1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Daryl M. Williams (004631)

darylwilliams@bwglaw.net

Attorneys for defendant 

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Kingman Airport Authority,

Plaintiff,

vs.

City of Kingman,

Defendant.

_____________________________________

)

)

)

)

)

)

)

)

)

)

No. 3:17-CV-08260-JJT

Motion to Dismiss for Want of

Jurisdiction

(Assigned to the Honorable John J. Tuchi)

Kingman Airport Authority is in possession of the Kingman Airport via a lease it has with the

City of Kingman. Kingman wants the Airport back, so it has filed a condemnation action to take

possession of the property. The Airport Authority has no defense to the city’s exercise of its

sovereign right of eminent domain, so it filed this case to enjoin the city. But contrary to what the

Airport Authority alleges, the city’s actions nether impair the lease between the parties nor give rise

to a matter subject to declaratory relief. This court lacks jurisdiction. Dismissal is required under

Fed.R.Civ.P. 12(b).

/ / /

/ / /

/ / /

/ / /

/ / /

BAIRD, WILLIAMS & GREER, L.L.P.

6225 NORTH 24

TH STREET, SUITE 125

PHOENIX, ARIZONA 85016

TELEPHONE (602) 256-9400

Case 3:17-cv-08260-JJT Document 10 Filed 12/12/17 Page 1 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

I. THERE IS NO JURISDICTION UNDER THE CONTRACT CLAUSE

The complaint in this case predicates federal-question jurisdiction on a claimed violation of

the Constitution: the contract clause.1 Kingman Airport Authority claims the condemnation of its

leasehold property rights is an impairment of its contract (the lease agreement) with the city. In

1848, however, the Supreme Court made it clear that the exercise of the right of eminent domain

to eliminate contractually held property rights does not violate the contract clause.2

The contract rights in the 1848 Supreme Court decision involved a 1795 Act passed by the

Vermont legislature creating and granting to West River Bridge Co. the right to build a toll bridge

across the West River.3 West River Bridge Co. built and operated the toll bridge for forty-seven

years of the contract’s one-hundred-year term before it was condemned for a public, toll-free

roadway.

4 The syllabus of the court reflects why the condemnation petition was brought: so that “a

great ‘grievance . . . should no longer be endured. . . ’ and the real estate easement or franchise of

1U.S. CONST. art. I, § 10. Complaint, Document 1, ¶ 5. This is one of two bases asserted for

the exercise of federal-question jurisdiction under 28 U.S.C. § 1331. The record basis for exercise

of jurisdiction is a claim for declaratory relief, considered infra. Supplemental jurisdiction under 28

U.S.C. § 1367 cannot exist without original jurisdiction, so it is not considered beyond this footnote.

2West River Bridge Co. v. Dick, 47 U.S. (6 How.) 507 (1848). 

3

Id.

4

Id. The apparent provocation for the condemnation action is set forth in the prior history of

the case, where the condemnor rationalized the legislature’s change of mind, “The West River

Bridge corporation, is, and for a long time has been a sore grievance both to the traveler and the

inhabitants of the towns in the vicinity who have occasion to pass and repass, travel and labor, on

said highway; and however the legislature in the infancy of the state may have exercised a sound

discretion in engranting said toll-bridge, yet, in the present improved and thriving condition of the

inhabitants, your petitioners are unable to discover any good reason why said grievage should longer

be endured . . . or why the wealthy town of Brattleboro’ should not, as well as other towns much less

able, sustain a free bridge across West River.”

2

Case 3:17-cv-08260-JJT Document 10 Filed 12/12/17 Page 2 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

‘West River Bridge Company,’ should be taken for the purpose of making a free road and bridge

across said river.”5

West River Bridge Co. was not happy about the condemnation, so it made the same claim

being made by the Airport Authority in this case: that the taking was “repugnant to the tenth section

of the first article of the Constitution, prohibiting the passage of state laws impairing the obligation

of contracts.”6 The United States Supreme Court did not agree. It recognized the importance of the

contract clause in the Constitution, but the Court held the contract clause did not come into play

when the state exercises its paramount right of eminent domain, which allows the state to take

property for the advantage of the whole society free from the contract rights like those of West River

Bridge Co.

No state, it is declared, shall pass a law impairing the obligation of

contracts; yet, with this concession constantly yielded, it cannot be justly

disputed, that in every political sovereign community there inheres

necessarily the right and the duty of guarding its own existence, and of

protecting and promoting the interests and welfare of the community at

large. . . . This power, denominated the eminent domain of the state, is,

as its name imports, paramount to all private rights vested under the

government, and these last are, by necessary implication, held in

subordination to this power, and must yield in every instance to its proper

exercise.7

While recognizing the Constitution as the supreme law of the land, the Supreme Court noted

it was foolish to suppose that the Constitution manifests an intention of the individual sovereign

states to relinquish their power of government and self-preservation.8 The Supreme Court held that

the right of eminent domain in no way interferes with the inviolability of contracts.

A correct view of this matter must demonstrate, moreover, that the right

of eminent domain in government in no wise interferes with the

5

Id.

6

Id. at 530.

7

Id. at 531–32.

8

Id. at 532.

3

Case 3:17-cv-08260-JJT Document 10 Filed 12/12/17 Page 3 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

inviolability of contracts; that the most sanctimonious regard for the one

is perfectly consistent with the possession and exercise of the other.9

The reason the right of eminent domain does not impair a contract is because of the nature of

contract rights. Contract rights exist because of the government. Without the government, the law

of property would simply be might-makes-right.

Under every established government, the tenure of property is derived

mediately or immediately from the sovereign power of the political body,

organized in such mode or exerted in such way as the community or state

may have thought proper to ordain. It can rest on no other foundation, can

have no other guarantee. It is owing to these characteristics only, in the

original nature of tenure, that appeals can be made to the laws either for

the protection or assertion of the rights of property. Upon any other

hypothesis, the law of property would be simply the law of force.10

All property rights, in other words, are derived from and are subordinate to the powers of the

government, and this subordination forms a part of every contract. The Constitution and the laws

are a part of every contract as though they were expressly set forth therein.

But into all contracts, whether made between states and individuals or

between individuals only, there enter conditions which arise not out of the

literal terms ofthe contract itself; they are superinduced bythe preexisting

and higher authority of the laws of nature, of nations, or of the community

to which the parties belong; they are always presumed, and must be

presumed, to be known and recognized by all, are binding upon all, and

need never, therefore, be carried into express stipulation, for this could

add nothing to their force.11

One of the inherent and paramount conditions in every contract is the right of eminent domain.

The exercise of eminent domain does not impair the contract affected by it because eminent domain

is an inseparable condition binding on the parties to the contract.

Such a condition is the right of eminent domain. This right does not

operate to impair the contract effected by it, but recognizes its obligation

9

Id.

10Id.

11Id. at 532.

4

Case 3:17-cv-08260-JJT Document 10 Filed 12/12/17 Page 4 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

in the fullest extent, claiming only the fulfilment of an essential and

inseparable condition.12

The inseparable condition that forms a part of all contracts is the right of the sovereign to

exercise eminent domain at any time. The exercise of this right is merely the enforcement of the

inherent contractual right in the contract and, therefore, cannot be an impairment of that contract.

The impairing of contracts inhibited by the Constitution can scarcely, by

the greatest violence of construction, be made applicable to the enforcing

of the terms or necessary import of a contract; the language and meaning

of the inhibition were designed to embrace proceedings attempting the

interpolation of some new term or condition foreign to the original

agreement, and therefore inconsistent with and violative thereof. It, then,

being clear that the power in question not being within the purview of the

restriction imposed by the tenth section of the first article of the

Constitution, it remains with the states to the full extent in which it

inheres in every sovereign government, to be exercised by them in that

degree that shall by them be deemed commensurate with public

necessity.

13

The holding in the West River Bridge case was precise and applies with equal force to the

Kingman Airport Authority in this case.

The instances of the exertion of this power [of eminent domain], in some

mode or other, from the very foundation of civil government, have been

so numerous and familiar, that it seems somewhat strange, at this day, to

raise a doubt or question concerning it. In fact, the whole policy of the

country, relative to roads, mills, bridges, and canals, rests upon this single

power, under which lands have been always condemned; and without the

exertion of this power, not one of the improvements just mentioned could

be constructed. . . . A franchise . . . to erect a bridge, to construct a road,

to keep a ferry, and to collect tolls upon them, granted by the authority of

the state, we regard as occupying the same position, with respect to the

paramount power and duty of the state to promote and protect the public

good, as does the right of the citizen to the possession and enjoyment of

his land under his patent or contract with the state, and it can no more

interpose any obstruction in the way of their exertion. Such exertion we

hold to be not within the inhibition of the Constitution, and no

violation of a contract.14

12Id. at 532–33.

13Id. at 533.

14Id. at 533–34#(bolding added).

5

Case 3:17-cv-08260-JJT Document 10 Filed 12/12/17 Page 5 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Underscoring and reemphasizing its holding, the Supreme Court concluded its decision by

emphatically stating that a condemnation proceeding does not fall within the ambit of the contract

clause.

Upon the whole, we consider the authority claimed for the state of

Vermont, and the exertion of that authority which has occurred under the

provisions of the statutes above mentioned, by the extinguishment of the

franchise previously granted the plaintiffs, as set forth upon the records

before us, as presenting no instance of the impairing of a contract, within

the meaning of the tenth section of the first article of the Constitution, and

consequently no case which is proper for the interposition of this court.15

A layman viewing the Constitutional carpet may not appreciate its underlying warp. A

superficial reading ofthe contract clause may lead such an one to believe that a condemnation works

some impairment of the obligation of contracts. But such an one does not understand. A

condemnation does not implicate the contract clause, the superficial view notwithstanding. 

In 1996 the United States Supreme Court recognized West River Bridge Co. for stating what

has become even more than a rule of law: it is a canon of American jurisprudence, fundamental and

unchangeable.

One [such canon] came to be known as the “reserved powers” doctrine,

which held that certain substantive powers of sovereignty could not be

contracted away. See West River Bridge Co. v. Dix, 47 U.S. 507, 6 How.

507, 12 L. Ed. 535 (1848) (holding that a State’s contracts do not

surrender its eminent domain power). [Footnote omitted.] The other,

which surfaced somewhat earlier in Providence Bank v. Billings, 4 Pet.

514 (1830), and Proprietors of Charles River Bridge v. Proprietors of

Warren Bridge, 11 Pet. 420 (1837), was a canon of construction

disfavoring implied governmental obligations in public contracts.16

The reserved powers doctrine that allowed the condemnation to go forward in West River

Bridge Co. has also been enshrined in the Arizona Constitution.

The right of exercising eminent domain shall never be so abridged or

construed as to prevent the State from taking the property and the

franchises of incorporated companies and subjecting them to public use

the same as the property of individuals.17

15Id. at 536.

16United States v. Winstar Corp., 518 U.S. 839, 874 (1996).

17ARIZ. CONST. art. XIV, § 9.

6

Case 3:17-cv-08260-JJT Document 10 Filed 12/12/17 Page 6 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Arizona courts have likewise consistently ruled that the right of condemnation by either the

state or one of its political subdivisions (like a municipality) cannot be contracted away or limited

by a contract.

We hold that the power of eminent domain cannot be surrendered or

contracted away, and that even if a contract so provides the power can

nevertheless be resumed at will.18

II. THERE IS NO JURISDICTION FOR DECLARATORY RELIEF

The declaratory judgment sought in this case does not help the plaintiffs, either. Since there

is not and cannot be a violation of the Constitution, there is nothing to declare. Paraphrasing the

language the code, there is no case or actual controversy within the jurisdiction of this court.19

A second problem with the claim for declaratory relief is more subtle. Kingman Airport

Authority wants a declaration that the city may not enforce its legislative act via a condemnation

action. Separation of powers aside, the equitable powers of this court may not be invoked to walk

around a limit on the exercise of jurisdiction. 

The strong and consistently recognized national policy to avoid such

needless conflict or friction between state and federal courts underlies and

finds legislative expression in Section 2283 of Title 28, discussed above.

It is true that this statutory denial of power to interfere with a state

proceeding by injunction is not an express mandate to refrain from

interference under the same circumstances by a less drastic declaration of

rights. But, at least, this statute and the policy underlying it afford sound

basis for a judicial conclusion that the granting of such declaratory relief

would constitute an abuse of discretion.20

Section 2283 of Title 28 prohibits the exercise of jurisdiction to stay or affect a state-court

proceeding, which is how the city’s legislative mandate is being implemented.

18Tucson Electric Power Co. v. Adams, 134 Ariz. 396, 400 (App. 1982) (citing many similar

state and federal cases).

1928 U.S.C. § 2201; Complaint, Document 1, ¶ 5. This is the second and only other basis for

exercise of jurisdiction.

20H.J. Heinz Co. v. Owens, 189 F.2d 505, 509 (9th Cir. 1951), cited with approval in Samuels

v. McKell, 401 U.S. 66, 72–73 (1971).

7

Case 3:17-cv-08260-JJT Document 10 Filed 12/12/17 Page 7 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

A court of the United States may not grant an injunction to stay

proceedings in a State court except as expressly authorized by act of

Congress, or where necessary in aid of its jurisdiction, or to protect or

effectuate its judgments.21

III. CONCLUSION

Jurisdiction in this court hangs on two pegs. The contract clause and the request for

declaratory relief. The pegs are imaginary, callow. No such jurisdiction exists.

The imagined jurisdiction arises out of a contract, the lease agreement between the City of

Kingman and the Kingman Airport Authority. As such, attorneys fees are awardable under A.R.S.

§ 12-341.01 and A.R.S. § 12-349. Attorneys fees are mandatory under A.R.S. § 12-349 when, as

here, (1) a case is brought without substantial justification (actually no justification at all because

it flouts a canon of law),22 and (2) this federal case unreasonably expands the state court

condemnation proceeding without any justification whatsoever.23

The myopia resulting in the filing of this case is the work of the Kingman Airport Authority

is lawyer, so the lawyer should be responsible for fees under A.R.S. § 12-349. No good-faith basis

exists for filing this case.

WHEREFORE, it is requested that this case both be dismissed and that the court assess

attorneys fees against the plaintiff and plaintiff’s counsel.

Respectfully submitted this 12th

 day of December, 2017.

 /s/ Daryl M. Williams 

Daryl M. Williams (#004631)

Baird, Williams & Greer, LLP

6225 North 24th Street, Suite 125

Phoenix, Arizona 85016

darylwilliams@bwglaw.net 

(602) 256-9400

Attorneys for defendants

2128 U.S.C. § 2283. This statute has been the law in the United States since March 2, 1793.

H.J. Heinz Co. v. Owens, 189 F. 2d 505, n. 3 (9th Cir. 1951).

22A.R.S. § 12-349(A)(1).

23A.R.S. § 12-349(A)(3).

8

Case 3:17-cv-08260-JJT Document 10 Filed 12/12/17 Page 8 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

CERTIFICATE OF SERVICE

I hereby certify that on December 12, 2017, I filed the Motion to Dismiss for Want of

Jurisdiction via the clerk’s CM/ECF filing system, and copies were electronically transmitted via

the Clerk’s ECF Filing system to the following:

Andrew M. Federhar

Jessica A. Gale

Spencer Fane LLP

2425 E. Camelback Rd., Suite 850

Phoenix, AZ 85016-4251

afederhar@spencerfane.com

jgale@spencerfane.com

 /s/ Daryl M. Williams 

9

Case 3:17-cv-08260-JJT Document 10 Filed 12/12/17 Page 9 of 9