Bravin v. Mayor of Tombstone

KIBBEY, J.

The appellant (the plaintiff below) alleged in his complaint that he had been duly elected to the office of assessor of the city of Tombstone, and became ex officio tax and license-collector, health officer, and street commissioner of that city, and, having duly qualified, was duly inducted into that office; that on the first day of April, 1891, the defendants the mayor and common council of the city of Tombstone illegally and wrongfully usurped said offices, and took possession thereof, and of the books, papers, and other effects pertaining thereto, and turned them over to the defendant Prank Ryan, chief of police of the city of Tombstone; that Ryan thereupon entered upon the discharge of the duties, and the exercise of the powers, of appellant’s office, and continues therein, and has thereby defrauded appellant of the emoluments of the office. Appellant prays for judgment of ouster against Ryan; that he may be readmitted into office; and that he have judgment for two hundred dollars damages. The defendants appeared, and the mayor, etc., pleaded, in abatement of the action, misnomer of the corporation defendant, in that the corporate name is “The City of Tombstone of the Territory of Arizona,” and not “The Mayor,” etc., as pleaded. The defendants demurred specially and generally, and pleaded a general denial. The plea in abatement was sustained, and the action as to the mayor, etc., dismissed. The record from this point in the proceeding is much confused. The minute entry of the proceedings states, after reciting the ruling on the plea in abatement: “And said argument further proceeding upon the demurrer filed herein, the same being submitted as to the special demurrer upon the *88 claim for damages made in said complaint, and the court, being now fully advised in the premises, does sustain the same, and grants leave to argue the remaining questions raised by demurrer.” The next entry in the minutes, dated more than two months later than the foregoing, recites: “This cause having heretofore been tried and submitted to the court, and the court, now being fully advised herein, does find the issue herein in favor of the defendants, and against the plaintiff, and does hereby order judgment accordingly, and for costs. Plaintiff, by his counsel, moves for a new trial, which is overruled. Thereupon, plaintiff gives notice of appeal,” etc. The judgment appears in the record here, and recites that “no witnesses were, examined.” The words in the printed blank, “the evider se being included,” are obliterated, and the judgment begins: “Wherefore, by reason of the law aforesaid, it is ordered, adjudged,” etc.,“do have judgment against the plaintiff on all the issues in said case.” No attempt is made to perfect an appeal from any judgment upon the facts. While the record is informal, we are of the opinion that no issue of fact was tried, and that the judgment is upon an issue of law only.

The appellant assigns as error the ruling of the court in sustaining the demurrer to the complaint, and we think that question is substantially presensed here. We may premise that the plea in abatement was properly sustained, and we need not consider any question on the demurrer of the mayor, etc., for that ruling carried them out of court.

The city of Tombstone was created by a special act of the general assembly in 1881. That act provided for a city assessor, who should be ex officio tax and license collector, health officer, and street commissioner. Appellant was duly elected to that office, and had legally entered upon the discharge of the various duties incident to the office. This is admitted by the demurrer. It was subsequently provided by “An act to reduce expenses in certain cities of the territory of Arizona,” approved March 16, 1891, “that in all cities ... in which the total vote east at the general election held therein on the fourth day c:t November, 1890, was less than six hundred,” the functions of the-city assessor, city tax-collector, city license-tax-collector, and street commissioner shall be incident, ex officio, to the office of chief of *89 police. In pursuance of this act of 1891 the discharge of the duties theretofore imposed upon the appellant, as city assessor, were devolved upon Ryan, the appellee, chief of police; and he thereafter discharged them, to the exclusion of appellant. At the general election of 1890, Tombstone was the only city in Arizona in which there were less than six hundred votes cast. Appellant contends that the legislative act of 1891 is in violation of the inhibition contained in the act of Congress approved July 30, 1886, commonly known as the “Harrison Act,” which, among other things, provides that the “legislatures of the territories . . . shall not pass local or special laws in any of the following enumerated cases: . . . incorporating cities, towns, or villages, or changing or amending the charter of any town, city, or village.” Constitutional provisions similar to that of the Harrison Act, just quoted, have frequently been the subject of judicial construction. We entertain no doubt but that if the Territorial Act of 1891 is valid it operates as an amendment of the charter of the city of Tombstone. Is it “local or special,” within the meaning of the Harrison Act? The law can never apply to any other city in Arizona. It applies only to cities that in 1890 cast less than six hundred votes. Of that class Tombstone is the only one. No provision is made in the act whereby other cities' may in future come within its terms and operation. In fact, others are necessarily excluded. Sutherland, in his work on Statutory Construction, says: “If a statute is plainly intended for a particular case, and looks to no broader application in the future, it is special or local, and if such laws are prohibited it is unconstitutional.” Sec. 129. A classification of cities may be made, based upon population; upon the number of votes cast from time to time; upon the extent or character of a particular business or industry done and pursued within their limits, etc. And this even though but one city in the state or territory comes within the provisions of the statute at the time of its enactment. But the statute must be elastic, so that other cities may, as they attain the requisite conditions, come within the classification and within the operation of the statute. We think the rule may safely be stated to be that the classification of municipalities, and the incidental imposition of different obligations and granting of different powers to them *90 according to such classification, must be such, that other municipalities may, upon the attainment of the conditions characterizing any particular class, enter that class, and the conditions themselves must be not only possible, but reasonably probable, of attainment. Am. Law Rev., sec. 22, p. 403, and cases there cited. Applying this rule to the ease at bar, we think the act of 1891 does not come within it. It is therefore special legislation, and a violation of the Harrison Act. It is suggested by appellee that this is a ease to which general legislation could not be made applicable, and that the legislature, and not the courts, is the sole judge of that fact. That rule applies only to subjects of legislation not specifically enumerated. Th: statute (Harrison Act) enumerates certain subjects upon which there shall not be local or special legislation. It further provides that, “in all other eases where a general law can be made applicable, no special law shall he enacted.” If, is to these “other eases” that the rule laid down by some courts, that the legislature is to be the judge of the applicability of a. general law, applies.

Our statute provides that if judgment be rendered upon the right of a person to any office in his favor, he may recover the damages he shall have sustained by reason of the usurpation of the office by the defendant. The court, therefore, erred in sustaining appellee Ryan's special demurrer to that part of the complaint claiming damages. The judgment of the court below, as to the mayor and common council, etc., is affirmed, and as to Ryan it is reversed, and the cause is remanded for trial in accordance with this opinion.

Gooding, C. J., and Wells, J., concur.