Hooker v. Village of Hatch

• Decision Date: 04 September 1959
• Docket Number: No. 6546,6546
• Citation: 1959 NMSC 66,66 N.M. 184,344 P.2d 699
• Parties: Jeff HOOKER, Plaintiff-Appellant, v. VILLAGE OF HATCH, a Municipal Corporation, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 699

344 P.2d 699

66 N.M. 184

Jeff HOOKER, Plaintiff-Appellant, v. VILLAGE OF HATCH, a Municipal Corporation Defendant-Appellee.

No. 6546.

Supreme Court of New Mexico.

Sept. 4, 1959.

Rehearing Denied Oct. 20, 1959.

Darden, Caffey & Mechem, Mary Simpson Goggin, Las Cruces, for appellant.

Garland & Martin, Las Cruces, for appellee.

McGHEE, Justice.

The Village of Hatch desires to furnish natural gas to its citizens under the authority of Sec. 14-39-32, N.M.S.A. 1953, and in order to do so it will be necessary to lay a pipeline from a point near Las Cruces northerly to the village, and also to install a distribution system within its borders.

It would not be economically feasible to install the lines and operate a distribution system unless it can also deliver gas to the water users to power their irrigation pumps between a point five miles north of Las Cruces and Hatch, and also some ten to twenty miles north. The water users to be served are all members of the Elephant Butte Irrigation District and the gas would, under the terms of the declaratory judgment entered below, be billed to the irrigation district, or an improvement district to be organized by it.

The pipelines and distribution system would be financed from the sale of revenue bonds under the statute above cited which contains the following proviso:

'* * * provided, however, that no such electric generating plant shall be located and no distribution lines shall extend beyond a distance of five (5) miles from the limits of such municipality, excepting for the sale of electricity or natural gas to the United States Government, the State of New Mexico, or any department or agency of such government.'

The trial court in a declaratory judgment action brought to determine the legality of the proposed undertaking held the Elephant Butte Irrigation District was an agency of the State of New Mexico, and that therefore it would be lawful for the village to sell gas to it or to an improvement district it might organize, and this appeal followed.

The first and crucial question in the case is whether the irrigation district is an agency of the State of New Mexico.

The district was organized and operates under Sec. 75-23-1 to Sec. 75-23-45 and Secs. 75-24-1 to 75-24-54, N.M.S.A.1953, covering irrigation districts cooperating with the United States under reclamation laws, and the territory under its jurisdiction is that part of the Rio Grande Reclamation Project south of Elephant Butte Dam and north of the Texas-New Mexico boundary line.

The pertinent enabling provision of the statute is Sec. 75-23-18, N.M.S.A.1953, which reads:

'The said board is hereby authorized and empowered to take conveyances or assurances for all property acquired by it under the provisions of this act in the name of such irrigation district to and for the purpose herein expressed, and to institute and maintain any and all actions and proceedings, suits at law or in equity, necessary or proper in order to fully carry out the provisions of this act, or to enforce, maintain, protect or preserve any of the rights, privileges and immunities created by this act or acquired in pursuance thereof. And in all courts, actions, suits, or proceedings the said board may sue, appear and defend in person or by attorneys and in the name of such irrigation district. Judicial notice shall be taken in all actions, suits and judicial proceedings in any court of this state of the organization and existence of any irrigation district of this state now or hereafter organized, from and after the filing for record in the office of the county clerk of the certified copy of the order of county commissioners memtioned in section 7(75-23-7), and a certified copy of said order shall be prima facie evidence in all actions, suits and proceedings in any court of this state of the regularity and legal sufficiency of all acts, matters and proceedings therein recited and set forth; and any such irrigation district, in regard to which any such order has been heretofore or may hereafter be entered, and such certified copy thereof, so filed for record, and which has exercised or shall exercise rights and powers of such district, and shall have had or shall have in office a board of directors exercising the duties of their office and the legality or regularity of the formation or organization whereof shall not have been questioned by proceedings in quo warranto instituted in the district court of the county in which such district or the greater portion thereof is situated within one (1) year from the date of such filing, shall be conclusively deemed to be a legally and regularly organized, established and existing irrigation district within the meaning of this act and its due and lawful formation and organization shall not thereafter be questioned in any action, suit or proceeding whether brought under the provisions of this act or otherwise.'

Nowhere in the statute is there any provision that such an irrigation district is a state agency, and there is no contention that it is an agency of the United States, although it was organized to operate under and cooperate with the United States in one of its reclamation projects.

The Village places its principal reliance for an affirmance on the case of People ex rel. Rogers v. Letford, 1938, 102 Colo. 284, 79 P.2d 274, 281, wherein the constitutionality of the Water Conservancy Act of Colorado (Ch. 266, Colorado Laws of 1937) was determined and the court held an irrigation district organized thereunder was an agency of the State of Colorado.

Such legislation contemplated statewide development and use of the waters of Colorado before they flowed past its borders, and was not limited as was Colorado's previous act authorizing the formation and operation of irrigation or drainage districts. It was given the right to levy taxes, provide water supplies for municipalities and other functions. To indicate the wide scope of the district to be organized thereunder we quote from the opinion:

'* * * It is reasonably asserted by competent engineering authority that, by the construction of adequate water storage and diversion systems, water may be carried from regions within our state having a surplus to...