*1 principles consistent These Attaway, McNeil v.
opinion in the case (1960). Ariz. 348 P.2d must Hunter plaintiffs Torrey and not their title and strength of on the
stand Berg title. of the Pearce weakness
on
Bhend,
er strength is with case the In this
(1955). Torrey weakness is with and the
Pearce
and Hunter. the result. concur in
I
373 P.2d Jay DAVIS, Spray Bate J. W. C.
David constituting man, of and members County, Supervisors Ari Pinal Board of zona, Appellants,
v. BRITTAIN, J. John Combs and G. O.
D. R. Waggoner, Petitioners, on behalf of Appellees. Petition Free Matter of the of Certain for the Formation of an Electrical holders Maricopa Counties, District in Pinal
Arizona. No. 6728.
Supreme Court Arizona.
En Banc.
July 6, 1962. July
As Corrected
Rehearing Sept. 18,1962. Denied *3 Mahoney, County Former Atty.,
T. J. McBryde, County, E. D. County Pinal Beverly County, Pinal Mc Atty., Con- J. petitioned County Atty., Counties the Pinal Board nell, County Pinal Coun- Sp. Asst. Supervisors (hereafter called ty, appellants. for . Board) organize district. electrical Collidge, Stokes, Bagnall Moring, & undisputed is that: dis- Roche, Streich, Phoenix, Burch & Kramer, 51,000 comprises acres; trict about appellees. for incapable therein is being land farmed Powell, Ling and Perry Nicholas H. entirely in its natural state and is almost Phoenix, Wilmer, Arizona Snell & for under through irrigation; cultivation Co., Public amicus curke. Service deep pumped water is from wells means Darnell, Spaid, Holesapple, McFall & gas power; electricity electric is Strouss, & Tucson, Jennings, Salmon by Arizona furnished Public Service Com- Phoenix, Trask, Electric Gas, for Tucson Project pany and Salt River Agricultural Light Co., curiae. & Power amicus Improvement and Power gas District and supplied Arizona Public is Service Phoenix,
Evans, Jenckes, for Kitchel & Company Magma Company; Gas Co., Citizens curiae. Utilities amicus district within a entire critical ground- Becks, Tucson, petitioners & Wolfe designated by area as Land State County, in Pima amicus curiae. Department so new lands therein cannot Rawlins, Davis, Ellis, Kiewit, Burrus & brought into now cultivation. Phoenix, Three, for Electrical District No. The motive behind the formation of the County, Pinal Arizona and Electrical Dis- obtain a lower cost. Four, Arizona, County, trict No. Pinal There was uncontradicted testimony that amicus curiae. the water table was becoming lower and Phoenix, Wagenen Jr., A. Van for Elec- becoming impossible thus was pump Two, County, trical District No. Pinal irrigation except water for at greater ex- Five, Arizona and Electrical District No. pense. cost increasing This was in turn Arizona, County, Pinal amicus curiae. forcing back to the desert the cultivated lands of unable those to meet higher LOCKWOOD, Justice. prices. Districts, *4 power such as the one upon the This is decision rehearing of by being sought landowners, the are able originally by decided the case this court priority rights to obtain first to electrical reported 1960 and on December in 89 power available to the Arizona Power Au- 89, 358 P.2d thority, thereby: enabling a) them pur- "Queen rates, In landowners in the power chase at lower Creek and b) giving Area” of Arizona’s Maricopa preference Pinal and a in them time of a shortage. district as in and benefit to the whole upon the to farmers other
Based costs impress public the use.” savings through it a districts, the electrical about would be district formation appealed The to the thereupon landowners present per cost twenty-five cent which, Superior County Court of Pinal Board’s, sav- testified that the power. Landowners novo, a trial after de vacated as pump water ings would enable them proceed order to or- and decreed keep thus would level lowered ganize the electrical district. and lands in cultiva- in business farmers appealed then to this court The Board forced would otherwise be which tion reversed, errors, assigning eight and we out. court, stating: trial the Board denied On October “It clear seems and we so hold to us grounds on the petition landowners’ these fertile desert lands arid 30-505, requirements of brought already which have been un- complied had not been A subd. pro- der cultivation and which : section reads This with. agricultural ducing crops as result system having of an peti- hearing on the At “A. their natu- fact been reclaimed from super- by the called board tion as ral state must considered law be proceed visors, first to deter- it shall ‘reclaim- reclaimed lands thus not pro- operations whether mine stat- able’ as intended Arizona constitute use. will posed ute. purpose for such deter- board
:mine “The the trial court conclusion of requirement under the second pro- the lands Whether
“1. therefore, question was, statute in er- are arid lands. posed unnecessary, Consequently, ror. it is they are Whether fertile “2. practice, under our to consider further reclaimable. questions by appellants.” raised supply is a Whether “3. Ariz. at at 329. 358 P.2d efficiently made can granted Motion rehearing cor- proposed power sys- by the available rect certain errors in the deci- tem. holding concerning sion. reaffirm our We novo, development nature of trial de but recon- Whether rea- “4. assignments sider each of the other sonably pro- to result from the certain part error made such Board. I we is of interest duction
25
very
involving
referring
must
to the
be read as
assignments
deal with the four
changed
land,
nature
is not
sub-para
of
which
findings that
the trial court’s
505, by subsequent
irrigation and cultivation.
(3)
A.R.S.
graphs (1), (2), and
§
Fall
with,
Supreme
United
Court
The
States
complied
A, supra, have been
subd.
Bradley, 164
Irrigation
brook
District v.
assignments
part
.and in
II with three
(1896),
17
41
369
U.S.
S.Ct.
L.Ed.
May there
pose
question:
single
which
a
validity
a case
of Califor
involving
a
he a
use when
formation
this
“Wright Law”,2
nia’s
with
was faced
bringing into
in the
district will not result
in
question: could
irrigation
an
production
theretofore
uncultivated
clude “all
fertile
matter how
lands, no
lands ?1
productive,
suscepti
long
they
or
so
I
ble,
state,’
‘in their natural
one mode
30-505,
and
A(1),
(2)
subd.
3?
irrigation
source,
etc.”
common
from
(3) requires
lands
finding that
with
answering “yes”
quoted
In
the Court
arid,
proposed
district are
fertile
approval from
Mo
Board of Directors of
reclaimable,
supply
and that
there
Irrigation
Cal.
Tregea,
desto
Dist. v.
efficiently
of water which can be made
334, 353,
(1891):
We
“arid”
believe that
words
dis-
Fallbrook
and Modesto5 cases are
statute,
“reclaimable”,
bar,
they
as used in the
tinguishable from the case at
eighth assignment
guide
drafting
1.
with
na-
dealt
in the
used as
were
ture of a
de
which was thor-
trial
novo
ours.”
correctly
oughly
discussed and
determined
water proposed power by questions (cid:127)ciently the available The Board the existence of a requirement read in public is system. situation, this in the instant When use contend- 30-505, B and light ing of A.R.S. subd. that such cannot exist where the entire §§ 30-591, apparent already subd. A8 it becomes area is under cultivation and the actually of the most efficient kind is be derived from the what benefit to formation of securing means are of power and what the a will not the district be bringing into use necessary “Immediately upon qualifying, not to be determine shall the 7. “It first underground investigate volume directors shall an water board of of the unquestionably irrigate ways by power to is which sufficient different can be proposed lands in the brought generated district. the all into or within the in a if the volume of such sufficient is without is manner efficiently supply enough area of distributed to to the the land to be the users irrigation purposes. board district as for the will make within power production what hind power determine is most of of results and and economical in what public use and benefit to whole efficient a by reasonably manner and what means it district, can be certain and to enable operation added.) system (Emphasis secured." when in full to be (Emphasis self-supporting.” added.) at Supreme of had said U.S. lands, merely lowering the U. S. Court of but new 159-160, public S.Ct. at 63: lands. A irrigating the old cost of here, argues, “ found the Board cannot be use * * * public frequent- what use is phrase “intro- the fact that in of view depends upon ly largely and the facts power” used in of A.R.S. duction § par- surrounding circumstances enacted, 30-505, originally A when subd. subject-matter to regard ticular “production power” simply been has ques- use is which the character of the substituted Commission Code tioned.” Fur- authority change had no to the law. improvement The Court said be- pol- Arizona thermore it that the contends public comes a use for the state even entire ap- icy regulated monopoly in favor of a portion though only single- small plicable where area to this situation community might directly participate it. power. already being adequately served 167, said:. Then at the Court at 17 S.Ct. Chapter originally adopted in The act as can, “If a certain ex- land which following used the lan- Laws tent, beneficially without arti- be used “providing the crea- guage: a) Title: im- irrigation, may yet ficial be so much purpose for the tion of assessment districts proved thereby, and by it that it will be * * ; b) power Section supplying use, substantially for its bene- purpose of districts for 1: “Assessment use,, fited, and, in former addition * * *.”; c) Section securing power it, though not in exclusion if it’ 30-505, presently subd. which is put re- can then be to other more whole, develop- (4)A : “whether on uses, munerative we think it erroneous- reasonably certain to result from the ment say furnishing that the of artificial ** power (Em- introduction of that kind land cannot Certainly when these phasis added.) sec- be, sense, legal public improve- in a it is not at all clear together are read tions ment, public or the water a use legislature intended to that the limit use.” in which to the situation use supra, In Kinne Burgess, v. we said in had the formation of a “introduced” 468-469, 211 P. at holding district. *8 unconstitutional, act 1915 that the act:. “ * * * nowhere discloses that decided before the an
Two of the cases light organized thereunder, act shed some electrical district on passage have, primary purpose, for its intentions. Fallbrook Ir- legislature’s electricity acquiring pump to Bradley, supra, of un- District rigation v. any or irrigate public any arid lands. the less or use derground water to * * * upon support by less principle, entitled to Before the taxation. upheld, be arid rigation * * *." gravity could lands lands district, then subserve (Emphasis added.) be susceptible irrigation districts applied it would be to be public irrigation. necessary power irrigated use are ir purpose areas make available power that could not otherwise be used on or “ [*] * * * clearly is a arid lands of public procuring hydroelectric [*] for purpose, to underground here the irrigation [*] object [*] wit, water large * * applied (Emphasis to the said lands.” upheld in Brown The 1923 act v. added.) 2, 181, Dist. 26 Ariz. Electrical P. No. said in 26 We at 188- (1924). Ariz. It is from evident both the Kinne 189, 1070: 223 P. at and Brown cases that the criteria are same “ really irrigation ‘The arid lands to be used in finding public use in the purpose, and the water thus organization is a of an electrical district to fur put public use; to a used is nish pumping for the underground providing irrigation for such statutes irrigation, as are used in the legislative pow- valid exercises of organization gravity irrigation districts. er.’9 It is relevant therefore Day look to v. Buckeye Water Conservation and Drainage * * * * * * District, 28 Ariz. (1925), P. principle “The is the same whether 16,000 where already acres were under- lifted from a the water natural un- irrigation cultivation when an district was reservoir derground into and through formed, which bought out the for canals to the land or whether it tak- irrigation company. mer said in 28 We gravity en direct from an artificial P. at 63910: running or reservoir from stream “ * ** the land. Because the method and quite apparent it is that the employed means Wright the former case to purpose of the Act is to enable apply conserve water differ from district to construct, or method and means by purchase used in the lat- acquire or condemnation, case, ter should not make service of said all combined, methods syllabus Quoting from the Quoted 9. the Fall from v. 10. Stimson Alessandro case, supra. Dist., brook Irr. 135 Cal. 67 P. (1902). *9 necessary, system political canals and Electrical districts are subdivisions a of when privileges proper rights, with the of the state all the which shall be waterworks control; im- and entitled to the under its benefits ty district and thereof of the municipalities exemptions have of the of directors munities and that board [and] have acquire political in such subdivisions.11 We power to waterworks aforesaid, policy the public to issue the the held12 that declared manner the state, public enjoy reg- there a payment in that shall of the district utilities bonds * * *." -mu- monopoly, apply to for; does not ulated
nicipal corporations
public
engaged in the
business;
utility
therefore it
is likewise
In view of these
we hold
decisions
inapplicable to
districts. A.R.S.
electrical
limit
was never meant to
that
the.act
of an
to that
9-516,
passed
electrical district
formation
A
which was
subd.
§
bring
in
would
which the district
situation
subsequent
(note
Water
Polar
case
power into an area for
first time. On
requires
city
supra) and
“a
or town” to
contrary,
an area is under culti
where
acquire
“public utility
service” before the
vation,
organization
and the
of a district
can institute a competing
former
service
serve to lower the cost of
would
so
territory already being
by
served
in the
to make available water that could
not
latter,
inapplicable
in the instant case be-
be used and in turn lower
otherwise
exclusively
the statute is
cause
concerned
prevent
re
cost
so as
competition by cities
or towns and does
desert,
lands from returning
claimed
to the
speak
municipal corpo-
in terms
all
not
may
public
there
exist a
use.
then
legislature
rations.
and not
say
policy expressed
this court to
that the
The fact
in the
that
instant case
in
9-516
A.R.S.
is to be extended
com-
§
would
be formed in an
area
petition by districts as well. Until such
suppliers
being
and,
served
other
now
legislature
as the
time
speak,
does
fact
effect, go
competition
into
therewith,
in
any way negative
in
district will cover
not
an area
use.
area,
Arizona,
ing
in an
within
Art.
rendered
or
with-
11. Constitution
competing service and installation
authorised,
instituted,
not he
City
Co.,
made
Tucson v. Polar
Water
12.
By
city
on
(1953),
or toion
carried
or
respective present the fact that
ly power, irrigation and cultivation on the
lands of the district.
Our decision modi- therefore
fied as to conform with this decision and so court judgment of the trial is affirmed.
UDALL, J., and V. C. STRUCKMEYr
ER, J., concur. The Honorable
Note: CHARLES C.
BERNSTEIN, disqualified, being The L. HENDERSON,
Honorable LAURENS Court, Superior Maricopa County,
Judge of partici- to sit in his called stead
was of this in the determination
pate decision. RENZ L. Honorable JENNINGS disqualified.
also HENDERSON, Superior L.
LAURENS Judge (dissenting).
Court expressed in orig- reasons
For case, 89 opinion this
inal 322, I dissent.
P.2d