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City of Tucson v. Garrett

Supreme Court of Arizona

February 23, 1954

GARRETT, Judge, et al.

Rehearing Denied May 18, 1954.

Page 718

[77 Ariz. 74] Harry L. Buchanan, City Attorney, F. Dale Healy and William J. Riegger, Asst. City Attys., Tucson, for petitioners.

Harry Ackerman, Charles E. Ares, Tucson, for respondents.

WINDES, Justice.

One John V. Crosby and his wife filed a complaint in the Superior Court of Pima County, Arizona, alleging in substance that certain petitions were filed with the City Council of the City of Tucson and that the form of such petition is:


'To the Honorable Mayor and City Council of the City of Tucson:

'We, the Undersigned, Request the City of Tucson to Annex All of the Real Property Owned by Us and Located in a Territory Contiguous to the City of Tucson and Not Now Embraced Within the Limits of the Said City of Tucson. The Mayor and City Council May Determine the Exact Boundary of Said Territory to be Annexed: Provided, However, that the Provisions of Section 16-701, Arizona Code Annotated 1939, Are Fully Observed and Complied With.'

[77 Ariz. 75] It is further alleged that the City of Tucson is without jurisdiction to consider the petitions for the reason (so far as herein material) that the same violate section 16-701, A.C.A.1939, in that said statute contemplates that the entire area to be annexed should be described in the petitions and for the reason that the petitions attempted to delegate authority to the City to fix the boundaries of any territory it wishes to annex. It is further alleged that the City intended to act upon these petitions and, unless restrained by the court, would adopt a resolution or ordinance annexing said territory. It also appears that plaintiffs are the owners of property within the territory which the City proposes to annex but were not petitioners for such annexation. Upon filing the complaint, the Honorable Lee Garrett, Judge of the Superior Court of Pima County, Arizona, issued a temporary restraining order enjoining and restraining the City of Tucson from considering the petitions or passing any resolution or ordinance with the purpose of annexing any territory on the basis of the petitions.

After the issuance of the restraining order, the City of Tucson, hereinafter referred to as the City, asked this court for a writ of prohibition to restrain the Honorable Lee Garrett and the Honorable Jesse A. Udall, Judge of the Superior Court of Graham County (he having been called in to hear the case) from enforcing the restraining order or proceeding further with the matter. We issued an alternative writ of prohibition and the matter is now presented for the purpose of determining whether the same shall be made permanent or quashed.

Since the writ of prohibition is for the purpose of testing the jurisdiction of an inferior tribunal, we are concerned with the power of a superior court to enjoin the enactment of the proposed annexation ordinance, which in turn requires determination of whether the City is empowered to pass the same. If the petitions filed be insufficient as a matter of law to give the City Council jurisdiction to enact the ordinance, the superior court has power and jurisdiction to enjoin its passage. Gorman v. City of Phoenix, 70 Ariz. 59, 216 P.2d 400. Likewise, if the City is acting within its legitimate legislative power as delegated to it by the State, the superior court has no power to interfere therewith by the issuance of an injunctive restaining order. Section 26-104, A.C.A.1939. If the trial court has misconstrued the statute, and the effect of its restraining order is to enjoin

Page 719

the exercise of a legitimate legislative power, it has by statutory construction attempted to enlarge its own jurisdiction, which it cannot do. Arizona Public Service Co. v. Southern Union Gas Co., Ariz., 265 P.2d 435. Consequently, whether the superior court exceeded its jurisdiction in issuing the temporary restraining order depends upon whether the petitions filed empowered the City to enact the proposed [77 Ariz. 76] ordinance and this in turn depends upon the proper interpretation of section 16-701, supra, the source of the City's power in this matter. This section provides that on presentation of a petition signed by the owners of not less than one-half in value of property in any contiguous territory, the City may by ordinance annex such territory upon filing with the county recorder copies of the ordinance with an accurate map of the territory annexed.

In analyzing this statute, an enunciation of some of the well-established rules applicable to the addition of territory to municipalities, and the legislative power in connection therewith, is appropriate. The extent of the right of municipalities to enlarge their boundaries is dependent entirely on the legislature and its power in that respect is plenary in the absence of constitutional limitations, and there are none affecting the problem herein. The legislature may give to municipalities the power to annex territory upon any condition it chooses to impose, either with or without the wishes of the inhabitants of the territory involved, either with or without notice to anyone, with or without the right of objecting inhabitants to protest. Skinner v. City of Phoenix, 54 Ariz. 316, 95 P.2d 424. When a statute is enacted prescribing the conditions under which annexation may be accomplished, it is necessary that such conditions exist and are substantially complied with before the municipality may legally bring additional territory within its boundaries. Section 16-701, supra, is the statute conferring upon municipalities in Arizona this power to annex territory and prescribing the conditions under which the same may be accomplished. The express conditions are: a petition of the owners of property in any contiguous territory representing not less than 50 percent of the value of the property to be annexed, passage of an ordinance providing for the annexation of such territory, and filing with the county recorder of a copy of the ordinance with a map of the territory annexed. Respondents' position is that there is implied another condition to the effect that the petition itself delineate or describe the territory which is to be annexed and since the petitions herein contain no such description, the requisite conditions of the statute are not complied with and consequently the City has no jurisdiction to pass the annexation ordinance.

When a requisite petition has been filed, without doubt the statute gives the City Commission the entire discretion as to whether the request therein shall be granted. The petitioners are mere supplicants and have no legal rights to require annexation under any condition. Beyond any doubt the statute requires no notice to anyone of its intention to recognize the petition. So long as the petitions meet the requirements of the statute, no dissatisfied or potentially dissatisfied person within the territory which the City proposes to add to its boundaries is given any legal right to [77 Ariz. 77] effectively protest the action of the commission. It follows that the absence of a delineation of the entire proposed area in the petition deprives no one of any legal right. The though is advanced that the legislature impliedly intended that the description of the entire area be included to give disgruntled owners notice to enable them to exercise their persuasive power upon their neighbors or the City Commission, and possibly thereby prevent the annexation. We are unable to impute to the legislature an intention to imply a requirement that, if complied with, serves no legal purpose. Such an interpretation would by implication substantially strait-jacket the City and take from it the power and right to define its own boundaries in order to merely permit dissatisfied owners to exercise moral persuasion carrying no legal force. In exercising the discretion given it under this statute, there are necessarily many matters to be considered by the City: the citizens whom the council represents may be vitally

Page 720

affected; the obligations which by law will be imposed upon the municipality and its inhabitants might well be of grave concern; the problem of the economical extension of water, sewer and other services might well be influenced by the nature and extent of the boundaries of the territory annexed; the amount of revenue to be derived from the addition of territory as compared with the additional cost to the City, and many other matters must be weighed and considered by the city officials in performing their duty under this statute. If we read into the statute by implication the requirement that the petitioners must befine the area, we thereby, to a substantial degree, dissipate the city's discretionary powers expressly given. Such a construction would leave the commission with two alternatives, either to permit applicants for annexation to define the city's boundaries or forego the right of expansion. Our view is that the legislature never intended to expressly give the city unrestrained discretionary power of such importance and at the same time by implication restrain such power to this degree. We do not feel justified in rewriting the statute to accomplish such a purpose.

It is virtually conceded by respondents that if a petition did delineate the boundaries of the proposed annexation, the City might annex all or part thereof dependent upon what the commission thought would best serve the public interests. We are unable to subscribe to the logic of a proposition that the commission has jurisdiction to alter the proposed boundary by striking a part of the area but has no power to alter the boundary by adding thereto when the owners of the territory added have no right to notice, nor right to protest.

For the reasons herein stated, our view is that the Commission may under the situation here presented describe the boundaries of the area to be annexed, even though such description is not embodied in the petitions, provided that at least 50 percent of the value of the territory annexed[77 Ariz. 78] shall be represented in the petitions filed. We are further fortified in this view by the express provision of the statute wherein it requires the City to file a map of the territory. This is the only express reference in the statute requiring a description of the annexed territory. Respondents would have us read this provision to mean the City shall adopt a map of the territory annexed as described in the petitions, or as described in the petitions and modified by the Commission. We do not feel justified in straining to this extent to put something in the statute that is not written therein.

The thought is presented that unless the petition describes the entire area, there is nothing from which the city officials may calculate the 50 percent. This argument carries little force in view of the fact that in this case such a calculation has been made showing in excess of 60 percent of the territory to be annexed as represented in the petitions filed.

The alternative writ of prohibition is made permanent.

PHELPS, C. J., concurs.

UDALL, Justice (Specially ...

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