Town of South Tucson v. Board of Supervisors of Pima County, Civil 4025

• Decision Date: 28 November 1938
• Docket Number: Civil 4025
• Citation: 52 Ariz. 575,84 P.2d 581
• Parties: TOWN OF SOUTH TUCSON, a Municipal Corporation, Appellant, v. THE BOARD OF SUPERVISORS OF PIMA COUNTY, and WARREN GROSSETTA, J. B. MEAD and R. H. MARTIN, Members Thereof, and R. G. DARROW, Appellees
• Court: Arizona Supreme Court

84 P.2d 581

52 Ariz. 575

TOWN OF SOUTH TUCSON, a Municipal Corporation, Appellant, v. THE BOARD OF SUPERVISORS OF PIMA COUNTY, and WARREN GROSSETTA, J. B. MEAD and R. H. MARTIN, Members Thereof, and R. G. DARROW, Appellees

Civil No. 4025

Supreme Court of Arizona

November 28, 1938

APPEAL from a judgment of the Superior Court of the County of Pima. E. R. Thurman, Judge. Judgment affirmed.

Mr Harry O. Juliani and Mr. John L. Van Buskirk, for Appellant.

Mr Joseph B. Judge, County Attorney, Mr. Alfred Ronstadt, his Chief Deputy, for Appellee Board of Supervisors and Members Messrs. Misbaugh & Fickett, Messrs. Krucker & Fowler, Messrs Darrow & Diehl, for Appellee R. G. Darrow.

OPINION

LOCKWOOD, J.

This is an action by the Town of South Tucson, a municipal corporation, hereinafter called plaintiff, against the Board of Supervisors of Pima County, and the individual members thereof, and one R. G. Darrow, hereinafter called defendants, seeking injunctive relief restraining the defendants from meddling with the municipal functions of the Town of South Tucson, or seizing, taking, or dealing with any of the property of the municipality. The case came on for trial before the court sitting with a jury, and at the close of plaintiff's evidence, defendants moved that the case be withdrawn from the jury and judgment entered in favor of the defendants, which motion was granted, and thereafter this appeal was taken.

The situation out of which the action arose may be stated as follows: Plaintiff was a municipal corporation organized under the provisions of chapter 86, of the Session Laws of 1931, which reads as follows:

"An Act to provide for the incorporation of cities and towns.

"Be It enacted by the Legislature of the State of Arizona:

"Section 1. Sec. 367, Revised Code, 1928, is hereby amended to read as follows:

"Sec. 367. Proceedings for Incorporation. Whenever two-thirds of the real property taxpayers residing in any city or town, containing a population of five hundred or more inhabitants, shall petition the board of supervisors, setting forth the metes and bounds of such city or town, and the name whereby such petitioners desire to be incorporated, and praying for the incorporation of such city or town, and the board shall be satisfied that two-thirds of the real property taxpayers residing in such city or town have signed such petition, it shall, by an order to be entered of record, declare such city or town incorporated. Whenever ten per centum of the real property taxpayers residing in any city or town containing a population of five hundred or more inhabitants shall in like manner petition the board of supervisors, praying for the calling of an election, the board shall within sixty days after the filing of said petition call such election, and only real property taxpayers who shall also in all respects be qualified electors of the state and of said city or town, shall vote thereat. If a majority of the real property taxpayers voting at said election shall vote for incorporation, then the board of supervisors shall, by an order to be entered of record, declare such city or town incorporated. By whichever proceeding the incorporation of such city or town shall have been accomplished, such order shall designate the name of the city or town, and the metes and bounds thereof, and thereafter the inhabitants within the area so defined shall be a body politic and corporate, by the name designated."

The procedure followed in the organization was that set forth in the statute to be used when ten per cent. of the real property owners petition for incorporation. The voters, at the election held in pursuance of chapter 86, supra, favored incorporation, and the incorporation order was made by the board of supervisors August 10, 1936. Thereafter, and on the 18th day of January, 1938, a petition was filed with the board, signed by a number of persons claiming to be residents and taxpayers within the said town, requesting that the board disincorporate it. The only provision of our code in regard to disincorporation of towns at that time was section 385, Revised Code 1928, which reads as follows:

"Disincorporation. The county supervisors of the county in which any such town is situated, may, upon the petition of two-thirds of those persons paying a property tax within such town, in the year preceding, and residing within such town, disincorporate such town, and appoint a trustee with authority to wind up the affairs of the corporation, sell and convey its property, real and personal, pay the debts of the town, and return the surplus of the proceeds of the property of the town into the county treasury, to be there disposed of for the improvement of roads in the vicinity wherein such town is situated."

The order disincorporating was in the following language:

"The board received a petition signed by two hundred and fifty-eight (258) taxpayers for the purpose of disincorporating the town of South Tucson.

"It appears to the Board that the petition to disincorporate the Town of South Tucson is in proper form, and it is our opinion that it contains two-thirds of those persons paying a property tax within such town, in the year preceding, and residing within such town. It is therefore moved by Mr. Mead and seconded by Mr. Martin, to disincorporate such Town and appoint a Trustee, R. G. Darrow, C.P.A., with authority to wind up the affairs of the corporation in accordance with provisions of Section 385 of the Revised Code of Arizona."

Thereafter this action was brought.

Plaintiff, by its pleadings, claimed that the resolution disincorporating the town was made without jurisdiction, on the ground that the petition was insufficient on its face, and further that the signatures thereto were not sufficient under the statute to authorize the board to act. Issue was joined on these allegations, and the court held the petition to be sufficient on its face, but permitted plaintiff to offer evidence as to whether or not there were the requisite number of signatures, and after the evidence was concluded, held that sufficient legal evidence had not been offered to show that the petition did not have the requisite number of legal signers, and rendered judgment in favor of defendants. Thereafter a motion for new trial was presented and argued fully. This motion raised again the question of the sufficiency of the petition on its face and the rulings of the court in regard to the sufficiency of the evidence to show that the requisite number of taxpayers had not signed the petition, and also raised, for the first time, the question of the constitutionality of section 385, supra, on the ground that it impaired the obligation of contracts, in that it did not provide a method for paying the debts of the municipality disincorporated thereunder, in event that the assets of the town were insufficient to cover its obligations.

On this appeal all of the questions raised during the trial of the case, and on the motion for new trial, were properly presented by assignments of error, and it was also urged for the first time that the provisions of section 385, supra, did not apply to towns organized under chapter 86, supra, and that the section was unconstitutional for the additional reason that it attempted to confer judicial power on the board of supervisors, in the appointment of a trustee who was vested with power to adjudicate claims against the town and pass on titles to real property, in violation of section 6, article 6, and article 3 of the Constitution of Arizona.

The objections raised by plaintiff may be divided into three groups. The first goes to the constitutionality and applicability of the disincorporation statute, sec. 385, supra; the second raises the question of the sufficiency of the petition for disincorporation on its face to confer jurisdiction upon the supervisors to act; and the third covers the point of whether sufficient competent evidence was offered by plaintiff to raise an issue for submission to the jury as to whether the requisite number of taxpayers and residents had signed the petition.

Defendants urge that the constitutional questions raised by plaintiff in its assignments of error may not be considered by us for the reason that they are first presented on appeal, and that the rule of this court is that questions not raised in the lower court may not be raised for the first time in an appellate tribunal. Plaintiff admits the general rule to be as stated by defendants, but claims that it is inapplicable to the present case for the reason that there are certain exceptions to the general rule under which it contends these questions fall, and also that while the issue of constitutionality was not raised by the pleadings in the original action, it was presented to the trial court and argued on the motion for new trial, and that this brings it within the general rule.

It is true that as a general proposition an appellate court will not consider a question not first raised in the lower court, but this is merely a rule of procedure, and not a matter of jurisdiction. As was said by the Supreme Court of Wisconsin, in the case of Cappon v. O'Day, 165 Wis. 486, 162 N.W. 655, 657, 1 A.L.R. 1657:

" For the purpose of orderly administration and the attainment of justice, certain rules are established. Any rule the enforcement of which results in a failure of justice should be carefully scrutinized and not blindly adhered to unless the abandonment of it will work more injustice than will follow if it be adhered to. One of the rules of well-nigh universal application established by courts in the administration of the law is that questions not raised and properly presented for review in the trial court will not be...