State ex rel. Helm v. Town of Benson

• Decision Date: 22 May 1963
• Docket Number: No. 7514,7514
• Citation: 381 P.2d 760,94 Ariz. 75
• Parties: The STATE of Arizona, ex rel. Lloyd C. HELM, County Attorney of Cochise County, Appellant, v. TOWN OF BENSON, Cochise County, Arizona, and Fred Becchetti, Russell Moore, Peter Wilharm, Emory Brandt and Dale Augenbaugh, Mayor and Councilmen, respectively of the Town of Benson, Cochise County, Arizona, Appellees.
• Court: Arizona Supreme Court

Page 760

381 P.2d 760

94 Ariz. 75

The STATE of Arizona, ex rel. Lloyd C. HELM, County Attorney of Cochise County, Appellant, v. TOWN OF BENSON, Cochise County, Arizona, and Fred Becchetti, Russell Moore, Peter Wilharm, Emory Brandt and Dale Augenbaugh, Mayor and Councilmen, respectively of the Town of Benson, Cochise County, Arizona, Appellees.

No. 7514.

Supreme Court of Arizona, In Division.

May 22, 1963.

Rehearing Granted July 2, 1963.

Lloyd C. Helm, former Cochise County Atty. Richard J. Riley, Cochise County Atty., Bisbee, for appellant.

J. Mercer Johnson, Tucson, Fred P. Talmadge, Benson, for appellees.

LOCKWOOD, Justice.

Action was brought by appellant, State of Arizona, through Lloyd C. Helm as County Attorney of Cochise County, to declare invalid an annexation of certain territory in Cochise County by the Town of Benson. The complaint alleges that the petition for annexation was not legally presented to the town council before the annexation ordinance was enacted, that it was not signed by the owners of one-half the value of the real and personal property subject to taxation, that it was not signed by persons authorized to do so and that there was no legal cause for the passage of the ordinance as an emergency measure. The trial court made findings of fact and conclusions of law holding against appellant on these matters.

The annexation in question was initiated by the Town Council of Benson. On December 28, 1960, an attorney was authorized by Fred Becchetti, Mayor of Benson, to obtain the signatures of taxpayers El Paso Natural Gas Company and Southern Pacific Company. The attorney took the petition to annex to Tucson where H. C. Warnock signed the petition on behalf of both companies. Information that the signatures had been obtained was telephoned to Mayor Becchetti. A duplicate of the petition, except for the signatures, was before the council at that time. Thereupon, the council immediately adopted the annexation ordinance at a special meeting. The signed petition was received by the city clerk of Benson the following day, December 29, 1960, after the ordinance was adopted.

Appellant claims that before the Town of Benson was empowered to act to annex the subject territory there must have been presented to it the signed petition. ¹ The position of appellee, Town of Benson, is that it was reliably informed that there was in the possession of its agent a petition signed by persons constituting a sufficient number of signatures, and that this was the equivalent of presentation. The trial court found that these companies were the owners of more than one-half the value of the real and personal property subject to taxation in the territory annexed.

No prior decision of this court has dealt with precisely this question. The general rule is that statutes prescribing the conditions under which annexation may be accomplished must be substantially complied with. City of Tucson v. Garrett, 77 Ariz. 73, 267 P.2d 717; McCune v. City of Phoenix, 83 Ariz. 98, 317 P.2d 537. In the McCune case a conflict arose between the cities of Phoenix and Scottsdale as to which of the two first acquired jurisdiction to annex territory each was claiming under its own annexation ordinance. The Scottsdale petition to annex was filed with its city clerk prior to the time the Phoenix petition was...