Faulkner v. Board of Sup'rs of Gila County

• Decision Date: 12 June 1915
• Docket Number: Civil 1444
• Citation: 149 P. 382,17 Ariz. 139
• Parties: JOHN W. FAULKNER, Appellant, v. BOARD OF SUPERVISORS OF GILA COUNTY, ARIZONA, Appelle
• Court: Arizona Supreme Court

149 P. 382

17 Ariz. 139

JOHN W. FAULKNER, Appellant, v. BOARD OF SUPERVISORS OF GILA COUNTY, ARIZONA, Appelle

Civil No. 1444

Supreme Court of Arizona

June 12, 1915

APPEAL from a judgment of the Superior Court of the County of Gila. G. W. Shute, Judge. Affirmed, with directions that application for writ of certiorari be dismissed.

Messrs Rawlins & Little and Mr. J. M. Feier, for Appellants.

Mr Norman J. Johnson, County Attorney, for Appellee.

OPINION

ROSS, C.J.

June 1 1914, there was filed with the board of supervisors of Gila county a petition asking that the town of Winkelman be incorporated. The petition recited that the town contained a population of 500 or more inhabitants, described its boundaries by metes and bounds, asked to be incorporated under the name "town of Winkelman," and represented that the signers thereof constituted more than two-thirds of the taxable inhabitants of the town as proposed to be incorporated. June 6, 1914, the board of supervisors considered the petition and caused to be spread upon its minutes a resolution that recited, among other things, as follows:

"Whereas after due inquiry the board ascertained that there were ninety-four (94) names of taxable inhabitants upon the petition hereinbefore mentioned; and whereas, this board being satisfied that the town of Winkelman and the portion thereof described in the matters (metes) and bounds hereinafter mentioned contains a population of more than five hundred (500) inhabitants; and whereas, this board is satisfied that more than two-thirds of the taxable inhabitants of the town of Winkelman have signed the petition heretofore mentioned:

"Now, therefore, upon motion duly made, seconded and carried it is ordered and declared that the town of Winkelman is hereby incorporated with the following described metes and bound, to wit: [Here follows the description.] And from the date hereof the inhabitants within the metes and bounds hereinbefore mentioned shall be and they are hereby declared to be a body politic and corporate by the name of 'town of Winkelman.' . . ."

In the same resolution the board appointed the members of the first common council.

About September 1, 1914, the petitioners herein, of which there are three, filed their application with the superior court of Gila county alleging that they were residents of and taxpayers in said town of Winkelman; that the board of supervisors acted without jurisdiction in making the order of incorporation in that they failed to take or hear any evidence whatsoever to establish or tending to establish that the town of Winkelman contained 500 or more inhabitants; or that two-thirds of the taxable inhabitants residing within the proposed town signed said petition; or that the signatures to petition were genuine, and prayed a writ of certiorari be issued to the board of supervisors, commanding them to make return of their proceedings in the matter of the incorporation of Winkelman together with the evidence taken and heard by them in such proceedings. The writ was issued September 5, 1914, returnable September 28, 1914.

Before the return was filed by the board, a motion was made to quash the writ of certiorari on account of defect of parties plaintiff, and inappropriate remedy. We do not give the substance of the return as we do not think it important to the decision. The motion to quash was granted and judgment entered for appellee, from which this appeal is taken.

The power to grant licenses to communities amounting to towns and cities of 500 population or more, to exercise the functions of municipal corporations is conferred on the boards of supervisors by paragraph 1822 of the Civil Code of 1913. The boards of supervisors are constituted by this statute the agents of the state with authority, upon being satisfied that the conditions therein prescribed exist, to issue the state's license to petitioning communities endowing them with certain of the power and prerogatives of the sovereign. It is not provided by this statute what steps the board shall take in determining the qualifications of the city or town to entitle it to incorporation. The condition is that the board "shall be satisfied," that the proposed corporation contains a population of 500 or more, and that two-thirds of the taxable inhabitants therein have joined in the petition praying for the incorporation, whereupon it becomes the duty of the boards by an order to be entered of record to declare such city or town incorporated.

It appears from the application or petition of appellants for the writ of certiorari that on June 6, 1914, the board of supervisors acting upon a petition praying for the incorporation of the town of Winkelman, fair and legal upon its face, made and entered an order declaring the town incorporated, and appointed for it a common council, vested with the exercise of its corporate powers. See section 1825, Civil Code 1913. There is nothing in the statute providing for notice or hearing upon the petition to incorporate. In Territory v. Town of Jerome, 7 Ariz. 320, 64 P. 417, a proceeding in the nature of quo warranto, it was held that the failure to provide for notice did not invalidate the law. The court in that case said:

"The legislature of the territory of Arizona, the same as any other legislature when not otherwise restricted, has the right to create, enlarge, and restrict municipal franchises, and especially those municipal franchises which look to the government of a portion of the people. It has a right to enlarge or curtail the territorial boundaries of a...