Davis v. Brittain

• Decision Date: 30 December 1960
• Docket Number: No. 6728,6728
• Citation: 89 Ariz. 89,358 P.2d 322
• Parties: David C. DAVIS, J. W. Spray and Jay Bateman, members of and constituting the Board of Supervisors of Pinal County, Arizona, Appellants, v. D. R. BRITTAIN, John O. Combs and J. G. Waggoner on behalf of Petitioners, Appellees. In the Matter of the Petition of Certain Freeholders for the Formation of an Electrical District in Pinal and Maricopa Counties, Arizona.
• Court: Arizona Supreme Court

Page 322

358 P.2d 322

89 Ariz. 89

David C. DAVIS, J. W. Spray and Jay Bateman, members of and constituting the Board of Supervisors of Pinal County, Arizona, Appellants, v. D. R. BRITTAIN, John O. Combs and J. G. Waggoner on behalf of Petitioners, Appellees In the Matter of the Petition of Certain Freeholders for the Formation of an Electrical District in Pinal and Maricopa Counties, Arizona.

No. 6728.

Supreme Court of Arizona.

Dec. 30, 1960.

Rehearing Granted April 25, 1961.

T. J. Mahoney, County Atty., Pinal County, for appellants.

Stoker, Bagnall & Moring, Coolidge and Kramer, Roche, Burch & Streich, Phoenix, for appellees.

Nicholas H. Powell, Perry Ling, Snell & Wilmer, Jennings, Strouss, Salmon & Trask, and Evans, Kitchel & Jenckes, Phoenix, Wolfe & Beeks, and Darnell, Holesapple, McFall & Spaid, Tucson, amici curiae.

LAURENS L. HENDERSON, Superior Court Judge.

The appellants in this case are the members of the Board of Supervisors of Pinal County, Arizona. The appellees are certain land owners in Pinal County who petitioned the said Board of Supervisors to organize an electrical district under the Electrical District Act of Arizona for the purpose of furnishing power for irrigation water wells. The Board of Supervisors denied the petition to organize the power district and an appeal from that ruling was taken by the land owners to the superior court, which reversed the order of the Board, and ordered the Board of Supervisors to organize the proposed district in accordance with the provisions of the said Electrical District Act. The Board of Supervisors prosecuted this appeal from the order of the superior court.

The lands concerned herein comprise approximately 51,000 acres lying in what is generally known as the Queen Creek area, partly in Maricopa County and principally in Pinal County. Substantially all of the land area is under cultivation, having been developed as farm lands through irrigation from water wells. The power to pump the water has been by gas supplied by Arizona Public Service Company and electricity supplied by that company and the Salt River Project.

Electrical districts organized under the Arizona Electrical District Act get priority for power from the Arizona Power Authority, which Authority gets its power from the Colorado River and other sources. All of the power of the Arizona Power Authority is contracted until the year 1970, but the possibility exists that such contracts may be terminated after 1962, and that thereafter a reallocation of power might be made to include districts organized and applying for power no later than 1959, which would include the proposed district with which we are here involved; hence, the attempt by the petitioning land owners to form a district and to qualify for power which might be allocated to it after 1962 from the Arizona Power Authority.

The primary purpose of the petitioning land owners is to form a power district under the Electrical District Act in order to obtain cheaper power for irrigation of their farm lands. The difference in cost in Power Authority electricity obtained under an electrical district so formed as compared with existing power would amount to a saving of about $3.81 per acre per year. Practically all the lands susceptible of cultivation in this area have been heretofore put under cultivation.

It is uncontroverted that land in this area cannot be dry farmed and in its original natural state was desert land unable to produce agricultural crops without irrigation. The area lies within that portion of the State of Arizona where the legislature has prohibited the drilling of new water wells.

The section of the statute in question under which the petitioners sought to organize an electrical power district and which relates specifically to the requirement that the Board of Supervisors make certain findings is Section 30-505 A.R.S.., 1956, which reads in part as follows:

A. At the hearing on the petition called by the board of supervisors, it shall first proceed to determine whether the operations as proposed will constitute a public use. The board shall for such purpose determine:

'1. Whether the lands in the proposed district are arid lands.

'2. Whether they are fertile and reclaimable.

'3. Whether there is a supply of water which can be made efficiently available by the proposed power system.

'4. Whether the development reasonably certain to result from the production of power is of such interest and benefit to the whole district as to impress it with a public use.'

Other paragraphs of that section of the statute outline for the Board the method of determining its findings and vest certain discretionary powers in the Board. The statute provides that the decision of the Board shall be binding upon all persons interested unless reversed on appeal as provided by said Act.

Pursuant to this section, the Board of Supervisors of Pinal County found and ruled as follows:

'After motion made and duly seconded and unanimously carried, said Board denied the petition for the reasons and on the grounds that it is the decision of the Board:

'1. That lands in the proposed district are not arid lands.

'2. That said lands are fertile and have been reclaimed.

'3. That there is presently a supply of water furnished to the farmers in said area.

'4. And that the area within the boundaries of said proposed district has been developed and power is presently being served to said area.'

Upon appeal to the superior court, the court set aside the order of the Board of Supervisors and the court made findings of fact and conclusions of law, under the foregoing statutory requirement, as follows:

'XI That the lands in the proposed District are arid lands.

'XII That the lands in the proposed District are fertile and reclaimable.

'XIII That there is a supply of water underlying the lands within the proposed district which can be made efficiently available by the proposed power system.

'XIV That the development reasonably certain to result from the production of power is of such interest and benefit to the whole District as to impress it with a public use.'

The court then directed the Board to organize the proposed district and this appeal thereupon followed.

A basic question raised on this appeal is the nature of a trial de novo under Chapter 7, Laws 1923. A.R.S. § 30-509 provides that:

'A. Any person aggrieved by the decision of the board of supervisors may appeal * * * to the superior court of the county in which the hearing was held.'

and A.R.S. § 30-511 provides that:

'A. The appeal shall be heard the novo by the superior court. * * *'

A.R.S. § 30-510 specifies that pursuant to notice of appeal, all papers filed in the controversy and a transcript of all records of the Board pertaining thereto, including the minutes and resolutions of the Board shall be sent to the Clerk of the Court. A.R.S. § 360-505 sets forth the findings and determination which the Board of Supervisors shall make, and vests in the Board discretionary power to make the determination of public use and also provides that the Board's decisions shall be binding upon all persons interested unless reversed on appeal, as in said chapter provided; this section further provides that if the decision is modified or affirmed, it shall be binding as modified or affirmed.

It is contended by the appellant that the jurisdiction of the trial court is limited to a determination of whether the action of the Board was contrary to law, arbitrary, capricious or unsupported by substantial evidence. Furthermore, it is contended in support of appellants' position that the superior court is without jurisdiction to make a determination because A.R.S. § 30-511 providing for a trial de novo on appeal to the superior court, is unconstitutional, and that, therefore, the findings of the Board, as made, are final and binding and not subject to review by the superior court.

This court has heretofore had occasions to discuss and pass upon questions involving trial 'de novo'. Duncan v. Mack, 59 Ariz. 36, 122 P.2d 215, 218, involved an appeal from a ruling of the Superintendent of the Department of Liquor Licenses and Control. The statute (A.R.S. § 4-210) provides that the decision of the Superintendent shall be final regarding the issuance, renewal, suspension or revocation of liquor licenses unless the aggrieved party files an appeal with the superior court. The statute provides that the matter be heard de novo in the superior court. Therein, this Court, in holding that the superior court had complete freedom to pass upon the matter independently of the findings of the liquor license department, said:

'We hold, therefore, that on appeals from an inferior court or administrative board to the superior court, unless the statute expressly provides otherwise, the case will be heard by the superior court in the same manner as though it were an original proceeding in that court, and while, as a matter of practice, due consideration should be given to the opinion of the lower tribunal as to the weight and credibility of the evidence, yet the superior court has jurisdiction to disregard that opinion and form its own independent conclusions upon the evidence. The trial court, therefore, acted within its jurisdiction in taking new evidence and forming its independent conclusions.' (Emphasis supplied)

In Manning v. Perry, 48 Ariz. 425, 62 P.2d 693, the appeal involved a ruling by the Land Department in regard to the leasing of state lands. The statute in question provided that appeals to the superior court from a ruling by the Commissioner on a lease of state lands should be had in the superior court as on an appeal from an appraisement. The section of the statute providing for an appeal on appraisement (Rev. Code 1928, Section 2963) spells out certain requirements and guides for the court to follow in conducting the appeal. There is no specific provision by statute for a trial de...