain agencies and activities, and revising expenditures in connection therewith.”

“(7) To consider and enact amendments to the improvement act of 1912 and acts amendatory or supplementary thereto with the object of restoring competitive bidding and eliminating any legal doubt or question as to the validity of bonds issued thereunder. ’ ’

It is apparent that the subject numbered “5” had in view some changes in the officers, commissions, or ■agents charged with the duties of carrying on the state, county or city government and the expenses in connection therewith, and that these in no way comprehend or relate to the power of the state or county or city to issue or sell bonds for any purpose what-ever.

Subject 7 refers to the public improvement act (Laws 1912, c. 55) or the law authorizing cities and towns to improve their streets by special assessments, and to issue bonds in payment thereof when the property owner so desires, and was included in the Governor’s call that legislation concerning such public improvements might be enacted and improvement bonds theretofore issued thereunder validated if the legislature so pleased. The subject matter therein is entirely unrelated to the validation of the proceedings of the defendant city in voting the bonds in question or the ordinance passed by the city directing the issuance and sale of said bonds.

The provision of our Constitution requiring the Governor in his call of a special session to set forth the subjects of legislation, and prohibiting the legislature from enacting any law not comprehended in the call or related to the subjects named therein, is mandatory (section 32, article 2). 25 R. C. L. 806, § 56. It is a limitation on the power of the legislature that must be observed. Wells v. Missouri Pacific R. Co., 110 Mo. 286, 15 L. R. A. 847, 19 S. W. 530. It was put into the Constitution by the people themselves, and to allow the legislature to disregard it, and enact laws generally, as may be done at a regular session, would permit the exercise of a power by that body expressly withheld from it by the organic law of the state. We are constrained to hold that the legislative attempt to validate the city’s bonds was ineffective because it is legislation foreign to any subject specified in the Governor’s call.

The judgment of the lower court is reversed and the cause remanded, with, directions that the restraining order as prayed for be granted.