Southwest Engineering Co. v. Ernst

P.2d 764 CO., Ne ENGINEERING SOUTHWEST busi corporation do authorized to vada Arizona, Appellant ness in the State of Cross-Appellee,

Rogert ERNST, State Land Commissioner Arizona; De Land the State of The State Arizona; partment of the State of Cross-Ap Arizona, Appellees State of pellants.

No. 5881.

Supreme Court of Arizona.

Dec. Karman, Peterson & Grande, Casa for

appellant cross-appellee. and 4:06 year by legisla Atty. Gen., Robert extented one additional Jones, Ross W. F. 31, 1955; Gen., Ling, ture

Pickrell, Perry in 1954 March at that Atty. M. Asst. Phoenix, expired Counsel, appellees by and time it virtue of the termina Special for expressed. tion date the re cross-appellants. therein Since initially sought lief a that was declaration prohibition drilling against of new STRUCKMEYER, Justice. irrigation wells was unconstitutional by appellant, This was commenced action by lapse of the rendi since time between Co., Engineering corporation, Southwest judgment tion of court and lower against Arizona and State the State of opinion there is not now court appel Land Commissioner to determine pending determination an actual con subterranean, rights to use of the lant’s troversy,' cross-appeal is dismissed. Superior The underlying lands. its 158; Hunt, Harrison v. 28 Ariz. P. held of the that two Court found so Supervisоrs, Gibson v. Board 20 Ariz. controlling the legislative acts use 222, 179 P. 640. water, ground Code1 23of Groundwater significant The The facts Act 1948. that but .was-constitutional Sections by alleged complaint and admitted 3, 4 were 5 of the Act of 19532 appellant answer establish that South-, The invalid and unconstitutional. owner, or has an interest in certain lands Co, appealed from the Engineering west lying within the of the Gila- boundaries judgment declaring the of 1948 con Act of the Cruz Santa Cruz Santa Subdivision stitutional, the State of Arizona groundwater River and the Gila and Salt cross-ap the State Land Commissioner thereof, desig basins basins or subdivisions pealed judgment that declaring State nated Land Commissioner as portions Act those stated pursuant areas unconstitutional. were authority Act; ap conferred - pellant irrigation drilled an well on its Act Act The This estab but notified Land land State in which was within the state lished an area attempt irrigate except Commissioner irrigation replace drilling wells well would be violation absolutely lands from prohibited for wells was ment Act; penal provisions of year. prohibition period of one was ground Special Chapter 5, 2 of the Act defines 4. Laws of Sixth Section 1. “water under the surface of wаter as Session. regardless geologic of the the earth structure Regular Chapter 42, First Laws of 2. standing or in which it is mov- Session. flowing ing; water not include does underground ascertain- Chapter streams with of in Section Laws 3. Regular and banks.” able beds . Session. Second

4=07 industries, profitable additional ir- one of most appellant intends drill an state’s coop permit for adopted providing a rigation well but has been denied an act5 with Land therefor and is threatened crim- eration of the State Commissioner now Geological Survey prosecution inal the whole with the United States unless of purpose and in gathering Act is decreed unconstitutional void. “for of legislature formation aid the in as problems considering Before raised considering subject of a Ground Water by appeal it that should be stated much Code”, carry appropriating and funds to in the land the State of Arizona of Presumptively purposes out thereof. capable desert, sustaining human life of by the information so obtained was used supply of only if there is water available legislature drafting in the Act of 1948. irrigation. development Agricultural for compre Act itself is detailed and portions of the in the desert and semi-arid require analy hensive not minute and does First, taken in state has three forms. and Essentially provides sis herein. a method days, by the earliest water the diversion state for the areas within the determining running having from rivers streams and ground sufficient water do not have springs; second, their sources mountain provide reasonably supply safe impounding excess waters from irrigation the current at rates with floods rains and in dams reservoirs designated drawal. areas are as These subsequent through their release canals groundwater “critical areas”. After need; third, and ditches time of critical, designated area is inadequate nearly these sources became irrigation new wells construction so, pumping. lying waters excep prohibited therein is with certain' moving beneath the surface earth. tions, replacement e., wells: i. domestic recognized It is to be from the time pumping existing Those who earliest settlers there' has been some wells are continue full allowed to ground through use of waters artesian emj capacity of such wells. should wells, centrifugal windmills pumps set phasized areas critical the Act does table, deep- at near the water but that' purрort regulate ground pumping well use of waters substantial quantities is a comparatively recent de- land water between owners of in cultiva velopment. tion, regulate the ground nor does it Use of water outside of critical areas with ex legislature state, ception that as defined is universally waste recognizing of ground withdrawal prohibited. prohibiting By the' beyond replace drilling rate natural threatened stability areas, ment the economic wells in of new the Act limits Chapter 12, Special Laws Session. First purpose The of Act set forth in the present

the water facilities there to use of thereof: from Section 3 withdrawals preventing additional " * * * supplies determined underground which are large that rich areas of inadequate. to agricultural lands in Arizona are de- part, upon in pendent, in whole or subject water has been the Ground ground water basins underlying court, this culmi- numerous decisions of supply, lands their water and that rehearing in nating in the on decision in such basins a number of withdraw- Cheatham, 227, 255 Bristor Ariz. P.2d v. water, greatly of ground als in excess in in which reaffirmed court yield thereof, of the safe annual adopted opinion previously divided rule its rich converting farming- the lands of prior appropriation that the doctrinе of groundwater into communities gen- apply percolating does not to water injury areas, gen- to the serious without ascertain- erally beneath the soil economy welfare of eral the state majority able and banks. The held beds and its citizens. It is therefore de- County Maricopa in Mu- the decision that public the policy clared to nicipal District No. 1 Conservation Water state, agricultural the interest of the Co., 39 Ariz. Cotton Southwest stability, economy general and welfare property that P.2d a rule of became and its citizens to of the state conserve the reclamation investments in large protect the water resources lands, acquired had rights desert been destruction, state from and for that protection under which were entitled purpose provide regula- reasonable declared, that as between law as tions designation for the estab- users water the doctrine reasonable lishment of such critical say, applied, that between in- use as areas as or hereafter exist now apply rights dividual this court would within the state.” of reasonable use so far as found doctrine finding that legislative The exhaus- Spe- apрlicable conditions in Arizona. tion of with- water excessive ground question open cifically left to the was destroy drawals threatens one of right against of the state individuals to principal economic resources of state regulate consumption of ground water consequential injury of all serious disputed.6 a conclusion is general Such. interest welfare. “ * * * tragedy phrase, all The exist- we want 6. central while common many enough earth, there is that are not are of us but ence is there there ”* * * goods only existence, earth. Roscoe the material one go around; Application were, Pound, of Le- while individual Administrative infinite, gal Standards, Asso- means 44 American Bar wants material satisfying Reports, wants those are finite ciation signifi public thus interest is use Where obviously justified unrestrained because complete cantly involved, of that preferment inevitably either result must ground property water so interest interest of over the exhaustion of state’s dependent destruc thereon individual even extent of its that in the lands the end in the tion state or characteristic of distinguishing their desert is a will revert to principle in- police power. tables so exеrcise of the lowering of controlling these recognize will reduce which here as pumping of we creased cost extending con- submarginal precedent rests marginal or historic lands to a law, Respublica v. back into the common dition. 174, Sparhawk, 357, Bow 1 1 L.Ed. Dall. it is the appellant’s position that It is Boston, 16, 25 ditch 101 U.S. City of v. land underlying its owner of the water recogni 980, L.Ed. and has continuous had early Howard that as v. this court as held present tion United almost the moment. to 460, 462, Perrin, 347, 8 Ariz. 76 P. Inc., (Philippines), 344 States v. Caltex since, percolating repeatedly “waters that 149, 200, U.S. 157. 97 L.Ed. S.Ct. through beneath the .generally the soil property the owner of surface- the of It application the has not alone to dis- appellant such, argues, As its soil.” fire, flood, war, pestilence asters of but against property protected confiscation public to inter- other circumstances where Arizona, by of Constitution State of ests dictate an unavoidable choice between nearly identi 4, and the Article Section property one against class of as another. portion of the Four language of cal Schoene, to Constitution of Miller teenth Amendment v. U.S. person that no declаring States

the United S.Ct. 72 L.Ed. where red cedar life, liberty, prop deprived of shall “be rust, plant disease, an infectious was de- ."7 process law erty due without ap- structive of foliage the fruit and ple but without effect on the value of seen that a conflict It thus be can cedar, and from communicated one to appellant by the state between (cid:127)occurs other, Virginia providing statute public reason the interest compensa- destruction of red cedars without re preservation destruction the sustenance of owners held be a source essential to life. was consti- any person ag- By Superior 7. the Act Court. This those Section affords af- any opportunity grieved by determination, order fected a reasonable to be present evidence, the administrator of the Act and to heard decision does process may against an due have decision reviewed not offend in so far Superior phrase applicable procedural appeal this Court of novo, States, shall Yakus v. trial de deficiencies. United state may appeal thereafter court 88 L.Ed. U.S. judgment the event of adverse 4=10

tutional police powers. exercise of the police power which property. affects court said: [Citing cases.] weigh ‍​‌‌​‌‌‌‌‌​‌​​​‌​​‌‌‌‌​​​‌​​​‌​‌​‌​​‌‌​‌​‌​​​‌​‌​‍“We need nicety with may “On the accept evidence we question whether the infected cedars supreme ap-

conclusion of the court of constitute a nuisance according to the peals that the state under the ne- was law; common they whether cessity making a choice between the so declared statute. See Hadacheck preservation property class of one Angeles, supra, Los [Sebastian] and that of the other wherever both 411, (36 Sup. U.S. 143) [239 394] [60 dangerous proximity. existed in 348, 356, Ann.Cas.1917B, L.Ed. 927]. would have been none the less a choice where, here, For choice is un if, present instead of enacting the stat- avoidable, say we cannot that its exer ute, state, by nothing, doing had - cise, controlled considerations of permitted injury apple serious policy social which are not unreason go orchards within on its border un- able, involves proc denial of due checked. When forced to such a ” * * * 279, 280, ess. 276 U.S. choice the state does not exceed its con- S.Ct. 247. powers by deciding upon stitutional ' property dеstruction one class there, opinion We are of the pre- is a which, order to save another ponderant public preserva- concern in the judgment legislature, great- of the is of presently tion the lands cultivation as er public. value to the not will do to against potentially lands reclaimable, and merely say case one of a that where here the choice is unavoidable private conflict of two interests and because supply a nql; available of. apple growers the misfortune of thqt both, say we cannot exercise the. may by not be shifted to cedar owners choice, of such controlled considerations ordering the prop- destruction their policy unreasonable, of social which are not erty; may for it is obvious there process. involves a denial of due be, is, preponder- and that here there public preservation ant concern in the brought We thus appel of the one proposition interest other. over that the Act lant’s denies to it [Cit- ing public And equal protection where the in- of the laws in that cases.] preferment is involved in- terest of that choice phrase is unreasonable. While the property “equal protection terest over the interest of the the laws” has not been individual, to the extent even precisely de- susceptible of its defined and is not struction, delimitation, is one of the distinguishing exact Louisville Gas & Elec every Coleman, 32, exercise of the 48 characteristics tric Co. v. 277 U.S. S.Ct.

411 770, cupations by the 423, goal that are called same name while sets 72 L.Ed. way. applica (cid:127)must be treated in the same Domin- invention and attainable not Hotel, Inc., Arizona, formula, Board ion v. State of 249 U. precise Kotch v. of a 552, 273, Com’rs, 265, 39 63 The U.S. S. S.Ct. L.Ed. 597. Pilot 330 of River Port 1093, 910, there can no classification is not established on the 67 basis 91 L.Ed. S.Ct. agricultural operators but question of the state enact of on distinc- right toas objects present agri- differences between of the tions and laws on classification bas^d potential agricultural it af persons cultural users legislation whom Admittedly ground water in users of critical areas. Ad- questioned. fects. Nor is such mittedly is an one valid must the classification unusual to be classification .also prior not have Schrey Mfg. and one which did existence Allison Steel reasonable.. v. Act, 604; adoption Co., 282, State v. -to the of this but this not 75 Ariz. 255 P.2d 287, grounds 219 P.2d invalidate the Act if Corp., Ariz. 70 Double .sufficient Seven n 1007; That 776, Valley National classification has rational basis. A.L.R.2d 19 538, Glover, does have a rational basis 62 Ariz. classification Phoenix v. Bank Sawtelle, 292; apparent. supply ground Begay readily 53 v. Ariz. (cid:127)is 159 P.2d 304, 999; Laney l. water within the territorial boundaries .of v. State ex re P.2d state, particular 416, any (cid:127)the Jones, 186. The differ Ariz. P. therein, is not and. even great, Bayside Fish basin not be Flour

ence unlimited need Gentry, 297 U.S. 422, 429, instances the limits thereof though some Co. v. n ultimately apprehend, 772, be difficult to state-of facts 80 L.Ed. if rea inevitably one time another will-be- sonably that would sustain at conceived can be necessary merely restrict the use Rapid Corp. City come Transit v. York it New . and uses exceed York, because the available users New 58 S.Ct. U.S. supply. do doubt that We available rehearing denied L.Ed. U.S. legislature, proper sphere -in it is the 1548; Valley Nation 82 L.Ed. 58 S.Ct. welfare, say general .the interest of Glover, supra. Bank of Phoenix al by establishing arrived that time has when up- its determination and Appellant argues that the mechanics for class of .the prescribing legislature with determination eco- persons dealt on such here state; operators consumption which constitutes agricultural nomical protection requires of water. equal that all efficient use most that since supply alike, of water is deter- a class be treated the areas where persons within arbitrary inadequate there can be denying in no obviously some mined isAct reclaiming state irriga gain to the use of water for economic class within the for However, protec lands since each acre equal desert additional purposes. tion eventually acre will lose the an not mean that all oc- reclaimed does of the la-ws pro- dependent it operation by is for limited in its circumstances to particular ductivity necessarily and must be withdrawn the area where a different treat ment Capital required. cultivation. invested is particular Since area leveling may clearing particular of lands and build- and have a problem necessitating ings, re- acreage legislative differentiation, wells and ditches on end quired to be withdrawn from cultivation boundaries inevitably of the area must destroyed will be to the same extent as the place fixed at one or another. Unless it flood, war; catastrophe al- apрear, here, fire should it does not that the impact fixing though may the economic be some- legisla boundaries under the may what alleviated that the tive fact loss mandate will necessarily be determined time, period it an arbitrary basis, extend over a still is in- on or unreasonable will evitable that such loss occur. A clas- Act must be Merely held constitutional. prevent sification which tends to an the possibility because exists that there community arbitrary economic loss and the be capricious power use state cannot be said to be legitimately without rational delegated under the statute is. say and therefore we cannot that this not basis sufficient reason presump to entertain a classification based on such power consideration is tion granted that the will be so ex whimsical, capricious, either arbitrary or People ercised. State New ex York unreasonable. Carr, rel. Lieberman De v. Van 199 U.S. 305; 26 S.Ct. 50 L.Ed. Hall v. is urged that the classification Co., Geiger-Jones 242 U.S. 37 S.Ct. arbitrary permits it because unrestricted 480, L.R.A.1917F, 61 L.Ed. If unregulated pumping by public owners of agency arbitrarily,, officer does act in areas which are not critical lands and the courts declaring without the statute in right denies the same owners of lands valid will annul the decision of the officer. areas, thereby conceivably in critical having Gratz, Federal Trade Commission v. 253 U. treating the effect of individuals of the S. 40 S.Ct. 64 L.Ed. 993. opposite same status on sides of the bound Appellant complains

ary unequal line in an manner. the- To this we Act is void want First, think there are definiteness two answers. dis crimination in that inequality certainty authorizes the forbidden Land if based on a to determine reasonable Commissioner what classification. shall and1 Schrey Co., Mfg. supra. be the law. Allison Steel what shall not There are two Second, necessity requires, approaches attack, health, possible to this sug where the both First, safety general people appellant’s argument. gested welfare of the as is- particular locality case, imperiled, challenged or area the Act is often on the although impossible that the law for the universal nature be basis that individual.

413 par not be have examined shall the Act as a whole and shall or what to determine ticularly 7, 9, 10, the con- 12 this 11 and for to Sections the law. As violation of approved is repeatedly involves crimi which the failure to adhere principle trolling opinion responsibility, Construction nal are Connally v. General stated 391, 126, 385, 46 page ought at S.Ct. that there sufficient of what Co., notice U.S. 269 comply 127, ought 322: to L.Ed. be and what not be done page 70 at “ * * * which either and a statute with the conclude that the Act. While we doing wholly act requires the Act is for the reason as not void forbids vague signed, pass of common that men is not our intention now to in terms so at necessarily guess approval upon phrase or intelligence every must sentence applica- simply objection its as to therein. We treat the as meaning and differ its due postpone essential raised and judgment tion violates the first on sever- ”*** portion process specific able of the Act cir law. until presented cumstances are direct 223, 71 George, 341 U.S. v. De Jordan ly litigant’s State, affect rights. Gherna v. rehearing denied 703, 886, 95 L.Ed. S.Ct. 344, Ann.Cas.1916D, 494, 16 Ariz. 146 P. 1377; 1011, L.Ed. 956, 95 341 71 S.Ct. U.S. 94; Petrillo, cf. United 36, States v. 332 Stewart, 45 Ariz. U.S. City Tucson v. 1, princ 1877; P.2d A.L.R. 1492. With 91 L.Ed. Rescue have diffi iple but we accord Army Municipal we City Court of of Los application to the Act discerning culty in its Angeles, U.S. 67 S.Ct. 91 L. particular language here attack. No under Ed. 1666. specified exception is to which

has been Second, it appellаnt’s argu taken, appellant the broad rather relies on ment that proposition language Act is so indefi that the entire 5(a) Sections intelligence that men must 6(a) nite of common prescribing principal duties of the necessarily guess meaning at its and differ Land Commissioner is vague, so uncertain mind, application. as its With this we incomplete that he liberty is at to or legal jargon 8. “Fundamental fairness of course re- ess of law.’ The for such quires people given that notice give forewarning say failure is to purpose ” to avoid. If of what aof void the statute ‘indefiniteness.’ undisclosed, legislature’s statute is if the Frankfurter dissenting Justice revealed, will has not been it offends opinion People to Winters v. of State of punishment should reason be meted York, 507, 524, New 333 U.S. 68 S.Ct. for conduct which at out the time 665, 674, 92 L.Ed. 840. was forbidden its commission * * * (a) 5. 9. “Sec. understanding It shall be the of those who wished to ob- duty commissioner, requirement law. This time serve of fair time, adequate boundary pro- ‍​‌‌​‌‌‌‌‌​‌​​​‌​​‌‌‌‌​​​‌​​​‌​‌​‌​​‌‌​‌​‌​​​‌​‌​‍factual notice that there is a data become designate groundwater overstepped available, conduct not to be hibited ba- conception proc- thereof, included of ‘due sins and subdivisions and аs fu- .414

must necessarily supply interpreta- his power. own Bush, Wotton v. 41 Cal.2d of what the ought .law be in order P.2d accomplish purpose of the Act. We examining Before the Act to determine have duty imposed public held aon how arises, the claimed unconstitutionality official prescribed statute must be in we observe that presented there are to this terms sufficient and definite to serve a court two opposing principles mutually an guide duty imposed to those who have the tagonistic entirely which cannot be recon upon them. Frohmiller, Hernandez v. 68 Ideally, society ciled. in a in which the 242, Ariz. Plainly 204 P.2d 854. if the lan- primary aim is the maintenance of the guage imposing the duty not have such does political independence and economical of definiteness, then it does not sufficient have individual, government in order significance capable to literal be of intelli- may oppressive tyrannial, not be cer -execution; and, gent moreover, it violates tainty must be found within the law where Constitution, Article 4 of the of this state by men may of common intelligence', know directing powers of the three power where the authority.of and the separate government bе in that branches of government ends and.individual’rights be delegation legisla- to a of would amount gin. Hopkins, 356, Wo Yick v. 118 U.S. 6 power tive Land Commissioner.. We , 1064, S.Ct. 30 L.Ed. 220. To this funda authority delegation of recognize that a in mental ..govern thesis of constitutional will, indefinite uncertain terms if it is ment unhesitatingly subscribe;. we but this all, require arbitrary at ac- to be enforced does mean that established limitations .the administrative and cannot officer recognized by. have not been reason of its distinguished delegation effect from a in (cid:127) imperative antithesis —that necessity de Hence, ap- arbitrary authority. in our practicable which mands laws are proach problem we shall consider at commonly workable. said that . appellant’s time further contention the same invariably does not follow that an entire guide standard that there no sufficient separation complete power in the exercise the Land Commissioner government three branches is desirable authority an delegated and is unconsti- Grossman, parte intended. Ex or was ever legislative power. delegation of tutional 87, 332, 527, 69 267 U.S. L.Ed. statutory language may 131; Indefiniteness Riley, 83, A.L.R. Parker v. 18 Cal.2d delegation 873, 1405; People as an invalid 134 A.L.R. tested оf 113 P.2d ex also be may require justifying and factual factual data become available conditions ture such, designate action, ground- justify, to alter boundaries data areas, and as future conditions thereof.” * * * (a) require justify, The commission- and factual data “Sec. 6. hereby authorized and it shall be er is alter the boundaries thereof.” adequate duty, time, from time to his White, uncertainty rel. Rusch Ill. 166 N.E. of in this Act is not in what v. example, For the end result is to achieved or 64 A.L.R. 1006. what ad- utility steps ministrative to be public boards and work followed in functions of achieving compensation commissions are result.10 It arises out of men’s spheres inability all public of members of blending recognized appellant’s position The departments government. three to know advance to from the Act right generally delegate rights itself their ultimate conceded power property to the use of their until the Land agency the administrative adopt necessary Commissioner regulations has acted and has determined rules and upon the fact carry opera- a law effect. State v. Marana law becomes into However, Plantations, tive. we think it Ariz. 252 P.2d 87. is settled that separation zoning power the the In some cases such the three professions, government prohibit the discretion branches of licensing of vest does not legal consequences expressed limitation general ed is so broad and the so in the taking law from is little essential difference be effect there ascertain- fact, ment or-contingency state of facts tween generalities and no standard at to be agen- determined an administrative See, all. 54 A.L.R. 92 A.L.R. cy. principle has been heretofore A.L.R. also a 1447. We note distinct recognized in Arizona. Hernandez modern tendency more to be liberal Frohmiller, supra; Anklam, State v. granting of -discretion the administra predicated Ariz. 31 up- P.2d It is 888. tion of complexi laws in where the fields governmental necessity. on obvious governmental ties of economic and condi “ * * * Indeed, increased, tions particularly have is not too where it it much impractical say to comprehensive Congress is that a denial lay to down to a right, Constitution,. under the rule. Ashland to dele- Transfer Co. State Tax v. Commission, gate power to determine Ky. 247 56 some fact S.W.2d upon or the state things which 87 A.L.R. 534. enforcement depends, of its enactment present In the case there is no stop would be ‘to gov- wheels of uncertainty principal as to the re duties confusion, ernment’ bring about quired of the Land Commissioner under paralysis, if not in the conduct of the 6(a) of 5(a) and Sections Act. He public Bridge business.” Union Co. v. designate groundwater States, must basins and 364, 387, United 204 U.S. groundwater critical areas. The element S.Ct. 51 L.Ed. 523. (c) (b) groundwater

10. Subsections of both Sec- water basins and critical provide pro- tions 5 a and 6 detailed areas. ground- cedure for the establishment of Often action administrative recognized generally is so And dependent ex- upon the executive officers is application.11 universal have ju- normally ercise of what is considered a the circum that under realize We discretion, delib- requiring dicial function impossible, for difficult, if not it is stances Batty eration, thought judgment. the ultimate appellant anticipate what Board, Dental Ariz. Arizona State may the Act does be because determination 870; Freight 112 P.2d Co. v. Alabam’s way through mot, except general ain most Hunt, 419, 426, Ariz. 658. In- P. basins defining groundwater what are deed, bluntly it has been said: areas, provide what “As objection to the that the duties determination is relevant evidence auditor, respect with his in given probative need be force and what section, quiries under the fourth are contingency particular If the evidence. judicial executive, it rather than is ascer is upon the law takes effect which every say sufficient to that executive fact, conceivably rea single from a tainable officer, act his when called on to of as to whether agree men could sonable enquire capacity, ficial must and deter future event or did not exist or if fact did facts, whether, re mine on the the law apt to not be it or would whether would quires or another. thing him to do one be suf would the law occur and therefore ”* * * Jasper County, Hoff v. would that men ficiently and certain definite 53, 56, 476, 478, U.S. 28 L.Ed. anticipate adminis able to reasonably their ultimate know action and trative delegation “Nor there an invalid is which many determinations rights; but power. judicial To hold that there simple. They thus so must be made would be to turn back the clock was many facts evaluation rest century at least half of adminis- on certain facts. or lack of even the want * ** making lieu trative law. necessarily a conclusion This evaluation itself, [Congress] it could that decision reasonable men possible of an ad- bring to its аid the services again here we Nevertheless differ. agency. dele- ministrative And could uncertainty suffi say that such cannot the determination agency gate par- constitutionality. deprive question Act of fact whether cient to legislature existence or absence 1 1. settled er determine the “It well carry operation application conditions, may or and to or such facts make the upon according contingent dependent the the statute terms of out a statute finds. or occurrence of certain facts or conditions existence the the legislative delegation conditions, delegate the is not a and This tacts or agency, L.Ed. 481. Annotation an other such as executive function.” some office, pow- cases cited. board and or administrative Mills, producer Opp fell In ticular coal within Cotton v. Adminis- Inc. ” * * * Division, Anthracite Wage Act. Sunshine trator of Hour 400, Adkins, 381, 126, 534, 524, Coal v. U.S. 85 L.Ed. Co. U.S. 61 S.Ct. 907, 915, Act, 84 L.Ed. 1263. 60 S.Ct. where the Fair Labor Standards seq. provided U.S.C.A. 201 et Many where given § illustrations can be minimum “due wages shall be with fixed fact was determination of the ultimate regard competitive condi- ex- ‘economic predicated of the on determination ” tions’ and shall sub- be such of other facts “will not non-existence istence or stantially employment processes curtail indus- logical application of the try” Supreme de- Court stated: the ultimate fact as a conclusion was duced, necessary to only but we think it “True, appraisal of facts in the scope of point to indicate the. out few light policy declared con- principle here involved. In State formity prescribed legislative stand- Illinois, Wisconsin State of 278 U.S. ards, and the inferences to be drawn lodged Congress L.Ed. 49 S.Ct. by the agency from administrative Secretary of War the determination facts, appraised, so involve the exercise an ob- of what constituted unreasonable of judgment prescribed within the lim- navigation in struction to the Great Lakes. case, where, its but present as in the upholding a ‍​‌‌​‌‌‌‌‌​‌​​​‌​​‌‌‌‌​​​‌​​​‌​‌​‌​​‌‌​‌​‌​​​‌​‌​‍determination of amount up set guidance standards for the through of water that could be withdrawn of the agency, administrative pro- Chicago creating Canal without cedure which it is directed to follow navigation, unreasonable obstruction Mr. and the record its action which is re- Taft, speaking a unani- Chief Justice quired by the kept statute to be court, mous said: preserved, which is in fact are such it is “But said construction thus Congress, the courts the pub- delega- favored would constitute it a lic can ascertain whether agency by Congress legislative has conformed to the standards which power and invalid. We do not think prescribed, Congress has there is no so. The determination the amount performance failure of the legisla- safely that could taken from the * * * tive function. The essentials lake one that is shown the evi- legislative function are the de- peculiarly expert ques- dence legislative termination policy question tion. It is such a as this that and its formulation as a rule of con- naturally within the executive func- duct. Those essentials preserved deputed by

tion that can be Congress. specifies Congress when the basic con- [Citing 278 U.S. cases.]” clusions fact ascertainment of which, from relevant data a desig- 418 quired, is diffi- yet merely it ordains because it agency,

nated administrative ef- be statutory is to its command interpret cult to does not condemn ” 145, * * 144, * 61 S.Ct. fective.” 312 U.S. offending as the constitution. page at 532. Frohmiller, supra, 68 Hernandez v. Ariz. 204 P.2d 860. prescribed present

In case the Appellant great forth relies extent on Pana are set legislative guides or .standards 2 Section in the definitions under 388, 55 Refining Ryan, ma Co. v. U.S. 6(a), 5(a) Act12 under Sections 446; Poultry S.Ct. L.Ed. Schechter designate on supra, duty prescribing the States, Corp. v. United 55 S.Ct. U.S. Commis the Land Clearly factual data. 1570, and our recent case 79 L.Ed. 8 commission roving not a sioner have does Plantations, supra. The v. Marana State criti basins and groundwater to determine readily distinguishable two former cases are he any manner groundwater cal areas on the basis court. observations proceed in the man may must choose. He Ryan it Refining In was Panama Co. prescribed upon the ner and evidence stated: n “ * * * ' .sections, must factual data and the these transportation As or basin groundwater tend to a establish production per- oil state in excess of the mean groundwater area within mission, has declared no Congress definitions. set forth ing of the .terms standard, has policy, has established no While, open to may be definitions these' require- laid no There no down rule. dispute arise in that some criticism ment, circumstances no definition the limita precise meaning their over transporta- which conditions Land Com which circumscribe tions prohibited.”' tion is be dr allowed action, not mean yet this does missionеr’s 252. U.S. S.Ct. interpretation cannot proper, their be out, pointed legislature As has not ordinary application supplied policy, its it has only declared but defined judicial construction. principles of circumstances and conditions under prohibited. drilling pumping must definite to a statute be '“While Poultry Corp. precision v. United States valid, reasonable is re- Schechter “ any “‘groundwater groundwater means land basin’ over- area’ means ‘critical nearly may defined, lying, determined as herein basin body ground' thereof, facts, designated á distinct subdivision known provide water, ground exterior limits having but sufficient supply irrigation reasonably safe groundwater basin shall not be deemed upstream or downstream be- basin extend lands at the cultivated gorge canyon defile, yond of a sur- rates of withdrawal.” then current w.ash.” face stream or. held court stated U.S. that the We end result could not be [295 distinguished from Schechter v. 848]: United .s State “To summarize and conclude Recovery point: 3 of the Section We conclude if legislature without 703) Act (15 U.S.C.A. § power denied the delegate determina precedent. supplies no standards tions which are naturally subject of ex trade, activity. any industry, for or perts, many agencies cre administrative prescribe of rules does not undertake ated the state would be denuded their of particular applied to conduct to be utility government and impor in its most by appropri- fact determined states of aspects tant impossible. would become We Instead procedure. ate administrative do not think it necessary for the legislature conduct, lay it au- down in prescribing rules of of advance an exact mathe matical formula to pre- designated which the codes making thorizes of administrative agency must adhere for oL under- legislative that scribe them. For ten, here, may vary circumstances and standards, up no taking, 3 sets section precision which would otherwise be de general the statement of aside from defeat, sirable would serve to purposes correction, rehabilitation, aims of legislative of the If the law enactment.. In expansion in section described provides a defined course of conduct scope broad declara- of that view the -occurrence or determination an oc tion, few re- the nature state, particular currence of a conditiоn or imposed, the discre- that are strictions facts, though even that determination is approving in the President or tion of dependent upon an evaluation in the nature codes, enacting prescribing thus óf a facts, deduction from there is neither of trade government laws for an unconstitutional delegation power nor' throughout country, industry the Act so indefinite and uncertain that can virtually unfettered.” held to be invalid. The judgment of the court below is af- case present the Land Commission- firmed. except in discretion the limited has no

er we the evaluation which have sense PRADE, LA J.,C. and UDALL and referred. WINDES, JJ., concur. Plantations, Maraña v. the stat- In State question was general PHELPS, so broad and

ute (dissenting). Justice to be held valid would if constitute I regret I am unable agree with grant authority without limitation. the conclusion reached the majority in may not be police power exercised The the abstract fault with I find no case. this arbitrarily unjust majority or with discrimination. in the law enunciated principle of approval following quoted with applica- We with its do find fault I opinion but Law, C.J.S., from 16 Constitutional § facts. to the Valley National Bank of in the case under the law the enactment of Since Glover, 62 159 P.2d Ariz. Phoenix majority opin- consideration, court 292, 300, to the effect that: Cheatham, 75 Bristor v. case ion “ * * * (of equality The clauses has declared 255 P.2d Ariz. constitutions) do not state and federal subject of the is the water which ground prevent to clas- resorting a state from of the soil. belongs to the owner act purposes and legislative sification presented whether question confining legislation to a certain enacting the law here under ‘prescribing rules different sets of legislature class classes, as the 1948 Water discriminating known consideration for different police of, class, Code, power, exercise of its against, a certain favor provisions of article section provided the classification discrimi- violated Constitution, reasonable, and section the Arizona rather than arbi- 13 of nation is 14th Amendment Federal trary, rests and substantial on real prohibiting the enactment bears a or distinction which Constitution difference any within denying person legis- law and reasonable relation just “equal subject object thereof, jurisdiction protection state of the or lation legislation provided of the laws.” also that and equally, uniformly, im- operates аnd police power I recognize that the persons property partially on all interest state is in the broad when exercised ” (Emphasis within same class.’ health, safety, general wel- morals or supplied.) fare of it the state and has been said many An authorities examination on govern- it is limitable of one least subject indicates this fair is a this powers operation mental cuts and its often the universal rule. statement property Queenside Hills rights. down Realty Saxl, 80, 85, S.Ct. Co. v. 328 66 U.S. Corrigan, in Truax v. 257 U. It is stated 850, 1096; 124, 131, 254, 90 L.Ed. v. Sebas- 42 66 27 312, Hadacheck S.Ct. L.Ed. S. 375, that: 143, tian, 394, A.L.R. 60 L.Ed. 239 U.S. S.Ct. “ Schoene, *

348; * * * * Miller v. 276 U.S. * ‘Classification many and others. 72 L.Ed. always S.Ct. difference rest some must easily just rela- However, are dis- and all of those cases reasonable bears a to which the respect in to the act case. instant tinguishable proposed, any class as in and can nev- of the others named the act classification is arbitrarily they in that all engaged without were in er be made domestic * * parties must trade. In the all It therefore instant case basis. legislation; litigation but involved in engaged obtain in are in and determine pursuits regard agricultural real resemblances must so far the rec- per- discloses, things and all equally capable real differences between ord are of con- ' sons, with tributing economy in accordance general and class them wel- purpose permitted pertinence their fare of the state if to exercise rights private their their hand.” over property the same extent as other farmers in the The court further held that: area. “If, asserted, granting as is po- equitable remedies falls within Bearing this in mind let us examine the power, lice and is a matter which legislation under consideration. Section vary judgment Legislature may as its purports of the act to establish a declara- dictate, this does discretion shall public tion of policy concerning under- equal- obj meet ection under ground water and after stating that large ity the granting clause which forbids areas of rich argricultural land in Arizona equitable man and the relief to one dependent in whole part upon or in denying of another like cir- it to under underlying basins such lands cumstances and in territorial the same for their supply water and that in a number jurisdiction.” of such basins withdrawal of ground water greatly in excess yield of the safe annual Connolly Co., Pipe v. Union Sewer thereof, converting the lands of rich 46 L.Ed. U.S. farming ground- communities into critical legislature which an act of the Illinois was resulting areas injury serious provided under consideration wherein was general economy and welfare of the capital, that the combination of skill or acts citizens, state and its public declares the persons corporations, of two or more policy follows, of the state to be as Section etc., carry trade; on restriction 75-147, Cum.Supp., A.C.A.1939: competition prevent in manufacturing cer- “ * ** products, fixing etc., prices, therefore tain constituted declared to provided but public criminal offense that the act policy state, apply agricultural products to should or agricultural interest of the stability, pro- while livestock hands of the general economy and welfare of the The court held or raiser. the act ducer un- state and its citizens to conserve and ground that agri- protect constitutional the water resources the state of stockraising culture and are in the from, destruction, same that purpose for ¡422 justify, there- for alter the. boundaries regulations provide reasonable of.” of designation and establishment may as groundwater areas criticаl such 75-151, Cum.Supp., Section section within the exist hereafter

now or material, A.C.A.1939, 'pro- as here insofar supplied.) (Emphasis state.” - . : . vides that: only provi- be observed will person except “No as hereinafter protec- sions made for conservation provided any irrigation shall construct the state from of the water resources tion of any groundwater'afea well critical regula- provide reasonable destruction is provided established as herein without * * * establishment designation tions permit ¡permit No therefor. for may as areas groundwater critical such required completióñ shall for of of the state but within exist now . any well a critical located within hereafter ' nop. a reduc- any authority provide does . substantially groundwater for area such critical water in tion prior designation, commenced of the-use. Let (cid:127) when established. groundwater areas area, groundwater such critical for Does question: very pertinent -the pose' me- in'any well construction of such -toachieve abov¡e;provision tend even . con- binding- area an uncancellable and main- expressly object the-act-when in-writing tract for constructiоn-'of n ' excessive the.greatly quo of the status - tains made which shall have been ‍​‌‌​‌‌‌‌‌​‌​​​‌​​‌‌‌‌​​​‌​​​‌​‌​‌​​‌‌​‌​‌​​​‌​‌​‍and en- - the critical ¡of from -water withdrawal prior the effective date tered into re- the estimated 'area over groundwater 75-160); -pro- (§§ this act 75-145— preserving thereof, carefully thus charge however, vided, well or .other recog- existing conditions which grounds works for withdrawal cause creat- the sole in'the act-as nized substantially -commenced thus groundwater “critical established ing the contract construction shall be under for response prompts no logic now If area?” year completed within one from the future .will. designation alteration of date groundwater area.” critical act, 75-150(a), Section 6 of Section provides A.C.A.1939, 75-152, that: Cum.Supp., Cum.Supp., section Section A.C.A.1939, provides: “ land) commission- (state (a)—The permit. Upon applica- “Issuance and it shall be hereby authorized — iser provided section 7 time, (§ made adequate time duty, his n shall 75-151), the commissioner issue a justify- available become data factual pro- construction of action, permit for designate ing such permit well, that no except shall posed areas, con- and as future ir- the construction be issued require factual data -.ditions ' present any they any ground- critical data wished. The well State rigation within irrigation lands the of area for water posses- Land then Commissioner had his date of at the effective shall not report supervision sion a under the made of irrigated, shall not have act the Survey U. S. Geological after a tech- prior years within five cultivated been investigation nical made it in response thereto.” request to the cooperation of and with the said Commissioner, Land pursu- State 75-160, act, section the Section of provisions ant of section Senate A.C.A.1939, Cum.Supp., provides: Bill chapter No. Laws of 1945. 75-145 —75- “Nothing (§§ in this act 18, 1951, Thereafter on the Land State June to affect construed 160) shall be within, Commissioner declared the area * * * person right any con- of Gila-Santa Cruz groundwater subdivision existing of water tinue use basin to abe critical water area and ordered replacements of wells or irrigation that the drilling all wells in such subdivi- such wells.” sion only would be compliance done with 75-149,1952 Cum.Supp., 5, section Section the terms of the 1948 Water Code. the des- Á.C.A.1939, provides for the act upon Based the technical investigation basins ignation or аlteration report and Geological Survey U. S. state, within the thereof subdivisions found, commissioner among other and to his offi-

giving to the commissioner things, the following facts: access to the representatives cial reasonable expressly pro- That lands therein but “1. the average drop included in the not be authority given shall water table in the vides Florence-Casa giving the commissioner 'au- construed as Grande area since 1940 has been about operation regulate drilling feet, and thority that the annual pumpáge groundwater basin or sub- in such walls about times the estimated re- charge. division. pur- disclose that records case The average “2. That drop :in the provisions 1948 Water suant to water table in. Maricopa-Stanfield high Code, hearing was held in the school area feet, has been since about 35 purpose Grande for

auditorium at Casa that the pumpage and annual is about- determining the area within the whether 37 times the annual recharge.” Subdivision of the Cruz Santa Gila-Santa The commissioner found further and the Gila River Salt Ground- Cruz Grande area Florence-Casa and the Mari- Basin should be declared a water area, copa-Stanfield parties area all one at which 130 interested intercon- present given opportunity were to nected basin so that the draft from part one question 3 can be answered af- eventually all No. affect If will the basin firmatively classification is ar- then the area. equal bitrary capricious protec- to mean interprets act majority The clause not violated. welfare of here is based involved that the classification people of the state Arizona de- present agri- between upon the “difference depend clared the act to con- potential agricultural cultural users and protection underground servation critical areas.” water in ground users of destruction, to water resources from the presume “present” users I By agricultural now in cultivation will at end the lands users agricultural the majority meant the the return to the If act under not desert. date of the act. the effective about this bring does not re- consideration the classification We will assume that question then No. must sult the answer upon a majority opinion rests in the stated equal protection negative in the the be applied in de- to be basis. The test corrеct the and federal constitu- clauses of state pro- classification termining whether the tions violated. protection guaranteed equal vided confers policy object of act and The avowed the constitutions, is: federal state and the.provisions the act of the state under object the the state 1. What groundwater protect the is to conserve and accomplish by challenged the seeks destruction. resources of the state from ? statute again that? us at the Let look Does do place persons in 2. Does statute the provides that provisions the It no act. apply differ- more two classes person irrigated at whose land shall not be ently the classifications? different shall not date act or .the effective reasonably argued be 3. Can prior years been cultivated within have five pro- will object of the statute permitted irriga- to drill an shall thereto recognition a differ- moted critical well land located in a his the classes and dif- ences between provides, groundwater expressly area. application the statute to the ferent however, at persons all the effec- who several classes? existing irrigation act have date tive use water may continue to wells therefrom authority for the above test found replacements any thereof without or from McKittrick, Joseph S. Finch & Co. v. upon the any whatever use there- reduction D.C., 244. This af- F.Supp. case was of. Supreme the United by Court of firmed being water is withdrawn opinion in an written Mr. Where

States Justice groundwater as a critical area found comment on from without above Brandéis Survey Geological at the rate 83 L. U. S. See U.S. test. greater than the es- 15 to 37 times frequently. of from Ed. cited

á25 operation that the de- recharge, timated can it he said of the act who had sub- purpose stantially irrigation clared act conserve commenced an to drill well protect the water resources of the state at the designated date the area was by a a being promoted groundwater from destruction is critical persons area and recognition between who had binding of the differences written contract to drill application effective, the different of the well at classes and the time the act became classes? it be flagrant statute the several Can amounts to a discrimination as be- up persons the classification set in the act has tween said within the same class. This pur- permitted reasonable relation to avowed under the law. The law makes it appellant a criminal offense for object pose and of the act? The answer and others in the same class to drill wells unequivocally designation The mere No. and withdraw water from beneath the soil groundwater area person while the excepted opera- from the permitting the the same time area and at tion of the law impunity do so with withdrawal of water therefrom continued provided they complete drilling greater from 15 37 times than at a rate of well year within one from the designation promote recharge thereof does not “critical area” within object purpose act at all. Com- which their land is located. in any dictates that area where mon sense majority If the opinion states the correct water is the withdrawal excess of basis persons of classification then the in- eventually recharge that disaster is in- exceptions cluded the fall in the same finding where in the and as evitable appellant class as and similarly others situ- Commissioner, the Land withdrawal State ated for they were not irrigating their land greater in the 15 times is Florence-Casa at the effective date of the act and had not area than Grande the been within years prior five thereto and the recharge, Maricopa- and the estimated they fact that substantially had commenced greater area 37 times Stanfield than the es- to drill an irrigation well or had binding recharge, timated disaster is and imminent agreement written to drilled, have one under consideration statute will and not forms no reasonable basis for the excep- prevent the cannot return in- area tions made and extending the time for one volved, the desert in very to fu- near year within which complete to the well. ture. Under the upon classification which the ma- jority opinion they rests must have

There the further been is incurable defect in irrigating their land with language of the statute in that underground there is wa- line no distinct of differentiation at the between ter effective date of the act or have- persons exceptions two classes. The years prior done so within five to that date. sidelines, distance and nothing in the to indicate from sidewalks Thеre is record involving gas leg In many in the ex- etc. cases natural farmers were included how is upon of what they islative restriction the use ception. it immaterial And is whether primarily for by defined sweet suitable many gas for the reason that were few or heating purposes pro they except- and manufacturing act very terms were pur only for the vided it can be used operation which the act ed its renders upheld. poses designated, therein has been equal protection clauses of violative of D.C., Thompson, F. Henderson v. Co. and the state federal constitutions Supp. 328. But the classification those cannot as -a law. therefore stand valid had relation to the sub cases a reasonable persons is rule that within all the universal wit, law, pre ject object equal pro- guaranteed same class waste of natural resources whereas vent law both state and tection of the under case is no such relation in the instant there Any legislation federal which constitutions. up object in the classification set provisions violates these constitutional purposes In states where law. analogous falls void. This case legislation has been found has been oil Connolly within the rule v. laid down prevent waste enacted designed Pipe Co., supra. Union Sewer protect all owners in' the field property where, I under find no case books equitable distribution. the basis of power police the' the state has said to a required it is that oil In California wells prop property cannot his owner he use spaced apart. certain distance shall erty purpose only It is for whatsoever. Bush, v. Cal.2d P.2d Wotton war, pestilence, emergencies iii dis similar Other states have methods etc., ease, fire, necessary to de where equitable distribution and conservation morals, (cid:127) stroy property safety, resources. such natural community, general health welfare appellants case In instant and others nation, prop that destruction state-dr similarly situated are the terms of this adequate erty compensation is sanc without only right denied the act use and tioned, Schoene, supra; in Miller v. enjoy solemnly has which court Sebastian, supra; United Hadacheck private their but property declared Inc., (Philippines), 344 U. v. Caltex States land has rendered worthless the under 149,73 97 L.Ed. 157. S. complete located. Its destruc- mаny upon the use cases restrictions the others is authorized exclu- upheld by private property been of have destroying those are sive of who benefit - courts, lim zoning ordinances the such as- 'o-f; upon no im- it and restraints are whom may be buildings- kind which iting the' act, use, posed in but on the other hand are areas, their in certain constructed years prior thereto, expressly excepted continue in their its authorized to operation. them to permitting destructive course This itself under all of ground- authorities, withdraw water from these critical invalid. renders the statute greater times Certainly reasonably argued water areas at a rate 15 to 37 it cannot be recharge. wit, object statute, in volume than estimated that the in the restricted conservation of water summation, my sincere view promoted recognition will area attempted reason- classification has no ‍​‌‌​‌‌‌‌‌​‌​​​‌​​‌‌‌‌​​​‌​​​‌​‌​‌​​‌‌​‌​‌​​​‌​‌​‍the differences between the classes set subject object able relation to the up applica- the act and the different purpose legislation, the avowed of which light tion of the statute to such classes protection the conservation and unquestioned, undisputed fact that underground resources of the state water being water is now withdrawn and has at consequent return from destruction and Geological Survey all times since the subse- present agricultural lands to the desert. quent to withdrawn been at rate does it distinct line of dif- Neither draw á greater from 15 to 37 times the -re- than between the classes ferentiation estab- expressly preserves charge. The act excep- provides expressly for lished but quo of withdrawal status over rate authorizing the transfer of a nonuser tions time the recharge. at the act became effec- of water participate in the use of

tive to my view, I It is therefore am con- thereafter, if at the time the act effec- beyond a reasonable doubt that the vinced he has a contract binding tive to drill a act unconstitutional as violation property his or if he well has com- equal protection clauses of both drilling prior a well menced constitutions state and federal the area as designation critical in court should be re- the trial judgment of words, is located. In land other these his judgment with directions to enter versed although irrigating persons at ef- date of appellant. the act fective five for within

Case Details

Case Name: Southwest Engineering Co. v. Ernst

Court Name: Arizona Supreme Court

Date Published: Dec 20, 1955

Citation: 291 P.2d 764

Docket Number: 5881

Court Abbreviation: Ariz.