City of Tucson v. THE TUCSON GAS, ELEC. LIGHT & POWER CO.

• Decision Date: 26 December 1945
• Docket Number: No. 11005.,11005.
• Parties: CITY OF TUCSON v. THE TUCSON GAS, ELECTRIC LIGHT & POWER CO.
• Court: U.S. Court of Appeals — Ninth Circuit

152 F.2d 552 (1945)

CITY OF TUCSON v. THE TUCSON GAS, ELECTRIC LIGHT & POWER CO.

No. 11005.

Circuit Court of Appeals, Ninth Circuit.

December 26, 1945.

Thos J. Elliott, of Tucson, Ariz., for appellant.

Darnell & Robertson, George R. Darnell, and Lawrence V. Robertson, all of Tucson, Ariz., for appellee.

Before DENMAN, BONE, and ORR, Circuit Judges.

DENMAN, Circuit Judge.

Appellant, hereinafter called City, appeals from a judgment dismissing a complaint in a condemnation proceeding in which it seeks a judgment of valuation of all the electric and gas plants and system of the appellee, hereinafter called Company, for purposes of procuring a final order of condemnation vesting title of the property in the City after revenue bonds for their acquisition have been issued and disposed of and the amount awarded is paid. Arizona Constitution, Art. 2, Sec. 17, Revised Stats.1928, §§ 1346, 1347, Arizona Code Annotated, 1939, §§ 27-918, 27-919.

Though the judgment assessing the value of the properties to be acquired is called a final judgment, condemnation — that is the vesting of title — is not made until the assessed amount is paid. Failure to pay the amount within the statutory time requires that the interlocutory order for condemnation be set aside and the entire proceedings annulled with a right of execution in the defendant. Id. § 27-918. For properties to be paid for by revenue bonds, the time after the judgment fixing the price within which the payment is to be made is eighteen months. Arizona Laws 1933, ch. 77, § 3, p. 313.

The District Court, as also in the case of Town of South Tucson v. Tucson Gas, Electric & Pow. Co., 9 Cir., 149 F.2d 847, failed to give us the benefit of its views of the law of the State of Arizona in which it sits. We expect such assistance, at least, in cases of such importance as these of first instance under Arizona's recent revenue Bond legislation of 1943. Nor was the City complied with our rule 20(f) requiring that its briefs print "so much of the statutes cited as may be deemed necessary to the decision of the case."

One of the contentions urged by the Company to support the decision is the absence of an allegation that the taxpaying voters of the City had voted for the bond issue. Section 16-2604, Arizona Code Ann., 1939, provides

"Sec. 16-2604. Vote on bond issues. — Questions of bond issues under this act shall be submitted to the real property taxpayers who are in all other respects qualified electors of the municipality. No bonds shall be issued without the assent of a majority of such qualified electors voting at an election held for that purpose, as provided in this act. (Laws 1943, ch. 31, § 4, p. 72)"

The significant portion of the section is that the election is to come before the issuance of the bonds.¹ It does not provide that it shall precede the filing of the complaint for condemnation. It is obviously advantageous that the voters first should have fixed the valuation by the court instead of a preliminary estimate by the City Council. If the amount fixed by the Council and voted for by the electorate is less than that later fixed by the court, the whole court proceeding is wasted effort. The voters well may vote for a larger amount if they realize it is determined by court process. In any event, the voters better will be advised after such a judicial determination. We hold that the voters' consent may be given at an election after the court has assessed the amount to be paid for the property sought to be condemned.

The Company contends that the suit, brought in the County of Pima, has jurisdiction only over the portions of the utility undertaking in that county, citing § 27-909 (Arizona Code Ann.1939) providing,

"§ 27-909. Action for condemnation — Immediate possession — Money deposit. — All proceedings for condemnation must be brought in the superior court of the county in which the property is situated, in the same manner as other civil actions. * * *" (Emphasis supplied.)

From this the argument is that the electric system also extending over Pinal, Santa Cruz and Cochise counties cannot be divided by the court for assessing damages. Hence it is argued there never can be a just assessment of damages in a condemnation of a utility extending over more than one county, since any such attempt would violate the Arizona constitutional provision of Sec. 17, Art. 2, providing for just compensation in such proceedings. We do not agree, even assuming that the suits must be brought in several counties. The apportionment of damages of the properties in the several counties may be difficult, but such difficulty often attends the assessment of damages.

However, we are of the opinion that under the Arizona statutes the state superior court may have jurisdiction of the condemnation of the entire property if a part of the property of the utility undertaking is situated in that county. The phrase of § 27-909, supra, "in the same manner as other civil actions" refers to the venue provision for other civil actions. Arizona Code, Annotated, 1939, § 21-101 (12) provides as to the venue for real property actions "12. Action for the recovery of real property, for damages thereto, for rents, profits, use and occupation thereof, for partition thereof, to quiet title thereto, to remove a cloud or incumbrance on the title thereto, to foreclose mortgages and other liens thereon, to prevent or stay waste or injuries thereto, and all other actions concerning real property, shall be brought in the county in which the real property or a part thereof is situated." (Emphasis supplied.)

As to personal property, Section 21-101 (11) recognizes the presumption that personal property is where the owner is. It reads "11. Actions for the recovery of personal property may be brought in the county in which the property may be or in which the defendant or any of several defendants may be found."

These actions concern venue and not jurisdiction to hear and determine litigation concerning such property, which remains in the court of filing unless there be affidavits filed before the time to answer. § 21-102. Only upon a showing of lack of venue is the case transferred to another county. The extraordinary difficulties in segregation of such properties for valuation, stressed by the Company, accentuates the conclusion that the Arizona Legislature conceived § 27-909 as such a venue provision.

The City points out that if it had brought its suit in the United States District Court for Arizona that court would have jurisdiction to determine as a unit the value of the properties in the four counties. Having been brought into that court by the Company under the diversity of citizenship statute, 28 U.S.C. 41 (1), 28 U.S.C.A. § 41(1), providing that the "controversy" between the parties shall be adjudicated there, the City argues that the controversy between the parties as to the condemnation of the entire plant necessarily is before that court. Since the objection of the Company is one based on venue and not jurisdiction and the case cannot be transferred to an Arizona county court, we agree with the City's contention that if the District Court otherwise has jurisdiction to condemn property outside the City's boundaries that court has it to condemn the entire property.

The Company contends that the provisions of the...