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Nelssen v. Electrical District No. 4, of Pinal County

Supreme Court of Arizona

December 21, 1942

BEN F. NELSSEN, Appellant,
v.
ELECTRICAL DISTRICT No. 4, of Pinal County, Arizona; S. C. MILLIGAN, A. B. HAUSER, CARL SUMMERFELD, W. A. THOMASSON, JACK PRETZER, JR., and J. W. SAWTELLE, Constituting the Board of Directors of Electrical District No. 4, of Pinal County, Arizona; THE COUNTY OF PINAL, a Political Subdivision of the State of Arizona; ETHEL GRIFFIN, as County Treasurer of Pinal County, State of Arizona; E. THURMAN, J. W. SPRAY and W. C. SMITH, Constituting the Board of Supervisors of Pinal County, State of Arizona; and THE STATE OF ARIZONA, Appellees

APPEAL from a judgment of the Superior Court of the County of Pinal. H. G. Richardson, Judge. Judgment affirmed in part and reversed in part.

Mr. M. C. Burk, for Appellant.

Mr. W. C. Truman, and Mr. Ronald J. Ellis, for Appellees, County Treasurer, and Board of Supervisors.

Mr. A. Van Wagenen, Jr., Associate Counsel for Appellee District; Mr. Robert Denton, for Appellee District.

OPINION

[60 Ariz. 146] LOCKWOOD, C.J.

This is an action by Ben F. Nelssen, plaintiff, against Electrical District No. 4, of Pinal County, Arizona, called the district, its directors, and Pinal County, the

Page 633

various officials of said county, and the State of Arizona, defendants. Judgment went in favor of the district and the defendants, and this appeal was taken.

The facts necessary for a determination of this proceeding are not in serious controversy, and may be [60 Ariz. 147] stated as follows: The district was organized under the laws of the State of Arizona about November 9, 1929, and certain land owned by plaintiff was included therein. At that time the land in question had been entered upon by plaintiff, under the homestead laws of the United States of America, but final proof had not been made thereon, nor, of course, had either final certificate or patent issued. About May 17, 1930, the board of directors of the district caused to be issued certain bonds of the district, and a tax to be assessed and levied upon all of the lands in the district, including the homestead entry of plaintiff. On July 7, 1930, plaintiff obtained final certificate to his homestead entry and patent thereto was issued on November 15, 1930. During each of the years 1930 to 1935, inclusive, the board of directors of the district caused taxes on behalf of the district to be assessed and levied upon plaintiff's homestead, and the board of supervisors of Pinal County caused to be assessed and levied taxes upon said land for the state, county and school district in which it was situated. All of these taxes being unpaid, on November 7, 1935, the treasurer of Pinal County advertised and sold the land to the State of Arizona for the taxes, including the state, county and school district and electrical district taxes.

Plaintiff was an honorably discharged soldier from the army of the United States, having served in said army during the war with Germany in 1917 and 1918, and since prior to January 1, 1927, has continuously resided in Arizona. During the years 1931 to 1935, inclusive, plaintiff attempted to secure an exemption from taxation on the land above described from the officers of Pinal County, under section 2 of Article 9 of the Constitution of Arizona, but such exemption was never allowed by such officers during the years mentioned. No claim for exemption was ever made to the officers of the district. During the summer of 1930, and [60 Ariz. 148] at several times thereafter, plaintiff demanded of the district that it deliver to him electric power at the land in question, but the district wholly failed, refused and neglected to deliver same. On March 1, 1941, plaintiff tendered, under protest, to the treasurer of Pinal County, one of the defendants herein, the sum of $319.81, being the total amount of all state, county and school district taxes assessed and levied against the land, together with all interest and penalties thereon. The treasurer refused to accept said sum for the reason that the district taxes had not been paid and were not included in the amount tendered by plaintiff. Thereafter this suit was brought asking, in substance, (a) that it be declared that all actions attempting to include plaintiff's land in the district or to assess and levy district taxes against it were void; (b) that the board of supervisors be directed to refrain from assessing and levying any tax against the land on account of any claim of the district; (c) that the court decree that the sale of the lands of the plaintiff as above set forth on November 7, 1935, was illegal and void, and that the treasurer be directed to release said land from any claim by reason of said sale; (d) that the court direct the treasurer to enter a release and satisfaction of all claim for taxes and that any rights under the sale aforesaid be cancelled; and (e) that the title to the property be quieted as against the State of Arizona.

While the pleadings and prayer for relief are somewhat involved, it is evident that the theory of plaintiff is that the taxes which the district caused to be levied against his land were void for the reason that the land was never legally included within the district, and that the school, county and district taxes were void for the reason that he was entitled, under section 2 of Article 9, supra, to have said land exempt from all general direct property taxes.

[60 Ariz. 149] With the possible exception of item (b), each and every portion of the relief prayed for is dependent upon plaintiff establishing that the taxes already assessed and levied against the land are for some reason illegal and void.

The defendants and the district moved to dismiss the action on the ground that the complaint did not state a claim upon which relief can be granted, and urged in support thereof the provisions of section 73-841, Arizona Code 1939, which reads as follows:

"Contest of taxes -- Injunction -- Recovery and refunds. -- No person upon whom a tax has been imposed under any law relating to taxation shall be permitted to test the validity ...


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