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McIntosh v. Maricopa County

Supreme Court of Arizona

March 17, 1952

McINTOSH
v.
MARICOPA COUNTY et al

Rehearing Denied April 22, 1952.

Judgment affirmed.

Jennings, Strouss, Salmon & Trask and Henry S. Stevens, all of Phoenix, for appellant.

Warren L. McCarthy, County Atty., Anthony O. Jones, Deputy County Atty., and Harry A. Stewart, Jr., Deputy County Atty., all of Phoenix, for appellees.

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

OPINION

De Concini, Justice.

Page 802

[73 Ariz. 367] Clark F. McIntosh, plaintiff below, appeals from the order of the trial court granting summary judgment in favor of defendants Maricopa County Assessor, et al. At issue is whether appellant was a resident of Arizona, within the purview of the Arizona Constitution, Article 9, section 2, as amended, before September 1, 1945. If he was, then he is entitled to the property tax exemption granted to exservicemen by the above section.

Appellant's motion for summary judgment was supported by an affidavit alleging the following facts: On December 17, 1942, appellant and his wife were residents of the state of Wyoming, and on this date he left that state to enter the military service. Four months later he was sent overseas.

In March, 1945, appellant's wife was advised by her doctor that the climate of Arizona would be beneficial to her health, and she and their infant son came to this state. This contemplated change was made after the appellant and his wife had written each other concerning it, and their intention was that they would thereby perfect a change of domicile to Arizona. The mother of appellant's wife came with the [73 Ariz. 368] family, and she purchased a home here. It was to this address that appellant came after his discharge from military service on November 27, 1945.

Appellant made a timely application for the tax exemption for the year 1950. He was denied the privilege of filing the affidavit, because he was not a bona fide resident of the state of Arizona prior to September 1, 1945.

Appellees did not controvert the facts. The matter was submitted for a declaratory judgment to determine whether appellant was a resident of the state on or before the crucial date. Judgment was rendered in favor of Maricopa County et al. appellees, from which plaintiff appeals.

Appellant's assignment of error is that it was not necessary for him to have been physicially present in the state prior to the date provided by law, since he was unable to be here by reason of his military service coupled with the fact that his wife and child came here with his consent and intention that this would be their home.

Article 9, section 2, supra, as amended, provides in part: "* * * There shall be further exempt from taxation the property of widows, honorably discharged soldiers, sailors, United States marines, members of revenue marine service, nurse corps, or of the components of auxiliaries of any thereof, residents of this state, not exceeding the amount of two thousand dollars [$ 2,000.00], where the total assessment of such widow and such other persons named herein does not exceed $ 5,000.00; provided, that no such exemption shall be made for such persons other than widows unless they shall have served at least sixty [60] days in the military or naval service of the United States ...


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