The City of Phoenix v. State ex rel. Harless, Civil 4383

• Decision Date: 29 September 1941
• Docket Number: Civil 4383
• Citation: 58 Ariz. 8,117 P.2d 87
• Parties: THE CITY OF PHOENIX, a Municipal Corporation; REED SHUPE, as Mayor of Said City of Phoenix; and M. F. WHARTON, HOUSTON L. WALSH, W. J. R. SIMS and J. R. FLEMING, as Commissioners of Said City of Phoenix; and ROY R. HISLOP, as City Manager of Said City of Phoenix, Appellants, v. THE STATE OF ARIZONA, at the Relation of RICHARD F. HARLESS, County Attorney of Maricopa County, State of Arizona, Appellees
• Court: Arizona Supreme Court

117 P.2d 87

58 Ariz. 8

THE CITY OF PHOENIX, a Municipal Corporation; REED SHUPE, as Mayor of Said City of Phoenix; and M. F. WHARTON, HOUSTON L. WALSH, W. J. R. SIMS and J. R. FLEMING, as Commissioners of Said City of Phoenix; and ROY R. HISLOP, as City Manager of Said City of Phoenix, Appellants, v. THE STATE OF ARIZONA, at the Relation of RICHARD F. HARLESS, County Attorney of Maricopa County, State of Arizona, Appellees

Civil No. 4383

Supreme Court of Arizona

September 29, 1941

APPEAL from a judgment of the Superior Court of the County of Maricopa. Arthur T. LaPrade, Judge. Judgment affirmed.

Mr Hess Seaman, City Attorney and Mr. William C. Fields Assistant City Attorney, for Appellants.

Mr Richard F. Harless, County Attorney and Mr. Leslie C. Hardy Deputy County Attorney, for Appellees.

OPINION

LOCKWOOD, C.J.

This is an appeal by the City of Phoenix, called defendant, from a judgment of the superior court in favor of the State of Arizona, called plaintiff, holding that ordinance No. 3081 of said city declaring certain lands annexed to the city is void and of no effect. The facts are not in dispute and may be stated as follows: In the spring of 1940, a petition, signed by the Phoenix Union High School District, hereinafter referred to as the district, was addressed to the mayor and city commission of defendant, requesting that the southwest quarter of the southeast quarter of section 30, township 2 north, range 3 east, G. & S.R.B. & M., be annexed to the City of Phoenix. This area contains forty acres, of which thirty is owned by the district, and ten by Elizabeth McLellan. On April 23, 1940, ordinance No. 3081 was passed with the emergency clause, and duly recorded on June 10th in the office of the recorder of Maricopa county, and since said time defendant has claimed the land above described was annexed to the City of Phoenix. Section 16-701, Arizona Code 1939, prescribes the procedure for the annexation of property to an incorporated city. It 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 one-half 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 appears, therefore, that it is an indispensable condition precedent that a petition for annexation be 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 said property."

It is the claim of defendant that the district falls within the provisions of said section and is authorized to sign the petition for incorporation. It is the position of the State of Arizona, which brought these proceedings in quo warranto, as provided by the statute, that since under the Constitution the property of the district is not and cannot be made subject to any form of taxation, state, county or municipal, it cannot legally be assessed and the district is not qualified to sign a petition for annexation. It is admitted that if the district may sign such a petition, the ordinance is valid, but that if it may not, it is void.

It appears that the property owned by the district was in private ownership up to and including 1938, and that up to and including that year it was assessed and taxed in the same manner as any other real property. It is also admitted that since said date it has been placed upon the assessment roll by the county assessor, as is all private real estate, but that it has never since that time paid any taxes and is marked as exempt from taxation on such roll.

What was the intent of the legislature when it adopted section 16-701, supra? Did it mean that the owners of property which was not, and could not be, subject to the burden of taxation could petition for annexation, or that such privilege was confined only to the owners of property which appeared upon the tax roll as subject to the ordinary incidents of taxation? We have been cited to no cases precisely in point. Defendant insists that the rule to be applied is set forth in Shepherd v. Board of Supervisors San Joaquin County, 137 Cal.App. 421, 30 P.2d 578, 582. In that case, as in this, the question was one of annexation. The situation differed, however, in that under the California law the annexation could be made, unless a protest was filed against it, while with us it requires an affirmative request for annexation before the city may act. The California statute (2 Deering's Gen. Laws 1931, Act 5163, sec. 1) in regard to the protest reads as follows:

"'At the time specified in said notice, or at such other time as may be fixed by postponement, the said board of supervisors shall hear the said protestations, and unless the remonstrances are filed by the owners of more than one-half of the land sought to be annexed, the decision of said board of supervisors upon said protestations shall be final and conclusive. In the event that the owners of more than one-half of the land so sought to be annexed, file remonstrances against such annexation, said protestations shall be sustained by said board of supervisors, and shall be a bar to any further proceedings under the provisions of this act for the period of one year.'"

It will be seen that therein nothing is said as to the value of the property or of its appearance on the assessment roll, and the court held that no distinction existed between public and private owners of land and that the...