Burton v. City of Tucson, s. 6983

• Decision Date: 19 October 1960
• Docket Number: 6986,Nos. 6983,s. 6983
• Parties: Marvin L. BURTON, on behalf of himself and all others similarly situated, Appellant, v. CITY OF TUCSON, a municipal corporation, and Don Hummel, Mayor, C. E. Branin, a Councilman, James Kirk, Councilman, F. T. Gibbings, Councilman, Ray Weaver, Councilman, Warren Walker, Councilman, and William Wisdom, Councilman, Appellees. Willard J. SMITH, on behalf of himself and all others similarly situated, Appellant, v. CITY OF TUCSON, a municipal corporation, Appellee.
• Court: Arizona Supreme Court

Page 413

356 P.2d 413

88 Ariz. 320

Marvin L. BURTON, on behalf of himself and all others similarly situated, Appellant, v. CITY OF TUCSON, a municipal corporation, and Don Hummel, Mayor, C. E. Branin, a Councilman, James Kirk, Councilman, F. T. Gibbings, Councilman, Ray Weaver, Councilman, Warren Walker, Councilman, and William Wisdom, Councilman, Appellees.

Willard J. SMITH, on behalf of himself and all others similarly situated, Appellant, v. CITY OF TUCSON, a municipal corporation, Appellee.

Nos. 6983, 6986.

Supreme Court of Arizona.

Oct. 19, 1960.

Wolfe, Greer & Knez, Tucson, for appellants.

Jack G. Marks, City Atty., Thomas J. Tormay and Sidney L. Kain, Asst. City Attys., Tucson, for appellees.

LESHER, Justice.

These are consolidated appeals from judgments entered in the trial court on orders dismissing appellants' complaints for failure to state a claim on which relief could be granted. The facts are sufficiently similar in the two cases to permit them to be treated together. The legal problems presented are identical.

Appellants are residents of areas which, prior to March, 1959, lay adjacent to but were not parts of the City of Tucson. In February, 1959, appellants filed with the Board of Supervisors of Pima County petitions that elections be ordered to determine whether those areas should be incorporated as separate towns. A.R.S. § 9-101, subd. B. On March 26, after hearings, the Board of Supervisors denied the petitions. Thereafter, but on the same day, the Tucson City Council Passed an emergency ordinance in accordance with the provisions of A.R.S. § 9-471, annexing into the City of Tucson the areas which appellants had sought to have incorporated. On March 26 a copy of the ordinance, together with an accurate map of the territory annexed, was filed and recorded with the recorder of Pima County. The ordinance was not published. In April 1959, appellants filed petitions in the Superior Court in Pima County for a writ of certiorari to review the actions of the Board of Supervisors. They simultaneously filed actions seeking to enjoin the City of Tucson from taking any further steps to effect the attempted annexation. It is from the dismissal of these latter actions that these consolidated appeals have been taken.

Appellees contend--and the trial court ruled--that appellants have no standing to question the validity of a completed annexation ordinance lawful on its face.

'A citizen may not attack an annexation ordinance after the same is conmplete, but may enjoin the city during the process of annexation where it is alleged that the city lacks jurisdiction of the property.' Gorman v. City of Phoenix, 70 Ariz. 59, 216 P.2d 400, 403.

See also: Skinner v. City of Phoenix, 54 Ariz. 316, 95 P.2d 424, and Colquhoun v. City of Tucson, 55 Ariz. 451, 103 P.2d 269, 271.

The narrow question presently before us, therefore, is whether, when appellants filed the actions from which these appeals have been taken, the city's annexation ordinance was 'complete'. If it was, appellants have no standing to attack it. Appellants contend, first, that the ordinance could not be 'complete' because it was void ab initio; that the incorporation proceedings were still in progress at the time of the attempted annexation; and that the city was therefore wholly without jurisdiction to proceed with the annexation.

'It is conceded by both parties that when one body has the authority to annex territory to a municipality, while another is given the jurisdiction to erect such territory into an independent municipality, the one which first obtains jurisdiction of proceedings for either purpose is entitled to retain it without interference by the other until the first proceedings are finally determined.' Colquhoun v. City of Tucson, supra.

On March 26, 1959, when the Board of Supervisors denied appellants' petitions to hold incorporation elections, it made a 'final determination' of the proceedings before it. No appeal from that decision is provided by statute. While a writ of certiorari may issue in a proper case to review the Board's action, application for such writ is an original proceedings, begun in the court, and in no proper sense a part of what has gone before. A.R.S. § 9-101 clearly sets out the nature and extent of incorporation proceedings. It makes no mention of judicial review. We conclude that when the Board of Supervisors heard and denied appellants' petitions, the 'proceedings' before it were finally determined. It had no further jurisdiction in the matter. That the petitioners might apply to a court for review by certiorari does not make the proceedings before the Board any less complete or final. We hold, therefore that the City had jurisdiction to initiate annexation of the area on March 26, 1959, as soon on that day as the Board of Supervisors had denied appellants' petitions.

Appellants contend, secondly, that the annexation ordinance was not completed because not published, and was therefore subject to attack in these actions. Gorman v. City of Phoenix, supra. If publication was a condition precedent to its validity, appellants are correct.

The ordinance was an emergency ordinance adopted in the manner provided for such by Chapter IX, Sec. 8 of the Charter of the City of Tucson. That Charter does not require publication as a condition precedent to the effectiveness and operation of emergency ordinances. A.R.S. § 9-812, subd. A, however, provides as follows:

' § 9-812. Publication of notices and ordinances.

'A. Notices of election, invitations for bids, notices of letting contracts, laws and ordinances, and other notices of a public character issued by authority of the governing body of any city or town, shall be published as provided by § 39-204.'

A.R.S. § 39-204, in turn, provides for the manner, place and time of publication. Appellees deny the applicability of § 9-812, subd. A to annexation ordinances, urging that the requirements imposed by sec. 9-471 (which does not mention publication) are exclusive. We need not and do not rule on this issue. Sec. 9-812, subd. A provides that all ordinances shall be published; it does not provide that publication shall be a condition precedent to the validity and operation of an ordinance, or that failure to publish shall render the ordinance void.

'Charter or statutory provisions as to the publication of ordinances * * * sometimes are construed to be merely directory. this is usually the case in the absence of a provision that the ordinance shall not take effect until published.' McQuillen, Municipal Corporation, 3rd Edition, Vol. 5, p. 301. (Emphasis ours.)

See also, Commonwealth v. Davis, 140 Mass. 485, 4 N.e. 577; Vernakes v. City of South Haven, 186 Mich. 595, 152 N.W. 919. (Compare City of Phoenix v. Lockwood, 76 Ariz. 46, 253 P.2d 431.) Where provision for publication of an ordinance is merely directory, it follows that failure to publish does not invalidate the ordinance. McQuillen, op. cit. Appellants rely, finally, upon Chapter IX, Section 10, of the Charter of the City of Tucson:

'Sec. 10. Publication and effective date of ordinances; exception.

'All ordinances adopted under this Charter, except emergency ordinances, shall be published forthwith in the usual manner three (3) consecutive times in the official newspaper, and no ordinance shall take effect until thirty (30) days after its passage.'

They place their faith in the last clause, which reads, '* * * And no ordinance shall take effect until...