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In re Annexation to City of Phoenix

Supreme Court of Arizona

May 9, 1938

In the Matter of the Annexation to the CITY OF PHOENIX of Certain Contiguous Territory (Annexation District "A"). JOHN H. UDALL, as Mayor of the City of Phoenix, a Municipal Corporation of the State of Arizona, Appellant,

APPEAL from a judgment of the Superior Court of the County of Maricopa. E. R. Thurman, Judge. Judgment affirmed.

Mr. I. A. Jennings, City Attorney, Mr. Hess Seaman and Mr. Richard F. Harless, his Assistants; Messrs. Snell, Strouss & Salmon, Mr. J. Early Craig, Messrs. Kibbey, Bennett, Gust, Smith & Rosenfeld, Mr. T. G. McKesson, Mr. Frank J. Duffy, Mr. T. A. Carson, Mr. Emmett R. Fighner and Mr. Evan S. Stallcup, for Appellant.

Messrs. Dougherty & Dougherty, Mr. Darrell R. Parker and Mr. J. A. Riggins, for Appellees Severn, Adlam, Shaughnessy, Baswitz, Smith, Shumway and Vanderford; Mr. V. L. Hash, for Appellees Gibson; Messrs. Palmer & Cornelius and Messrs. Cunningham & Carson, for Appellees Miller, Miner, Stermer and Marsh.

Mr. E. C. Locklear, City Attorney, Prescott; Mr. G. H. Drumm, City Attorney, Winslow; Mr. William H. Westover, City Attorney, Yuma; Mr. Stephen D. Monahan, City Attorney, Nogales; Mr. Cullen A Little, City Attorney, Globe; Mr. George F. Senner, City Attorney, Miami; Mr. James A. Walsh, City Attorney, Mesa; Mr. Martin Gentry, City Attorney, Willcox; Mr. A. Van Wagenen, Jr., City Attorney, Casa Grande; Mr. Edward R. Byers, Town Attorney, Williams; Mr. I. F. Wolpe, Jr., Town Attorney, Wickenburg; Mr. James T. Gentry, City Attorney, Bisbee; Mr. Orinn C. Compton, City Attorney, Flagstaff; Mr. B. G. Thompson, City Attorney, Tucson, and Mr. Arthur Henderson, of Counsel, for City of Tucson, Amici Curiae.


Page 348

[52 Ariz. 67] LOCKWOOD, J.

The city of Phoenix filed a petition in the superior court of Maricopa county, through its mayor, John H. Udall, hereinafter called plaintiff, reciting that said city, desiring to annex a certain area lying immediately adjacent and contiguous to its corporate limits, had adopted a resolution under the provisions of sections 416, 417, and 418, Revised Code of 1928, authorizing him to petition to the superior court of Maricopa county to order such annexation to be made. The court fixed a time for hearing [52 Ariz. 68] the petition and a number of citizens of the area which was sought to be annexed, whose names it is not necessary to give, but whom we shall hereafter call defendants, appeared and objected to the jurisdiction of the court, on the ground that the sections, under which the annexation was sought, violated the Constitution of Arizona, in that they constituted an attempt to delegate to the courts the exercise of powers properly belonging to the legislature, and for that reason the statute conferred no jurisdiction upon the court. The matter was heard at length, and the court concluded that the sections were a delegation of legislative power to the judiciary, and therefore unconstitutional and void, and dismissed the petition, whereupon this appeal was taken.

One of the fundamental principles of the governmental system of our federal republic is what is known as the rule of divided powers. As a corollary to this principle it has usually been accepted, even in the absence of an express constitutional provision to that effect, that neither of the three great departments of state should exercise the powers of either of the other two. The makers of our Constitution were not satisfied with an implied limitation and placed in that instrument article 3, which reads as follows:

"The powers of the government of the State of Arizona shall be divided into three separate departments, the Legislative, the Executive, and the Judicial; and, except as provided in this Constitution, such departments shall be separate and distinct, and no one of such departments shall exercise the powers properly belonging to either of the others."

The power to create and to destroy municipal corporations, and to enlarge or diminish their boundaries is universally held to be solely and exclusively the exercise of legislative power. We do not know of any well-considered cases which hold to [52 Ariz. 69] the contrary. Lyon v. City of Payette, 3, Idaho 705, 224 P. 793; 1 Dillon, Mun. Corp., 5th ed., P. 61; 19 R.C.L. 700; 12 C.J. 856. And indeed our Constitution has, in substance, so stated. Article 13, § 1; Article 4, Pt. 2, § 19, subd. 17. When, therefore, the question before the court is whether or not a statute which confers upon the courts the final power to determine whether land should be annexed to an existing municipal corporation is constitutional, and the only limitation upon the exercise of that power is that the court shall determine the issue without any standard or rule to guide it but its own view as to the political and economic expediency of the annexation, it would seem axiomatic that the power so to be exercised by the court was legislative in its mature, rather than judicial. Strange as it may seem, however, there are courts which have upheld the right of the legislature to delegate such a power to the judicial department of the government. An analysis of the cases which thus hold shows clearly the conditions and the reasoning which led up to these conclusions.

In the absence of a constitutional restriction the power of the legislature over municipal corporations is practically unlimited. It may incorporate or disincorporate them; it may add to or take away from their territorial area; it may grant to or take away from them such powers as it may see fit. The earlier American Constitutions placed no limit upon this power, but as time went on it became apparent to the people of many of the states that it was being abused by the granting of special privileges to particular cities on terms different from those required of other municipalities. In the territory of Arizona this condition obtained from its organization until July, 1886, when the Harrison Act (48 U.S.C.A., sections 1471-1473, 1475, 1478 1479), was passed, which provided, in substance, that no local

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or special laws [52 Ariz. 70] should be passed incorporating cities, towns, and villages. In 1912, the makers of the Constitution were convinced, after some 25 years of experience, that this was a wise and salutary policy, and wrote the same provision into the Constitution in even more stringent form. As a result, all municipalities created in Arizona since statehood owe their existence and development to general statutes, and not to special charters, except such as were organized under section 2, article 13 of the Constitution, usually known as the "home rule" cities, and a similar condition existed in a great many other states. But the same desire for special privileges which led to the granting of special charters before the various constitutional restrictions were adopted still existed, and, as is always true when the desire of some individual or group is in conflict with the law declared by the entire citizenship, a means was sought for avoiding, if not evading, the principle laid down in the Constitution. Many, if not most of the courts which have held acts of the character of the one in question to be constitutional, have admitted more or less clearly in their opinions that the reason for their departure from the natural and logical conclusion which would be drawn from an application of the usual rules of constitutional construction was an attempt to evade the effect of those principles. Their argument is that since the legislatures were limited to the incorporation and regulation of municipalities by means of general laws, and since general laws could not cover the subject sufficiently to meet the various exigencies of the situation in regard to the different municipalities, that it was necessary in some way to get around the constitutional provision so as to permit what was in fact special legislation to fit the particular case. As the exercise of discretion as to a particular municipality by the legislature would openly violate the constitutional [52 Ariz. 71] provision, it was concluded that perhaps a delegation of that discretion to the judicial department of the government might be a constitutional method of "whipping the devil around the stump."

We have examined the various cases cited in support of the position taken by plaintiff, and, in so far as they sustain that position, they are based upon two considerations, (a) the inconvenience which might be caused to some municipalities if they were forced to conform to general laws, and (b) that while such acts do delegate legislative power to the judicial department of the government, the delegation was, after all, only of a "modicum" of such powers. So far as the argument of inconvenience is concerned, it seems to us that the courts can hardly say, with good grace, that a restriction deliberately imposed by the people in their Constitution, after experience with a contrary rule, is an inconvenience of the kind they should assist the legislature in evading. Constitutional mandates are not lightly to be disregarded by any of the departments of the government, and particularly not by that one which has always been considered in our system as peculiarly the guardian of the Constitution.

A determination of whether the delegation of what is called by some of the cases a "modicum" of legislative powers to the judiciary is constitutional is one of more difficulty. Chief Justice MARSHALL, in speaking of the division of powers, in Wayman v. Southard, 10 Wheat. 1, 6 L.Ed. 253, said:

"The difference between the department undoubtedly, is that the legislature makes, the executive executes, and the judiciary construes the law; but the maker of the law may commit something to the discretion of the other departments, and the precise boundary of this power is a subject of delicate and difficult inquiry, into which a court will not enter unnecessarily."

[52 Ariz. 72] The statement thus made is undoubtedly correct, and courts will not unnecessarily enter into the question of whether the constitutional inhibition has been violated, but when it is specifically contended that a certain act is unconstitutional, as being a violation of such a constitutional limitation, we have no option but to consider the question and determine whether, in the particular case, it falls on the one side or the other of the dividing line between constitutional and unconstitutional delegations of power. The question has been discussed in the case of State v. Neble, 82 Neb. 267, 117 N.W. 723, 19 L.R.A. (N.S.) 578, and the court says:

"In the investigation of this question, we are confronted with the unusual and anomalous condition of meeting with many

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apparently well-considered cases sustaining every contention of either side, and it will be absolutely impossible for us to follow any line of decisions which will not be antagonized by holdings in many other cases, for there is a sharp conflict of authority upon every conceivable feature and phase of the case. It could serve no good purpose for us to discuss and attempt to harmonize the views of Montesquieu, Jefferson, Madison, Hamilton, Stevens, Wilson, Goodnow, and others upon the question here involved, for the reasons that it would be impossible to bring harmony out of the chaos produced by their divergent opinions, and that such discussion would extend this opinion to an unreasonable length, ending where we begin, and for the further reason that the time at our disposal is not adequate to the task. We will, therefore, be content with a brief reference to some of the later decisions, and an effort to arrive at the spirit and meaning of our own Constitution as interpreted by the courts, the Legislature, and the judicial and administrative history of the state. The provision of the Constitution that 'the powers of the government of this state are divided into three distinct departments, the legislative, executive, and judicial, and no person or collection of persons being one of [52 Ariz. 73] these departments, shall exercise any power properly belonging to either of the others, except as hereinafter expressly directed or permitted, is not a new one in the Constitutions of this country. It has been handed down from the best thinkers and greatest statesmen of the nation to nearly all state Constitutions in one form or another, and, even where not adopted in terms, it has been almost uniformly recognized as a part of our governmental system ( State v. Brill, 100 Minn. 499, 111 N.W. 294, 639 [10 Ann. Cas. 425]), but has never been strictly applied, and indeed could not be, to all the ramifications of state or national government. The duties of the officers of the several departments have, to some extent at least, overlapped and interlaced until it is hard to say in some cases where the one leaves off and the other begins. Many times the courts have defined certain duties of the executive or administrative officers as 'quasi judicial,' and recognized and confirmed the validity of the acts of such officers. While this definition has been approved and sanctioned by all, yet the fact remains that the function of the act itself is either administrative or judicial, and there can in reality be no middle or halfway ground between them. This being true, we are brought to the conclusion that many executive or administrative acts performed by judicial officers, and many judicial acts performed by ministerial officers, are and must be held valid, notwithstanding the section of the Constitution above quoted. Thus it often becomes necessary to the full and proper discharge of the duties imposed upon an official belonging to one class to perform an act the function of which, strictly speaking, belongs to another.

"The performance of such duties being, to some degree at least, essential to the full discharge of the duties imposed and properly within the power of the actor, the power conferred must be held to be valid; otherwise a condition of chaos would arise..." (Italics ours.)

The Supreme Court of Wisconsin, in the case of In re Griner, 16 Wis. 423, 447, in discussing the question of whether a certain statute unlawfully delegated [52 Ariz. 74] legislative power to the administrative branch of the government, said:

"... The reasoning by which this position was attempted to be sustained, was very able and elaborate, and may be briefly stated as follows: That the making a draft or a conscription law is the highest exercise of legislative power; that all power over this subject is vested exclusively in congress; that by the spirit and principles of the constitution, the powers of the government are divided into three departments: the legislative, the executive, and the judicial; that it is the peculiar function of the legislative department to make the law, of the executive to execute it, and the judicial to construe it; that these powers are not to be confounded or delegated by the one department to the other; and that congress, in authorizing the President to make all necessary rules and regulations for enrolling the militia, and curing defects in existing state militia laws, attempted to confer upon him high legislative powers.

"The general soundness of this argument will not be questioned. Most of the propositions stated, are recognized political maxims under our form of government. It is only the conclusion or deduction from those propositions about which any doubt can exist. No one will seriously contend that congress can delegate legislative power to the president. But a distinction must be

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made of 'those important subjects which must be entirely regulated by the legislature itself, from those of less interest in which a general provision may be made, and power given to those who are to act under such general provision to fill up the detail.'... This practice of giving discretionary power to other departments or agencies, who were intrusted with the duty of carrying into effect some general provisions of law, had its origin at the adoption of the constitution, and in the action of the first congress under it, as the federal legislation abundantly shows. It was undoubtedly in strict conformity to the views entertained by the great statesmen of that day, of the genius and intent of the instrument which they had had such a great share in framing. They could not have regarded it as a delegation of the [52 Ariz. 75] legislative power of congress. This practical construction of the constitution, so frequently and constantly manifested in the federal legislature, is worthy of serious consideration.

"... The courts, for example, may make rules directing the return of writs and processes, the filing of declarations and other pleadings, and other things of the same description. It will not be contended that these things might not be done by the legislature, without the intervention of the courts; yet it is not alleged that the power may not be conferred on the judicial department. The line has not been exactly drawn, which separates those important subjects, which must be entirely regulated by the legislature itself, from those of less interest, in which a general provision may be made, and power given to those who are to act under such general provision to fill up the details...." (Italics ours.)

In the case of Fox v. McDonald, 101 Ala. 51, 13 So. 416, 46 Am. St. Rep. 98, 21 L.R.A. 529, the Supreme Court of that state had under consideration a similar question, and said:

"... Keeping these definitions in view, we can the better determine the vital question arising upon the contention now under discussion in this cause, which is, what powers of government does the constitution intend shall be confided to the exercise, respectively, of these several governing bodies? Now, it must be conceded that the powers thus vested in these several departments are intended to be committed to their exclusive exercise; and this, independently of the provision that no person or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others....

"The argument is that the nature of the act to be performed must in every instance determine the question; and that nature being found to be legislative, executive, or judicial, the performance of the act must be assigned to the appropriate state department. We are quite clear the contention takes a step too far.... When we take our constitution, therefore, and read [52 Ariz. 76] it in the light of this history, we see plainly that it was not intended to declare that every act pertaining to government, and the regulation of the social and property rights of the citizen, should be exercised exclusively by the legislative, executive, or judicial department of the state government, or some member of it, according as the act possessed a legislative, executive, or judicial character, for we find there are many such acts especially peculiar to the very nature of our system, and necessarily inherent in it, which, time out of mind, have not been exclusively exercised by these departments, and which, for the ease and efficiency of our system, could not be so exercised....

"... Other illustrations might be given, but these suffice to make clear the principle that the constitution must receive an enlarged and liberal interpretation, and the intention of its framers ascertained upon a broad view of the history and experience, the needs and usages, of the time, and the great general purpose they had in view, of framing a comprehensive and beneficent government. Thus viewed, we irresistibly conclude that it was not the intention of the constitution to declare that all these powers and duties, so indispensable to efficient government, and so long exercised, under legislative sanction only, by these officers and agencies of legislative creation, properly belong ...

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