[81 Ariz. 340] Wm. P. Mahoney, Jr., Maricopa County Atty., and Charles L. Hardy and William S. Andrews, Deputy County Attys., Phoenix, for appellant.
Dougherty & Connor and Virgil W. Chandler, Phoenix, for appellee.
This is an appeal from a judgment dismissing the complaint of Maricopa County, a body politic (and corporate), as plaintiff, against Margaret Anderson, defendant, by which plaintiff sought, under the exercise of the power of eminent domain, to condemn a strip of land 33 feet wide, owned by defendant, lying along the south line of section 9, township 1 north, range 7 east, Gila and Salt River Base and Meridian, Maricopa County, Arizona, and more particularly described as lying between sections 9 and 18 in said township and range. It was alleged in the complaint that the board of supervisors had theretofore 'established, opened and declared a county highway' along what is known as Elliott Road, which includes the strip of land above described.
The record does not disclose upon what ground the complaint was dismissed but we assume, from plaintiff's assignments of error, that it was dismissed upon the ground (1) that section 59-601, A.C.A.1939 (now § 18-201 et seq., A.R.S.1956), purporting to prescribe the procedure the plaintiff must pursue in its exercise of the power of eminent domain, is unconstitutional; (2) that section 17-309(4), A.C.A.1939 [81 Ariz. 341] (now § 11-251, subd. 4, A.R.S.1956), and sections 27-901 to 27-921 A.C.A.1939, inclusive (now §§ 12-1111 to 12-1128 inclusive, A.R.S.1956), when considered together do not sufficiently set forth the authority and procedure to be followed to authorize the county to exercise the power of eminent domain in condemning private property for use as a public road; and (3) that plaintiff's amended complaint does not contain the allegations required by law to state the claim of a condemner. We will therefore discuss these questions in the order presented.
Counsel, both for plaintiff and defendant, agree with the view presumably taken by the trial court that section 59-601, supra, is unconstitutional as being in violation of the provisions of Article 2, Section 17 of the Arizona Constitution, A.R.S., and the question was discussed at length in their briefs.
There may be merit to the position of the trial court and of counsel. However, we decline to consider the constitutionality of that section for the reason that it is neither directly nor indirectly involved in this case and therefore, not necessary to a determination of the issues made by the pleadings. The amended complaint in the instant case is predicated solely upon sections 17-309(4) and 27-901 to 27-921 inclusive, supra. Nowhere in such amended complaint is any reference made to the provisions of section 59-601, supra, despite defendant's allegation in her answer that plaintiff is relying, in part, upon that section. In support of our position, 16 C.J.S., Constitutional Law, § 94, p. 307 states:
'* * * Indeed, it is well-settled that the constitutionality of a statute will not be determined in any case, unless such determination is absolutely necessary in order to determine the merits of the suit in which the constitutionality of such statute has been drawn in question, and such rule should not be departed from except for strong reason and under extraordinary circumstances. * * *' Citing six pages of cases from all jurisdictions in support thereof.
In Board of County Com'rs of Wyandotte County v. General Sec. Corp., 157 Kan. 64, 138 P.2d 479 at page 489, the Kansas court said:
'Courts are loath to hold enactments of the legislature to be unconstitutional and this court has repeatedly held that there is time enough for it to pass upon the validity of a statute in that regard when the question is raised by some one who is hurt by it. * * *'
and in Flanders v. City of Pueblo, 114 Colo. 1, 160 P.2d 980, 981, the court said:
'For the purpose of this decision we observe first that constitutional questions are not decided by the courts save in case of necessity, * * *'
[81 Ariz. 342]
and in Collison v. State, 9 W.W.Harr., Del., 460, 2 A.2d 97, 108, 119 A.L.R. 1422, the court said:
'Courts will decline to consider the question of the constitutionality of a statute unless a decision can be reached on no other ...