GORMAN v. CITY OF PHOENIX

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Docket Number

No. 5127.

Attorney(S)

V.L. Hash, Robert C. Moore, Mal Shelley, Phoenix, for appellants. Jack Choisser, City Attorney, Howard W. Gibbons, Assistant City Attorney, Phoenix, for appellees.

Judges

STANFORD, Justice.

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Smart Summary

Factual and Procedural Background

This is an annexation case. Appellants are residents and taxpayers of a district lying east of the City of Phoenix bounded on the north by Roosevelt Street, on the south by Harrison Street, on the west by 20th Street, and on the east by 28th Street. Two petitions requesting annexation were filed covering different areas; they were consolidated and treated as one by the commissioners of the City of Phoenix. Part of the area, if considered separately, was not contiguous to Phoenix.

The complaint alleged that substantial portions of lands in the petitions were signed by persons other than the owners and without owners' authority; some lands were signed by the city manager and belonged to the City (tax-exempt); churches and schools were signed for by others and thus exempt; and the City failed to comply with its charter and ordinances as to publication and notice. Plaintiffs alleged that because of these defects the commissioners were without jurisdiction and sought to restrain further action, claiming immediate and irreparable damage.

The superior court granted appellees' motion to dismiss the complaint for failure to state a claim upon which relief could be granted (plaintiffs elected to stand on the complaint). The case is an appeal from that dismissal to the Supreme Court of Arizona.

Legal Issues Presented

Whether courts have jurisdiction to determine whether a petition for annexation under Sec. 16-701, A.C.A. 1939 is sufficient in form and substance to give the city jurisdiction to act.
Whether any resident of a district outside the city and paying taxes therein may maintain an action for injunction to restrain the city from acting on an annexation petition that lacks the requisites of Sec. 16-701, A.C.A. 1939, on the ground that acts of the city commission would be void.
Whether no legislative-act protection applies where a city attempts to annex contiguous territory based on a void petition (i.e., whether such attempted annexation is outside the legislative-protected sphere when the petition does not meet statutory definition under Sec. 16-701, A.C.A. 1939).

Arguments of the Parties

Appellants' Arguments

The courts have jurisdiction to determine the sufficiency of an annexation petition under Sec. 16-701, A.C.A. 1939.
Residents/taxpayers of the area may seek injunction to restrain action on a petition that does not meet statutory requisites because the commission's acts would be void.
An attempted annexation based on a void petition does not fall within a legislative-act immunity and thus may be challenged prior to completion.

Appellees' Arguments

The superior court's motion to dismiss asserted that the complaint failed to state a claim upon which relief could be granted. By granting the motion, the trial court effectively treated the pleadings as insufficient to permit relief.
For the purpose of the motion, appellees admitted the facts well pleaded in the complaint (as noted by the Supreme Court's discussion of the motion to dismiss).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Colquhoun v. City of Tucson, 55 Ariz. 451, 103 P.2d 269, 271	Private taxpayer may enjoin completion of annexation proceedings when the annexation has not been completed and the city lacks jurisdiction; distinction between attacking a record that is complete on its face and preventing completion where jurisdiction is lacking.	The Court treated Colquhoun as determinative, quoting and relying on its reasoning that a citizen may prevent completion of annexation where defendants have not completed statutory steps and the action seeks to prevent further proceedings for lack of jurisdiction.
Skinner v. City of Phoenix, 54 Ariz. 316, 95 P.2d 424	Holds that when the municipal record on its face shows all statutory steps required to complete annexation, only the attorney general and county attorney may question validity by quo warranto; private citizens cannot impeach such a record by showing facts outside the record.	The Court reaffirmed Skinner but limited its application to cases attacking a record that shows a completed proceeding; distinguished Skinner from the present case where annexation was not complete and jurisdiction was challenged before completion.
Hopkins v. School Dist. No. 11, 20 Ariz. 431, 181 P. 366	When proceedings changing municipal boundaries have been initiated but not completed, taxpayers of the area involved are proper parties to maintain an injunction against completing the change.	Quoted in Colquhoun and relied upon to support the proposition that taxpayers may enjoin incomplete proceedings changing boundaries.
Territory v. Town of Jerome, 7 Ariz. 320, 64 P. 417	Referenced in context that the legislature could limit who may question validity of annexation or incorporation proceedings.	Cited (via discussion in Skinner) to note that the legislature could have provided that no taxpayer ever be heard to question such proceedings, but that rule should not be extended beyond circumstances to which legislature applied it.
City of Phoenix v. State ex rel. Harless, 58 Ariz. 8, 117 P.2d 87	Holds that the statutory petition requirement (owners of not less than one-half in value and contiguity) is an indispensable condition precedent to enactment of an annexation ordinance.	The Court invoked Harless to state that until a sufficient petition is filed the commission is without jurisdiction to pass an annexation ordinance.
Parnell v. State ex rel. Wilson, Atty. Gen., 68 Ariz. 401, 206 P.2d 1047	Determination by the city commission whether the petition is signed by the owners of the required proportion is a judicial function and is subject to judicial review.	The Court relied on Parnell to support the proposition that the commission's finding of sufficiency is reviewable by the courts.

Court's Reasoning and Analysis

The Court began by identifying Colquhoun v. City of Tucson as controlling. Colquhoun drew a distinction between (a) attacking an on-its-face complete record of annexation (where Skinner holds only the attorney general and county attorney may challenge) and (b) preventing completion of annexation proceedings that have not met statutory prerequisites, where an interested taxpayer may enjoin further action for lack of jurisdiction.

The Court reaffirmed Skinner but limited its scope to cases where the municipal record shows on its face that all statutory steps were completed; Skinner does not preclude an action by a private citizen to prevent completion when the annexation has not been completed and the city lacks jurisdiction.

The Court explained that although section 26-104, A.C.A. 1939 provides that no injunction shall issue against a municipal corporation to enjoin legislation, municipal legislative power is delegated by the legislature and a city may be enjoined when it exceeds its jurisdiction.

Relying on section 16-701, A.C.A. 1939 and City of Phoenix v. State ex rel. Harless, the Court reiterated that a petition signed by owners of not less than one-half in value and contiguity are indispensable prerequisites to annexation and that, until a sufficient petition is filed, the commission lacks jurisdiction to pass an ordinance.

The Court noted that, under the rule on motions to dismiss, the appellees' motion admitted the facts well pleaded. For the purpose of the motion, appellees therefore admitted that large portions of the property included in the petitions were tax-exempt (owned by churches, schools, State of Arizona) and that portions were not contiguous to Phoenix. Those admitted facts, the Court concluded, showed the commission lacked jurisdiction to annex the territory.

Because the complaint, as pleaded and admitted for motion purposes, alleged defects removing the commission's jurisdiction, dismissal for failure to state a claim was improper. The Court reversed the trial court's dismissal and remanded with instructions to reinstate the complaint.

Holding and Implications

Holding: The judgment of the superior court is REVERSED and the cause is remanded with instructions to reinstate the complaint.

Implications:

The decision directly restores the plaintiffs' ability to proceed: the complaint must be reinstated and the plaintiffs may pursue their claim that the annexation proceedings are void for lack of jurisdiction.
The Court confirms that private citizens (taxpayers/property owners) may seek injunctive relief to prevent completion of annexation proceedings when those proceedings have not been completed and the city lacks jurisdiction because statutory prerequisites (owner-signature valuation and contiguity) are not met.
The opinion limits the reach of Skinner v. City of Phoenix by clarifying that Skinner's bar on private challenges applies only where the municipal record on its face shows a completed, valid proceeding; it does not bar precompletion jurisdictional challenges by interested taxpayers.
The Court reaffirmed that a city's legislative acts are subject to injunction when the city acts beyond its jurisdiction; it also reiterated that the determination of petition sufficiency by the commission is reviewable by the courts.

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GORMAN et al. v. CITY OF PHOENIX et al.

STANFORD, Justice.

This is an annexation case and the appeal is by persons of the district who are opposed to its annexation to the City of Phoenix. The appeal is from an order of the superior court dismissing the complaint of the plaintiffs (appellants). The grounds of dismissal are that the complaint failed to state a claim upon which relief could be granted, plaintiffs electing to stand on the complaint, after the motion was made.

The complaint, in part, alleged that the plaintiffs were residents and taxpayers of a district lying east of the City of Phoenix bounded on the north by Roosevelt Street, on the south by Harrison Street, on the west by 20th Street, and on the east by 28th Street; that the action was instituted on behalf of the appellants herein and numerous other persons in that district. Two petitions were filed covering different areas requesting annexation and the petitions were consolidated and thereafter treated as one by the commissioners of the City of Phoenix. One of the areas involved, if considered separately, was not contiguous to the City of Phoenix.

Among other things the complaint alleged that a substantial portion of the lands described in the petitions were signed for by persons other than the owners and without the authority of the owners, and that some of the lands included in the petition in order to make up the majority of the valuation of the lands were signed by the city manager of the City of Phoenix, and that such lands belonged to the City of Phoenix and were tax exempt and could not be considered in an annexation proceedings; that churches and schools were signed for by persons acting for them and said lands likewise were exempt from taxation and could not be considered; that the City of Phoenix failed to comply with the city charter and ordinances with respect to publication and giving the necessary notice for annexation purposes.

The complaint of the appellants further alleges that by reason of these defects the commissioners of the City of Phoenix were without jurisdiction to consider the petitions, and also allege that unless the defendants are restrained by order of the court from hearing and considering said petitions, that plaintiffs will suffer immediate and irreparable damage by having imposed upon them tax burdens and erroneous bond indebtedness.

The annexation was sought to be effected by the appellees herein under section 16-701, A.C.A. 1939, which reads: "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."

The only assignment of error by appellants is in essence as follows: That the court erred in making its order granting the motion to dismiss for the reason that the complaint stated a claim against the defendants and each of them. The foregoing assignment of error is supported by the three following propositions of law:

"1. The courts have jurisdiction to determine whether a petition for annexation under Sec. 16-701, A.C.A. 1939 is sufficient in form and substance to give the city jurisdiction to act thereon.

"2. Any resident of a district outside the city, paying taxes in such district, may maintain an action for injunction to restrain the city from acting on a petition for annexation of such district when the petition does not have the requisites of a petition as defined in Sec. 16-701, A.C.A. 1939 sufficient to give the city commission jurisdiction for the reason that the acts of the city commission in relation to such annexation would be void.

"3. No legislative act is involved where the city attempts to annex contiguous territory based on a void petition, that is; one which does not come within the definition of a petition for annexation as defined in Sec. 16-701, A.C.A. 1939."

We think the issues herein are determined in our case of Colquhoun v. City of Tucson, 55 Ariz. 451, 103 P.2d 269, 271, which case quotes the many Arizona cases referred to by both parties in this case. The facts in the Colquhoun case are that on December 15, 1938, a petition was filed with the board of supervisors asking that an election be held to determine whether a certain area of land contiguous to the City of Tucson should be incorporated as the Town of South Tucson. On December 27th a petition for annexation of substantially the same area to the City of Tucson was filed with the council of that city, which council immediately passed an ordinance declaring the area annexed. On December 31st the board of supervisors rejected the petition for the election, and on January 5, 1939, an action was filed by appellant Colquhoun against the City of Tucson and others to have the annexation ordinance of the City of Tucson declared void and to restrain defendants, the City of Tucson and others, from recording the map of territory purported to be annexed, or from exercising any municipal jurisdiction over the territory. Upon the trial court giving its judgment in favor of the City of Tucson and others, appeal was taken to this court. While the principal reason given in the complaint filed by appellant Colquhoun was that the area was not open nor available for annexation because there was then pending before the board of supervisors a proceeding governing the same territory, yet in the opinion on appeal by this court the subject of annexation was so thoroughly treated that we quote from that case, which we think is determinative of the instant case:

"There are two important questions raised by the record. The first is the capacity of plaintiff to maintain this action. It was urged by defendants that under the decision recently rendered by this court in Skinner v. City of Phoenix, 54 Ariz. 316, 95 P.2d 424, we have held that only the attorney general and the county attorney may question the validity of the annexation of territory to a city. It is claimed by plaintiff that the holding in that case applies only when the annexation has, on the face of the record, been fully completed according to the requirements of the statute, and it is sought to show that these terms were not, as a matter of fact, complied with, and that in the case of Hopkins v. School Dist. No. 11, 20 Ariz. 431, 181 P. 366, we have held in substance that when proceedings changing the boundaries of a municipal corporation have been initiated but not completed, taxpayers of the area involved are proper parties to maintain an action for an injunction against completing the change.

"In the Skinner case it appeared that the municipality, on the face of the record, had taken all of the steps required by the statute to complete the annexation, and that two questions only were involved, (a) the constitutionality of the statute authorizing the annexation, and (b) whether as a matter of fact the statutory requirements were actually complied with. We held that the statute was constitutional, and that a private citizen could not raise the issue that a record which showed on its face that the proceedings required by the statute for annexation had been taken, was as a matter of fact untrue, and that only the attorney general and the county attorney could raise it by quo warranto. But the question was not before the court as to whether when admittedly the annexation had not been completed by the performance of the various acts required by the law a private citizen might prevent their completion on the ground that the city lacked jurisdiction to act at all.

"There can be no question that the legislature might have provided that no taxpayer may ever be heard to question the validity of proceedings to incorporate a municipality or to change its boundaries. Skinner v. City of Phoenix, supra; Territory v. Town of Jerome, 7 Ariz. 320, 64 P. 417. But the rule is a harsh one and should not be extended beyond the circumstances to which the legislature has applied it. In all of the cases cited by us in Skinner v. City of Phoenix, supra, and in that case itself, the record showed that every step necessary to complete the annexation or incorporation had been taken, and the attempt was to annul proceedings regular on their face by proof that the necessary things had not in fact been done.

"In the present case it is admitted for the purpose of the demurrer that the defendants had not completed the statutory steps necessary before the annexation was complete, and the action did not attempt to attack the record, but was to prevent further proceedings on the ground of lack of jurisdiction.

"We affirm the rule laid down in Skinner v. City of Phoenix, supra, but we are of the opinion that it applies only to an attempt to impeach a record which shows on its face a valid proceeding, and that an interested taxpayer may bring an action to prevent the completion of an attempt to change boundaries or incorporate a municipality on the ground of lack of jurisdiction. In the present case the contention was that defendants should be enjoined from proceeding further because under the admitted facts they had no jurisdiction to annex the area involved."

A citizen may not attack an annexation ordinance after the same is complete, but may enjoin the city during the process of annexation where it is alleged that the city lacks jurisdiction of the property.

Section 26-104, A.C.A. 1939, provides no injunction shall issue against a municipal corporation to enjoin legislation. Legislating by a city is not an inherent power, but rather a power delegated by the state legislature. Therefore a city may legislate only within the bounds of its jurisdiction. When it exceeds those bounds it is subject to injunction as any other litigant.

In the instant case as a condition precedent to the enactment of the ordinance in question the legislature required under the provisions of section 16-701, supra, that a petition be presented to the city commission signed by the owners of not less than one-half in value of the property in the area sought to be annexed as shown by the last assessment and that said area must be contiguous to the city. We have held this to be an indispensable condition precedent to the enactment of such an ordinance. City of Phoenix v. State ex rel. Harless, 58 Ariz. 8, 117 P.2d 87. In other words until such petition (meaning a sufficient petition) is filed the commission is without jurisdiction to pass an ordinance of annexation. The determination by the city commission of whether the petition is signed by "the owners of not less than one-half in value of the property in the territory" sought to be annexed by petitioners is a judicial function and therefore subject to review by the court. Parnell v. State ex rel. Wilson, Atty. Gen., 68 Ariz. 401, 206 P.2d 1047. The city commission found the petition here involved to be sufficient and the ordinance passed two readings. Where the annexation has not been completed a property owner within the area affected may maintain an action to prevent the completion of the annexation and where the city commission is without jurisdiction to pass an ordinance of annexation an injunction will lie to enjoin its enactment. Colquhoun v. City of Tucson, supra.

By our rule of pleading the motion of the appellee to dismiss, which was granted, admitted the facts well stated in the complaint. Therefore appellees have admitted for the purpose of this motion that large portions of the property included in the petitions were owned by churches and schools and by the State of Arizona exempt from taxation and that other portions included therein were not contiguous to the City of Phoenix and that therefore the city commission is without jurisdiction to annex the territory involved.

The judgment of the trial court is reversed and the cause remanded with instructions to reinstate the complaint.

LA PRADE, C.J., and UDALL PHELPS, and DE CONCINI, JJ., concurring.