THE CITY OF PHOENIX, a municipal corporation; REED SHUPE, as Mayor of said City of Phoenix; M. F. WHARTON, HOUSTON L. WALSH, W. J. R. SIMS and J. R. FLEMING, as Commissioners of said City of Phoenix; DONALD C. SCOTT, as City Manager of said City of Phoenix, Appellants,
THE STATE OF ARIZONA, at the relation of RICHARD F. HARLESS, County Attorney of Maricopa County, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment reversed.
Mr. Hess Seaman, City Attorney, and Mr. William C. Fields, Assistant City Attorney, for Appellants.
Mr. Ross F. Jones, Mr. Wilmot W. Trew, Mr. Richard F. Harless, County Attorney, and Mr. Leslie C. Hardy, Deputy County Attorney, for Appellee.
[60 Ariz. 371] McALISTER, C.J.
This is an action in quo warranto by the county attorney of Maricopa County [60 Ariz. 372] questioning the validity of Ordinance No. 2817 passed by the commission of the City of Phoenix annexing to the city what is known as the Grand Avenue Addition.
A petition signed by what purported to be more than half of the owners of the taxable property situated in blocks 7, 12, 13, 17, 18, 23 and 24 of Grand Avenue Addition to the City of Phoenix, asking that this addition be annexed to the city, was filed with the city commission and on October 13, 1938, the commission made an order annexing it. The county attorney did not file the complaint in quo warranto voluntarily, but only after he was directed to do so as the result of a mandamus proceeding.
The parties stipulated that the property embraced within the district in 1938 was assessed at a total valuation of $53,225; that lots 1, 3, 5, 7, 9, 11, 13, 15, 17, 19 and 21 in Block 23, assessed at $1,295, item 2 of the stipulation was church property and this, not being taxable, left a total valuation of $51,930, one-half of which was $25,965, which had to be represented on the petition. The question is: Did the owners of property valued at $25,965 sign the petition?
The parties stipulated further that when the petition was signed and presented to the commission in 1938, 36 items of real estate situated in the Grand Avenue Addition, several of these items being composed of more than one lot belonging to the same person or persons, were signed in the manner indicated therein and the property assessed by the county assessor of Maricopa County as shown by the stipulation.
According to the stipulation 9 of these items, 1, 4, 12, 14, 19, 20, 21, 34 and 36, totaling $12,875, were not questioned by either side; both admitted them to be correct.
[60 Ariz. 373] The stipulation discloses that items 8, 17, 27, 29, 32 and 33, totaling $2,505, represented community property which had been signed for by the husband only. The court held that the signing of an annexation petition constituted a "conveyance and incumbrance" within the meaning of section 71-409, Arizona Code 1939, and consequently that both husband and wife must join in the petition. The pertinent part of this section reads:
"... A conveyance or incumbrance of the community property shall not be valid unless executed and acknowledged by both the husband and wife, except unpatented mining claims which may be conveyed or incumbered by the one having the title or right of possession without the other spouse joining in such conveyance or incumbrance." It is our view that the signing of an annexation petition is not a conveyance or incumbrance
within the meaning of this statute, but merely the expression of a willingness that the property become a part of the city, and the fact that thereafter the property will be subjected to the burden of taxation does not make the signing of the petition a "conveyance or incumbrance." In Territory of ...