Brown v. Electrical District No. 2

• Decision Date: 11 March 1924
• Docket Number: Civil 2276
• Citation: 26 Ariz. 181,223 P. 1068
• Parties: J. F. BROWN, Appellant, v. ELECTRICAL DISTRICT No. TWO, Pinal County, Arizona, GEORGE KINNE, Chairman; W. I. DAVIDSON, Vice-Chairman; FLOYD C. TEMPLETON, Secretary; FRANK C. ELWELL, Treasurer; and FRED T. ARMISTEAD, M. A. ANDERSON and FRED W. BESSLER, Being the Seven Members, Including Officers, of the Board of Directors of Said Electrical District, Appellees
• Court: Arizona Supreme Court

223 P. 1068

26 Ariz. 181

J. F. BROWN, Appellant, v. ELECTRICAL DISTRICT No. TWO, Pinal County, Arizona, GEORGE KINNE, Chairman; W. I. DAVIDSON, Vice-Chairman; FLOYD C. TEMPLETON, Secretary; FRANK C. ELWELL, Treasurer; and FRED T. ARMISTEAD, M. A. ANDERSON and FRED W. BESSLER, Being the Seven Members, Including Officers, of the Board of Directors of Said Electrical District, Appellees

Civil No. 2276

Supreme Court of Arizona

March 11, 1924

APPEAL from a judgment of the Superior Court of the County of Pinal. S. H. Abbey, Judge. Affirmed.

Mr. E L. Green, County Attorney, for Appellant.

Mr. A Van Wagenen, Sr., and Mr. A. Van Wagenen, Jr., and Mr Richard E. Sloan, for Appellees.

OPINION

ROSS, J.

This action was brought by J. F. Brown against the defendant electrical district and its officers to enjoin the issuance and sale of its bonds in the sum of $304,000, said bonds being a part of a larger issue theretofore voted and authorized by said district. There is no question as to the competency of plaintiff to maintain the suit or of the intention of the defendants to issue and sell bonds in the amount and for the purposes alleged.

The defendant electrical district was organized under chapter 7, Laws of 1923, entitled:

"An act providing for the creation of assessment districts for the purpose of supplying power to users primarily for the purpose of pumping water for irrigation of arid lands. . . ."

Neither the regularity of the organization of the electrical district nor the notice nor the call for election on bond issue nor the vote thereon is seriously questioned. The only novel question presented is as to whether the defendant is a public corporation and the debt it seeks to incur is for public purpose or a purpose for which taxes or special assessments under the federal and state Constitutions may be lawfully levied and collected.

It is shown by the pleadings and the evidence that the lands within the electrical district are desert and unproductive without irrigation; that underneath the lands proposed to be irrigated is water that may be raised through wells to the surface by hydroelectric power, and applied to such lands; and that such hydroelectric power is available and obtainable for the purpose from the Salt River Valley Water Users' Association, by the construction of a transmission line to connect up with the plant, and the transmission lines of the said Salt River Valley Water User's Association, and the installation of transformers, laterals, delivery lines, and other auxiliary equipment.

It is shown that the district has a contract arrangement with the state of Arizona whereby said transmission line may be used to transmit to the state prison at Florence 150 kilowatts, to be used therein on condition that the state contribute $50,000 towards the construction of such transmission line, the state to own such proportion of such line as its contribution bears to the whole cost thereof; and with the city of Florence, that if it shall contribute three-fortieths of the construction and installation costs of such transmission line, transformers, etc., it shall be privileged to have transmitted over such line, for the period of twenty years, electrical current for use for municipal and other purposes within the city only; and that there is in contemplation a similar contract with the city of Casa Grande.

It is shown that the transmission line so to be constructed is to be put into the physical control of the Salt River Valley Water Users' Association to the extent necessary to enable it to deliver power direct to the users within the electrical district, also to the city of Florence and the state prison, with the duty of maintaining the same and keeping it in repair, of reading meters and billing the users of power. In short, the plan formulated and proposed and voted upon is that the district build a transmission line from Sacaton, the closest point to Electrical District No. 2 on the present transmission line of the Salt River Valley Water User's Association, through Florence, where the state prison is located down to Casa Grande Valley and the city of Casa Grande, where said electrical district is situated and connect up with all owners of land in said district who may desire to use hydroelectric power to pump for irrigation.

The purpose of this suit is to prevent defendant electrical district from selling its bonds and carrying out such plan. To begin with it appears that the plan falls well within the terms of chapter 7, and the organization of the defendant corporation being legal, the important question is one of power in the legislature to set up or establish such plan. The lower court resolved the question in favor of defendants, and plaintiff appeals.

It is objected that the law under which the defendants are acting is unconstitutional and void, in that it authorizes the defendant corporation (1) to levy and collect taxes or special assessments for the furnishing of electric power to owners of arid land for the pumping of water for the irrigation of such lands -- a private business and not a service the defendant corporation can lawfully operate; (2) in that the powers of the board of directors charged with the management and control of the affairs of defendant corporation are so vague and indefinite that it cannot be said that the activities of the corporation will be restricted to such as the law considers a public use; (3) in that it violates the Fourteenth Amendment to the federal Constitution in failing to provide notice to owners of lands, and affording them an opportunity to show that they will not be benefited by the inclusion of their lands within the district; (4) in that it does not empower the board fo supervisors to exclude lands described in the petition and to include lands not therein described; (5) in that it authorizes the defendant district to make local improvements and pay for the same from funds derived by special assessment or special taxation of property benefited -- a power that may be exercised only by incorporated cities, towns, and villages as provided in section 6, article 9, of the Constitution of the state; (6) in that the requirement that taxes or assessments shall be the same per acre throughout the district, it violates section 1, article 9, of the Constitution of the state, as to uniformity of taxation; (7) in that in section 20 of said chapter 7 it is declared, in order to avoid the constitutional limitation of indebtedness of such corporation, that electrical districts are not "municipal corporations"; and (9) assuming that chapter 7 is constitutional, it is objected that the organization of the defendant district is defective because the board of supervisors failed to find the petition for its organization sufficient; and failed to find that the lands were arid and capable of reclamation, and that there was available sufficient underground water supply for the proposed power system; and (10) it is objected that the arrangement with the state by which the state is to contribute to the construction of the transmission line and be permitted to have transmitted over it electricity to the state prison, and the like arrangement with the city of Florence, and the contemplated arrangement with the city of Casa Grande, are ultra vires and void.

Taking up plaintiff's first contention, the object of the law is obviously in aid of the reclamation of arid lands. The permitting of large numbers of owners of such lands to combine to do what would be impossible to be done by them singly, in gravity systems of irrigation throughout the arid parts of the United States and elsewhere, is common. In desert countries the legislatures provide for the organization of irrigation districts, the purpose of which is to collect and impound the falling rain and waters of running streams, and later utilize them upon the land by means of canals, laterals, and ditches. By this method, and by the co-operation of many, vast and rich areas of land are brought into cultivation. In some sections...