Hughes Tool Co. v. Superior Court of Pima County

• Decision Date: 05 April 1962
• Docket Number: No. 7540,7540
• Citation: 370 P.2d 646,91 Ariz. 154
• Parties: HUGHES TOOL COMPANY, a Delaware corporation, Petitioner, v. The SUPERIOR COURT OF the COUNTY OF PIMA and Tucson Gas, Electric Light and Power Company, a corporation, Respondents.
• Court: Arizona Supreme Court

Page 646

370 P.2d 646

91 Ariz. 154

HUGHES TOOL COMPANY, a Delaware corporation, Petitioner, v. The SUPERIOR COURT OF the COUNTY OF PIMA and Tucson Gas, Electric Light and Power Company, a corporation, Respondents.

No. 7540.

Supreme Court of Arizona, In Banc.

April 5, 1962.

Rehearing Denied June 5, 1962.

Boyle, Bilby, Thompson & Shoenhair, Tucson, for petitioner.

Darnell, Holesapple, McFall & Spaid, Tucson, for respondent Tucson Gas, Electric Light and Power Co.

Snell & Wilmer, Phoenix, for Arizona Public Service Co., and El Paso Natural Gas Co., amici curiae.

BERNSTEIN, Chief Justice.

This is an original proceeding for a Writ of Certiorari to the Superior Court of Pima County, through which the Petitioner, Hughes Tool Company, seeks to have declared invalid an order of that court permitting the Respondent, Tucson Gas, Electric Light & Power Company, into immediate possession of property of the petitioner. An Alternative Writ of Certiorari has been issued by this Court.

Tucson Gas, under the power of eminent domain conferred in § 12-1111 A.R.S. commenced proceedings against the Hughes Tool Company to condemn power line rights of way through properties owned by Hughes. Concurrently with the complaint in this proceeding, tucson Gas filed its application for an order permitting immediate possession and use under the provisions of § 12-1116. The Superior Court of Pima County entered its order granting immediate possession and use upon the filing with the court of a bond in the amount of $100,000, to which the parties had agreed in lieu of the deposit of double the probable damages required by § 12-1116 A.R.S.

The parties agree that the sole issue raised by this petition is whether Tucson Gas, a privately owned public service corporation, is precluded by the provisions of Art. 2, § 17, Arizona Constitution, A.R.S. from obtaining immediate possession and use under § 12-1116 A.R.S.

We have considered this as a companion case to Desert Waters v. Superior Court of Pima County, 91 Ariz. 163, 370 P.2d 652 (1962), because of the close relationship between some of the issues involved. In the Desert Waters case we held § 12-1116 was constitutional as applied to a municipal corporation obtaining immediate possession and use of properties of a privately owned utility sought to be condemned by the city. We were there concerned with the general clause of Art. 2, § 17, Arizona Constitution which reads:

'No private property shall be taken or damaged for public or private use without just compensation having first been made, or paid into court for the owner, * * *.'

We there construced the phrase 'or paid into court for the owner,' to permit, as an alternative to prior jury determination of the condemnee's damages, the payment of an amount, and upon such terms, as will adequately guarantee to the condemnee compensation for all damages that might result from granting immediate possession.

In this case we are concerned with the right of way clause of Art. 2, § 17, Arizona Constitution, which immediately follows the general clause set forth above:

'* * * and no right of way shall be appropriated to the use of any corporation other than municipal, until full compensation therefor be first made in money, or ascertained and paid into court for the owner, irrespective of any benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury, unless a jury be waived as in other civil cases in courts of record, in the manner prescribed by law.'

It is apparent that the clause first quoted above is general in its application and without exception, either as to persons or parties subject to its mandate, or types of property covered by its rule. In contrast, the right of way clause applies only to rights of way, exempts municipal corporations from some or all of its provisions and sets a more explicit standard of performance required of all other corporations in the cases to which it applies. It follows that the right of way clause is not an exception to the general clause, but imposes further limitations and conditions on the acquisition of rights of way by private corporations through the exercise of powers of eminent domain.

The limitations in addition to those of the general clause which the right of way clause imposes on the acquisition of property by private corporations through the exercise of eminent domain powers are: full compensation must be made in money or be ascertained and paid into court for the owner; no set-off for benefits accruling to the condemnee by reason of the intended improvement is permitted; and compensation must be ascertained by a jury unless waived.

In Bugbee v. Superior Court, 34 Ariz. 38, 267 P. 420 (1928), an order of the Superior Court permitting an irrigation district to enter into immediate possession and use was challenged as violating this constitutional provision. This Court stated:

'It is plain from this provision that the court's order, putting the Roosevelt Irrigation District into the immediate possession of the property before the damages were paid or ascertained, is void, unless such district is a municipal corporation within the meaning of such provision. * * *' 34 Ariz. at 40, 267 P. at 420.

The principal issue in the Bugbee case, and the only issue argued by the parties in their briefs in that case was whether the irrigation district was a municipal corporation within the meaning of this provision. The Court held that the district was a municipal corporation and affirmed the order of the Superior Court. Since the interpretation of the constitutional provision, other than the words 'municipal corporation' was not before the court, and since the construction given was not necessary to its decision, the statement quoted above must be taken as dictum. However, it illustrates the plain import of the words appearing in this clause of Art. 2, § 17.

The amicus, arguing in favor of the respondent, contends however, that the right of way clause was intended only as a rule of damages, that is, that it denies to private corporations a set-off for benefits accruing to the condemnee's remaining land from improvements intended by the condemnor, but permits municipal corporations to make such a set-off. While the case of Lewis v. City of Seattle, 5 Wash. 741, 32 P. 794 (1893) supports the view that the right of way clause is only a rule of damages, its effects is adverse to the petitioner's position, since it required advance payment of damages in all cases. Moreover, in the Desert Waters opinion we chose not to follow the construction given to Washington's similar constitutional provision in the Lewis case.

Support for the view that the right of way clause states a rule of damages is also sought in the discussion of this provision by the Arizona Constitutional Convention on November 25, 1910 (set out in an appendix at the end of this opinion). At that time a motion was made to strike the words 'other than municipal' in the right of way clause of what is now Art. 2, § 17. During the discussion that followed Mr. Ingraham said:

'* * * This rule is followed in estimating the damage. The damage is found by taking from the total damage any benefit that the improvement may be to the property. For instance, it is possible to think of a large lot. The city opens a street through the lot. Now the opening of the street is a damage to the lot because it takes a portion of it, but the opening of that street may cause a business district in that vicinity and this street would be a great improvement to the remained of the lot. The rule in that case is that the benefits that have resulted to the property may be deducted from the total loss that would otherwise come. It seems to me that this expression 'other than municipal' is put there for the purpose of protecting that peculiar feature of the law, and making an exception with municipal corporations.'

We agree that the right of way clause states a rule of damages, but we cannot agree that that is its only purpose. To so limit it would be to completely ignore the other language of the clause. That those additional words are something more than a restatement of the requirements of the general clause is apparent from the changes of wording which appear in the right of way clause. 'Just compensation' in the general clause becomes 'full compensation * * * in money' in the right of way clause; 'or paid into court' becomes 'or ascertained and paid into court * * * which compensation shall be ascertained by a jury.' (Emphasis added.) In construing the constitution some meaning or effect should be given all of the words used if it is possible to do so in conformity with the intention of the framers. Porter v. Hall, 34 Ariz. 308, 271 P. 411 (1928); Adams v. Bolin, 74 Ariz. 269, 247 P.2d 617, 33 A.L.R.2d 1102 (1952).

In this case the clear intent of the framers of the constitution is somewhat difficult to determine. A perusal of the record appended to this opinion will show that several views existed among those who spoke on this point. Mr. Franklin, who opposed the provision, thought that it permitted municipal corporations to expropriate rights of way without paying anything therefor. Mr. Parsons thought that it required that municipal corporations pay compensation, but that the determination of the amount of compensation was deferred until after the taking. Mr. Ingraham indicated that the provision stated a rule of damages, i. e. that only a municipal corporation could set-off benefits accruing to the remaining property of the condemnee by reason of the right of way improvement, but also indicated that it would permit a city to develop a right of way before the determination of damages to adjoining landowners was made. In so far as these interpretations would permit a municipality to take a right of way or damage adjoining land through development of a right of way, without paying any compensation, or...