UDALL, Vice Chief Justice:
This is an original proceeding for a writ of prohibition/or certiorari through which petitioner, Mary Jane Gardiner, seeks to have declared invalid an order of the Superior Court of Maricopa County permitting the City of Phoenix, the real party in interest, into immediate possession of property of petitioner. A writ of certiorari was issued by this court.
The facts involved, which are undisputed, are substantially as follows: Mary Jane Gardiner, as the executrix of the estate of Laurabel Gardiner, deceased, is one of the defendants in a condemnation action pending in the Superior Court of Maricopa County, Arizona, in which the City of Phoenix, a municipal corporation, is the plaintiff.
The action was brought to condemn for public use Lots 2, 4, and 6, Block 10, and Lots 2, 4, 6 and 8, Block 19, Original Town-site of Phoenix which belonged to and is a part of the estate of Laurabel Gardiner, deceased.
" On March 13, 1968, the plaintiff filed an application with the court for immediate possession of the real property above de.'scribed,' and an order to show cause was then issued which came on regularly for .'hearing on May 20, 1968. At the conclusion of said hearing the respondent, the ".Honorable Laurens L. Henderson, Judge
of
the Superior Court, made and entered an order dated May 22d 1968, which provides, inter alia, as follows:
“The court is of the opinion that in specifying the form of the deposit as set forth in section 12-1116, A.R.S., the legislature did not violate Article 2, Section 17 of the Arizona Constitution.
“It is, therefore, ORDERED that plaintiff may take possession of defendant’s property upon depositing with the clerk of the Superior Court a surety bond * * * to be approved by the court * * *, all in accordance with formal written order to be presented.”
The question presented by petitioner is as follows:
“Can private property in Arizona be taken or damaged for public use by a City depositing in Court a surety bond instead of money where, as here, the State Constitution provides that “No private property shall be taken or damaged for public or private use without just compensation 'having first been made, or paid into court for the owner ?”
Our procedural condemnation statute, A. R.S. § 12-1116 which provides the machinery for the immediate possession of property sought to be condemned was originally adopted from California (see West’s Ann. C.C.P. §
1243}
and has remained on our books substantially unchanged from 1909 (§ 2453 R.S. ’01, am., § 1, Ch. 8, L. ’09) to 1964. The implementation for immediate possession of property sought to be condemned was augmented by the condemnor paying into court a
deposit of money
in double the amount of probable damages as determined by the court. Such money was held by the clerk of the court for the use and benefit of the condemnee. See A.R.S. § 12-1116, 1956.
In 1964 and again in 1967 the legislature saw fit to amend this long standing procedure by providing for “a bond” rathr er than, or in lieu of a money deposit where the condemnor was the state, county, city, town, or political subdivision thereof.
'
It is the position of the petitioner that A.R.S. § 12-1116, as amended provides the machinery for immediate taking of possession of property by the real party in interest, City of Phoenix, which is not ,in compliance with the mandate of Art. 2, § 17 of the state constitution, A.R.S.:
“ * * * No private property shall be taken or damaged for public or private use without just compensation having first been
made,
or
paid
into court for the owner * * [emphasis added]
The respondent, superior court, found on the other hand “that in specifying the form of the deposit as set forth in section 12-1116, A.R.S., the Legislature did not violate Article 2, section 17 of the Arizona Constitution.” The real party in interest, City of Phoenix, and amici curiae, The League of Arizona Cities and Towns and the Salt River Project Agricultural Improvement and Power District have filed able and thorough briefs in support of the trial court’s finding.
It is argued on behalf of respondent that eminent domain is an inherent power in the people, limited only as they may determine in their constitution, County of Maricopa v. Anderson, 81 Ariz. 339, 306 P.2d 268.
They note that Art.
2,
§ 17, supra goes on to say:
“ * * * and no right of way shall be appropriated to the use of any corporation
other than municipal,
until full conpensation therefor be first made
in money,
or ascertained and paid into court for the owner * *
Respondents contend that if the framers of the constitution intended the general clause (“No private property shall be taken or damaged for public or private use without just compensation having first been made, or paid into court for the owner * * *.”) to mean only the deposit of “money” they could and would have said so; and, hence, the absence of “in money” in the general clause repudiates petitioner’s claim that only a deposit of money is constitutional compliance.
Before the passage of the 1964 and 1967 amendments this court wrote lengthy and exhaustive decisions on the constitutionality of A.R.S. § 12-1116 as it then read, wherein we thoroughly reviewed the legislative history of both the involved statute and the proceedings of the Constitutional Convention in regard to Art. 2, § 17. See Desert Waters, Inc. v. Superior Court, 91 Ariz. 163, 370 P.2d 652; Hughes Tool Company v. Superior Court, 91 Ariz. 154, 370 P.2d 646; and cases cited therein. It would unduly lengthen this decision to reiterate what we there said.
Suffice it to note that we held in Desert Waters Inc. v. Superior Court, supra:
“It appears clear to us from the history of § 12-1116 and from the discussions of the constitutional convention that the phrase ‘or paid into court for the owner’ in the constitutional provision which states, ‘No private property shall be taken or damaged for public or private use without just compensation having first been made, or paid into court for the owner, * * * ’ was used to permit, as an alternative to advance determination, a
payment
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UDALL, Vice Chief Justice:
This is an original proceeding for a writ of prohibition/or certiorari through which petitioner, Mary Jane Gardiner, seeks to have declared invalid an order of the Superior Court of Maricopa County permitting the City of Phoenix, the real party in interest, into immediate possession of property of petitioner. A writ of certiorari was issued by this court.
The facts involved, which are undisputed, are substantially as follows: Mary Jane Gardiner, as the executrix of the estate of Laurabel Gardiner, deceased, is one of the defendants in a condemnation action pending in the Superior Court of Maricopa County, Arizona, in which the City of Phoenix, a municipal corporation, is the plaintiff.
The action was brought to condemn for public use Lots 2, 4, and 6, Block 10, and Lots 2, 4, 6 and 8, Block 19, Original Town-site of Phoenix which belonged to and is a part of the estate of Laurabel Gardiner, deceased.
" On March 13, 1968, the plaintiff filed an application with the court for immediate possession of the real property above de.'scribed,' and an order to show cause was then issued which came on regularly for .'hearing on May 20, 1968. At the conclusion of said hearing the respondent, the ".Honorable Laurens L. Henderson, Judge
of
the Superior Court, made and entered an order dated May 22d 1968, which provides, inter alia, as follows:
“The court is of the opinion that in specifying the form of the deposit as set forth in section 12-1116, A.R.S., the legislature did not violate Article 2, Section 17 of the Arizona Constitution.
“It is, therefore, ORDERED that plaintiff may take possession of defendant’s property upon depositing with the clerk of the Superior Court a surety bond * * * to be approved by the court * * *, all in accordance with formal written order to be presented.”
The question presented by petitioner is as follows:
“Can private property in Arizona be taken or damaged for public use by a City depositing in Court a surety bond instead of money where, as here, the State Constitution provides that “No private property shall be taken or damaged for public or private use without just compensation 'having first been made, or paid into court for the owner ?”
Our procedural condemnation statute, A. R.S. § 12-1116 which provides the machinery for the immediate possession of property sought to be condemned was originally adopted from California (see West’s Ann. C.C.P. §
1243}
and has remained on our books substantially unchanged from 1909 (§ 2453 R.S. ’01, am., § 1, Ch. 8, L. ’09) to 1964. The implementation for immediate possession of property sought to be condemned was augmented by the condemnor paying into court a
deposit of money
in double the amount of probable damages as determined by the court. Such money was held by the clerk of the court for the use and benefit of the condemnee. See A.R.S. § 12-1116, 1956.
In 1964 and again in 1967 the legislature saw fit to amend this long standing procedure by providing for “a bond” rathr er than, or in lieu of a money deposit where the condemnor was the state, county, city, town, or political subdivision thereof.
'
It is the position of the petitioner that A.R.S. § 12-1116, as amended provides the machinery for immediate taking of possession of property by the real party in interest, City of Phoenix, which is not ,in compliance with the mandate of Art. 2, § 17 of the state constitution, A.R.S.:
“ * * * No private property shall be taken or damaged for public or private use without just compensation having first been
made,
or
paid
into court for the owner * * [emphasis added]
The respondent, superior court, found on the other hand “that in specifying the form of the deposit as set forth in section 12-1116, A.R.S., the Legislature did not violate Article 2, section 17 of the Arizona Constitution.” The real party in interest, City of Phoenix, and amici curiae, The League of Arizona Cities and Towns and the Salt River Project Agricultural Improvement and Power District have filed able and thorough briefs in support of the trial court’s finding.
It is argued on behalf of respondent that eminent domain is an inherent power in the people, limited only as they may determine in their constitution, County of Maricopa v. Anderson, 81 Ariz. 339, 306 P.2d 268.
They note that Art.
2,
§ 17, supra goes on to say:
“ * * * and no right of way shall be appropriated to the use of any corporation
other than municipal,
until full conpensation therefor be first made
in money,
or ascertained and paid into court for the owner * *
Respondents contend that if the framers of the constitution intended the general clause (“No private property shall be taken or damaged for public or private use without just compensation having first been made, or paid into court for the owner * * *.”) to mean only the deposit of “money” they could and would have said so; and, hence, the absence of “in money” in the general clause repudiates petitioner’s claim that only a deposit of money is constitutional compliance.
Before the passage of the 1964 and 1967 amendments this court wrote lengthy and exhaustive decisions on the constitutionality of A.R.S. § 12-1116 as it then read, wherein we thoroughly reviewed the legislative history of both the involved statute and the proceedings of the Constitutional Convention in regard to Art. 2, § 17. See Desert Waters, Inc. v. Superior Court, 91 Ariz. 163, 370 P.2d 652; Hughes Tool Company v. Superior Court, 91 Ariz. 154, 370 P.2d 646; and cases cited therein. It would unduly lengthen this decision to reiterate what we there said.
Suffice it to note that we held in Desert Waters Inc. v. Superior Court, supra:
“It appears clear to us from the history of § 12-1116 and from the discussions of the constitutional convention that the phrase ‘or paid into court for the owner’ in the constitutional provision which states, ‘No private property shall be taken or damaged for public or private use without just compensation having first been made, or paid into court for the owner, * * * ’ was used to permit, as an alternative to advance determination, a
payment
into court of an amount and upon such terms as would adequately secure to the condemnee compensation and damages resulting from granting immediate possession to a municipal corporation, as well as damages for the property taken.” 91 Ariz. 170, 370 P.2d 657. [Emphasis added]
And we said in Mandl v. City of Phoenix, 41 Ariz. 351, 18 P.2d 271:
“Section 1337, Revised Code of 1928, [predecessor of A.R.S. § 12-1116] provides for money to be
paid
into court to secure or compensate the owner of property taken or damaged.
These provisions
[Art. 2, § 17] of our law clearly contemplate compensation to the owner
in money
at the time or before his property is taken.” 41 Ariz., at 355, 18 P.2d at 272 (Emphasis added).
A bond is not money. A bond is not payment. A bond is not “just compensation made” and its deposit with a court is not a payment into court. A bond is a certificate or evidence of a debt. It is a contract to pay upon the happening of certain contingencies. It is a mere promise to pay. See Black’s Law Dictionary, Deluxe Fourth Edition.
Article 2, § 32 of the Arizona Constitution, states:
“The provisions of this Constitution are mandatory, unless by express words they are declared to be otherwise.”
The immediate taking of possession of property by a municipality is a taking of property. Possession is certainly one of the greatest attributes of ownership of property. The possessor exercises dominion over the property, and a condemnor, be it municipality or private corporation thereafter denies the owner of its usage, its rental value, and its enjoyment. Where the condemnor proceeds to convert the
property to its public usage he proceeds to “damage” the property. While a taking may not be complete until after final judgment and vesting of title, a taking nevertheless commences with an order of immediate possession which permits the condemnor to enter the land, demolish the improvements, and commence the erection of public improvements. It follows therefor that an order of immediate possession must comply with Art. 2, § 17, supra.
“It is obvious from the provisions of the Constitution and laws of this state that private property may not be taken for public use without just compensation having first been made
or paid into court for the owner.
The portion of the Constitution quoted above is mandatory.” State ex rel. Morrison v. Jay Six Cattle Company, 85 Ariz. 220, at page 224, 335 P.2d 799, at page 801. [Emphasis in original]
A bond is a security for just compensation and its deposit in court is a promise to pay into court at a later date. In holding the bond provision of A.R.S. § 12-1116 unconstitutional because of the mandatory provisions of Art. 2, § 17, we yet note the practical and economical wisdom of the arguments for bond usage. The root of our power, however, is derived from the Constitution and the preservation of its mandatory provisions is essential to the security of individual rights and the perpetuity of free government. If it be deemed desirable in this state that the “state, county, city, town, or political subdivision thereof” be entitled to file “a bond in a form to be approved by the court” then that result must be obtained through constitutional amendatory channels.
The order of the superior court is vacated and the matter remanded to the trial court for proceedings not inconsistent with this decision.
McFARLAND, C. J., and STRUCKMEYER, BERNSTEIN and LOCKWOOD, JJ., concur.