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McCune v. City of Phoenix

Supreme Court of Arizona

November 5, 1957

Walker McCUNE and Barbara N. McCune, his wife, and Martha A. Sturdevant Harpst, Appellants,
The CITY OF PHOENIX, a municipal corporation, Jack Williams, as Mayor of the City of Phoenix, V. A. Cordova, Dr. Joseph Madison Greer, G. Wesley Johnson, David P. Jones, Faith I. North, and Clarence Shivvers, as councilmen of the City of Phoenix,Ray W. Wilson, as city manager of the City of Phoenix, John E. Burke, as cityclerk of the City of Phoenix, Phoenix Newspapers, Inc., a corporation, and Henry R. Kiel, as editor and publisher of the Arizona Weekly Gazette, adivision of PhoenixNewspapers, Inc., Appellees.

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[83 Ariz. 101] Botsford & Turner, Scottsdale, for appellants.

William C. Eliot, City Atty., and George Mariscal, John F. Mills and Dale E. Marenda, Asst. City Attys., Phoenix, for appellees.

WINDES, Justice.

Suit was filed by the appellants (plaintiffs below) to enjoin the appellees (defendants [83 Ariz. 102] below) from annexing certain territory to the city to Phoenix. After trial judgment was rendered for the defendants and plaintiffs appeal, contending that the trial court's judgment is erroneous for the reasons that the petition seeking annexation was not signed by the owners of fifty percent of the property valuation which would be subject to taxation in the event the territory was annexed; that the annexation ordinance encompassed more territory than that set forth in the petition; that the city of Phoenix has no jurisdiction for the reason that petition to annex a portion of the same territory to the town of Scottsdale was filed with its town clerk prior to the filing of the Phoenix petition; and that an accurate map of the territory annexed was not filed and recorded as required by statute. We will dispose of the questions thus presented in the order stated.

The total assessed valuation of the property annexed was $661,463.25 and the statutory valuation necessary on the petition was $330,731.63. The total assessed valuation of the property represented by the petition including certain claimed illegal signatures was $345,303.02. The appellants claim that the court committed error by including in the valuation represented by the petition the following items:

  James E. Thompson et ux.       $ 3,795.00
  Charles Christakis               7,395.00
  Georgia Swerdlow                 2,485.00
  Sam Swerdlow                     2,485.00
  Bruce I. Leyton                  3,545.00
  Howard Smith and Dessie Smith    3,270.00
  George S. Martin                 2,190.00
  William P. Leistiko et ux. and
   A.L. Lundren et ux.             2,890.00
  Helen Gazse                      4,745.00
                Total            $32,800.00

Thompson signed the petition whereas the assessment roll shows that the taxes for this property were assessed in the name of Olive Magdalene Raley. Appellants' argument is that since A.R.S. § 42-205, provides that the assessment roll is prima facie evidence of the facts stated therein it is proved that Thompson did not own the property when he signed the petition. This position is not correct. The fact stated in the assessment roll is that Raley owned the property at the time of the assessment. The strongest possible effect that can be given this evidence, assuming it prima facie shows Raley owned the property at the time of the assessment,

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would be a presumption that such ownership continued until the contrary is shown or a different presumption is raised. 20 Am.Jur., Evidence, section 207, page 205. The ordinance having been passed, its validity must be presumed. 62C.J.S.Municipal Corporations § 208, p. 389. We thus have a possible presumption against a presumption. This is not sufficient to show the invalidity of the signature.

The record shows that the petition was signed by Leistiko and Lundren and their respective wives. The property was [83 Ariz. 103] in the name of Clay Shop, a corporation. The parties signing owned all the stock of the corporation and Leistiko was president and Lundren secretary and treasurer. The thought is advanced that since they signed as owners individually and not in the name of the corporation, the valuation must be excluded. This is a distinction without a difference. When all the stockholders who are the beneficial owners sign, that is sufficient.

Georgia Swerdlow signed her name for separate property owned by her husband Sam and signed for community property by signing his name. Both Mr. and Mrs. Swerdlow testified that he authorized his wife to sign for both properties. Since it appears that all interested parties consented, the valuation should be considered.

As to the Bruce Leyton property, the petition was signed 'Bruce Leyton by M. Leyton' and also signed Marion C. Leyton'. The argument for invalidity is that when the ordinance is attacked, the city has the burden of proving authority of the agent. This is not correct. The ordinance and proceedings authorizing its adoption are presumed to be regular. The burden was on plaintiff to submit evidence of invalidity, including lack of authority of the purported agent. No such evidence was submitted. This property was properly included.

The Howard Smith signature was not dated and he could not remember exactly when he signed. The record shows it was signed at the time of presentation to the commission. This valuation was properly included.

Helen Gazse signed the petition. At the trial it developed she had been married a number of years and that the property represented in the petition was the community property of herself and her husband. We have held that if the property be community, the wife may at the instigation of her husband sign for both herself and her husband. City of Phoenix v. State of Arizona, 60 Ariz. 369, 137 P.2d 783, 146 A.L.R. 1255. The validity of an annexation ordinance being presumed, the one attacking it bears the burden of proving invalidity. 62 C.J.S., § 208, supra. This presumption includes the presumption of validity of the petition. Town of Greenfield v. City of Milwaukee, 272 Wis. 388, 75 N.W.2d 434. When a wife signs for community property and conditions may exist which render the petition valid, the plaintiff having the burden of showing invalidity must submit some evidence of conditions that would render it invalid. Merely showing there was community property is not sufficient to overcome the presumption of validity. The council initially has not burden to support its action in passing the ordinance.

[83 Ariz. 104] Charles Christakis signed the petition as commander of the Veterans of Foreign Wars Post No. 720. He testified he had no express authority from the post and that he did not know whether he had such authority. The constitution and by-laws of the organization in evidence sets out the duties and powers of post commanders and nothing therein could be interpreted as giving express or implied authority. Certainly the signing of annexation petitions is not connected with or incident to his ...

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