[89 Ariz. 300] John R. Franks, City Atty., Merle L. Hanson, Anis Mitchell, Leven B. Ferrin, Patrick E. Burke, Asst. City Attys., Phoenix, for appellant.
John A. Metheany and Ralph H. Knight, Phoenix, for appellees.
The City of Phoenix, defendants in the court below and hereinafter referred to as appellants, appeal from a verdict and judgment[89 Ariz. 301] in favor of plaintiffs, B. R. and Hazel M. Williams, hereinafter referred to as appellees. Evidence was adduced at trial that at about noon on April 8, 1957, a person whose name was not noted, called the City of Phoenix to complain of a loose manhole cover at Second Street and East Washington. The call was directed to the Police Department, from whence the caller's message was reported to an officer in a patrol car. The officer drove to the intersection, made an investigation, but found no loose manhole cover. At about five o'clock on the same afternoon, appellee and her granddaughter waited at the southwest corner of the intersection of Second Street and East Washington to be picked up by appellee's daughter. Shortly after 5 P.M., appellee's daughter driving south on Second Street, crossed Washington Street and brought her car to rest in the western-most lane of traffic on Second Street about 6-8 feet from the curb. Appellee stepped into the street, placed her granddaughter in the car, and as she stepped back to enter the car herself, fell as her left leg slipped into a service hole, on which the manhole cover was imperfectly seated. Appellee sued the city for the injuries resulting from her fall and recovered a verdict and judgment of $4,000 from which the city appeals.
Appellant makes eight assignments of error. The first two assignments relate to City of Phoenix ordinance G-111, which reads, in part:
'Section 1: The City of Phoenix shall not be liable nor shall any action be maintained against it for damages for injuries to person or property sustained in consequence of any street, highway, parkway, bridge, culvert, sidewalk or crosswalk being defective, out of repair, unsafe, dangerous or obstructive unless written notice of the defective, dangerous, unsafe, obstructive or unrepaired condition specifying the particular place has been given to the Director of Public Works and there has been a failure or neglect to remedy, repair or remove the defect, danger or obstruction complained of within a reasonable time after such notice has been given.'
One of the two assignments dealing with ordinance G-111 is directed toward the court's failure to admit it into evidence, and the other complains of the court's refusal to give a requested instruction in which the ordinance was set forth. Appellee had objected to introduction of the ordinance on the grounds that it was immaterial and unconstitutional, and the trial court sustained the objection. The court refused to give the instruction, though no formal objection was made to his action. Since both of the appellant's assignments ultimately depend upon whether or not ordinance G-111 is valid, we shall address ourselves to that question first.
[89 Ariz. 302] A consideration of the validity of Phoenix ordinance G-111 requires us to determine initially whether the Phoenix City Council had the power to pass the ordinance. In Paddock v. Brisbois, 35 Ariz. 214, 220, 276 P. 325, 327, this Court said:
'A state Constitution * * * is a limitation of power, whereas a charter of a city, like the federal Constitution, is a grant of power. The organs
through which the state speaks and acts may exercise all governmental powers not denied them by the Constitution and not surrendered to the federal government. A city can exercise only such powers as are delegated to it by the Constitution and the laws of the state and its charter.' (Emphasis supplied.)
These basic principles regarding the power of a municipality have served as guides in numerous decisions since that time. City of Flagstaff v. Associated Dairy Products Co., 75 Ariz. 254, 255 P.2d 191; City of Phoenix v. Arizona Sash, Door & Glass Co., 80 Ariz. 100, 293 P.2d 438, opinion amended 80 Ariz. 239, 295 P.2d 854. It is obvious, in summary, that an ordinance must conform and be subordinate to the city charter, as well as to the state laws and Constitution.
In Schultz v. City of Phoenix, 18 Ariz. 35, 39, 156 P. 75, 76, we said that the powers derived by a municipality from its charter are three-fold: those granted in express words, those fairly implied in the powers expressly granted, and "* * * those essential to the accomplishment of the declared objects and purposes of the corporation--not simply convenient, but indispensable." Within the framework of these fundamentals we must decide whether or not Phoenix Ordinance G-111 was adopted pursuant to any of the above powers, or whether it was authorized by any state statute or by our Constitution.
We cannot find, nor does appellant call to our attention any provision in the City of Phoenix charter which expressly, impliedly, or as a matter of necessity authorizes the adoption of the ordinance. Appellant argues, however, that the right to pass the ordinance under consideration falls within the power invested in municipalities by state statutes which give municipalities the right to lay out, establish, regulate the use, open, vacate, widen, extend, grade, pave, plant trees, or otherwise improve streets, alleys, avenues, sidewalks, parks and public grounds. A.R.S. §§ 9-240, subd. B, pars. 2, 3 and 9-276, subd. A, par. 1 (1956). That these statutes do not provide express authority for the ordinance in question is self-evident. Moreover, this Court has said that "* * * the only function of an implied power is to aid in carrying into effect a power expressly granted." City of Flagstaff v. Associated Dairy Products Co., 75 Ariz. 254, 257, 255 P.2d 191, 193. We think that the power to [89 Ariz. 303] pass an ordinance which virtually absolves the city from liability for negligent maintenance of its streets and sidewalks cannot be fairly implied from an express power which authorizes the city to maintain and improve its streets and sidewalks.
Finally, can the exercise of power to enact ordinance G-111 be justified on the grounds that the ordinance is "* * * essential to the accomplishment of the declared objects and purposes of the corporation--not simply convenient, but indispensable." Appellant does not point out any such source of power in the city's charter. We must determine, therefore, whether or not the state statutes cited by appellant impliedly authorize ordinance G-111 as 'indispensable' to the accomplishment of the declared purposes of the corporation. A review of the cases concerning the question of a municipality's liability for the negligent maintenance of its streets and sidewalks persuades us that the ...