Rehearing Denied Sept. 21, 1954.
[77 Ariz. 370] Robert & Price, Phoenix, for appellant.
William C. Eliot, City Atty., George T. Fike, Fred F. Bockmon, and James F. Haythornewhite, Asst. City Attys., Phoenix, for appellees.
Myers & Whitlow, Phoenix, amicus curiae on behalf of Anthony Standish.
This appeal is from an order of the superior court dismissing application of plaintiff-appellant, L. K. Brown, dba Hertz-Driv-Ur-Self System, for a writ of mandamus and quashing the alternative writ theretofore issued, and from judgment rendered for defendants-appellees, the City of Phoenix, a municipality, and the individual members of its city council. We shall hereafter refer to the parties either by name or as plaintiff and defendants.
While the evidence is to be taken in the light most favorable to sustaining the judgment of the trial court, it appears to us that there is no conflict in the evidence as to the material facts hereinafter stated.
Plaintiff Brown is a franchisee of the Hertz-Driv-Ur-Self System (a subsidiary of General Motors Corporation), a national car rental business. He resides in Denver where his principal place of business is located, but in January, 1951, established the Phoenix business. At that time the right to rent floor space at the Phoenix Municipal Airport and operate rental cars therefrom was held by an outright month-to-month lease granted without public bidding to Anthony A. Standish, dba Avis Rent-A-Car System, for ten percent of his
gross business income or $150 per month, whichever was greater.
In the latter part of June, 1952, a representative of the plaintiff called on Kenneth K. King, Director of Public Works for the City of Phoenix, and asked as to the possibility of having an opportunity to bid on the car rental lease at the municipal airport. Mr. King informed him that the Avis Company had been operating satisfactorily for some time and that the city would probably give Avis the business in the future and not open the lease to public bidding. The city attorney was consulted in the matter and he advised the city officials that the lease should be opened for public auction bidding as required by Chapter IV, Sec. 2, Par. 39 of the Charter of the City of Phoenix, which reads in part:
'(39) Leasing of land and buildings of city. * * * all leases shall be made at public auction to the highest responsible bidder at the highest monthly rent, * * * provided that the council may in its discretion reject any and all bids.'
The city manager published an advertisement for bids and notice of public auction to be held on September 16, 1952, in the council chambers at the City Hall. It is recited therein that the auction will be held
[77 Ariz. 371] '* * * for the leasing of the following described premises to the highest responsible bidder (for) a percentage of his gross monthly sales, with a guaranteed minimum of two hundred dollars ($200.00) per month rent, * * *.'
At the appointed time two bidders appeared. After some preliminary sparring, Mr. Standish, of the Avis Company, entered his bid of 17% of the gross monthly rentals and plaintiff entered a final bid of 18% of the gross monthly rentals at the airport and presented proof of proper insurance responsibility. The city council referred the bids to the city manager and recessed until that afternoon. Upon reconvening it was the recommendation of the Municipal Aeronautics Commission, the Public Works Director, and the Superintendent of Airports
'* * * that the award be made to Anthony Standish as being the highest and best bid when all factors are considered of service and experience of airport operations.'
After some very enlightening comments by members of the council, which will be examined more fully hereafter, by a vote of four to one (Councilman Goldwater and Walters were absent) the council concurred in the recommendation and awarded the lease to Mr. Standish. Mayor Foster placed in the record certain letters not formally identified, written by persons favoring the granting of the lease to Standish for the reason that he was experienced in the car rental business. Plaintiff Brown promptly filed complaint and application for writ of mandamus in the superior court, in which it was alleged in part as follows:
'* * * and that due to the arbitrary, capricious and unfair manner in which said lease was awarded on a lower and inferior bid, was beyond the proper and legal discretion of said City Council; and that this suit is to compel the admission of the plaintiff to the use and enjoyment of a right to which he is entitled.'
An alternative writ of mandamus was issued. An answer to application for writ was filed and the matter was tried on its merits to the court. At the conclusion the court found, among other things, that the city council in awarding the lease to Standish 'did not act in an illegal, unfair or arbitrary manner, nor did it act in bad faith.' It thereupon denied the peremptory writ of mandamus and quashed the alternative writ theretofore issued. This appeal followed.
From the outset the defendants have challenged the right of the court to control by mandamus the discretion of the city council in awarding the lease in question, as fraud was not alleged. While there is respectable authority for such a position (See ...