CITY OF SCOTTSDALE, a municipal corporation, and Fisher Contracting Co., an Arizona corporation, Petitioners,
MUNICIPAL COURT OF the CITY OF TEMPE and Honorable Samuel Kee, a Magistrate of said Municipal Court, Respondent.
[90 Ariz. 395] Snell & Wilmer, Phoenix, for petitioners.
William G. Barnes, City Atty., Tempe, for respondent.
This is an action by the City of Scottsdale and the Fisher Contracting Co., a corporation, seeking to prohibit the Municipal Court of the City of Tempe from enforcing its zoning ordinance and building code against certain property on which Scottsdale is
attempting to construct a sewage disposal plant.
Scottsdale has for some years past owned and operated a sewage plant on a plot of ground near the bed of the Salt River in Maricopa County, Arizona. In 1958, it purchased twenty(20) acres for a site to expand its existing plant. Thereafter, consulting engineers designed plans for and arrangements were made to finance construction. Petitioner, the Fisher Contracting Co., was the low bidder on the proposed works.
On March 10th, 1960, the City of Tempe annexed a one-half (1/2) section of land which annexation embraced within its exterior boundaries both the existing plant and the twenty (20) acres acquired for expansion and thereafter zoned the area Residence I. [highest residential use] A use permit was denied by Tempe on application of Scottsdale. Nevertheless, petitioners herein, believing that the Tempe ordinance was invalid insofar as it sought to restrict the use of Scottsdale's property, commenced the construction of the proposed improvement with the result that petitioners were cited into the Municipal Court of Tempe for violating both Tempe's zoning ordinance and building code.
Tempe does not contend that the operation of the proposed sewage facilities will be a nuisance. While the expense may be great and vigilance is required, a sewage disposal plant can be operated so that it need not be a nuisance. City of Phoenix v. Johnson, 51 Ariz. 115, 75 P.2d 30. Nor is it suggested that Scottsdale is acting arbitrarily or capriciously in expanding its disposal plant. To the contrary, it is alleged and not denied that the Scottsdale area has had a population boom causing the existing sewage plant to become inadequate and in excess of its capacity. It also appears that the site purchased by Scottsdale for the addition to its existing plant is on land near the Salt River. We take judicial notice that such land is generally considered to be of marginal value for residential purposes and that the fall of the land and hence the [90 Ariz. 396] drainage is from the City of Scottsdale south to the bed of the Salt River.
It is first Tempe's position that Scottsdale has not been delegated the authority or power by the Legislature to construct a sewage disposal plant and it is argued that statutes which might seem applicable do not grant the right. We do not think the pertinent statutes can be so circumscribed.
A.R.S. § 9-522 provides:
'A. In addition to its other powers, a municipality may:
'1. * * * within or without its corporate limits, construct, improve, reconstruct, extend, operate, maintain and acquire, by gift, purchase or the exercise of the right of eminent domain, a utility undertaking * * *.' (Emphasis supplied)
The preceding § 9-521 defines utility undertaking to include sewage disposal plant.
The title to Article III of Chapter 5, under which the quoted section is found reads: 'Municipal Bonds for Financing Utilities' but we think this is of no particular significance and that it does not create a limitation on the constructing of sewage disposal plants from the proceeds of bond funds. Only when the body of an act is ambiguous will courts take into consideration the title. Garrison v. Luke, 52 Ariz. 50, 78 P.2d 1120. There is no ambiguity here. The power to acquire property by purchase or eminent domain for utility undertakings is absolutely and unconditionally prescribed by the express language used.
Scottsdale urges that it has the right by virtue of the power of eminent domain to locate its sewage disposal plant at the proposed site irrespective of Tempe's zoning. Zoning finds its authority in the police powers, Hart v. Bayless Investment & Trading Co., 86 Ariz. 379, 346 P.2d 1101, while eminent domain is the right and power in a sovereign state to appropriate private property to uses for the public good. The right is 'a necessary, constant and unextinguishable attribute,' of sovereignty. Constitutional provisions in regard to eminent doamin do not create or grant the
power, but are limitations thereon; therefore, when by Article II, Section 17 of the Constitution of Arizona it was provided that private property may not be taken without just compensation, there was an implied recognition that private property may be taken with just compensation for public use. See Cienega Cattle Co. v. Atkins, 59 Ariz. 287, 126 P.2d 481.
A.R.S. § 9-522, supra, authorizes the acquisition of property both inside and outside corporate limits without qualification. The New York Court of Appeals in a case where property owners sought an injunction to prevent the erection of a building to house garbage trucks and repair equipment contrary to zoning stated the underlying principle, 'In the very nature of things, a municipality must have the power [90 Ariz. 397] to select the site of buildings or other structures for the performance of its governmental duties.' Nehrbas v. Incorporated Village of Lloyd Harbor, 2 N.Y.2d 190, 159 N.Y.S.2d 145, 140 N.E.2d 241, 61 A.L.R.2d 965. Where the power of eminent domain exists, a political subdivision may locate its governmental functions within the territorial limits of another subdivision without regard to limitations created by zoning. State ex rel. Askew v. Kopp, 330 S.W.2d 882 (Mo.1960); State ex rel. Helsel v. Board of County Comm'rs., Ohio Com.Pl., 79 N.E.2d 698, aff'd. 83 Ohio App. 388, 78 N.E.2d 694, app. dismissed, 149 Ohio St. 583, 79 N.E.2d 911; Petition of City of Detroit, 308 Mich. 480, 14 N.W.2d 140; Aviation Services v. Board of Adjustment, 20 N.J. 275, 119 A.2d 761.
For example, the Missouri Supreme Court in State ex rel. Askew v. Kopp, supra, said:
'Local zoning ordinances are not applicable to public uses of property for which an agency of the government has the power to acquire lands by the exercise of the power of eminent domain. * * * the power of eminent domain is superior to property rights, the right to exercise the power being exclusively a legislative prerogative, 'subject ...