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City of Phoenix v. Pensinger

Supreme Court of Arizona

March 31, 1952

CITY OF PHOENIX et al.
v.
PENSINGER

Judgment affirmed.

Jack Choisser, City Atty., Laurence H. Whitlow, Asst. City Atty., and Jack D. H. Hays, Asst. City Atty., all of Phoenix (Wm. C. Eliot, Phoenix, of counsel), for appellants.

Jack C. Cavness, of Phoenix, for appellee.

Stanford, Justice. Udall, C. J., and Phelps, De Concini and La Prade, JJ., concur.

OPINION

Stanford, Justice.

Page 547

C. W. Pensinger, appellee, the present City Magistrate of the City of Phoenix, brought this action for a declaratory judgment in the lower court to test the validity and constitutionality of an amendment to the charter of the City of Phoenix. The amendment, which we now set forth in part purports to set up certain qualifications for the office of City Magistrate, provides for the manner of selection, appointment and removal, and establishes a definite term of office and minimum salary limitations.

"There shall be at least one (1) City Magistrate, who shall be judge of the City Court. He shall be appointed for a term of four (4) years beginning on the first business day of July, 1950, and may be removed only upon resolution adopted by a unanimous vote of all members of the council after public hearing and for cause. The City [73 Ariz. 421] Manager shall make the appointment from a list submitted to him by a majority of the judges of the Superior Court of Maricopa County, State of Arizona, of three (3) duly licensed and practicing attorneys at law who are residents of the City of Phoenix. If for any reason such a list be not submitted to the City Manager at least ten (10) days before the beginning of any term of office or within ten (10) days after a vacancy shall occur in the office, the City Manager shall proceed, notwithstanding the absence of such list, to appoint a person so qualified. The City Magistrate shall devote his full time to the duties of his office and shall receive a salary to be fixed by ordinance of not less than five thousand dollars ($ 5,000.00) per year, payable in semi-monthly installments. The salary so fixed by ordinance shall not be changed during a term of office.

* * *

"Provided, however that in the event of temporary absence, sickness, or other inability of the City Magistrate to act, the City Manager may, without the necessity of a list being submitted, appoint a person qualified as above provided as acting City Magistrate, who shall for such period of inability perform all the functions and duties of, and receive the same salary as the City Magistrate." Chapter VIII, Sec. 3, Charter of the City of Phoenix.

The lower court held the amendment to be unconstitutional and invalid in its entirety. This appeal followed.

The objectionable part of the amendment is that which imposes a duty upon the judges of the Superior Court of Maricopa County to submit a list of 3 duly licensed and practicing attorneys of the City of Phoenix to the City Manager, from which he would make his selection. Art. VI, Sec. 11, of the Constitution of Arizona states: "Judges of the Supreme Court and judges of the superior courts shall not be eligible to any office or public employment other than a judicial office or employment, during the term for which they shall have been elected." The charter amendment attempts to make a majority of the judges of the Superior Court of Maricopa County a nominating board for candidates for appointment to the office of City Magistrate of the City of Phoenix. This proposed duty cannot be imposed upon them nor could they in their official capacity perform the duty. It clearly appears that the questioned provision of the amendment is in direct conflict with the above quoted constitutional clause. Appellants' one assignment of error does not take issue with the ...


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