Appeal from Superior Court, Yavapai County; M. T. Phelps, Judge.
E. C. Locklear, of Prescott, for appellants.
Byrne & Byrne, of Prescott, for appellee.
LaPrade, Justice. Stanford, C. J., and Udall, J., concur.
[67 Ariz. 370] This is an appeal from a judgment of the superior court invalidating Ordinance No. 350 of the city of Prescott, Arizona, which ordinance, adopted October 25, 1937, attempts to limit the number of liquor licenses which may be issued within the corporate limits of the city. The city for its authority to enact the ordinance in question looks to its charter. Prescott, since its incorporation in 1883, has existed and operated by virtue of the charter granted to it by the territorial legislature in that year, being Act. No. 37, Laws 1883, entitled "An Act to incorporate the City of Prescott, to define its limits and rights, to specify its privileges and powers, and provide for an efficient government for the same." By section 4 of article 2 of the act the mayor and common council are specifically granted the power to provide by ordinance "for the licensing, regulating, restraining, suppressing and prohibiting, or either, any and all hawkers, peddlers, * * * gambling houses, * * * bawdy houses, the sale of spirituous or malt liquors in quantities less than one quart, by keepers of saloons or any other person or persons; houses of prostitution or assignation, * * * and if licensed, to fix the amount of license tax thereon. * * *." (Emphasis supplied.)
[67 Ariz. 371] It is the contention of the appellee that the licensing and regulating of the traffic in intoxicating liquors has been fully covered by the legislature in chapter 72, A.C.A.1939, and that by such legislation the field has been pre-empted. By section 72-102, there is created the department of liquor licenses and control and the office of superintendent of such department. The general principles involved are elaborately considered and discussed in Clayton v. State, 38 Ariz. 135, 297 P. 1037; Northeast Rapid Transit Co. v. Phoenix, 41 Ariz. 71, 15 P.2d 951; State v. Anklam, 43 Ariz. 362, 31 P.2d 888; State v. Jaastad, 43 Ariz. 458, 32 P.2d 799; Highland Park Realty Co. v. Tucson, 46 Ariz. 10, 46 P.2d 641; Keller v. State, 46 Ariz. 106, 47 P.2d 442; Phoenix v. Drinkwater, 46 Ariz. 470, 52 P.2d 1175; American-La France, etc., Corp. v. Phoenix, 47 Ariz. 133, 54 P.2d 258; City of Phoenix v. Breuninger, 50 Ariz. 372, 72 P.2d 580; Home Owners' Loan Corp. v. Phoenix, 51 Ariz. 455, 77 P.2d 818; Luhrs v. City of Phoenix, 52 Ariz. 438, 83 P.2d 283; City of Phoenix v. Kidd, 54 Ariz. 75, 92 P.2d 513; Hislop v. Rodgers, 54 Ariz. 101, 92 P.2d 527; Trigg v. City of Yuma, 59 Ariz. 480, 130 P.2d 59; City of Tucson v. Tucson Sunshine Climate Club, 64 Ariz. 1, 164 P.2d 598; City of Tucson v. Arizona Alpha of Sigma Alpha Epsilon, Inc., 67 Ariz. 330, 195 P.2d 562.
The rule established in all of these cases is that a charter city is sovereign in all of its "municipal affairs" where the power attempted to be exercised has been specifically or by implication granted in its charter. As above pointed out, the charter of the city of Prescott specifically grants to the municipality the power to license, regulate, and tax "the sale of spirituous or malt liquors in quantities less than one quart." The question now is: Is there any limitation upon the exercise of this power? By section 16-303, A.C.A.1939, any laws relating to cities having a charter in force at the time of the adoption and the approval of such charter are repealed or suspended insofar as they conflict with charter provisions, "provided that such charter shall be consistent with and subject to the state constitution, and not in conflict with the constitution and laws relating to the exercise of the initiative and referendum and other general laws of the state not relating to cities." (Emphasis supplied.)
In practically all of the foregoing cases the effect of section 16-303, supra, has been directly or indirectly considered by this court. In Clayton v. State, supra, [38 Ariz. 135, 297 P. 1041] we find this statement:
"Supplementing section 2 of article 13 of the Constitution, the Legislature, in section 398 of the Revised Code of 1928 (section 16-303, A.C.A. 1939), has provided that in case of conflict the charter provisions shall prevail over existing laws and shall operate as a repeal or suspension of such laws to the extent of such conflict, but 'that such charter shall be consistent with and subject [67 Ariz. 372] to the state constitution, and not in conflict with the constitution and laws relating to the exercise of the initiative and referendum and other general laws of the state not relating to cities.' (Italics ours.) This recognizes the supremacy of the 'general laws of the state not relating to cities.' The Highway Code is such a law. It does not relate to cities, but to the public highways of the state generally." (Emphasis supplied.)
On rehearing, 38 Ariz. 466, 300 P. 1010, it was said: "* * * It is not a novelty in the law to find the same act punishable by statutes and by city ordinance. Indeed it is quite common for the two jurisdictions to legislate concurrently on the same subject. 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 field and declared the rule, its declaration is binding throughout the state." (Emphasis supplied.)
In Hislop v. Rodgers, supra, [54 Ariz. 101, 92 P.2d 533] we had occasion to comment on the rule laid down in the Clayton case, as follows: "We have followed this rule in City of Phoenix v. Breuninger, 50 Ariz. 372, 72 P.2d 580, 583, holding in substance that where municipalities are given express power to legislate upon a certain subject, they may do so even though the same subject is covered by statewide law, '* * * provided, always, of course, that such legislation did not contradict some rule laid down by the state.' In other words, the municipal legislation cannot contradict the state law, but it may parallel it, or even go beyond it, so long as the two are not in conflict. * * *" (Emphasis supplied.)
By way of summation of the rule, Justice Morgan, speaking for this court in City of Tucson v. Tucson Sunshine Climate Club, supra, said [64 Ariz. 1, 164 P.2d 601]: "From the foregoing it will be seen that where a home rule city has power by its charter it may act in conformity with such power not only in matters of local concern, but also in matters of state-wide concern, within its territorial limits, unless the Legislature has appropriated ...