Appeal from Superior Court, Maricopa County; M. T. Phelps, Judge.
Fred V. Moore, of Phoenix, in pro. per.
Jack Choisser, City Atty., Theodore G. McKesson, Thomas P. Riordan, and Carl W. Divelbiss, all of Phoenix, for appellees.
Udall, Justice. Stanford, C. J., and La Prade, J., concur.
The facts in this case are not in dispute. By two deeds (dated November 23, 1934, and January 12, 1935, both properly recorded in the office of the Maricopa County Recorder) [66 Ariz. 210] the City of Phoenix acquired property for park purposes which comprises a portion of the area now known as Encanto Park. About ten years later (December 12, 1946) the Parks, Playgrounds and Recreational Board of the City of Phoenix (a board of five members appointed by the Mayor and City Commissioners to control, regulate and develop the city's parks) leased eleven lots and a tract in this area for 99 years to the Valley Garden Center, a nonprofit corporation. By the terms of this lease the lessee was obligated to: (1) Pay rent of $ 1 per year; (2) erect a clubhouse and horticultural gardens on the premises at an approximate cost of $ 25,000; (3) make the gardens available to the Phoenix Public School System for the study of Botany; (4) promote and sponsor junior garden clubs; (5) maintain in the proposed building a horticultural library open to the public at fixed hours and supervised by a librarian employed by and under the control of the lessee; (6) turn the premises and improvements thereon back to the City of Phoenix at the expiration of the lease.
The lease was executed by the Chairman of the Parks, Playgrounds and Recreational Board of the City of Phoenix on the one hand and the President and Secretary of the Valley Garden Center on the other, and it was approved as to form by the City Attorney of Phoenix.
On February 28, 1947, the plaintiff-appellant Fred V. Moore, as a resident and taxpayer, filed his complaint in the Superior Court of Maricopa County contesting the validity of the lease through a declaratory
judgment action. Defendants filed their answer and later a motion for summary judgment, which motion was granted after a hearing, and formal judgment was entered thereon. It is plaintiff's appeal from that judgment that constitutes the case at bar.
Plaintiff bases his appeal on three assignments: First, he contends that the lease is invalid for the reason that it fails to comply with Ch. IV, Sec. 2, subsec. 39 of the Charter of the City of Phoenix which provides that the City Commission shall have the power:
"(39) To provide for the lease of any land or buildings now or hereafter owned by the city; but all leases shall be made at public auction to the highest responsible bidder at the highest monthly rent, after publication of notice thereof for at least ten (10) days, stating explicitly the time and conditions of the proposed lease; provided, that the Commission may in its discretion reject any and all bids."
Specifically, in this regard, plaintiff points to the admitted fact that there was no notice given, no public auction, and that therefore the lease was not ...