Appeal from Superior Court, Pima County; Wm. G. Hall, Judge.
Suits by the Tucson Sunshine Climate Club, a corporation, against the City of Tucson, a body politic and corporate, to recover certain advertising expenditures. From a judgment for the plaintiff, the defendant appeals.
Thos. J. Elliott, of Tucson, for appellant.
Clifford R. McFall, of Tucson, for appellee.
Morgan, Judge. Stanford, C. J., and LaPrade, J., concur.
[64 Ariz. 3] For the fiscal year 1943-44, the City of Tucson, operating under a home rule charter, included and adopted in its annual budget an item of $ 17,500 for advertising purposes. From the previous annual budget it had on hand unexpended $ 3,792.08, leaving the net amount to be raised by taxation $ 13,707.92, of which $ 13,670.42 was collected during the year. On account of back taxes for prior years levied for advertising purposes, there was also collected during the fiscal year 1943-44 the sum of $ 710.92. The unexpended balance and the amount collected as back taxes were unencumbered, and the aggregate of these items, plus the taxes collected under the current levy, exceeded the amount of the budget item for advertising. For the fiscal year the total amount of advertising expenditures and obligations incurred by the city was the sum of $ 15,123.88. Of this total, $ 11,421.62 was paid, leaving a balance of $ 3,702.26, for which suit was brought by plaintiff (appellee here) as assignee. From a judgment in favor of plaintiff, the city appeals.
It is urged here, as it was in the trial court, that the court erred in entering judgment, for the following reasons: First, under the provisions of section 16-607, ACA 1939, the city is limited in making expenditures for advertising purposes during the fiscal year to one-twentieth of one per cent of its assessed valuation $ 24,087,590, or the sum of $ 12,043.79, and that therefore the judgment could not be for more than $ 622.17, it having already paid $ 11,421.62. Second, under the provisions of the city charter and the law, the only money in the advertising fund available for [64 Ariz. 4] advertising expenditures was the amount actually collected for taxes during the fiscal year $ 13,670.42, and the court, in any event, was without power to enter a judgment for more than $ 2,248.80, the balance then remaining after deducting the payments mentioned above.
The determination of this controversy requires a consideration of the constitutional provision relating to home rule charters, various legislative measures, and certain sections of the charter itself.
Article 13, section 2, Arizona Constitution, provides in part: "Any city containing, now or hereafter, a population of more than three thousand five hundred may frame a charter for its own government consistent with, and subject to, the constitution and the laws of the state, * * *." Specific provisions are made for the preparation, recording and publication of the proposed charter. When ratified by a majority of the qualified electors of the city it is submitted to the governor, "and the governor shall approve it if it shall not be in conflict with this constitution or with the laws of the state. Upon such approval said charter shall become the organic law of such city. * * * Thereafter all courts shall take judicial notice of said charter."
It will be observed that such a charter is of constitutional origin. It does not exist subject to the will of the legislature. It is a constitutional grant and is usually referred to as a freeholders' or home rule charter. It ...