Appeal from Superior Court, Maricopa County; J. Mercer Johnson, Judge.
H. B. Walker, of Phoenix, for appellant.
Jack Choisser, City Atty. and Howard W. Gibbons, Asst. City Atty., both of Phoenix, for appellees.
Stanford, Justice. Udall, Phelps and DeConcini, JJ., concur. Due to illness, the Chief Justice did not participate in determining this appeal.
[68 Ariz. 278] This is an action instituted by appellant as a citizen and taxpayer on behalf of himself and others similarly situated to enjoin the City of Phoenix, a municipal corporation, et al., from the use of any portion of that area lying south of said city known as the "South Mountain Park" as a sub-jail or prison camp, and to expend public funds for the building and maintenance of same.
The larger part of the area in question, consisting of approximately 14,816 acres of rough mountainous land, was granted by patents directly from the United States Government to the City of Phoenix pursuant to a Special Act of Congress approved June 7, 1924, 43 Stat. 643, granting said land to the City of Phoenix for "municipal, park, recreation, playground, or public convenience purposes," the consideration being $ 1.25 per acre.
The grants of said land to the city were dated September 29, 1927; September 8, 1930; September 29, 1931, and March 6, 1935, respectively, and all containing the provision that said lands were to be used by the city "for municipal, park, recreation, playground, or public convenience purposes".
Said grants were made upon the express condition that the land so granted should be used by the city only for the purposes hereinabove enumerated and if [68 Ariz. 279] the land or any part thereof should be abandoned for such use, said land or such part should revert to the United States in accordance with the provisions of said Act of Congress of June 7, 1924.
Appellant alleges in his amended complaint in substance that under the terms of the grant the land in question could only be used for park, playground or recreational purposes and that its use as a subjail or prison camp violates the conditions of the grant, subjects the said land to forfeiture and to a reversion of said lands to the United States Government.
Appellees filed a motion with the trial court to dismiss said amended complaint upon the ground that it failed to state a claim upon which relief could be granted. The trial court entered its order sustaining appellees' motion to dismiss and appellant refusing to further plead, the court dismissed said cause of action with prejudice. From said order and judgment of dismissal, appellant brings the case to this court on the following two assignments of error:
The first is that the court erroneously dismissed appellant's amended complaint, and the second is that the court failed to correctly interpret and apply the Act of Congress of June 7, 1924, under which the United States ...