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Town of South Tucson v. Board of Supervisors of Pima County

Supreme Court of Arizona

November 28, 1938

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

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

Page 582

[52 Ariz. 577] LOCKWOOD, J.

This is an action by the Town of South Tucson, a municipal corporation, hereinafter called plaintiff, against the Board of Supervisors of [52 Ariz. 578] 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trial before the court sitting with a jury, and at the close of plaintiff's evidence, defendants moved that the case be withdrawn from the jury and judgment entered in favor of the defendants, which motion was granted, and thereafter this appeal was taken.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 [52 Ariz. 579] 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

Page 583

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 ...


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