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Parnell v. State ex rel. Wilson

Supreme Court of Arizona

June 6, 1949

PARNELL et al.
v.
STATE ex rel. WILSON, Atty. Gen

Appeal from Superior Court, Pima County; Henry C. Kelly, Judge.

Quo warranto by the State, on the relation of Fred O. Wilson, Attorney General of the State of Arizona, against Robert C. Parnell, Floyd E. Bain, O. J. Farness, David G. Watkins, Jr., and Stewart Patterson, as the purported mayor and common council of a municipal corporation called the Town of Rincon Village for a declaration that an order by the board of supervisors declaring the area to be incorporated is void. From a judgment for the plaintiff, defendants appeal.

Affirmed.

Conner & Jones and James M. Murphy, of Tucson, for appellants.

Fred O. Wilson, Atty. Gen., Edward Jacobson, Asst. Atty. Gen. (Clifford R. McFall, of Tucson, of counsel), for appellee.

Farley, Superior Judge. Udall, Stanford and Phelps, JJ., and Thomas J. Croaff, Superior Judge, concurring. Note: Due to illness of Chief Justice LA PRADE and disqualification of Justice DE CONCINI, the Honorable GORDON FARLEY, Judge, Superior Court, Santa Cruz County, and the Honorable THOMAS J. CROAFF, Judge, Superior Court, Maricopa County, were called to sit in their stead.

OPINION

Farley, Superior Judge.

[68 Ariz. 402] This is an action of quo warranto brought by the state of Arizona at the relation of the attorney general. The complaint in the trial court alleged the incorporation by the Pima county board of supervisors of the town of Rincon Village and prayed the court that the order and declaration of the said board of supervisors be declared null and void; that there was no such incorporated city or town or municipality as the town of Rincon Village; and for a further order ousting Robert C. Parnell, Floyd E. Bain, O. J. Farness, David G. Watkins, Jr., and Stewart Patterson, the defendants and appellants herein, from acting as mayor and members of the council of the town of Rincon Village.

Defendants answered, denying that the incorporation was illegal, and the case went to trial before the court sitting without a jury. The court made special findings of fact and conclusions of law, and rendered judgment for the plaintiff and appellee herein.

The record discloses that the petition for incorporation was presented to the Pima county board of supervisors on May 9, 1947, under the provisions of section 16-201, A.C.A. 1939, requesting the board to

Page 1048

create a municipal corporation to be known as Rincon Village. The location of Rincon Village was east of Tuscon, Arizona, but in nowise adjoined the city of Tucson. The petition was signed by 251 real property taxpayers who were residents of the area to be incorporated, which contained a population at the time of the incorporation of approximately 1100 inhabitants, so that the statutory requirements in those particulars were met.

[68 Ariz. 403] Subsequent to the adoption of the resolution and order by the board of supervisors declaring the area to be incorporated, the mayor and common council were elected and proceeded to function in that capacity.

The trial court found that the area described in the petition for incorporation was not in fact an existing city or town nor that there was any city or town within such area, and that the territory described in the petition for incorporation contained an area of approximately 24 square miles, the major ...


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