Albuquerque Metropolitan Arroyo Flood Control Authority v. Swinburne, 7614

• Decision Date: 24 August 1964
• Docket Number: No. 7614,7614
• Citation: 394 P.2d 998,1964 NMSC 206,74 N.M. 487
• Parties: ALBUQUERQUE METROPOLITAN ARROYO FLOOD CONTROL AUTHORITY, Petitioner-Appellee, v. Bernard H. SWINBURNE, Secretary-Treasurer of Albuquerque Metropolitan Arroyo Flood Control Authority, Defendant-Appellant, R. D. Borden, Dr. T. L. Carr, Nat G. Capeless and John E. McNerney, Intervenors-Appellants.
• Court: New Mexico Supreme Court

Page 998

394 P.2d 998

74 N.M. 487

ALBUQUERQUE METROPOLITAN ARROYO FLOOD CONTROL AUTHORITY Petitioner-Appellee, v. Bernard H. SWINBURNE, Secretary-Treasurer of Albuquerque Metropolitan Arroyo Flood Control Authority Defendant-Appellant R. D. Borden, Dr. T. L. Carr, Nat G. Capeless and John E McNerney, Intervenors-Appellants.

No. 7614.

Supreme Court of New Mexico.

Aug. 24, 1964.

Thomas O. Olson, Philip R. Ashby, Albuquerque, for appellants.

Albert T. Ussery, Peter Gallagher, Albuquerque, for appellee.

NOBLE, Justice.

The appellee, Albuquerque Metropolitan Arroyo Flood Control Authority, was created and organized under and in compliance with Ch. 311, Laws of 1963, Secs. 75-36-1 to 103, N.M.S.A.1953, and pledged its cooperation with the United States in flood control of the area within its boundaries. Its directors were duly appointed by the Governor of the State of New Mexico and, pursuant to the Act, were then regularly elected. A $9,500,000.00 bond issue by the Authority was approved by a majority of the qualified electors voting at an election called for that purpose.

The Flood Control Authority brought its action for a declaratory judgment to determine the constitutionality of the Act; the validity of its proceedings pursuant to the statute; and of the bonds proposed to be issued; and, to require its secretary-treasurer, appellant, to advertise the bonds for sale. This appeal is from a judgment declaring the statute constitutional; determining the acts of the Authority and the proposed bonds to be valid; and directing advertising of the bonds for sale.

The first five of appellant's points relied upon for reversal are combined under the single question of whether the Arroyo Flood Control Act of 1963 contravenes that portion of Article IV, Sec. 24, of the New Mexico Constitution, which reads:

'Sec. 24. [Local or special laws.]

'* * * In every other case where a general law can be made applicable, no special law shall be enacted.'

We think it cannot seriously be doubted that the Act does not have a uniform operation throughout the State and is a special law enacted by the legislature for the express purpose of acquiring and operating a flood control system to benefit the property within the boundaries expressly specified in the Act.

The distinction between a general and a special law was pointed out in Scarbrough v. Wooten, 23 N.M. 616, 170 P. 743, where it was said that '[a] 'general law' is one that relates to a subject of a general nature, or that affects all the people of the state, or all of a particular class,' while 'one relating to particular persons or things of a class is special.' Accord, State v. Atchison T. & S. F. Ry., 20 N.M. 562, 151 P. 305. Manifestly, an act which creates and establishes a flood control district by legislative act, fixing its boundaries by specific description so as to constitute a single compact geographic area, is a special law. State ex rel. Anderson v. Hodgson, 183 Kan. 272, 326 P.2d 752.

Merely because a legislative act is special in its application, however, does not necessarily make it in violation of the constitutional restriction. Sutherland, Statutory Construction (2nd Ed.) Sec. 190. The enactment of local or special laws in certain enumerated instances not applicable here is prohibited, and the Constitution then further enjoins the legislature from passing special laws where a general law can be made applicable. Scarbrough v. Wooten, supra. Accordingly, when a general law cannot be made applicable, but a law is required, special laws are permissible. In such instances, it is not necessary to make the act appear general when its application is intended to be special. Water Dist. No. 1 of Johnson County v. Robb, 182 Kan. 2, 318 P.2d 381. There is nothing in the Constitution which would invalidate a legislative act merely because it is special in character provided a local situation exists which under particular facts makes a general law inapplicable. Scarbrough v. Wooten, supra.

The legislature recognized that in enacting the flood control act, it was passing a special law, but expressly determine that a general law could not be made applicable under the particular, special and atypical conditions of the area sought to be protected from flood damage. By legislative declaration in the Act itself, Sec. 75-362(F), N.M.S.A.1953, 1963 Pocket Supp., it was said:

'That a general law cannot be made applicable to the designated flood control system and the provisions herein appertaining thereto because of a number of atypical and special conditions concerning them.'

What the Oklahoma court, in Chickasha Cotton Oil Co. v. Lamb & Tyner, 28 Okl. 275, 114 P. 333, characterized as the weight of the decided cases is that the judgment of the legislature, as indicated by the enactment of a special law, is conclusive that a general law cannot be made applicable and that such legislative determination is not subject to judicial review. The territorial Supreme Court in Sears v. Fewson, 15 N.M. 132, 103 P. 268, construing the Act of Congress commonly known as the 'Springer Act,' which limited the legislature, as does the constitutional provision supra, said that the judgment of the legislature as to whether a general law could be made applicable is final and not subject to judicial review, citing Guthrie Nat. Bank v. City of Guthrie, 173 U.S. 528, 19 S.Ct. 513, 43 L.Ed. 796. For other cases of jurisdictions so holding, see Valley Nat. Bank of Phoenix v. Glover, 62 Ariz. 538, 159 P.2d 292; Sommers v. Patton, 399 Ill. 540, 78 N.E.2d 313. Also, cases which arrived at the same result, at least in the absence of a clear abuse of discretion by the legislature, include McClain v. People, 111 Colo. 271, 141 P.2d 685; State v. Carter, 30 Wyo. 22, 215 P. 477, 28 A.L.R. 1089. In Scarbrough v. Wooten, supra, this court cited Sears v. Fewson, supra, and quoted the rule there announced. It did in fact determine that the legislation there being reviewed was a proper special act since a general act could not be made applicable.

Many states, recognizing tha the question is one for the legislature in the first instance, permit judicial review of the legislative decision if the disregard of the constitutional requirement is clear and palpable so that the court can see from the face of the act or from facts of which it takes judicial cognizance that enactment of a special law is unnecessary. Ventura County Harbor Dist. v. Bd. of Sup'rs, 211 Cal. 271, 295 P. 6; Elliott v. Sligh, 233 S.C. 161, 103 S.E.2d 923. Also, see Richman v. Bd. of Sup'rs, 77 Iowa 513, 42 N.W. 422, 4 L.R.A. 445, 14 Am.St.Rep. 308. Some states formerly following the general rule now permit judicial review if there is a palpable abuse of discretion by the legislature. Heckler v. Conter, 206 Ind. 376, 187 N.E. 878; Ford v. State, 183 Okl. 386, 82 P.2d 1045. Aarkansas and Kansas, formerly committed to the rule that the legislature is the exclusive judge of whether a general law is possible, have adopted constitutional amendment, in arkansas expressly forbidding any local or special law, Simpson v. Matthews, 184 Ark, 213, 40 S.W.2d 991, and in Kansas making it the duty of the courts to determine the constitutionality of acts without reference to a legislative declaration. Water Dist. No. 1 of Johnson County v. Robb, supra.

It is clear that under whichever approach is applied, this legislation is constitutional and is not a special law where a general one could be made applicable.

Upon the facts in the instant case, as found by the trial court, it is apparent that there is no area in the state in which the conditions producing the flood problem resemble those of the area described in this Act. It is apparent that in the Albuquerque area the flood conditions result largely from the density of population preventing the rain waters from dispersing, and channelling them into the arroyos in the lower areas. No other area of the state has such a heavy concentration of improvements which cause the water to run off in such volume. No other area is so situated that there are no channels or other available devices to carry off the water which accumulates in the arroyos from the higher areas of dense population and improvements. No other area in the state was required to raise such a large amount of money to meet federal demands for local participation with the federal government to handle such flood conditions.

It was these special, unique and atypical conditions existing in the area described in this Act which gave rise to enactment of the Arroyo Flood Control Act under which the appellee-district was created. Such conditions support the legislative action in providing a flood control district with authority to join with the federal government to meet the needs of that area. It was not necessary to attempt to accomplish the result under the guise of general legislation which would in fact be local or special in its application. Water Dist. No. 1 of Johnson County v. Robb, supra. See, also, Borden Company v. Thomason (Mo.) 353 S.W.2d 735. In fact, the trial court found in effect that general laws theretofore enacted (Secs. 75-19-1 to 44, N.M.S.A.1953) were not effective to cope with the flood control problem of this particular area. It is apparent that a general law could not have been made applicable.

Appellant groups points 6, 7 and 8 under the single contention that Sec. 4, Art. XVI of the New Mexico Constitution, reading:

'The legislature is authorized to provide by law for the organization and operation of drainage districts and systems[,]'

prohibits any agency but a 'drainage district' from dealing with the problem of excess surface water.

There is however, nothing in the constitutional provision relied upon which requires legislation pertaining to the removal of excess water from the surface of an area to refer to or designate the authority for such water control as a 'drainage district.' The authority created by...