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Luhrs v. City of Phoenix

Supreme Court of Arizona

October 3, 1938

GEORGE LUHRS, Appellant,
v.
CITY OF PHOENIX, a Municipal Corporation; JOHN H. UDALL, as Mayor of the City of Phoenix; and WALTER THALHEIMER, CHARLES G. SULLIVAN, HARRY T. DUFFY and W. A. CLARK, as Members of the City Commission of the City of Phoenix, a Municipal Corporation of the State of Arizona, Appellees

APPEAL from a judgment of the Superior Court of the County of Maricopa. William G. Hall, Judge. Judgment affirmed.

Mr. Terrence A. Carson, for Appellant.

Mr. I. A. Jennings, City Attorney, Mr. Hess Seaman, Assistant City Attorney, Messrs. Laney & Laney (of Counsel), for Appellees.

Mr. Joe Conway, Attorney General, and Mr. J. M. Johnson and Mr. W. E. Polley, Assistant Attorneys General, in Support of the Constitutionality of laws Here Questioned.

OPINION

Page 284

[52 Ariz. 440] ROSS, J.

The appellant, as a taxpayer of the city of Phoenix, in his own behalf and in behalf of others similarly situated, brought two suits against the city of Phoenix and the members of its commission, one challenging the constitutionality of chapter 40, Laws [52 Ariz. 441] of 1937, known as "the Police Pension Act of 1937," and the other challenging the constitutionality of chapter 43, Laws of 1937, known as "the Police, Peace Officers' and Firemen's Minimum Wage Act of 1937." General demurrers

Page 285

to the complaints were sustained and judgments entered for the defendants. Plaintiff appealed.

By stipulation, the cases were consolidated for the purposes of brief and argument on appeal. The principles governing in both cases are, in the main, the same and we shall dispose of them in one opinion.

Reference to the parties as they were in the trial court will be made.

Chapter 40 is entitled:

"An Act relating to pensions for aged and physically disqualified members of police departments, and for the creation of police pension funds and police pension boards."

This act creates in each city of the state having a population, according to the last federal census, of not less than 20,000 inhabitants, a police pension fund which shall be managed, controlled and distributed in accordance with its provisions. The act authorizes incorporated cities and towns having a population of less than 20,000 inhabitants to come under the police pension plan fund. It creates a pension board and prescribes its powers and duties, and provides for collection of a pension fund, and fixes eligibility of those entitled to pensions.

Chapter 43 is entitled:

"An Act relating to counties, cities, and towns, and prescribing minimum wages to be paid to police, peace officers, and professional fire-fighters."

It provides that any city or town having more than 7,000 inhabitants, as shown by the last federal census, having, or thereafter creating, a salaried police or [52 Ariz. 442] fire department, shall pay to every regularly appointed member thereof a minimum monthly wage in accordance with the classifications, periods of service, and corresponding minimum monthly wages as prescribed: Foot patrolman, third year and every year thereafter, $180 per month; hoseman, third year and every year thereafter, $180 per month. The act makes its violation a misdemeanor.

The theory of the complaint is that the city, of Phoenix, having theretofore adopted a freeholders' charter under section 2 of article 13 of the Constitution, has the exclusive power over pensions for its police officers and over wages of its policemen and firemen and that, therefore, chapters 40 and 43, supra, in attempting to provide for pensions for policemen and minimum wages for policemen and firemen in said city, transgress the Constitution. A freeholders' charter such as defendant's was intended to give its possessor certain rights and privileges free from interference by the legislature, which rights and privileges have been variously described in legislation and decisions and in constitutions as of local concern or as municipal affairs. We first stated the rule in Clayton v. State, 38 Ariz. 466, 300 P. 1010:

"Where the subject is one of local interest or concern, or where though not of local concern the charter or legislation confers on the city express power to legislate thereon, both jurisdictions may legislate on the same subject. Where, however, the subject is of state-wide concern, and the Legislature has appropriated the ...


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