State ex rel. Pickrell v. Downey

• Citation: 430 P.2d 122,102 Ariz. 360
• Decision Date: 06 July 1967
• Docket Number: No. 7883,7883
• Parties: The STATE of Arizona ex rel. Robert W. PICKRELL, Attorney General of the State of Arizona, Appellant, v. Patrick C. DOWNEY, Mayor, Samuel Hoover, E. Robert Tribkin, Jack F. Jennings, Jack Huntress, Leonard Deehan and George Andress, comprising the members of the Town Council of the Town of Paradise Valley, Appellees.
• Court: Supreme Court of Arizona

Page 122

430 P.2d 122

102 Ariz. 360

The STATE of Arizona ex rel. Robert W. PICKRELL, Attorney General of the State of Arizona, Appellant, v. Patrick C. DOWNEY, Mayor, Samuel Hoover, E. Robert Tribkin, Jack F. Jennings, Jack Huntress, Leonard Deehan and George Andress, comprising the members of the Town Council of the Town of Paradise Valley, Appellees.

No. 7883.

Supreme Court of Arizona, In Banc.

July 6, 1967.

Rehearing Denied Nov. 14, 1967.

Darrell F. Smith, Atty. Gen., Joseph P. Ralston, Special Asst. Atty. Gen., for appellant.

John E. Madden, (deceased), John S. Schaper, Mark Wilmer, Phoenix, for appellees.

BERNSTEIN, Chief Justice.

This is an action in quo warranto.

On April 14, 1961 a petition to incorporate The Town of Paradise Valley an area of approximately 2.85 square miles in Paradise Valley was filed with the Board of Supervisors of Maricopa County. The Board held a hearing on the validity of the petition May 8, 1961 wherein both proponents and opponents were given opportunity to be heard. On May 24, 1961 the Board passed a resolution declaring the 'Town of Paradise Valley' incorporated.

Subsequent to the passage of the Resolution of the Board the Attorney General, in the name of the state, instituted proceedings in quo warranto. The quo warranto sought the ouster of appellees, they being the mayor and certain members of the town council on the grounds that the resolution of the Board of Supervisors was null and void. This appeal is taken from a judgment rendered against the state.

The state contends that the Board of Supervisors of Maricopa County was without jurisdiction to create the Town of Paradise Valley and its acts in creating the 'Town of Paradise Valley' were void for the reason that the purported incorporation of the town did not comply with A.R.S. § 9--101 in that, one, the petition lacked the signatures of two thirds of all 'the real property taxpayers residing' in the area; two, the Board abused its discretion in determining that two thirds had signed the petition and; three, the area sought to be incorporated did not constitute a community within the definition contained in A.R.S. § 9--101, subsec. D.

Sections 9--101, subsec. A and 9--101, subsec. D read as follows:

' § 9--101. Incorporation

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 metes and bounds of the community, and the name under which the petitioners desire to be incorporated, and praying for the incorporation of the community into a city or town, and the board is satisfied that two thirds of the real property taxpayers residing in the community have signed the petition, it shall, by an order entered of record, declare the community incorporated as a city or town.

D. For the purposes of this section, the word community shall mean a locality in which a body of people reside in more or less proximity having common interests in such services as public health, public protection, fire protection, and water which bind together the people of the area, and where the people are acquainted and mingle in business, social, educational and recreational activities.'

Pre-trial conference was held July 3, 1962 at which the trial court ordered that the case be tried on the basis of the record before the Maricopa County Board of Supervisors. During trial, on July 11, 1962, the appellant called a witness, John Burke, and upon indication from the trial court that no new testimony would be received, appellant made an offer of proof to the effect that Mr. Burke would qualify as an expert, having served ten years as City Clerk of Phoenix during which time it was his function to check annexation petitions; and further he had previously served as a hired expert for the Board of Supervisors of Maricopa County during proceedings for the incorporation of the Town of Cashion. Mr. Burke would further testify that he had used the same methods in checking the proposed incorporation of 'The Town of Paradise Valley' and that as of the date of the Board hearing on the matter there were approximately 60 per cent of eligible real property taxpayers residing in the community who had signed the incorporation petition, and that in his opinion this did not qualify this area for incorporation under the requirements as stated in A.R.S. § 9--101, subsec. A.

The files and the transcript of the hearing before the Board of Supervisors, entered in evidence before the trial court reveal the following significant facts: The original petition dated April 14, was examined by the County Assessor and he reported to the Board by letter on April 17 'that petitions contain the names of 482 persons who were recorded property owners within the area and that the assessor's records showed the names of 653 owners of improved real property in the area.' However, by letter on May 5, the County Assessor amended his report as follows: 'On a recheck of the Paradise Valley Petitions for Incorporation, I find that 492 have signed * * * and from my records, 473 of these are recorded property owners. A recheck of today's ownership shows 711 owners of improved property in the district. The withdrawal petitions show 108 requests to be withdrawn from the petitions.'

On the morning of the hearing, May 8, 30 new signatures were filed along with requests for reinstatement of 31 person who had previously withdrawn their names. The proponents for incorporation also filed affidavits to the effect that certain persons were not 'year-round residents, domiciled within the area,' and that certain residences within the area 'were vacant and unoccupied.'

Following the introduction of these affidavits one of the attorneys for the proponents argued that the Board in arriving at its conclusion, should (1) add 30 names; (2) exclude the 66 names contained in the body of the affidavits (including 17 corporation or company names); (3) exclude 53 signatures on the original petitions who considered themselves to be nonresidents. They argued that by so doing and by using the total figure of 711 and giving effect to part of the withdrawals the Board could find $67.2% Had validly petitioned.

One of the attorneys for the opponents objected to the Board's giving consideration to affidavits of third persons to prove that a signer or non-signer was not 'residing in the area'. He objected further to the attempt of proponents to reduce the total number of property owners by deducting 17 parcels owned by corporations or companies since the testimony of the assessor's office showed that in arriving at the figure of 711 these 17 parcels were excluded. Further, testimony of opponents giving effect to 108 withdrawals, 31 rejections of withdrawals, and 30 additional signers revealed that only 59.41% Of the owners of real property had signed the petitions.

The Board also listened to testimony and argument on the question of whether the area to be incorporated constituted a community as defined in A.R.S. § 9--101, subsec. D.

The only other evidence permitted to be introduced at trial, other than the files and transcript of the Board, was an aerial photograph of the surrounding area and an official map of the City of Phoenix and of Maricopa County.

Following rendition of formal judgment for appellees and denial of motion for new trial this appeal was perfected. The state sets out three assignments of error:

1. The Court erred in entering judgment that the community was validly incorporated, and that the act of the Supervisors in declaring such an incorporation was lawful, for the reason that the petition before the Board of Supervisors did not contain sufficient signatures to give the Board jurisdiction to declare the incorporation.

2. The Court erred in its pre-trial order that the case will be tried on the basis of the record before the Board of Supervisors, and in its trial order refusing to permit testimony from witness, John Burke to present testimony contained in the offer of proof.

3. The Court erred, as a matter of law, that the area described in the incorporation petition and as shown on the aerial photograph in evidence as Plaintiff's Exhibit '1' is a community as defined by A.R.S. § 9--101, subsec. D.

The appellant first contends that under the provisions of A.R.S. § 9--101, subsec. A, the Board of Supervisors is without jurisdiction to declare a community validly incorporated unless it has been presented with a petition containing the signatures of two thirds of all real property taxpayers residing in the area.

Clearly, under Article XIII, Section 1 of our Constitution, A.R.S., authority over municipal incorporation is vested in the legislature and its power over the methods and procedures for incorporation is plenary, Burton v. City of Tucson, 88 Ariz. 320, 356 P.2d 413 (1960).

It is equally clear that the legislature may delegate to a subordinate body, such as the Board of Supervisors, authority or discretion to carry out the execution of a legislative act. Peters, et al. v. Frye, 71 Ariz. 30, 223 P.2d 176 (1950). The courts will not and cannot interfere with subordinate boards when they properly exercise their delegated legislative authority in creating cities and towns; but the board of supervisors possesses only such power as is expressly conferred by statute, or is necessarily implied therefrom. Board of Supervisors v. Udall, 38 Ariz. 497, 1 P.2d 343.

The appellees urge that the language of A.R.S. § 9--101, subsec. A 'the board is satisfied'--makes a board order of declaration of incorporation conclusive, and not subject to review. Appellees contend that such an order by the Board is based on a determination of a legislative fact, as opposed to a judicial or jurisdictional fact. Appellees rely upon earlier Arizona cases, Faulkner v. Board of Supervisors, 17 Ariz. 139, 149 P. 382 (1915); Kenney v. Bank of Miami, 19 Ariz. 338, 170 P. 866 (1918); ...