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Gorman v. City of Phoenix

Supreme Court of Arizona

March 27, 1950

GORMAN et al.
v.
CITY OF PHOENIX et al

Judgment reversed and cause remanded.

V. L. Hash, Robert C. Moore, Mal Shelley, Phoenix, for appellants.

Jack Choisser, City Attorney, Howard W. Gibbons, Assistant City Attorney, Phoenix, for appellees.

Stanford, Justice. La Prade, C. J., and Udall Phelps, and De Concini, JJ., concurring.

OPINION

Stanford, Justice.

Page 401

[70 Ariz. 61] This is an annexation case and the appeal is by persons of the district who are opposed to its annexation to the City of Phoenix. The appeal is from an order of the superior court dismissing the complaint of the plaintiffs (appellants). The grounds of dismissal are that the complaint failed to state a claim upon which relief could be granted, plaintiffs electing to stand on the complaint, after the motion was made.

The complaint, in part, alleged that the plaintiffs were residents and taxpayers of a district lying east of the City of Phoenix bounded on the north by Roosevelt Street, on the south by Harrison Street, on the west by 20th Street, and on the east by 28th Street; that the action was instituted on behalf of the appellants herein and numerous other persons in that district. Two petitions were filed covering different areas requesting annexation and the petitions were consolidated and thereafter treated as one by the commissioners of the City of Phoenix. One of the areas involved, if considered separately, was not contiguous to the City of Phoenix.

Among other things the complaint alleged that a substantial portion of the lands described in the petitions were signed for by persons other than the owners and without the authority of the owners, and that some of the lands included in the petition in order to make up the majority of the valuation of the lands were signed by the city manager of the City of Phoenix, and that such lands belonged to the City of Phoenix and were tax exempt and could not be considered in an annexation proceedings; that churches and schools were signed for by persons acting for them and said lands likewise were exempt from taxation and could not be considered; that the City of Phoenix failed to comply with the city charter and ordinances with respect to publication and giving the necessary notice for annexation purposes.

The complaint of the appellants further alleges that by reason of these defects the

Page 402

commissioners of the City of Phoenix were without jurisdiction to consider the petitions, and also allege that unless the defendants are restrained by order of the court from hearing and considering said petitions, that plaintiffs will suffer immediate and irreparable damage by having imposed upon them tax burdens and erroneous bond indebtedness.

The annexation was sought to be effected by the appellees herein under section 16-701, A.C.A.1939, which reads: "Annexation by petition of property-owners. -- Any city may extend and increase its corporate limits in the manner following: On presentation of [70 Ariz. 62] a petition in writing, signed by the owners of not less than one-half in value of the property in any territory, contiguous to the city, as shown by the last assessment of said property, and not embraced within its limits, the common council of said city may, by ordinance, annex such territory to said city, upon filing and recording a copy of such ordinance, with an accurate map ...


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