*1 -rephrased question then the- and asked the problems involved in defendant’s witness: assignments other probably of error will not occur on the retrial of this case and there-
"Q you promised leniency Have been fore need not be discussed. police protection testify to- day Judgment ?” reversed and remanded for a new trial. “A No.” STRUCKMEYER, LOCKWOOD, J.,C. jurisdic It is well settled McFAR- J., V. C. and BERNSTEIN tion that a given cross-examiner should be LAND, JJ., concur. great questions latitude his which seek to impeach being an adverse witness examined always proper inquire and it is as to the
'
testifying
motive of the adverse witness in
arid to
matter which bears on
show
Holden,
credibility of that witness. State v.
Annot,
(1960);
88 Ariz.
'defendant is notwithstand T. Laurance Honorable Superior of Arizona of the State Court also ing whether such cross-examination Maricopa, County in and for the prove that the witness has com terids to Superior Ari Court of the State the law which mitted acts violation of Maricopa, County zona in and may have in convic resulted Respondents, Holden, supra; v. tions. State v. State Little, 350 P.2d 86 A.L.R. 87 Ariz. Project Agricultural Improvement District, Party (1960). 2d 1120 Real in Interest. and Power No. 8243. The trial court in this case limited Supreme of Arizona. Court cross-examination on the mis defendant’s En Banc. that since there was no con taken belief April 15, 1965. not be viction of the state’s witness could explored. was reversible error. State This Holden, Little, supra. supra; State v. *4 Schaper, E. Madden and S. John
John Phoenix, petitioner for Ginn. Streich, Kramer, Roche, Phoe- Burch & Ciruli, nix, petitioners Central for Park Corp., Park Central Farms. Investment and Tucson, petitioners Smith, for Leo N. Verity, Teague and Patterson. Phoenix, Evans, Jenckes, for Kitchel & Bradstreet, Speer. petitioners Pilcher, Trask, Strouss, Jennings, & Salmon Phoenix, party respondents and real in interest. Toci, Bisbee,
Gentry, McNulty & for Ari- Cooperative, Inc., zona Power ami- Electric curiae. cus Hanson, City Atty., Merle L. Melvin J. Phoenix, Mirkin, Atty., for the City Asst. City Phoenix, amicus curiae.
LOCKWOOD, Chief Justice:
This is here of Certiorari case Writ Superior respondent, Court issued Maricopa County, T. Judge Laurance Wren, presiding. are Petitioners landown- subject emi- property ers whose by the instituted proceedings nent domain Improve- Agricultural Salt River Phoenix, petitioners Wilmer, & Snell District, party in interest. real ment Leiber. Uhlmann, New Judge hearing, Wren After due notice and im- into be let Goldstein, ordered Dushoff Leibsohn, & Garrett the land. Such possession of mediate Kortz petitioners Phoenix, Sacks, & 12-1116, A.R.S. under § is authorized order Investments Laff, Equitable dba constitution, of our Art. under Antonoff. *5 A.R.S., agency when the condemning velopment is a power. distribution- of corporation. municipal pertinent provisions These of A.R.S. § provide 45-903 as follows: controversy The facts rise to this giving are The District has entered as follows: Purposes 45-903. § for which district purchase agreement into an electrical organized. be Association, Ute from Colorado energy “A. or When five more holders of Inc., energy association. This a Colorado title or agricultural evidence title plants produced steam-generating will at lands which have at time been any and will be and New Mexico Colorado recognized as within the exterior to the Federal Government delivered boundaries of a United States recla- exchange, District the those states. mation project suscepti- and which are 144,000 delivery of will take kilowatts irrigation by ble of general the same electricity by generated States United system irrigation works, desire to Canyon Dam in northern at the Glen provide improvement for the of such exchange will electricity This Arizona. lands, they may propose organiza- in the the District’s customers be sold to tion of agricultural improvement is the site Petitioner’s land area. Phoenix district under provisions of this proposed line to accom- of a tranmission chapter pur- of the following power. exchange modate the poses : challenge validity Petitioners
transaction pursuant to which the [*] [*] [*] [*] [*] [*] provide ”6. To new They or additional con- seeks to condemn their land. irrigation means for the statutory justification drainage tend there is no part of all or pro- proposed undertaking. lands vide or a means of communica- develop for the This transaction tion for the use of the owners or occu- ment, purchase, power must and sale of pants of the lands. statutory justification provisions find irrigation, “7. To reduce the cost of Chapter 4, sets out 45-903 drainage to the owners of improvement purposes agricultural lands district the sale of operates districts and as a restriction surplus power produced, water or powers their lawful functions. Most of district, owned principal or controlled relate District’s functions maintenance, construction, para exten- drainage, only two graphs making sion, replacement, reft- specific financing and to the de- reference * * * surplus of the works for such a “sale of nancing qualify useful ” * * * power produced,
purpose. owned or controlled district”, “to irriga- reduce the cost question transaction If —and tion, drainage to the owners of upheld un- condemnation —can be hence the the lands in the ? district” A, 6 of section paragraph der subsection *6 45-903, carry the burden the District must Petitioners that contend the term “sur- power exchange will showing the plus” of that refers to “natural” or “incidental” within the district. be sold to consumers surplus; Legislature that contemplated the pro- because A.R.S. 12-1112 This true power § excesses power development of vides as : opportunities follows arising in the of course water-storage district’s irrigation ac- taken, may be it shall property
“Before tivity; permit that to the sale of excess this appear that: greatly would efficiency enhance the property the “1. The use to which system entire irriga- the reduce cost of applied is a use authorized is to be operations. drainage tion Paragraph * * * law. urged, it is adopted was thus to avoid However, in indicates nothing the record unnecessary authority waste for want of much, be any, if the will of how in the District. geographical within the those used hand, respondents On argue the other cross-ex- On of the District. boundaries Legislature that the intended as- only to Brandow, the amination, Glenn Mr. W. energy sure electrical that would not be District, Manager of General Associate sold other areas so as landowners long requirements of the load testified that sup- inadequately within the District were proposed transac- which the District on plied; any power “surplus” means be- down to not broken based were tion was yond itself, that needed the district re- within power needs of those reflect gardless produced as a whether it was opposed outside to those District as irrigation drainage result func- be Thus, cannot transaction District. tions of the District. A, 6. If paragraph upheld under subsection exists, justified as be it must such Thus, appears differ- crucial surplus power, authorized sale of an outside parties their lies in the two ence between A, 45-903. paragraph of § subsection question respective answers rela- must show a pre- whether the statutory construction The issue operations and tionship its between fol- stated as sented for decision in addition irrigation functions its question transaction Does the lows: subsidy relationship between existing again the water was low in the river. opera- use of the revenues its from Years of supply water good were fol- by years tions reduce the cost water lowed drought, causing proper District. The resolution of loss vineyards of valuable and or- question analysis entails an historical chards. 189S few the farmers legislation authorizing the existence formed they what called the ‘Farmers’ delineating func- Association,’ District and prime Protective pur- pose tions. being of the association to se- Analysis Historical legislation cure concerning water ” * * * rights. early history Project The of the Salt Val- Reclamation Data, located, p. ley wherein is traced the District publication in a of the Reclamation Com- legislative The first step for federal fi- Data, mission entitled Reclamation .participation nancial private with reclama- Office, 1961). (Government Printing We organizations tion by Congress was taken pertinent parts quote read as fol- 17, 1902, in passing the Act of 32 Stat. June
lows: Act, known as the Reclamation now large part “A of the Salt River Val- seq. codified as 43 U.S.C.A. 371 et pre- ley irrigated and cultivated up set act a reclamation fund derived from *7 times, before but abandoned historic Arizona, the sale lands of Cali- valley. Irriga- white men entered the fornia, Colorado, Idaho, Kansas, Montana, valley settlers be- tion white of Nebraska, Nevada, Mexico, New North river-flow was gan about 1867. Dakota, Oklahoma, Oregon, South Da- erratic, small stream to from a varying kota, Utah, Washington, Wyoming. and Shortly after settle- enormous floods. This fund was: began, especially during ment and “to be used in the examination and years drought, supply of water of survey for and the and construction inadequate stages at low river was maintenance of works for the land in River flows in cultivation. diversion, develop- the storage, and of needs or excess immediate canal ment of waters for the reclamation of capacities lost, due of were to lack arid and semiarid lands the said storage facilities. Maintenance of * * and States Territories the brush and rock diversion dams also Stat. 388. problem, they became a were often statute, is manifest which beginning of a It from this was washed out at inception replaced until of active federal reclamation flood could be and not (cid:127) district, adopted Congress and the territories and eventually it as a legislation, within the reclamation development states embraced policy for of deliberate unquestion- powers were development statutes.1 Hence broad Such West. Secretary the Interior granted eco- of the national ably in furtherance of accomplishment development. poten- of of such expansion. Reclamation nomic implementing por- congressional The state and in vast tially productive areas located necessary means lands legislation and semiarid conferred of arid tions merely up carry upon agricultural irrigation, benefit not districts set would of owners, specific projects.2 the local but also out reclamation individual land 1. wealth-creating and ices such supports land produce cleared and converted land values none existed time, Bureau following: are the 100th panded kinds. deserts tural appear. thus created pands transportation, cine, engineering, must all services— tional value. the necessities farm from the supplies their tion centers — tion must come A former Assistant “When land “That anyone required cities, provide occupants. it creates machinery, advisers farming commercial of crops Subsidiary soon reclamation such as churches, banks, Professional factories as farm Reclamation who has meridian. When sagebrush before. from a store. brings and taxable wealth the to serve appear. purchased. thousands living When farms and insurance, are needed. only undertaking area. Government itself, wealth post While much clothing, irrigated sugar, salt, life law, livestock, and into existence businesses enterprises Commissioner, does the in the West an office and traveled west into supplemental services must be each A and cactus of local and shops, has stated of homes urban life de- and real estate large popula- The business for the farms, and is new are Community but it also food comes Hardware, accounting reclaimed furniture apparent in medi- such semiarid provided creating agricul- recrea- settled, where town, serv- is U.S. flour first food and na- are ex- ex- all 2. rigation build homes farm life veloped by have past national nual their reach dispose lies almost TION various foresight, thousands Our should be used veloped object, ly developed nishing homes, adding sources the fundamental portant work eration —Eirst Annual 1901. rigation President Theodore Roosevelt “The “The conservation of program: “The (1961). stability gainer by great Message, justify followed the IN THE UNITED Annual nation as a water object a home of the and their in the more difficult and East water.” life should ** we must look ahead brought of river upon every * than at horsepower * * * yet needs December of the Government must be as land * Messages * market for the be far more the creation Nation’s aid Message, *8 systems it. To problem they The GOLZS, other * into existence proper produce development South.” —Third whole and The benefits which country, present be Government do to settlors who our national problem We brought demands of the had accomplish accomplished.” should be use constitute STATES is, * December RECLAMA- hundreds must show urged the wealth and extensive- * * and fur- products [*] * * in his course, under- within coop- these dams [*] such An- will 77- im- our de- Ir- re- ir- of * [*] 9, 1903, Improvement February general Agricultural The under the cor- 1922, poration Arizona, specifically organiza- Territory of the Act of laws relates of purpose of of such district of lands for the furnishing tion to owners “water ordinary any recognized irrigation, power for “which have at time domestic and been purposes, drainage.” as within the exterior of a boundaries Reclamation Data, supra, Chap- p. project”. United States reclamation 664. 23, 1922, S., incorpo-
ter Laws 1st now S. pertinent congressional The next action in rated A.R.S. 45-903. § 5, April 16, 1906, 1631, was the Act of c. § 117, now Stat. codified as U.S.C.A. original The reclamation Salt River 522, Secretary which authorized the of project, out of which eventu- the District the any surplus power Interior to lease evolved, ally was authorized Secre- power privilege any proj- under arising 14, 1903, in tary of the Interior on March ect under undertaken Act Reclamation Act. with the Reclamation accordance developments of 1902.3 Further present the authorization of the June Prior during period are indicated in Valley District, Water opinion in of this Court Orme Riv- v. Salt incorporated Users’ Association was The work Message, such This was not nothing about tion ruary, 1902, Secretary ment into ommended that development rigation recognized, ern States was developing GOLZÉ, op. “The entrance of General hydroelectrical possibilities of General Land western half of our Secretary bill then other movement.” —Sixth generation is more made no December power production Land Office. the Reclamation Service cit. on the pending entirely provision original purely the recommendation of larger opportunities of or for sale of important Congress, supra sale Office, the Interior specific provision generation the Western the Federal proposed incidental. 1906. Reclamation at 69-70. be made country for ir- Congress, power. oversight, however, than reporting was in Feb- reclama- streams Govern- for the Annual power. almost West- While early rec- Act did in Revenues plant hydro power The first annual with the government ing used in concrete. would for Roosevelt Dam on Arizona, mile canal to Salt River. credited power plant ing preference handling published the head of water behind on which was capacity converted to [*] “Congress “The [*] Apr. purposes, original canyon [*] Bureau against stated 1,300 horsepower production built to mortar, from the 15,400 to lease Reclamation Act wall and constructed a 19- and the reclamation amended the bring for construction handling rock, permanent use, located.” the construction of the provide power report Reclamation 1909 the kilowatts which authorized the It water to of small amounts of municipal purposes. sale of in surplus hydroelectric built crushing the Salt River describing plans Roosevelt in a cave of oversight produced by it power, giv- mixing plant temporary proceeded purposes. from for drill- the rock the Act Bureau, with a project Dam. plant were *9 376 Association, maintaining, and operating 25 now Valley
er
Water Users'
the
* *
works,
324,
irrigation
quote
aforesaid
(1923).
Ariz.
operation is known as since 1910 and Following operation the transfer of the highly reservoir; that a the Roosevelt management irrigation system and of the system developed irrigation has been local association River Salt lands of the constructed for benefit Congress passed project, reclamation and association’s shareholders of the 16, 1906, April amendment the Act of operated by United States was 1922, 323, September 18, c. Act titled the September up to Reclamation Service codified as now 43 U.S.C.A. Stat. 6, 1917, gov- when the United States provides as 598. This act follows: association, after ernment and the development “Whenever held an election for stockholders at irrigation of lands necessary such ac- for purpose authorized had under River reclamation tion, Salt contract entered into a further Arizona, opportunity is maintenance, project, or an operation, which the development pow- irrigation system and said control of afforded for Secretary of upon project, said er under were in said association vested authorized, pref- subject, giving the Interior is provided, therein terms municipal enter however, purposes, erence to by either to be terminated stated, period not ex- for into contracts party therein in the manner fifty years sale payment ceeding and the the construction * * * - developed, surplus power so United due the charges * * * shall from sales by the derived such money assumed States project association; placed of said credit that under said contract October, provided con- disposal has, as since association maintained, the United States operated tract between Valley- states, America and the many questions the western Association, approved Users’ character, Water have arisen pow- Provided, September ers, rights That of these districts. One frequent no such contract shall be made most questions has been surplus power the sale of such the extent they to which subject are impair efficiency proj- will of said to various limitations, constitutional *10 Provided, however, ect: no That determining questions such such contract be shall made without has frequently necessary been to de- approval legally organized the of the pri- cide whether the district was a corporation, water-users’ association municipal corpora- vate tion, district which has contracted with the organization or an of some other repay United cost said character, upon States to the for the answer to project: further, the question That Provided depend would what constitu- readjusted power may charge for be tional applied limitations to them. five, ten, year twenty at the end “The officers of the association evi- any periods con- beginning after the dently came to the conclusion that in a tract the sale of perhaps there was some con- to be described the manner a conclusion that these were districts supplied.) (Emphasis tract.” municipal corporations in the fullest developments legislative on Turning to word, subject sense of the to the limi- level, Arizona we find that the State imposed by upon corpo- tions law such Agricultural Im Legislature enacted the rations, rights. and with correlative in 1922. provement legislation Among important rights granted now paragraphs what The first six municipal corporations, under the 45-903, A first subsection were A.R.S. § Arizona, ex- Constitution of Chapter of 1922. enacted as Laws emption taxation, from form of developments Subsequent level State property both as to their and securi- opinion can be found this Court’s It, therefore, ties issued them. oc- Reichenberger Project Agri v. Salt River curred officers of the association District, Improvement cultural and Power organized if a district could be 50 Ariz. P.2d 452 There (1937). we improvement agricultural under following: said the district act which would issue its providing “Districts of a nature like that of purpose bonds for the agricultural improvement money up outstanding our districts to take association, have been authorized in a number of bonds of the bonds of district, for reasons which too Legislature, are “The (Laws in 1936 1st discussion, well known for be Sp.Sess. 1936, could 10) c. complied with placed inter- request a much lower rate of at of the association and made by the est than those issued associa- Thereafter, the desired amendments. corporation, purpose and for sole private carrying and the tion as a plan aforesaid, out the the officers of association, who, of of the stockholders the association caused a district be pay the dis- course, ultimately would organized act, under the which was in very bonds, saved a would thus be trict substance, though law, not in the alter A year. money large each sum ego association; provided of the therefore, that the was, made request $13,000,- issuance district of im- agricultural legislature amend bonds, 000 of and then caused a con- including act provement district tract to be entered into between the such purposes for which among the association, district and the the sub- organized, the fol- might districts stance of which was that the district lowing : pro- issue bonds and turn the “ ‘ association, ceeds over levy * * * ir- the cost of reduce or to necessary pay taxes to the bonds power to drainage and rigation, they due, became while the associa- district lands in said owners proceeds tion was to use the *11 of the pow- surplus water or of the sale pay $13,000,000 bonds to off of out- or controlled produced, er owned indebtedness, standing and then col- construction, district, sufficient lect from its members a maintenance, extension, replacement, money to reimburse the amount of refinancing works of the financing, and it was of taxes district for amount to finance purpose; or for said useful levy compelled meet new obligation all its own refinance as or *” * * 149-151, at Id. 70 bonds. in- any part the debt heretofore or of P.2d at 454-455. proposed be or hereafter curred private by any incurred amend following the 1936 The events construction, mainte- agency in the paragraphs ments, present added the nance, improvement replacement of 45-903, A are 8 subsection 7 and to A.R.S. § necessary equipment the structures and Proj River City v. Salt related of Mesa accomplishment of for the or useful Power Agricultural Improvement ect purposes;’ any of the above District, (1962) P.2d 722 92 Ariz. % % jf: [*] ^ [*] as follows: Hale, 76, 80, 22, 1937, Exchange March the Salt 95 Ariz. 386 P.2d or about “On (1963). Valley Users Associa- Water tion, subject rights the United to the of argue agricul Petitioners that an States, assigned all its transferred and improvement tural district law personal, properties, real and fully generated without electric energy sell therein, pow- and all water and rights require any power regard and unrelated to privileges to rights, franchises and er hydro generating potential of ment or operate District but continued to require The and its reservoirs. September the works and facilities. power need of relationship ato ment of a and took the District assumed legislative by the negated the District operation the maintenance and over April the Act history preceding power system the electric from the the House appears in following association and has continued Bill 87 accompany Report Senate operation pres- maintenance and Act) : the 1906 (which became time, canals, constructing laterals ent and electric transmission and distribu- irrigation development of “In rights along tion lines over and certain occurs projects it sometimes way granted by the theretofore necessary and development individual land- United and the States water pumping of for the feasible 95-96, Id. at P.2d at 725. owners.” the Secre- cases In such irrigation. Implementation Reclamation Policies by section 5 tary is authorized needed surplus power not lease act to survey From this historical be also purposes. It will apparent that the comes Federal State irri- in the construction occur often legislation part comprehensive are of a opportunity will that an gation works designed scheme to effectuate the reclama canal, reg- drop in a afforded policies tion understand To State. flow, or otherwise stream ulation of policies how these can best be made effec in connec- not needed develop power tive, necessary purpose it is to examine deem- and it was project, tion with respec Legislature enacting Secretary to to authorize ed wise legislation tive statutes. is en When state priv- opportunities or lease such legisla advantage acted take federal ”* * * *12 sup- (Emphasis ileges. tion, congressional this Court will refer to 2113, Cong., plied.) H.R.Rep. No. 59th ascertaining history in legislative to aid it legislative (1906). intent. Truck Insurance Cf. 1st Sess. - requirement shortage the that there “Prior to 1931— suggested 1935, Secretary supplemented had hydro generat- relationship between
a
power generated at the Minidoka
potential
the sur-
ing
of the District and
power
plant by
from out-
bringing
power
overlooks the fact
plus
sold
sources,
thereby preserving the
side
45-903,
statutory
phrase
A.lR.S.
sub-
profits.
business and its
commercial
**
*
A,
“surplus
paragraph 7
section
shortage,
But with the
further meas-
produced,
controlled
power
owned or
became-necessary
ures
conservation
**
sup-
(Emphasis
district
requirements
both to fulfill
require this
of relation-
plied.) To
sort
district,
project,
including
“produced”
ship
word
would make the
preserve
and to
the commercial busi-
only operative
reduce
word and would
institut-
Secretary
ness. The
therefore
controlled” mere
words “owned or
sur-
plan
accomplish
ed a
these ends.
plusage.
In broad outline it involved cessation
operation
of winter
of the Minidoka
interpreting the
A federal decision
au
plant
storage
flow
the winter
Secretary
thority
the Interior in
thereby
project
res-
conserved
project
managing
federal reclamation
a
Falls,
ervoirs, principally at American
16,
April
pursuant
to the Act of
Idaho
for summer
But to
destruc-
avoid
use.
522,
1906,
support
lends
U.S.C.A. §
business,
tion
of the commercial
Burley
expressed above. See
the views
Secretary arranged
bring
in ‘firm’
Ickes,
App.D.C.
116 F.
Dist. v.
Irr.
sup-
power
outside
from an
source
(1940), cert. denied 312 U.S.
2d 529
plement
plant
gen-
what
would
(1941).
ter *” * * at spondent F.2d lim plant. at the District’s contention placed sell sur 540-541. itation its plus terms of effect cast following with re- The Court stated the op efficient District’s of such sales on the surplus sale spect to limits on the irrigation functions. Further eration of power : found in support this contention is surplus “Disposition power, not re- predecessor is the statute which Federal ir- quired pumping uses of or other *14 provides and statute which our own State is au- rigation, commercial uses as follows: amendatory of act an thorized * * power de- is development *. But the April of “Whenever power irrigation is velopment of lands and sale of such necessary for the phase proj- only incidental as an authorized reclamation the Salt River under reclamation, in- primary Arizona, opportunity not or is af- ect, of as or dependent power in The statute end itself. of development for the forded Secretary are reclamation and its amendments of project, said under acts, power develop- pref- not commercial authorized, giving is the Interior entirely legislation ment acts. The is purposes, to enter municipal erence to development with and inconsistent period not exceed- for a into contracts power sale of whenever commercial any sur- of fifty years the sale ing development with the money developed, and the plus power interfere so irrigation 'impair the efficiency placed of sales from such shall derived irrigation project.’ assure that To project for dis- said to the credit of secondary power conservation of be- provided in contract posal as impair primary America, will conserva- States of the United tween irrigation, tion of water for the author- Valley Users’ River Water and the Salt ity power dispose surplus is vest- Association, September approved exclusively Secretary in ed shall Provided, That no contract 1917. upon the circumscribed limitations surplus be made for the sale such manner, purpose the dis- term efficiency power impair the which will perma- posal wholly with inconsistent ** (Emphasis project: said appropriation power nent non- 43 supplied.) U.S.C.A. subordinating irrigating uses and with question Moreover, in the transaction irrigation (Em- to commercial sale.” sup- rationale case into the phasis supplied). the instant fits F.2d at 530-531. validity (R.T. un- May of the transaction our service area.” porting Burley Dist., supra. pp. 58-60) dertaken in Irr.
testimony for the relative to the reason hold, analogy Accordingly, we arrangements as
contractual follows: Burley case, supra, light and in “Q. Brandow, why Mr. the Salt has legislative history of the Federal and State Project River the Unit- contracted with statutes, required that the District is not ed States Bureau of Reclamation show, subsidy relationship in addition to the with Associa- Colorado-Ute Electric existing power between the use of its reve tion, Inc., purchase con- for the support irrigation nues its and reclama energy ? siderable amount of functions, tion surplus power that the growth, reviewing “A. our annual part sells is needed Project anticipates Salt River purposes or developed that such 1965, in- megawatts demand hydro relation to potential. generating 1,409 by approximately creasing to must, however, It at all times be evident deficiency, the 1970. To meet this development and sale is “an contracts made formal phase incidental of reclamation, pri not a with the Bureau of Reclamation mary independent end in itself.” present Colorado-Ute our resources Power Eminent Domain only megawatts,
are and the defi- *15 Secondly, petitioners ciency by these be contracts will made contend that the is taking statutory outside the delegation of up normal in to make our commitments the eminent domain because the Dis- 1965; and the will be by other trict will hold property the in trust for the anticipated steam-generated other plants located somewhere in the north. sideration in “Q. or [*] estimating What factors Project? [*] projecting future [*] are loads of [*] taken into or determining [*] the con- [*] United States Government. ceding that in condemn for the benefit of the Federal Gov- power to do statute. ernment, they as follows: The Their so cannot be some instances a state contend that argument, taking authorized stated in found the While delegated in by detail, con- may any the factors, possession order for are immediate “A. There several includ- contravenes pertinent the prior ing the data the statutes and historical the thereby years delegated District, the use of business’s esti- in that growth property population proposed thereby, the in the mates of to be taken question proceedings. District as The taken, be held the therefore (1) if will is: States; property in the United does a Federal interest agent and as trustee the for District invalidate the (2) or useable condemned District’s author- will not be used Improvement legislative history ity to condemn? The as forth the purposes set provisions Act; wholly pertinent the the that will be within behind shows (3) District Interior, Special Secretary not. during the it does 3rd control of the Session, super- Legislature authority by thereof the Arizona enacted reason whose contrary Chapter purpose regulation Laws of The sedes state law statutes, chapter provides pertinent requirements clause of this of said state part as follows: may sold or other- (4) property not be said but must be conveyed by the wise Authorizing irrigation “AN ACT: authority of subject controlling held districts, districts, con- drainage flood the United States. districts, improvement agricultural trol districts, districts, power electrical dis- peti opinion are of We tricts as and other districts defined Upon ex contention is untenable. tioner’s herein, agree- to enter into contracts or § that A.R.S. amining the we find statutes government with the or ments federal provides follows: as 45-939 any officer, corporation agency, in- or proceedings may “Condemnation * * strumentality thereof; directors brought the board of (now Act codified A.R.S. Section of the district, laws of the and all name of 45-2163, provides D) subsec. relating to exercise of state taking right eminent domain and powers District’s a contract with public pur- private property for following: include Federal Government posses- poses immediate obtaining agree- by any or “That such contract proceed- apply thereof sion shall ment, may agree that the district property which is ings. use of Government, pub- Federal or such condemned, appropriated or un- taken corporation, private agency, lic or or chapter provisions of this der liquidate, may compro- may assume or use, subject declared to be a any part mise, pay or discharge, all regulation control the state district; of the indebtedness of provided by (Em- the manner law.” agree evi- that the or other stock supplied.) phasis ownership interest dence of the *16 private cor- any district in such Thus, that the from this statute is clear agency, any as other well poration or as may condemnation the District institute
385 district, placed properties may Legislature the be that the did not intend ren- of irrevocably during nugatory or held in trust the der the of eminent domain agreement or which term of such contract or it was granting years because two pre- period may earlier for such other as be it had authorized the ** contract; place properties such scribed in in trust for the Federal Government. legislation in Thus, that shows 1934 that Federal Legislature was aware the the Petitioners also submit that last the in Dis- might have an interest Government clause of A.R.S. 45—939 which the § makes property contract. Two trict as a result of property “subject regulation taken and 1936, Legislature
years later, in the enact- control the state pro in the manner 8, 10, 1936, Chapter of 1st ed Laws S.S. § by law,” vided provides a hurdle to these 45-940, (now codified as A.R.S. subsec. proceedings because supervening of a Fed part B), provides pertinent as eral interest precluding regulation by the follows: State. However, a federal interest in the ** * land mean, does not ipso facto, the shall have “The board also property taken would be in no manner “sub right power, and ject regulation and control the state of name of and for use benefit provided by manner law.” district, right Howard to exercise v. Fund, of Sinking Commissioners take, 344 thereby eminent domain and hold 624, U.S. ; 73 (1953) S.Ct. L.Ed. 97 617 possess any all such land Silas Mason Commission, Co. v. Tax necessary property as other U.S. 58 S.Ct. (1937); 82 L.Ed. maintenance, construction, use, re- Unzeuta, United States U.S. pair, improvement or extensions S.Ct. 761 (1930). L.Ed. necessary pur- works useful for the poses district.” Co., supra, Silas Mason where suit had been brought to restrain the enforcement empowered Having the District in 1934 to Occupation Tax Act- State Govern- make contracts with Federal Washington applied gross in- whereby ment the latter would have an by appellants come received under con- property, Legisla- interest in District per- tracts with the United States for work property ture in 1936 was aware taken building formed in under the connection with the eminent domain which authorizing it was then be sub- Dam on Columbia would also Grand Coulee ject River, possible Court, question to a This discussing Federal interest. sequence legislation clearly whether the demonstrates areas which the work
386 ju- taking advantage performed within the from were exclusive of the immediate States, that the United noted risdiction of possession procedure authorized A.R.S. lands reclamation of arid semiarid “the 12-1116. § project a always regarded been as has contention, petitioners support To their recog- appropriate with it an which carried refer us to Natural Service Co. v. Serv- Gas jurisdiction.” state of a continued nition 235, Cooperative, Yu Ariz. 219 P.2d 70 58 at U.S. at S.Ct. 302 (1950). inapposite find 324 We case this the District that Accordingly, we hold determination of the District’s status land condemn delegated has been purpose being for the or- entitled to an may have though the United States even possession. der them letting into immediate in the land. an interest case, supra, The Natural Gas Service Co. a declaratory judgment de- action to Corporation Municipal District as Status of plaintiff termine clas- whether the could be pub that assert next public company Petitioners sified a as service for ultra vires are purpose the District public regula- lic activities of it subjecting is a and therefore statutory authority tion. opinion The factors listed in corporation and public pur- service regulatory de facto determine classification for corpora “municipal acting a poses as inappropriate hence are to determine exemption such munici within en- purpose being tion” for classification corporations in Article pal found possession. titled to an order immediate pro pertinent Arizona Constitution. commit To do would cause this Court to so as are Constitution of the Arizona against visions which Professor Walter error follows: he Wheeler Cook warned when wrote: appropri- way shall be right of “[N]o tendency to assume “The corporation the use of ated to or more appears in two word which compen- municipal, full until than other rules, in with legal so connection money, first be made therefor sation and should purpose, one has more than paid court into or ascertained scope all the same precisely have **
the owner
legal discus-
through
runs all
of them
tenacity
original
sions. It has all
their conclu-
are correct
petitioners
If
guarded
constantly Hughes
must
sin and
sion,
by this Court
stated
rule
COOK,
AND
Court,
against.”
LOGICAL
Superior
Ariz.
Company
v.
Tool
THE CON-
OF
preclude
LEGAL BASES
154;
(1962), would
breadth to include an
district.
municipal corporations by the consti-
Bugbee
that
contend either
Petitioners
and
tution
statutes
the state, includ-
case,
incorrectly
supra,
decided
ing immunity of
property
and bonds
distinguishable
are
from
irrigation districts
from taxation.”
(Emphasis supplied.)
this
agricultural
improvement
for
districts
A.R.S.
45-902.
§
purpose.
agree.
We
do
may
“Condemnation proceedings
be
accept
petitioners’ conten-
To
either of
brought by the board of
directors
require
of sev-
tions would
the frustration
district,
the name of the
and all laws
statutory provisions.
and
eral Constitutional
the state relating to the exercise of
pro-
Constitution
Article
our
§
right
of eminent domain and the
pertinent part as
vides in
follows:
taking
private property
“
***
purposes
obtaining
pos-
and
immediate
improvement
[Agricultural
*
* *
apply
pro-
session
shall
or-
now or hereafter
districts
thereof
**
ceedings.
politi-
(Emphasis sup-
pursuant
law, shall
be
ganized
State,
plied.)
and
cal
A.R.S.
45-939.
subdivisions
rights, privileges
vested with all
together,
Read
these Constitutional and
benefits,
entitled to the im-
statutory provisions
light
Bugbee
exemptions
mu-
granted
munities
case, supra,
beyond
it
make
clear
cavil that
nicipalities
political subdivisions
letting'
entitled
an
is
order
any
under
Constitution
law of
*
possession
property
it
into immediate
State or
United States
seeking
which it
to condemn.
(Emphasis supplied.)
is
equal protection
clause of the
conclusion as to
"1.
be noted that our
must
It
corpora
municipal
14th Amendment does not take from
as a
District’s status
classify
State the
being entitled to
purpose of
tion
police laws,
adoption
it
but admits of
property possession of
immediate
scope
condemn,
the exercise of wide
of discre-
limited to that
seeking to
regard,
in that
what is
concerned
tion
avoids
only.
not here
We are
purpose
only
any
done
when
as to
it is without
rea-
express
opinion
do we
nor
with
basis,
purely
sonable
and therefore is
as a mu
the District’s status
what
arbitrary.
purpose
any
corporation
other
nicipal
Local
Inter
Cf.
here discussed.
than
A
having
“2.
classification
some rea-
Work
Electrical
Brotherhood of
national
against
sonable basis does not offend
Im
Agricultural
ers v. Salt
merely
that clause
it is not
because
District, 78 Ariz.
and Power
provement
nicety,
made with
or be-
mathematical
(1955).
P.2d 393
practice
cause in
in-
in some
results
equality.
the Laws
Equal Protection of
“3. When
in such a
classification
they
petitioners contend
Finally,
in question,
law is called
if
state of
protection of the
equal
denied the
have been
reasonably
facts
be conceived that
can
eminent
respects:
(1) That in
in two
laws
it,
would sustain
existence of that
by a munici-
proceedings instituted
domain
of facts at
state
the time the law was
sub-
are
corporation,
condemnees
pal
enacted must be assumed.
in-
*19
condemnor
letting the
to an order
jected
“4. One who assails the classification
con-
possession,
a
whereas
immediate
to
carry
in such a law
burden of
must
pri-
by a
proceeding instituted
in a
demnee
upon any
showing that it does not rest
subjected to such
corporation
not
vate
basis,
essentially arbi-
reasonable
but is
domain
order,
(2)
eminent
in an
an
that
trary.” Lindsley
Natural Carbonic
v.
corpora-
municipal
brought by a
proceeding
Co.,
78-79,
61,
220
31 S.Ct.
Gas
U.S.
differs from
damages
the measure of
tion
337, 340,
(1911).
had the following
rights and
Similarly, in Via v. State
Commission
leges: “(a)
right
possession
of his
Development,
Conservation and
F.Supp.
property
finally
damages
until
have been
(W.D.Va.1935),
affirmed 296 U.S.
paid;
assessed and
(b)
right
to conse-
56 S.Ct.
of
Constitution that there exist
for con-
right
to
in
eminent
doubted
cial circumstances
relation to
pro\yde
con-
by
procedure
procedures
municipal
more
a
instituted
demnation
domain
of
veniently fitted to the
dif-
corporations,
nature
which entitle them to a
course, that
provided,
"any corporation
proceedings;
from
ferent
treatment
not invalid.
was
municipal.”
itself
the new statute
than
other
provisions
that
mere fact
its
And the
petitioners’
respect
With
to
claim
statute
general
from those of
varied
equal
they
protection
that
are denied
of the
F.Supp.
9
invalid.”
did not render
laws because of a different measure of dam
at 563.
ages
opposed
them as
that ac
accorded
Authority v.
Port of New York
also
See
property is con
corded condemnees whose
(1961),
144,
QQ1
City
Angeles,
of Los
331 U.S.
commercial users with whom the District
(1947).
S.Ct.
tion acquired; necessary such “sur- line de- a transmission for the (3) or otherwise produced, livery interchange must be owned or the Salt plus” relationship use only Project. agree majority I controlled River with the support primary municipal ir- that the revenues functions; (4) corporation purposes rigation and reclamation all relevant development purposes agree for the I also that the condemna- case- recognized land procedure arid and semiarid tion used here lawful. implemented by Congress and authorized *22 only question The in whether this case is by and 7 'statutes Article Arizona § Project authority has con- to Constitution, District is the of the Arizona in petition the described demn land in its for the corporation; (5) that municipal Superior upon pass the Court. We need not surplus power as an purpose sale of go in- suggestion that the can the reclamation, District phase the incidental anywhere to the in the state business eminent the is entitled to exercise profits the long as it uses its decrease so to pursuant municipal corporation domain as a The within district. cost of the provisions 17 of the the of Article to § obvi- suggestion to would seem answer this Constitution; (6) District Arizona that the majority decision ously The to be “No”. possession of the is immediate entitled to dis- go to goes much than we need further question. in land say to pose enough It is of this case. condemned, leave may land court did not exceed its The trial questions or to legislature broader letting issuing jurisdiction the order parties litigation future with other of the possession immediate District into fuller record. question. lands affirmed, case re- and the The order is However, majority into goes since the as are proceedings manded for such further problem extent of the of the necessary condemnation suit. delegated has which been it is which pursuant legislation under STRUCKMEYER, J., C. V. appropriate presently operating, UDALL, concurring. J., question. give my on views me BERNSTEIN, (specially concur- per- legislation agree I the federal Justice ring). reclamation all state tinent. Since under enacted reasoning by legislation has been
I with agree cannot the same programs, and The federal its result. stimulus of majority reaches which the Corpora- power legisla Municipal state electric in his classic has been true of work tions, years. expressed following When federal rule in the tion for the last advanced, require language: federal funds are to be wording
ments determine the exact Power; Lim- “§237(89). Extent of However, Insur legislation. Truck itations; Construction. —It. Canons of Hale, Ariz. P. Exchange ance undisputed proposition general is a upon by majority read 2d 846 relied corporation municipal of law that a history legislative federal into the Arizona possesses and can exercise follow- statute, Act, 15 dealt with the McCarran First, powers those ing and no others: seq. specially et au U.S.C.A. second, words; granted express regulation of the insurance thorized state implied in or necessarily fairly those preempted by Congress industry. field grant- expressly powers incident to the relinquished the states on con was ; third, to the accom- ed essential those regulate in dition would that the state plishment objects declared industry. Certainly the intent surance purposes corporation, —not also, Congress controlling. Here convenient, indispensable. simply but funds made federal under which were acts fair, reasonable, Any doubt substantial available to the District 1936are relevant power is concerning the existence legislation understanding of the en to an against the cor- resolved the courts year acted to enable the District to in that poration, power is denied. Of and the existing pro participate in the then federal every corporation municipal the charter grams. Exchange stands Truck Insurance or statute which it is created is *23 f Congress no the for more. I broadens corporation organic act. Neither the powers Secretary of the Interior or of the act, any nor its make officers can do or contract, officials, agencies any any liability, other state deriv incur federal thereby, or'by leg- not authorized some ing legislature, powers from the state their applicable islative act thereto. All acts broadening legislation. must similar have beyond scope powers granted the of the 1936, force, and did not legislature, The are void. any power Much can less be cooperate District to did authorize the exercised, done, act which is government program the federal with by forbidden charter or statute. These years later. until almost 30 not conceived principles are impor- transcendent corporation in- municipal Where tance, and lie at the the foundation of volved, be legislative must specific law municipal corporations. Their Dillon Judge reasonableness, necessity, found all of its activities. their salutary their character have been Project revenue from Central in Cali vindicated, often but never forci- more fornia power production. will come from bly by than the learned Chief McCracken, See Irrigation Dist. Ivanhoe Justice Shaw, who, speaking municipal 275, 1174, 357 U.S. 78 S.Ct. L.Ed.2d 1313. public corporations, says: ‘They can With regard appropriation to an powers exercise no but those which Project, Columbia Basin Court upon are conferred by them act Claims Congress power has held that has they constituted, which are or such change policy standing primary its that the necessary as are their exercise of purpose irriga in Reclamation Laws was powers, corporate performance tion, primacy hydro-electric give and to duties, corporate their accom- development. Company v. Bros. Winston plishment purposes of the of their asso- 374, States, F.Supp. United 131 Ct. principle This is derived from ciation. 245. Cl. corporations, the nature of the mode in power emphasis on is notable Increased they organized, are and in which Supply Act of 1958 which in the Water ” must their affairs be conducted.’ 1958, Act Title Flood III of the Control original.) (Emphasis in seq. et now 43 U.S.C.A. 390b Stat. legislation conferring analysis
An Project Storage and the River Colorado Project power River convinces Act of 70 Stat. U.S.C.A. § power extensive activities me that Secretary may seq. 620 et of the Interior Project, particularly the Salt River pow- lines construct transmission to deliver involved, power generate contract here purchasers under these acts. er to exchange New Colorado and Mexico Golzé, majority, supra note cited Canyon power Glen Dam to from Project River classifies the Salt River brought the Salt over The multi- single purpose project. first case, involved in this has transmission line Dam in purpose Hoover project was legislation not been authorized state project Mis- basin and the first river improvement dis- governing agricultural Colorado souri River tricts. which the Storage Project from the Federal Bureau of Reclamation When a river basin come is here will involved au- organized given first it was not pooling reve- upon project dependent power. Today, thority to sell in re- to aid nues facilities from the ac- irrigation activities overshadow its paying construction of the cost of example projects. For over tivities. 50%
395 expan- The amendments of corresponding 1936 A.R.S. 45-903 been no There has § adopted possible power activi- were a federal for make authorization sion of the plan refinancing. in the state for The Users’ Water the Salt River ties of definitely policy power was Federal Association revenue was legislature. longer contemplated security no a for to be changed were bonds so that contracts directly See, Reichenberger River issued. Salt by the Reclamation Service v. made etc., 144, Project, P.2d 452. 50 Ariz. liability landowners, joint contracts but with A, added to paragraph Subsection 7 was May Act of he made with districts. could request A.R.S. 45-903 1936 at the year, 15, 1922, the same 541. In Stat. the Water Users’ It reads as Association. cre- authorized the Legislature the Arizona follows: Dis- Improvement Agricultural ation of irrigation, “To reduce the cost of drain- tricts, 23, 1922, now A.R.S. § Laws Ch. age to the owners of the California seq., after modeled 45-901 et by lands in the district of sur- sale superceded. been legislation which has since plus power produced, water or owned in section was only The reference to district, or controlled and the A, 6 which 45-903, paragraph subsection , construction, maintenance, extension, * * * provide reads “to replacement, financing refinancing occupants of such the owners or use of purpose.” useful works for such lands.” majority It is in this section that finds interchange agree- agri- the creation Act authorized
The I broadly. ment. do not read so improvement districts five cultural In Kaukauna Water-Power Co. v. Green within the exterior of title more holders etc., Co., Bay, 254, 273, Canal 142 U.S. 275- reclamation a States of United boundaries 173, 177, 178-179, 12 S.Ct. 35 L.Ed. Act It under this project. Supreme Court of the United organized District was upon stated the States allowable limits a adopted. Prior had been after amendments municipality creating “surplus.” upon Project relied the Salt River Supreme Court said: articles of associa- the authorizations if, “But in the erection of a dam power activities, activi- tion for its recognized public purpose, there they carried at that time ties as were necessarily produced surplus approved this court. Bethune were water, may properly used for Ass’n., Valley Salt River Water Users’ manufacturing purposes, no there is why Ariz. sound reason P. 989. State *25 396
retain to power itself the of controlling sarily large, there does not seem to or disposing of such water as an inci- have been bad faith or abuse of part discretion on the of charged dent of those right to make such im- with the improve- construction of the provement. ment.” :(= * * * * “Surplus power” in, is among discussed “The true distinction seems to be be- cases, Light City Danville, other v. of 168 tween cases where the dam is erected 181,203-206, 276, 285; Va. 190 S.E. Holmes for express apparent purpose of City Fayetteville, 740, v. of 197 150 N.C. obtaining water-power a to lease to 624, 626; S.E. Public Service Co. of Colo private individuals, or where in build- City Loveland, rado Colo. ing a dam public improvement, right surplus pow P. 499. The to sell wholly unnecessary excess of water is upon er is based the dictates of common created, surplus and cases where the is prudence, business but I find no case where public improve- a mere incident to the production surplus power for sale ment, provision for and a reasonable municipality permitted outside the to securing adequate supply an of water primary enterprise. overshadow the improvement. No at all times for such Surplus power objectionable is not so that the wa- is made in this case claim long it as is a normal and natural incident ter-power purpose was created for the operation is, project. That it, selling leasing or that the dam appear it does not to have been an obvious height than greater erected to
was
excess
knowledge
built with a
and delib-
necessary to create a
reasonably
was
erately planned
a subterfuge
as
to create
pur-
for the
sufficient
of water
depth
surplus.
merely
op-
If it is
an incident to
at all seasons
navigation
poses of
project
acceptable,
eration of the
it is
but
dam was
long as the
year. So
clearly appears
if it
to be built to create
purpose of
fide
the bona
erected
surplus power
excess
bad.
supply
wa-
adequate
furnishing an
Ickes,
Burley
I do not find
Irr. Dist. v.
canal,
color-
not a
and was
ter for the
App.D.C.
(1940), cert.
water-power,
397' Company by Secretary existing Idaho Power contracts there breached or Interior, interchange agree- under power will not be sufficient meet the supple- replaced and The needs of ment. future customers within gen- been have boundaries mented could of the district. by a dam in which two erated Burley only indicates that the courts will dam had an districts interest. give plans favorable consideration to during a power purposes operated for conservation, long they so are within year, it was closed
portion of the because powers granted by legislature. “The for later water to conserve all of the down statute and its amendments are reclama irrigation. use acts, develop tion not commercial *26 Emphasis ment acts” F.2d at (116 531. the Wiley Judge Rutledge held Sec- original) in to execute power retary the Interior had of stopped whereby he plan conservation of amendments, In the 1936 45- A.R.S. § power through of flow the winter water 903, A, 7, legisla- the paragraph subsection district, to
plant irrigation ceasing in an authority power ture ac- continued the nonirrigating power produce during the been the tivities which had undertaken ir- to water for season in order conserve approved by Water Users and this court pow- private rigation and contracted with approved plans being made the Bethune. It company demands supply to commercial er cooperation Project, the Salt River profit- district, the thus preserving terms agencies, and broad with federal power commercial business which able carry necessary authorized the contracts because of would otherwise have been lost A, 45-936, them subsection out. A.R.S. § dependable power. lack of not a legislation paragraph This was the go into blank check authorization Secretary the acted in an Burley adoption business, power an advance nor available emergency. Power was not be- which the fed- power policy new shortage. water Farms would cause of a follow. might thereafter government eral water and have been without sufficient act, and Act a reclamation The remained profitable existing commercial business primary reclamation, power, is still its plan been this had not would have lost if purpose. projected adopted. elec- been Here legislature again opportunity upon had an project needs of the are based trical legislation line with bring growth in There is no the state future the area. poli- power present day federal electrical transmission that without this showing adopted 45- cut cies in when A.R.S. line must be existing customers off § seq. did Although 2201 et not do so. It Ariz. pow- P. dealt with the reported leg- the committee which to the ers of Water Users’ Association under islature of the contract which is the knew its charter. In Bethune we said: suit, legislature basis neither “It is obviously advantage to the prin- forbade or authorized it. Under the association, impounded which has ciples governing municipal corpo- lawof cost, partly waters at great rations, necessary. authorization was Si- developed power supplied by such acquiescence lent is insufficient in this situ- waters, complete development, such Dillon, supra. ation. retain at control of waters spe- The fact that broader points all from the outlet at the reser- cifically conferred of In- Secretary application directly voir to their to the regard Proj- terior with River Salt lands of the shareholders of associ- ect, September 18, 1922, by the Act power ation. Much of the de- thus far Stat. does not in- U.S.C.A. § veloped by plants power the various powers Proj- crease the authorized applied of the association has been di- 43 U.S.C.A. reads: ect. rectly irrigation, to the needs of some has been sold to be used for development “Whenever a purposes, proceeds ap- other and the necessary is lands plied lighten the burdens assess- under reclamation original ments to meet the cost of Arizona, project, opportunity or an is proposed development construction. It to make afforded for similar use of the project, Secretary under said resources contemplated authorized, giving prefer- Interior works this im- *27 ” * * * provement. municipal purposes, ence to (Emphasis supplied.) - government “The United States has granted preference association a is, terms, express This statute its place. right to construct at that works Secretary authorization to the of the In- The articles under which the associa- not, not, Congress terior. could and did incorporated prove is expressly tion attempt powers to confer under U.S. 43 create, transmit, use, may 'that it sell on a district which the state C.A. 598 dispose the accom- of years did not create until afterwards. plishment purposes any of of Bethune, Similarly, supra, v. and Orme objects the association.’ The works of Assn., Valley 25 contemplated by Salt River Users’ project, this if con- Water
399 security necessary sold for the bonds units structed, be used like other would project. finance the with system, and in connection its of development of for the such others power was The authorization to create oth- as such power precisely electrical Agricultural into the Im- not carried over already system con- of its er elements provement Act. in and now use.
structed consider had occasion to This court has arrived should be conclusion Project “What in powers of the River contemplated proposed organiza- at where entering with labor contracts apart wholly such works to construct upheld to enter such tions and parts of the independent other private in that a way contracts the same system irrigation work association’s corporation might. Local service consider. while here to is not worth Imp. 266, Project Agr. etc. & v. Salt question entirely different This Dist., Ariz. P. 275 P.2d Labor 393. principle involved from that. The peculiar many decisions involve factors principle in from the way differs no problems, labor relations and are an unsafe other in the construction volved guide other fields. Protection of v. system. same Orme units of the employees rights government be Valley Asso Users’ Salt River Water achieved civil service law or con- ciation, P. 25 Ariz. 935.” tract, and it is not unusual to use the con- therefore, conclude, the con- “We municipal tractual method the case of ap- already works of these struction corporations proprietary exercising func- In- proved by Secretary tions. To do so casts doubt the basic no terior, not in contravention of municipal character of the Salt River law, scope of busi- within the and is Project. by the association’s
ness authorized language City court incorporation.” (Emphasis articles of Imp. Project Agr. P. Mesa Salt River & 531, 533, P. supplied.) Ariz. at Dist., 92 Ariz. P.2d should at descriptive read as of the activities of Project That deci- pursuant in the “service area”. It was incorporation approval be read as articles of sion should not Users’ Water constructed, described, Dam the activities as the issues of the Horse Mesa powers In- proceeds of the contract with the ultra vires and basic Company Project raised in that case. Cer- spiration Copper were not Consolidated part tainly it, clearly that case holds pledged sell were *28 corporation, public service as does Public is not Service for except resale for mining River Rubenstein Co. leads. Construction v. Salt Dist.,
Project Agr. Improvement & Power
3. Area where the
Project
Salt River
Ariz.
401
off
deficiency
any
if there
ais
municipal corporations,
reason.
power
further
Long
Thatcher,
55, 65,
v. Town of
62 Ariz.
authorized,
activities are not
and the
153, 157; City
153 P.2d
of Phoenix v. Project’s existing legal authority
go
into
Kasun,
470, 474,
210, 212,
54 Ariz.
97 P.2d
power
long
business has
since been
The
transactions of
500, 95
Ry. Co., 116 Tenn.
v. Union
Co.
development
the Salt River
of, or
lack
(1906). The
“surplus”
S.W.
transmission
additional
con-
necessity for,
a certificate of
are
legisla-
ultra
Unless
vires.
raised
gives
necessity cannot be
specific authorization,
ture
venience
action.
traditionally
powers
grant
manner
landowner
a condemnation
used
á
City
Legislature
provided
Co.
Power
statutes that “the
has
Central
Colorado
233, 235
Englewood,
(10th
complete
ample remedy
Cir.
F.2d
where there
1937).
usurpation
any
is a
the state’s fran-
Sup’rs.
chises.” Faulkner v. Board
no
to strain to
there is
need
In Arizona
139, 145,
County,
Gila
17 Ariz.
149 P.
remedy
ultra vires acts. A.R.S.
find a
Attorney
General
12-2041 authorizes
warranto, “upon
quo
bring
action in
may
It is true that ultra
be raised
vires
upon the verified
his
information or
own
municipal
proper
by a
as defense
cases
* *
*
against
complaint
person
any
corporation, Dillon, supra, §§
* * * any fran
usurps
person who
1610-1611,
be es-
in other cases
but
gravamen
state.”
chise within this
topped
Bank & Trust
to do so. Zion’s Sav.
*30
against
the Salt
complaint
petitioners’
Co., 102
Fork Irr.
Tropic
v.
& East
Co.
terms of
though couched in
Project,
River
ul-
101,
P.2d 1053. In some cases
Utah
126
vires,
is
that the
ultra
taxpayer’s ac-
may be
in a
tra vires
raised
authority, usurped
fran
has,
a
without
minority
analogy
tion
stockhold-
to
corporation
public
as a
service
to act
chise
Dillon,
action,
supra,
1579-1581.
ers’
§§
out
carved
it has
area which
in the service
City
Kentucky Utilities
of Middlesboro v.
essence,
is
defense
In
for itself.
48,
Co.,
Ky. 833,
in
146
which
284
S.W.2d
“surplus power”
sell
the authorization
carrying
of a contract between
out
my
authority.
Authority
view
gives
Valley
city
needed
and the Tennessee
vires,
a
in
does
as
was
suit
“surplus power”
enjoined
was
ultra
sell
authorization
Taxpayers
a
taxpayers joined.
which
authority,
necessary
but
give it the
not
company joined
private power
competing
pres
proper
ideally
is one
suited for
issue
City
High
plaintiffs in McGuinn v.
as
No
proceedings.
quo
warranto
entation
Point,
462, 128
449, 8
217 N.C.
S.E.2d
Attorney
application has been made to
608,
con-
which
of a
use
license
A.L.R.
Project,
against the
take action
General to
granted by
dam
the Federal
a
struct
refused,
he
whether
if he
issue of
acceptance
a
Commission and the
Power
refuse could be
grounds
had
sufficient
Administra-
grant from the Public Works
proceed
in mandamus
presented to a court
cost,
Yadkin
enjoined.
was
81, 93,
tion
Doe, Ariz.
78
ings. Buggeln
9
v.
462,
Point,
City High
360, County v.
217 N.C.
Ashurst,
367;
12 Ariz.
P.
Duffield v.
470,
held that
it was
697,
in which
S.E.2d
8
820,
223 U.S.
appeal dismissed
100 P.
already
highway
county
property
home and
has
838,
court
This
403
denined,
companion
was a
fol
case and
“Such defenses are irrelevant and im-
McGuinn,
project
lowed
in which the
had
proceed-
material
this condemnation
already
ing,
held
be ultra vires. Peti
been
prop-
do not herein constitute
taxpayers
are
tioners here
not
within
er defenses.”
Agricultural
Improvement Dis
Salt River
The multitude
cases
lack
where
Galloway
County Elec
trict.
Mitchell
v.
public purpose
successfully urged
has been
428,
Membership Corp.,
tric
190 Ga.
9 S.E.
to block condemnation should be distin
903,
ultra
which
2d
the doctrine of
guished.
aIf
condemnation
not for a
cold
a loan
vires
to block
was invoked
public
unconstitutional,
use it is
and no act
co-op,
storage
plant
an R.E.A.
legislature
could
defect.
cure the
action, specifically
minority stockholders’
Dillon, supra,
See
It is
1033.
self
§§
Georgia
statute.
authorized
evident that a
transmission line is
public
for a
purpose. Light City
of Dan
litigating the
necessity
There is no
ville,
276;
Va.
McCrady
S.E.
condemnation
issue
ultra vires in this
v. Western
Cooperative,
Farmers Electric
case,
that it
good
suggests
reason
For the com- litigation prevent further result and to question presented court, The in to this by this policy questions raised mend the simplest is, its terms have does the District legislature. litigation to the authority, express implied, either or un- law, purchase
der
Arizona
transmit
Judge
McFATE, Superior Court
YALE
in-
additional
take care of the
concurring) :
(specially
creasing needs of
business
the commercial
holding that the
majority
I
in
its boundaries in
concur
the areas outside
the lines
lawfully construct
District
electricity.
serving
it is now
However,
disagree with the
I
question.
law, statutory
other-
I
am aware
no
holding and I con-
stated
such
reasons
wise,
permit
the District
which will
expressed by
opinions
cur with
Justice
newly-ac-
quantity
large
transmit
exchange power
Bernstein that
non-surplus electricity
quired
involved
petitioners’ lands
over the
transmitted
pur-
any part
it for
use
case and
meaning of
“surplus” power within the
poses
within
other than that authorized
A,
A.R.S.
paragraph
45-903,
subsection
§
A,
45-903, subsection
under
boundaries
with either
to concur
I am unable
it be under some
unless
paragraph A.R.S.
that of
majority
with
opinion
utility
of-public
theory
law.
to the status of
Bernstein as
Justice
authority as a
has
If the District
power activities
to its
District
relation
non-surplus
ener-
electric
utility
acquire
former,
outside its boundaries.
distribution,
gy for extra-territorial
practically
seems,
bestows on
*32
traditionally
public
expressed
affected with
inter-
must be
in the statute
created,
est.”
law under which it was
92 Ariz.
“But whatever
be the District’s
held in
We
Rubenstein Const. Co. v.
status, plainly,
exact
the effect of sell-
Dist.,
Imp.
Agr.
& P.
ing electricity
ultimate consumer
76 Ariz.
(1953),
406 corporation powers, in municipal by and the trict’s amendment it was-a less predecessor had established ex- District’s public authority engage to such had utility service, public tra-territorial utility business. fully Legislature which fact the A, 45-903, subsection A.R.S. Under § later, years twenty the aware. Almost may sell its District paragraph 7 the ses., sp. (Laws 1st ch. Legislature as to surplus power, limitation without operation 1) encouraged the carried sale, may and construct the method of by whereby it on the used its District for the the useful and maintain works defray oper- revenues to costs its purpose, within outside either conservation, being, ation and for water at designated provision is boundaries. This time, fully of the nature and cognizant organiza- of the one the statute as public utility operations. At extent of its District, con- purposes and tional any no time effort legislative has there been power granted it. express to stitutes an activity to curtail alter status such of this and extent construing the nature quo fact confirms the notion ante. This con- surplus power Legislature a liberal authority outside that intended sell to surplus useful "sale of works struction of the words and build electric District power” public utility its ascertain so as to include the purpose, we should for the being employed. sale then method of The give to it. plain meaning and effect Improve- Agricultural provisions appearing (1) has held It that this court liberally con- to be Act are ment District City Rubenstein, supra, Mesa and in objectives that their strued to the end empowered that to act as promoted. justice accomplished be public utility, and, (2) the statute is Agr. 266, etc. v. Salt River Local empower activity enough to broad such Dist, P.2d Ariz. Imp. & P. District, and outside the boundaries of the con- Applying rules of (1954). these predecessor (3) the District its have struction, that the Dis- it becomes evident activity many years engaged in such express sur- sell trict has boundaries, without with within and its plus power its boundaries outside legislative approval, I that in tacit conclude law, including sale consistent with manner acting it is of such business the conduct establishing a enter- business means ultra vires. prise public service. devoted to is, question in the course- remaining public- as a business A, of its extra-territorial paragraph 7
At the time subsection
implied au-
utility,
District have
does
to the Dis-
45-903 A.R.S. was added
of §
thority
acquire power
tinuity
other
dependent
from sources
would
service
ability
the District
facilities,
develop
its
to satis-
generating
than
own
maintain
surplus,
a constant
sufficient
fy
public
the increased
demands of
requirements.
over and
its own
Es-
above
service
within reasonable reach of
its
pecially is this so in view of the fact that
lines ?
through
years
Valley
the Salt River
expressly
I find no statute
denies
experienced
growth
has
continuous
and de-
authority.
It
that ab
such
would seem
velopment,
yearly
and season-
limitation,
express statutory
the au
sent
al
requirements of the District are
thority
acquire
sufficient
to meet
subject
change.
Did
Legislature
requirements
residing
of the citizens
contemplate
service to be
territory
being
within
served
established
the District
surplus
with its
*34
implicit
authority
the Dis
lines is
energy
would
turned on and off or cur-
carry
serving
trict
on the
business
intermittently,
tailed
Dis-
depending on
power
public.
municipal
to the
When a
trict
generating capacity?
needs and
corporation is
exercise a
authorized to
Did the Legislature intend that the citizens
power purely proprietary,
law leans
living
within the area served
Dis-
theory
per
that it
full
has
manner,
trict’s lines be treated in this
it in
form
the same
as a
efficient manner
when under similar circumstances other
private concern
In
would do. Gardner v.
municipally operated
ample
utilities have
Commission,
dustrial
233 P.2d
Ariz.
(1951).
authority
acquire
necessary
Local
etc. v.
elec-
Project,
(1954).
78 Ariz.
satisfy
It seems doubtful that of au- grant paragraph may provide the District thority public pres- to sell to public one its utility electric service within ent-day boundaries, necessities of intention- provide life would otherwise ally occupants be limited in that con- such manner of the lands therein. generates it sur-
(2) At such times as
even producing incapable sufficient come surplus power satisfy their needs. nec- may acquire such additional
(4) It otherwise, essary power by purchase, useful for trans- construct lines consumer. mitting it to ultimate foregoing authorities . In view of conclusions, that the trans- evident by the being lines constructed mission purpose, are for a lawful dealing opinion majority I concur condemnation, right of with the District’s *35 of the lower the order I conclude should affirmed. court Jennings, L. Renz The Honorable Note: disqualified him- Justice, having former Mc- Ernest self, the Honorable W. participated Farland, Justice, having McFate, hearing, Yale the Honorable Court, Superior was called Judge participate determination of matter.