City of Phoenix v. State

• Decision Date: 24 May 1943
• Docket Number: Civil 4526
• Parties: THE CITY OF PHOENIX, a municipal corporation; REED SHUPE, as Mayor of said City of Phoenix; M. F. WHARTON, HOUSTON L. WALSH, W. J. R. SIMS and J. R. FLEMING, as Commissioners of said City of Phoenix; DONALD C. SCOTT, as City Manager of said City of Phoenix, Appellants, v. THE STATE OF ARIZONA, at the relation of RICHARD F. HARLESS, County Attorney of Maricopa County, Appellee
• Court: Arizona Supreme Court

137 P.2d 783

60 Ariz. 369

THE CITY OF PHOENIX, a municipal corporation; REED SHUPE, as Mayor of said City of Phoenix; M. F. WHARTON, HOUSTON L. WALSH, W. J. R. SIMS and J. R. FLEMING, as Commissioners of said City of Phoenix; DONALD C. SCOTT, as City Manager of said City of Phoenix, Appellants, v. THE STATE OF ARIZONA, at the relation of RICHARD F. HARLESS, County Attorney of Maricopa County, Appellee

Civil No. 4526

Supreme Court of Arizona

May 24, 1943

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment reversed.

Mr Hess Seaman, City Attorney, and Mr. William C. Fields Assistant City Attorney, for Appellants.

Mr Ross F. Jones, Mr. Wilmot W. Trew, Mr. Richard F. Harless County Attorney, and Mr. Leslie C. Hardy, Deputy County Attorney, for Appellee.

OPINION

McALISTER, C.J.

This is an action in quo warranto by the county attorney of Maricopa County questioning the validity of Ordinance No. 2817 passed by the commission of the City of Phoenix annexing to the city what is known as the Grand Avenue Addition.

A petition signed by what purported to be more than half of the owners of the taxable property situated in blocks 7, 12, 13, 17, 18, 23 and 24 of Grand Avenue Addition to the City of Phoenix, asking that this addition be annexed to the city, was filed with the city commission and on October 13, 1938, the commission made an order annexing it. The county attorney did not file the complaint in quo warranto voluntarily, but only after he was directed to do so as the result of a mandamus proceeding.

The parties stipulated that the property embraced within the district in 1938 was assessed at a total valuation of $53,225; that lots 1, 3, 5, 7, 9, 11, 13, 15, 17, 19 and 21 in Block 23, assessed at $1,295, item 2 of the stipulation was church property and this, not being taxable, left a total valuation of $51,930, one-half of which was $25,965, which had to be represented on the petition. The question is: Did the owners of property valued at $25,965 sign the petition?

The parties stipulated further that when the petition was signed and presented to the commission in 1938, 36 items of real estate situated in the Grand Avenue Addition, several of these items being composed of more than one lot belonging to the same person or persons, were signed in the manner indicated therein and the property assessed by the county assessor of Maricopa County as shown by the stipulation.

According to the stipulation 9 of these items, 1, 4, 12, 14, 19, 20, 21, 34 and 36, totaling $12,875, were not questioned by either side; both admitted them to be correct.

The stipulation discloses that items 8, 17, 27, 29, 32 and 33, totaling $2,505, represented community property which had been signed for by the husband only. The court held that the signing of an annexation petition constituted a "conveyance and incumbrance" within the meaning of section 71-409, Arizona Code 1939, and consequently that both husband and wife must join in the petition. The pertinent part of this section reads:

"... A conveyance or incumbrance of the community property shall not be valid unless executed and acknowledged by both the husband and wife, except unpatented mining claims which may be conveyed or incumbered by the one having the title or right of possession without the other spouse joining in such conveyance or incumbrance." It is our view that the signing of an annexation petition is not a conveyance or incumbrance within the meaning of this statute, but merely the expression of a willingness that the property become a part of the city, and the fact that thereafter the property will be subjected to the burden of taxation does not make the signing of the petition a "conveyance or incumbrance." In Territory of Arizona v. Town of Jerome, 7 Ariz. 320, 64 P. 417, 419, the court said:

"... The incorporation of a municipal body, a village, a town, or a city has never been regarded as imposing taxes upon people, in the sense of taking property for a public use or taking property without due process of law, if all parties were not notified by publication or otherwise. They are different from the private or quasi public corporations which have for their purpose the levying of taxes to create an improvement for the benefit of the property of those who reside within the limits of a certain district, and the rule which pertains to legislative acts creating such districts has no application to municipal corporations...."

In Morse v. City of Omaha, 67 Neb. 426, 93 N.W. 734, 735, the husband alone signed a petition to include the homestead in a paving district. The statute invoked provided:

"No repaving shall be ordered except upon the petition of the owners of the majority of the taxable front feet in any improvement district."

Under a provision that "no conveyance or incumbrance of a homestead is valid unless in its execution and acknowledgment both husband and wife join" the Nebraska Supreme Court held that the signature of the husband bound the homestead and that the execution of the petition was not a conveyance or incumbrance.

In 31 Corpus Juris 82, § 1175, the law on this subject is stated as follows:

"The husband is the head and master of the community. As such he has the general management and control of all the property of the community, whether personal or real, and whether standing in his name or that of his wife. In the exercise of his control and management, the husband may contract community debts,...."

We are, therefore, clearly of the view that the husband, by virtue of his being the managing agent of the community, may sign a petition to annex property to the city.

According to the stipulation items 5, 9, 11, 13, 16, 18 and 25, having a total valuation of $4,960, are properties of widows and soldiers and were signed for by their owners. It is contended by appellee that because widows and soldiers are entitled to an exemption of $2,000, which they claimed in these instances, they are not lawfully on the petition. They are the owners of the property which they signed and the law is:

"... On presentation of a petition in writing, signed by the owners of not less than one-half in value of the property in any territory contiguous to the city, as shown by the last assessment of said property, and not embraced within its limits, the common council of said city may, by ordinance, annex such territory to said city,...." Italics ours. Section 16-701, Arizona Code 1939.

unlike the property of a church, the United States, the state, county, municipality, educational or charitable institutions, where the name of the owner is notice to the taxing authorities that the property is exempt from taxation and not required to be claimed as exempt to be exempt, a widow's or soldier's property must be assessed and the exemption claimed in order to be effective, and if the valuation is above $2,000, the excess is not exempt, and where the total assessment exceeds $5,000, no part of it, not even the $2,000, is exempt. The assessor has no way of knowing that any taxpayer is a widow or a soldier and that an exemption will be claimed by her or him, unless she or he first places the property on the tax roll and later claims the exemption, making proof of the facts entitling them to it. Colhoun, Treasurer, v. Flynn, 377 Ariz. 62, 289 P. 157.

In City of Phoenix v. State of Arizona, 58 Ariz. 8, 117 P.2d 87, 89, the city annexed certain property upon a petition signed by the Phoenix Union High School District, and others, and the property of the Union High School District was necessary to constitute the one-half in value of the property of the district sought to be annexed, and the court, in speaking of the right of the school property to be represented on the petition, said:

"Our general taxation statutes expressly state it to be the duty of the assessor to place upon the assessment roll only 'property in his county subject to taxation' (sec. 73-402, Arizona Code 1939), and all through the code...