Skinner v. City of Phoenix, Civil 4146

• Decision Date: 06 November 1939
• Docket Number: Civil 4146
• Citation: 95 P.2d 424,54 Ariz. 316
• Parties: O. P. SKINNER, on Behalf of Himself and All Others Similarly Situated, Appellant, v. CITY OF PHOENIX, a Municipal Corporation, M. L. WHEELER, City Manager of the City of Phoenix, WALTER J. THALHEIMER, Mayor of the City of Phoenix, MALCOLM WHARTON, C. J. SULLIVAN, RAY BUSEY and REED SHUPE, Constituting the Commission of the City of Phoenix, a Municipal Corporation, and JOE CONWAY as Attorney General of the State of Arizona, Appellees
• Court: Arizona Supreme Court

95 P.2d 424

54 Ariz. 316

O. P. SKINNER, on Behalf of Himself and All Others Similarly Situated, Appellant, v. CITY OF PHOENIX, a Municipal Corporation, M. L. WHEELER, City Manager of the City of Phoenix, WALTER J. THALHEIMER, Mayor of the City of Phoenix, MALCOLM WHARTON, C. J. SULLIVAN, RAY BUSEY and REED SHUPE, Constituting the Commission of the City of Phoenix, a Municipal Corporation, and JOE CONWAY as Attorney General of the State of Arizona, Appellees

Civil No. 4146

Supreme Court of Arizona

November 6, 1939

APPEAL from a judgment of the Superior Court of the County of Maricopa. Levi S. Udall, Judge. Judgment affirmed.

Mr. E O. Phlegar, Mr. Thomas W. Nealson, Mr. J. S. Wheeler and Mr R. C. Stanford, Jr., for Appellant.

Mr Hess Seamen, City Attorney, and Mr. W. C. Fields, his Assistant, for Appellees.

OPINION

LOCKWOOD, J.

O. P Skinner, hereinafter called plaintiff, brought this action on behalf of himself and others similarly situated, under section 3736, Revised Code of 1928, which reads so far as material as follows:

"... When the question to be determined is one of a common or general interest of many persons, or when the parties are numerous and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all."

He asks for a declaratory judgment that a certain attempted annexation by the City of Phoenix of certain property contiguous thereto was void and of no effect.

The defendants filed special and general demurrers to the complaint, which latter was sustained by the court. Plaintiff refusing to plead further, and electing to stand upon his complaint, judgment was rendered dismissing the action, whereupon this appeal was taken.

We consider the case upon the legal questions requiring our determination rather than on the specific assignments of error. These questions are as follows: May a private citizen ask for a declaratory judgment (a) upon the question of whether a statute under which territory is annexed to the city is constitutional, and (b) if it is constitutional, were the proceedings taken to annex the territory in accordance with the statute?

The plaintiff was a private citizen and a resident and property owner within the annexed territory. He claimed that the annexation was void for the two reasons set forth, and brought the present proceeding in his private capacity. Section 4386, Revised Code of 1928, reads as follows:

"Person interested or affected may have declaration. Any person interested under a deed, will, written contract or other writing, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status or other legal relations thereunder. A contract may be construed either before or after there has been a breach thereof."

It is plain to us that the status and legal relations of the plaintiff are affected by the statute under which the annexation proceedings were taken and by the municipal ordinance adopted declaring the annexation completed. If the statute is unconstitutional, all the proceedings taken thereunder are void for lack of jurisdiction. We think, therefore, it was necessary for the trial judge to determine, in passing on the general demurrer, whether the statute is constitutional. Section 416, Revised Code of 1928, reads as follows:

"Annexation by petition of property owners. Any city may extend and increase its corporate limits in the manner following: On presentation of a petition in writing, signed by the owners of not less than onehalf 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, upon filing and recording a copy of such ordinance, with an accurate map of the territory annexed, certified by the mayor of said city, in the office of the county recorder, in the county where the annexed territory is situated."

It will be seen that the legislature has said that upon the presentation of a petition 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 the property, and not embraced within its limits, the common council of the city may, by ordinance, declare said territory annexed to the city. In the case of Southern Pacific Co. v. Pima County, 38 Ariz. 11, 296 P. 533, 534, we quoted approvingly from Adriaansen v. Board of Education, 222 A.D. 320, 226 N.Y.S. 145, as follows:

"... The authority of the Legislature over the boundaries of subdivisions of the state is absolute. It may consolidate, add to, or take from the territory of a municipality or district, without the consent of the municipality or district affected. By such action the rights of individuals in the territory affected are not violated...."

In Territory v. Town of Jerome, 7 Ariz. 320, 64 P. 417, 418, we 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 municipal corporation. It has a right to do that quickly, instantaneously, without notice to anybody...."

We applied this same rule of the plenary legislative power to municipal corporations, such as school districts, in Laney v. State, 20 Ariz. 416, 181 P. 186, and in Valley Center School District v. Hansberger, 28 Ariz. 493, 237 P. 957. The only limitation on the power of the legislature in this respect would be some constitutional inhibition, such as section 19 of subdivision 2, article IV of the Constitution, which prohibits the legislature from incorporating cities, towns or villages, or amending their charters by a special law.

Assuming that extending the boundaries of the city is, in effect, an incorporation, and therefore that this constitutional inhibition would apply to a statute covering such an act, it will be seen that section 416, supra, is general in its nature. If the legislature may, as it unquestionably can, incorporate or disincorporate a city, or annex territory thereto without the consent of the inhabitants, or any notice to them, provided only the same is done under a general law, we see no reason why they may not delegate this authority, upon such terms as they may think proper, to subordinate legislative bodies, such as boards of supervisors and common councils of municipalities already created.

The method of creating a town or city under the general law is in essence, the same as that for annexing a territory to one already created. It is set forth in section 367, Revised Code of 1928. In substance, the section states that whenever a certain number of citizens present their petitioners to the board of supervisors asking for incorporation, if the supervisors find that the jurisdictional requisites of the section are fulfilled, it shall, by resolution, declare the city incorporated. This, in substance, is the method used in practically all of the western states for...