TOWN OF FAIRBANKS, ALASKA, v. UNITED STATES SMELTING, REFINING & MINING CO., Inc., et al., 186 F.2d 126

HEALY, Circuit Judge. This is an appeal by the town of Fairbanks, Alaska, from a judgment dismissing its petition for the annexation of an area of contiguous lands. The statute, § 16-1-22, Alaska Compiled Laws Annotated 1949, provides that when the council of a city desires to annex contiguous territory, it shall file in the court “a petition signed by a majority of the owners of substantial property interests in land or possessory rights in land” within the limits of the territory proposed to be annexed. The number of owners of such property is required to be stated in the petition or on an attached plat.

There is a further provision, added to the original annexation statute by way of amendment in 1947, reading: “Those owners of land within the limits of the territory sought to be annexed who have filed a statement of their ownership in the United States General Land Office for the District in which the land is situate, in compliance with

Chapter 49 of the Session Laws of Alaska, 1945, shall be presumed to be the owners of substantial property interests in land or pos-sessory rights in land, tidelands or improvements upon land or tidelands within the limits of the territory proposed and sought to be annexed in the absence of a clear showing to the contrary.” The law referred to in the above quoted provision, namely,

Chapter 49 of the Session Laws of Alaska, 1945, has been codified as § 22-2-1 of the Alaska Compiled Laws Annotated 1949. It is shown on the margin. The petition of the Town, filed with the court pursuant to the annexation statute, bore 150 signatures and alleged that there are 282 owners of substantial property interests in land in the area. This allegation was denied by appellees, and the answer of appellee Charles Slater stated affirmatively that there are more than 310 owners of substantial property interests in the area.

On the hearing before the court the Town introduced evidence showing that 207 persons had filed in the General Land Office statements of ownership of interests in land in the territory to be annexed, and that of those so filing 106 had signed the petition. No further evidence on the subject being offered, the court dismissed the Town’s petition for failure to prove that a majority j>f the owners of substantial property interests in the area had signed it.

The Town contends that it made a prima facie showing of a majority on the basis of the presumption afforded by the 1947 amendment to the annexation statute, supra. We think otherwise. The amendment says only that those filing statements of ownership are “presumed to be the owners of substantial property interests in land” in the territory sought to be annexed. It does not say that they are presumed to be all the owners of such interests in the area. While the provision is not so broad as appellant would have us believe, it serves nevertheless an important purpose.

The phrase “substantial property interests in land” is notably vague. Often it might be difficult to determine whether a particular interest is or is not substantial. There might be doubt in a particular situation whether the person filing is the “owner” of the interest described. The presumptive clause in question provides a convenient rule of evidence doing away with the initial need of proving in annexation proceedings that the persons who have filed statements in the Land Office are in fact owners or that the interests they own are substantial.

Emphasis is sought to be given the verbiage of the general law of 1945, supra note 1, stating that “It shall be the duty of” each owner to file in the Land Office a sworn statement of his ownership. The statute is a revenue measure. Its apparent purpose is to enable taxing bodies more conveniently to get privately owned lands and possessory interests in lands on the assessment rolls. The only penalty it prescribes for failure to perform the duty of filing is a penalty of $5, constituting a lien against the land.

If the legislature, in amending the annexation statute, had intended further to penalize non-complying owners by doing away with the need of counting them for or against an annexation petition, it would presumably have made the purpose plain. Affirmed. . “22-2-1. Duty of owner or transferee to file statement: Exemptions: Penalty: Lien.

It shall be the duty of each owner of land, other than of land to which the United States, or an agency or instrumentality thereof holds title, or which is owned by the Territory or a subdivision, agency or instrumentality thereof, or by an Indian Nation, tribe, band or a member thereof, or is located within an incorporated town, to file in the United States Land Office for the District in which the land is situated, on or before June 30, 1946, a sworn statement, or a statement signed by two witnesses when it is impossible to obtain a sworn statement, giving his name, his post office address, a description of the tract of land, its acreage, use, character, and any other information necessary for the purposes of this Act.

Upon a transfer of title to a tract of land on or after January 1 of any year, a statement in the form required by this

section must be filed by the owner of such newly acquired tract of land on or before December 31 of that year, unless such owner is within one of the classes exempted by this

section from filing such a statement. The owner of a tract of land who has made a proper return as to such land in any year, as prescribed by this section, need not thereafter file a statement under this section. Upon failure to file a statement, as required by this section, the owner shall be subject to a penalty of $5 which shall be a lien against the land as of January 1 of the ensuing year and subject to collection as hereinafter provided.” A.C.L.A.1949.