STATE ex rel. DE CONCINI, Atty. Gen.
CITY OF PHOENIX et al
Fred O. Wilson, Atty. Gen. of Arizona, Wilmot W. Trew, Phoenix, of counsel, for appellant.
Jack Choisser, City Atty., Laurence H. Whitlow and Jack D. H. Hays, Asst. City Attys., all of Phoenix, for appellees.
Udall, Chief Justice. Stanford, Phelps, and La Prade, JJ., concurring. Justice De Concini having announced his disqualification, Honorable Robert S. Tullar, one of the Judges of the Superior Court of Pima County, was called to sit in his stead. Tullar, Superior Judge (dissenting).
Udall, Chief Justice.
[74 Ariz. 47] This appeal involves the validity of certain annexation proceedings. On January 27, 1948, the Phoenix City Council unanimously passed an ordinance (number 47 32) by the terms of which certain territory was purportedly annexed to and made a part of the city.
Later one Joseph P. Price, a real property owner within the affected area, presented his verified complaint objecting to the adoption of this ordinance to the then attorney general, Evo De Concini. Pursuant thereto, the attorney general on behalf of the state of Arizona duly filed this action in quo warranto to test the validity of the city council's action. Judgment was rendered in the trial court in favor of the city and the state properly perfected its appeal from that judgment.
The pertinent facts may be stated as follows: The area which the city sought to annex is an irregularly shaped tract of contiguous land which completely surrounds the Phoenix Country Club. That portion of the country club containing the club house and other buildings, as well as a small strip of the golf course on the north facing Osborn Road, is included in the area sought to be annexed. The greater part of the golf course, however, was not included in the ordinance and was not sought to be taken into the city.
The annexation ordinance was first considered by the city council at a special meeting called for that purpose on January 26, 1948. Petitions for annexation containing the signatures of property owners within the area were presented to the council [74 Ariz. 48] at that meeting. The appellant concedes that the signatures on these petitions were legally sufficient, representing a total assessed valuation, as of the last preceding assessment, of $ 498,549 which was more than the required percentage. Petitions representing an additional valuation of $ 12,050 were alleged to have been secured, but were apparently lost as they were not presented to the council.
The ordinance was twice read, discussion was had, and the matter was then continued until the following morning for the third and final reading.
On the evening of January 26th a protest meeting was held at the home of one of the opponents to annexation, whereat seven persons, who owned property in the area involved of a total assessed valuation of $ 36,205, signed notices requesting withdrawal of their signatures from the petitions for annexation. The next morning at nine o'clock these notices of withdrawal were handed to the city clerk. One hour later the council reconvened and the ordinance was immediately read for the third time. The notices of withdrawal were then called to the attention of the city council and the minutes of that meeting reveal that:
"Planning Director Mocine (was) asked if he had checked the percentage of property signed for after elimination of the above-described lots, (i.e., the lots covered by the withdrawals), replied that he had, and that the petitions still carried 51.1 percent of the signatures of property owners in the district affected."
Whereupon the motion to adopt the ordinance was carried unanimously, and the Mayor declared it adopted. However, the planning director was in error as it is now conceded that the withdrawals, if allowed, would reduce ...