Jay v. Kreigh

• Decision Date: 28 January 1974
• Docket Number: No. 11374--PR,11374--PR
• Citation: 110 Ariz. 299,518 P.2d 122
• Parties: Thomas S. JAY, Dennis Weaver and James Murphy, each as members of the Board of Supervisors, Pima County, Arizona; Pima County, Arizona, a body politic, and the Board of Supervisors, Pima County, Arizona, Appellants, v. James D. KREIGH and Steve Engle, as representatives of those certain petition signers for the proposed Town of Oro Valley, Appellees, and The Honorable Herbert E. Williams, City Attorney of the City of Tucson, Amicus Curiae.
• Court: Arizona Supreme Court

Page 122

518 P.2d 122

110 Ariz. 299

Thomas S. JAY, Dennis Weaver and James Murphy, each as members of the Board of Supervisors, Pima County, Arizona; Pima County, Arizona, a body politic, and the Board of Supervisors, Pima County, Arizona, Appellants, v. James D. KREIGH and Steve Engle, as representatives of those certain petition signers for the proposed Town of Oro Valley, Appellees, and The Honorable Herbert E. Williams, City Attorney of the City of Tucson, Amicus Curiae.

No. 11374--PR.

Supreme Court of Arizona, In Banc.

Jan. 28, 1974.

Rehearing Denied March 5, 1974.

Robert N. Hillock, Special Counsel to the Board of Supervisors, Tucson, for appellants

Johnson, Hayes & Dowdall, Ltd., by John G. Stompoly, Tucson, for appellees.

Herbert E. Williams, Tucson City Atty., by Enos P. Schaffer, Asst. City Atty., Tucson, for amicus curiae.

CAMERON, Vice Chief Justice.

This is a petition for review of an opinion and decision of the Court of Appeals, Division Two, 20 Ariz.App. 565, 514 P.2d 736 (1973), reversing the judgment of the Superior Court which ordered the Board of Supervisors of Pima County to incorporate the Town of Oro Valley.

We must consider three questions:

1. Has the question been rendered moot by the expansion of the Tucson city limits to within six miles of the proposed town between the time of the minute entry order of judgment and the formal written judgment?

2. Did the trial court exceed its jurisdiction in setting aside the decision of the Board of Supervisors?

3. Is the statute (§ 9--101 A.R.S.) unconstitutional in that it limits the signers of incorporation petitions to real property taxpayers, excluding non-property owning residents?

The facts necessary for a determination of this matter on review are as follows. On 16 March 1970 appellees, along with more than two thirds of the real property taxpayers of an area slightly more than six miles beyond the northwestern limits of the City of Tucson, Arizona, and containing more than 500 inhabitants, filed a petition with the Pima County Board of Supervisors for the incorporation of their community into the Town of Oro Valley. A hearing on the matter was held on 21 April 1970, and the petition was denied. On 22 April 1970 appellees filed an action in the Superior Court of Pima County for a writ of mandamus to compel the Board of Supervisors to order the approval of the incorporation petition. Motion for change of venue was granted and the matter was heard by the Honorable T. J. Mahoney of the Superior Court of Pinal County.

At the hearing testimony was produced that showed that the proposed town consisted of 2.55 square miles or approximately 1600 acres. It is located roughly along the Tucson-Florence highway, bounded on the south by Hardy Road. The population is unevenly distributed. The southern section consists of Shadow Mountain East and Shadow Mountain, and the northern section consists of Oro Valley Estates, both areas containing one acre subdivisions. The area between is more sparsely inhabited, a large portion of the homesites located on 10 acre lots. Canyon Del Oro High School is located in this mid-area. The area is one of low density population with very little commercial or business activity and lacking a commercial or business center.

The trial judge, after hearing the evidence, on 31 March 1972, entered a minute entry order directing the Board to incorporate, but due to illness of the judge, formal written judgment was not signed until 15 June 1972. In the meantime, on 24 May 1972, the City Council of the City of Tucson passed an ordinance annexing territory contiguous to the city limits, bringing the proposed townsite of Oro Valley within the six mile limit set forth by § 9--101.01 A.R.S. Appellants appealed the judgment to the Court of Appeals raising, among other issues, the question of whether the annexation by the city rendered the matter moot because the Board lacked jurisdiction to incorporate within six miles of the city limits of an existing city.

IS THE QUESTION MOOT?

The Court of Appeals, relying on Colquhoun v. City of Tucson, 55 Ariz. 451, 103 P.2d 269 (1940), and Burton v. City of Tucson, 88 Ariz. 320, 356 P.2d 413 (1960), reversed the judgment of the Superior Court, reasoning as follows:

'The effect of the city's annexation of territory making part of the proposed town of Oro Valley within the six-mile limit was to deprive the Board of Supervisors of jurisdiction to declare Oro Valley an incorporated town. This action was taken before the court issued the writ of mandamus. The trial court could not order the Board to do what it no longer had authority to do. Mandamus will not issue to enforce an abstract right which by reason of occurrence of an event subsequent to commencement of proceedings makes issuance of the writ of no practical value to petitioner. * * *' Jay v. Kreigh, supra, 514 P.2d at 738.

In Colquhoun v. City of Tucson, supra, this court enunciated the proposition 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 In Burton v. City of Tucson, supra, we held that for purposes of the Colquhoun principle, incorporation proceedings are 'finally determined' when the Board denies the petition. While recognizing that review of the Board's decision by application for a writ of certiorari might be proper, we also noted that there is neither a statutory nor a constitutional right of appeal which would continue the proceedings. We feel that Burton is clearly distinguishable from the case at hand. In Burton the Board of Supervisors denied the incorporation petition and, prior to the petitioners' invoking the jurisdiction of the Superior Court, the city immediately thereafter annexed the subject territory. Only after the annexation by the city did the petitioners in Burton attempt to compel the incorporation by the Board and enjoin the annexation by the city. Here the Board of Supervisors denied the petition and the action for writ of mandamus was immediately filed. The matter was tried and determined, albeit by minute entry, before the City of Tucson attempted to defeat incorporation. Assuming that the Board of Supervisors had a duty to declare the Town of Oro Valley incorporated in the first place, the trial court had jurisdiction to order the Board of Supervisors to do what the Board ought to have done in the first place, and once the Superior Court acquired jurisdiction over the subject matter of the incorporation of Oro Valley and parties thereto, the Tucson City Council could not oust the court of that jurisdiction by the annexation of territory within 6 miles of the new town.

is entitled to retain it without interference by the other until the first proceedings are finally determined.' 55 Ariz. at 456, 103 P.2d at 271. Although in the instant case the territory sought to be annexed is not the same as that sought to be incorporated, we think the principle applies equally as well where, as here, the accomplishment of the one would defeat the other.

Having determined that the Court of Appeals erred in reversing the judgment of the Superior Court on the ground of mootness, we must now consider the other issues raised by the appellants but not considered by the Court of Appeals.

SCOPE OF REVIEW

The first of the remaining issues concerns the scope of review of the action of the Board of Supervisors in denying a petition for incorporation. At the time this action was commenced, § 9--101 A.R.S. read as follows:

'A. When two thirds of the real property taxpayers residing in a community containing a population of five hundred or more inhabitants petition the board of supervisors, setting forth the...