APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed in second cause of action, and reversed in first.
Messrs. Baker & Whitney and Mr. Lawrence L. Howe, for Appellant.
Mr. Richard F. Harless, County Attorney, and Mr. Leslie C. Hardy, Deputy County Attorney, for Appellees.
[56 Ariz. 248] LOCKWOOD, J.
Southern Pacific Company, hereinafter called plaintiff, brought suit against Maricopa County and Ed Oglesby as treasurer and ex-officio tax collector thereof, hereinafter called defendants, to recover certain taxes paid under protest. There were two causes of action set up in the complaint, and judgment eventually going for defendants, this appeal was [56 Ariz. 249] taken. We consider the two causes of action separately.
The first was to recover taxes paid by plaintiff under protest, for the benefit of Buckeye union high school district, on property owned by it in common school district number 47. A demurrer to the complaint was sustained, and plaintiff electing to stand on its complaint, judgment was rendered in favor of defendants. The facts as stated in the complaint are, in substance, as follows:
Prior to July 1, 1929, there were two common school districts in Maricopa County, known as districts 33 and 47. There also existed a high school district known as Buckeye high school district, the boundaries of which were co-extensive with the then boundaries of district 33. On or about July 1, 1929, Buckeye high school district enlarged its boundaries by adding thereto common school district 47. At some time after the formation of the union high school district, as above, common school district 47 enlarged its boundaries, without submitting the matter to the vote of the electors and property taxpayers of the district taken in by the enlargement, and without the assent of a majority of the taxpayers and qualified electors so taken in. The portion thus annexed to common school district 47 contained 8.21 miles of plaintiff's railroad. No action whatever was taken by the Buckeye union high school district to enlarge its boundaries to include such territory, except in so far as they were enlarged automatically by the action of common school district 47, as above set forth. Thereafter, in the
year 1937, the board of supervisors of Maricopa County, hereinafter called the board, levied and assessed a tax upon the said 8.21 miles of railroad above referred to, for the cost of maintenance of Buckeye union high school district. This tax was paid under protest, and it is on a recovery of the first installment [56 Ariz. 250] thereof that the first cause of action in the present suit is based.
The determinative issue is whether the area containing the 8.21 miles of railroad above referred to became automatically a part of Buckeye union high school district by reason of its annexation to common school district 47. This involves an examination of the statutes regulating the annexation of territory to common school districts and the establishment and enlargement of union high school districts. Those particularly pertinent to the situation are sections 999 and 1003, Revised Code of 1928, which read, respectively, so far as material, as follows:
"Change of boundaries. When ten or more qualified school electors residing in any district desire that the boundaries of said district be changed they shall present a petition to the county school superintendent, setting forth the change of boundaries desired, and the reasons therefor. When such petition is filed with the superintendent, he shall approve or disapprove and transmit the same to the board of supervisors, whose action shall be final;...
"Annexation of common school district to high school district. A common school district contiguous to any high school or union high school district, may annex itself to such district, when a majority of the school electors of the common school district present a petition to the trustees of the high school district to which they desire to be annexed, setting forth the boundaries of said district to be annexed. Said petition, if approved by the board of trustees of the district to which the annexation is to be made, shall be transmitted with the indorsement of said board of trustees thereon, to the county superintendent of schools. The electors of the high school district have fifteen days thereafter, to make and file a protest against such annexation; if a majority of such electors file such protest, the annexation shall not be made; if a protest is not so made and filed, the county superintendent of schools shall make his records of the boundaries of the [56 Ariz. 251] high school district conform to the petition of the electors of the common school district and notify the board of supervisors thereof, and on and after the first day of July following, said district shall become a part of the high school or union high school district to which it petitioned to be annexed." (Italics ours.)
So far as the complaint shows, section 999, supra, was strictly followed when common school district 47 annexed the territory containing the property on which the taxes were paid under protest by plaintiff. But, it is alleged, and we must assume for the purpose of the demurrer it is true, that there was no attempt to comply with section 1003, supra, so far as the territory thus added was concerned. While there is no explicit provision of the statute declaring whether the annexation of territory to a common school district within an already existing union high school district automatically includes the annexed territory within the high school district, we think the reasonable implication from the provisions of section 1003, supra, is that it does not. Union high school districts are formed of two or more common school districts. When, as in the present case, a high school district already exists, the only way in which a common school district may become a part of the high school district is set forth in section 1003, supra. A petition must be filed representing a certain proportion of the voters of the district, and the petition must show specifically the boundaries of the district annexed. Thereafter an election must be held to determine whether the union high school district shall be formed. If the election approves, the new union high school district is established, but it is established with definite boundaries consisting of the two or more districts as they exist at the time of the election. If another common school district desires thereafter to annex itself to the high school district, another petition must be filed and the [56 Ariz. 252] same proceeding taken. It is clear to us that the statutes contemplate what whenever additional territory is added to a ...