L. M. COLQUHOUN, Appellant,
CITY OF TUCSON, a Municipal Corporation; HENRY O. JAASTAD, Mayor Thereof, and W. E. GAMBRELL, L. ROCA, J. O. NIEMAN, STEVE OCHOA, CARL A. BALL and T. A. CAID, Councilmen, Appellees
APPEAL from a judgment of the Superior Court of the County of Pima. M. T. Phelps, Judge. Judgment reversed and case remanded with instructions.
Mr. Harry O. Juliani, Mr. John L. Van Buskirk and Messrs. Stover & Martin, for Appellant.
Mr. B. G. Thompson, City Attorney, and Mr. Arthur Henderson, Assistant City Attorney, for Appellees.
[55 Ariz. 452] LOCKWOOD, J.
This is an appeal by L. M. Colquhoun, hereinafter called plaintiff, from a judgment in favor of the City of Tucson, a municipal corporation, and its mayor and councilmen, hereinafter called defendants. The facts necessary for a decision of the appeal are not in dispute and may be stated as follows:
On December 15, 1938 a petition asking that an election be held under section 367, Revised Code of 1928, as amended by chapter 86, Session Laws of 1931, to determine whether certain area contiguous to the City of Tucson should be incorporated as the Town of South Tucson was filed with the clerk of the board of supervisors of Pima county, the board itself not then being in session. 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 immediately passed an ordinance declaring the area [55 Ariz. 453] annexed. However, no copy of the ordinance nor a correct map of the territory annexed, certified by the mayor of the city, was filed in the office of the county recorder of Pima county, as provided by section 416, Revised Code of 1928. On December 31st the board of supervisors rejected the petition for the election, and on January 5, 1939, the present action was filed.
Plaintiff alleged in his complaint that he was a bona fide resident and real property taxpayer within the territory involved in the action; that the City of Tucson and its council had adopted an ordinance attempting to annex the territory (describing it) to the city, and that the ordinance was invalid. The principal reason given was that the area was not open nor available for annexation because there was then pending before the board of supervisors a proceeding covering the same territory and asking that an election be called for the purpose of creating the Town of South Tucson, under the provisions of section 367, supra. The prayer was that the ordinance be declared null and void, and that defendants be restrained from recording it or the map of the territory purporting to be annexed, or from exercising any municipal jurisdiction over the latter.
A temporary restraining order as prayed for was issued, and later defendants demurred to the complaint.
On January 17th a mandamus action to compel the board of supervisors to call an election for incorporation, as requested by the petition above referred to, was instituted, and on March 1st the writ issued, and an election was held thereunder on March
27th. On April 5th the board of supervisors canvassed the returns and ordered the incorporation of South Tucson, but did not appoint the first council, as provided by section 369, Revised Code of 1928, for the reason that an election contest had been filed, disputing the result of the election.
[55 Ariz. 454] The demurrer to the complaint in the present action was argued and taken under advisement, and sustained in October, 1939, and the restraining order theretofore issued vacated and judgment rendered for defendants, whereupon this appeal was taken.
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 ...