MARICOPA COUNTY, a Municipal Subdivision and Municipal Corporation of the State of Arizona, Appellant,
SOUTHERN PACIFIC COMPANY, a Corporation, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge. Judgment affirmed.
Mr. Harold R. Scoville, the then County Attorney and Mr. Leslie C. Hardy, Special Counsel for Maricopa County, for Appellant.
Messrs. Ellinwood & Ross and Mr. Norman S. Hull, for Appellee.
[61 Ariz. 270] McALISTER, C.J.
This is an action by the Southern Pacific Company, hereinafter called plaintiff, against Maricopa County, hereinafter called defendant, for the recovery of taxes paid for the year 1940, under protest. The defendant moved for a dismissal of the complaint on the ground that it fails to state a claim against the defendant upon which relief can be granted in this: that whereas plaintiff sues to collect a tax levied for the year 1940, for the benefit of the Buckeye Union High School District, nevertheless the cause of action asserted in said complaint by plaintiff is in truth and effect a collateral attack upon the validity of the organization
of said Buckeye Union High School District, which the law will not permit plaintiff to maintain.
The tax is on property owned by plaintiff in common school district No. 47. A motion by defendant to [61 Ariz. 271] dismiss the complaint was denied and the plaintiff elected to stand thereon. Judgment was rendered in favor of the plaintiff and the defendant appeals.
The facts of the case are identical with those in Southern Pac. Co. v. Maricopa County, 56 Ariz. 247, 107 P.2d 212, decided by this court in November 1940, the only difference being that that case was to recover the taxes paid for 1937, whereas this case is to recover the taxes paid for 1940. The record shows that prior to July 1, 1929, there were two common school districts in Maricopa County known as district No. 33 and district No. 47. There also existed a high school district known as Buckeye High School District, the boundaries of which were identical with those of common school district No. 33. About July 1, 1929, the Buckeye High School District enlarged its boundaries by adding thereto common school district No. 47. Some time after the formation of the union high school district, as above, common school district No. 47 enlarged its boundaries by annexing the territory of the plaintiff containing 8.21 miles of its railroad. The addition of this 8.21 miles was accomplished 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. No action whatever was taken by the Buckeye Union High School District to enlarge its boundaries to include such territory except insofar as they were enlarged automatically by the action of common school district No. 47 in annexing the 8.21 miles.
Thereafter in the year 1940, the board of supervisors of Maricopa County levied and assessed a tax upon the 8.21 miles of railroad above referred to for the cost of maintenance of Buckeye Union High [61 Ariz. 272] School District and this tax was paid under protest. This action was brought to recover it.
The determinative issue is whether the 8.21 miles of railroad above referred to became automatically a part of Buckeye Union High School District by reason of this annexation to common school district No. 47. This depends on the statutes regulating the annexation of territory to common school districts and the establishment and enlargement of union high school districts. Those particularly pertaining to the situation are sections 54-404 and 54-408, Arizona Code Annotated 1939, and read respectively as follows:
"Change of boundaries. -- When ten (10) 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; provided, that when a subdivision of a city or incorporated town lies outside of the school district including such city or town, then a majority of the school electors of said subdivision may present a petition to the trustees of the district to which they desire to be annexed, setting forth accurately the boundaries of said proposed territory to be annexed, and said petition, if approved by the board of trustees, shall be transmitted with their indorsement thereon to the county superintendent, who shall make his records of boundaries to conform, and so notify the board of supervisors, and, on and after the first day of July following, said subdivision shall become a part of the city or incorporated town district."
"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 [61 Ariz. 273] 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 (15) days thereafter, to make and file a ...