Town of Fairbanks, Alaska v. UNITED STATES S., R. & M. CO.

• Decision Date: 27 November 1950
• Docket Number: No. 12348.,12348.
• Citation: 186 F.2d 126
• Parties: TOWN OF FAIRBANKS, ALASKA, v. UNITED STATES SMELTING, REFINING & MINING CO., Inc., et al.
• Court: U.S. Court of Appeals — Ninth Circuit

186 F.2d 126 (1950)

TOWN OF FAIRBANKS, ALASKA, v. UNITED STATES SMELTING, REFINING & MINING CO., Inc., et al.

No. 12348.

United States Court of Appeals Ninth Circuit.

November 27, 1950.

Collins & Clasby, Chas. J. Clasby, all of Fairbanks, Alaska, for appellant.

Southall R. Pfund, San Francisco, Cal. (Pillsbury, Madison & Sutro, Allan R. Moltzen, all of San Francisco, Cal., of counsel), for appellee U. S. Smelting, Refining & Mining Co.

Julien A. Hurley, Fairbanks, Alaska, for appellee Slater.

Before DENMAN, HEALY, and BONE, Circuit Judges.

HEALY, Circuit Judge.

This is an appeal by the town of Fairbanks, Alaska, from a judgment dismissing its petition for the annexation of an area of contiguous lands.

The statute, § 16-1-22, Alaska Compiled Laws Annotated 1949, provides that when the council of a city desires to annex contiguous territory, it shall file in the court "a petition signed by a majority of the owners of substantial property interests in land or possessory rights in land" within the limits of the territory proposed to be annexed. The number of owners of such property is required to be stated in the petition or on an attached plat. There is a further provision, added to the original annexation statute by way of amendment in 1947, reading: "Those owners of land within the limits of the territory sought to be annexed who have filed a statement of their ownership in the United States General Land Office for the District in which the land is situate, in compliance with Chapter 49 of the Session Laws of Alaska, 1945, shall be presumed to be the owners of substantial property interests in land or possessory rights in land, tidelands or improvements upon land or tidelands within the limits of the territory proposed and sought to be annexed in the absence of a clear showing to the contrary."

The law referred to in the above quoted provision, namely, Chapter 49 of the Session Laws of Alaska, 1945, has been codified as § 22-2-1 of the Alaska Compiled Laws Annotated 1949. It is shown on the margin.¹

The petition of the Town, filed with the court pursuant to the annexation statute, bore 150 signatures and alleged that there are 282 owners of substantial property interests in land in the area. This allegation was denied by appellees, and the answer of appellee Charles Slater stated affirmatively that there are more than 310 owners of substantial property interests in the area. On the hearing before the court the Town introduced evidence showing that 207 persons had filed in the General Land Office statements of ownership of interests in land in the territory to be annexed, and that of those so filing 106 had signed the petition. No further evidence on the subject being offered, the court dismissed the Town's petition for failure to prove that a majority of the owners of substantial property interests in the area had signed it.

The Town contends that it made a prima facie showing of a majority on the basis of the presumption afforded by the 1947 amendment to the annexation statute, supra. We think otherwise. The amendment says only that those filing statements of ownership are "presumed to be the owners of substantial property interests in land" in the territory sought to be annexed. It does not say that they are presumed to be all the owners of such interests in the area.

While the provision is not so broad as appellant would have us believe, it serves nevertheless an important purpose. The phrase "substantial property interests in land" is notably vague. Often it might be difficult to determine whether a particular interest is or is not substantial. There might be doubt in a particular situation whether the person filing is the "owner" of the interest described. The presumptive clause in question provides a convenient rule of evidence doing away with the initial need of proving in annexation proceedings that the persons who have filed statements in the Land Office are in fact owners or that the interests they own are substantial.

Emphasis is sought to be given the verbiage of the general law of 1945, supra note 1, stating that "It shall be the duty of" each owner to file in the Land Office a sworn statement of his ownership. The statute is a revenue measure. Its apparent purpose is to enable taxing bodies more conveniently to get privately owned lands and possessory interests in lands on the assessment rolls. The only penalty it prescribes for failure to perform the duty of filing is a penalty of $5, constituting a lien against the land. If the legislature, in amending the annexation statute, had intended further to penalize non-complying owners by doing away with the need of counting them for or against an annexation petition, it would presumably have made the purpose plain.

Affirmed.

DENMAN, Chief Judge (dissenting).

The court's opinion, in determining the legislative intent in providing for the enlargement of incorporated areas, fails to consider the absence of police protection in outlying Alaska homes confirmed in our judicial knowledge by the Alaska judiciary attending our circuit conference. It further ignores the fact that the annexation statute also has the purpose of bringing the adjoining areas under the Town's taxation.

More particularly, the court's opinion fails to consider the earlier annexation proceeding by the Town of Fairbanks prior to the 1947 amendment, admitted by appellees so to have been litigated. That litigation makes it clear that the legislative purpose in creating the presumption is that "Those owners of land" who have registered "shall be presumed to be the owners of substantial property interests" who are entitled to vote in the annexation election. The opinion ignores the use of the article "the" in the phrase "the owners" as referring to the owners in the earlier portion of the Act to which the amendment was added. It would construe the amendment as if it had omitted the article "the" and is to be deemed to read "shall be presumed to be some of the owners" and no more.

The petition of the Town of Fairbanks was filed under the authority of Alaska Compiled Laws Annotated 1949, §§ 16-1-21 to 16-1-28. Petitioner claimed to have made a prima facie case under the authority of Chapter 50, § 1, p. 119, Laws of Alaska 1947, an amendment to § 16-1-22, later discussed. On appellees' motion, the petition was dismissed.

Section 16-1-22 requires that the petition of the Council of the Town of Fairbanks shall be signed by "a majority of the owners of substantial property interests" in the land proposed to be annexed to the town.

After the enactment of § 16-1-22, but prior to its amendment, the Legislature of Alaska made it the duty of one owning land not "located within an incorporated town" to file in the United States Land Office for the district in which the land is...