Kinne v. Burgess

• Decision Date: 23 December 1922
• Docket Number: Civil 2135
• Citation: Kinne v. Burgess, 24 Ariz. 463, 211 P. 573 (Ariz. 1922)
• Parties: GEORGE KINNE, Chairman, FLOYD C. TEMPLETON, Secretary-Treasurer, FRED T. ARMISTEAD, W. I. DAVIDSON, FRANK C. ELWELL, M. A. ANDERSON and FRED W. BASSLER, Members of the Board of Directors of Electrical District Number One, Pinal County, Arizona; E. F. KELLNER, Jr., Chairman, ROBERT DENTON and H. H. McDONALD, Members of the Board of Supervisors of Pinal County; KATIE E. WEAVER, Treasurer of Pinal County, and the ELECTRICAL DISTRICT NUMBER ONE, PINAL COUNTY, ARIZONA, Appellants, v. GEORGE W. BURGESS and FRANK GILBERT, Appellees
• Court: Arizona Supreme Court

211 P. 573

24 Ariz. 463

GEORGE KINNE, Chairman, FLOYD C. TEMPLETON, Secretary-Treasurer, FRED T. ARMISTEAD, W. I. DAVIDSON, FRANK C. ELWELL, M. A. ANDERSON and FRED W. BASSLER, Members of the Board of Directors of Electrical District Number One, Pinal County, Arizona; E. F. KELLNER, Jr., Chairman, ROBERT DENTON and H. H. McDONALD, Members of the Board of Supervisors of Pinal County; KATIE E. WEAVER, Treasurer of Pinal County, and the ELECTRICAL DISTRICT NUMBER ONE, PINAL COUNTY, ARIZONA, Appellants, v. GEORGE W. BURGESS and FRANK GILBERT, Appellees

Civil No. 2135

Supreme Court of Arizona

December 23, 1922

APPEAL from a judgment of the Superior Court of the County of Pinal.O. J. Baughn, Judge.Affirmed.

Mr. A Van Wagenen and Mr. E. P. Patterson, County Attorney, for Appellants.

Mr. P D. Overfield, for Appellees.

OPINION

ROSS, C. J.

This is an action by George W. Burgess and Frank Gilbert, as taxpayers and owners of real property in electrical district No. 1, Pinal county, Arizona, in their own right, and in behalf of others similarly situated, to enjoin the said electrical district, its board of directors, the board of supervisors of Pinal county, and the treasurer thereof, from issuing and selling $200,000 in bonds of said electrical district theretofore authorized by a vote of the real property taxpayers of said district.

Among other things, it is alleged in the complaint that the proceeds of bonds are proposed to be used by said electrical district for the purpose of erecting and maintaining electrical transmission lines and extensions and the installation of transformer stations and like equipment intended for the furnishing of power to users in said electrical district for the pumping of water for the primary purpose of irrigation.That while the lands are arid and will grow but little, if any, crops without artificial irrigation, it is alleged that the furnishing of power to obtain water for irrigation is not a public enterprise and is not a function to be constitutionally exercised by any quasi-municipal corporation or assessment organization, or district.

It is further alleged that the law (chapter 49, Laws of 1915) under which defendant electrical company was organized is unconstitutional because it provides for no notice to taxpayers and owners of land nor any hearing as to whether their lands would be benefited by reason of their inclusion in said district.

It is further alleged in the complaint that said bond issue was authorized by a vote of the real property taxpayers in said electrical district only; that those residents of said district who paid taxes on personal property only were not allowed to vote on the question.

The complaint charges other fundamental defects in the law authorizing the organization of electrical districts, but these latter we will not notice, as our conclusion on other questions raised, or necessarily involved, disposes of the case.

The answer of defendants admits that only real property taxpayers voted thereon and the purpose of issuing and selling bonds to be as alleged in complaint and the intention to carry out such purpose unless restrained.A hearing was had at which evidence of the organization of the defendant electrical district, the proceedings looking to the voting of bonds etc., were submitted, as also oral testimony of citizens of said district showing the urgent need and desirability of procuring electrical power for irrigation, also resolutions of the board of directors describing the plant to be installed and giving estimates of costs, etc.The court, thereafter, entered a decree making the temporary restraining order permanent, such ruling being based upon the unconstitutionality of chapter 49, Laws of 1915, and acts amendatory thereof, on the ground that said laws failed to provide the property owner a hearing as to benefits prior to the establishment of boundaries of district.

The case is presented here on appeal from said judgment, and we are asked by both sides to give it precedence by advancing it upon our calendar and settling the disputed questions involved, so that, if for any reason the proposed issue of bonds be held to be without authority of law, the proponents of such district may take such steps as may seem advisable, under the existing laws of the state, or seek other legislation in aid of their purpose, from the legislature that meets in January, 1923.Although, as usual, when of a friendly nature, involving an unsettled and doubtful question, but desired by both sides to be resolved the same way, the case is not as adequately and fully presented as we would like, we have concluded to yield to the request.We do it the more willingly because we realize that the farmers of Casa Grande Valley must suffer great hardship and loss unless they soon procure irrigation water for their lands -- lands naturally very rich and capable, with a sufficient supply of water, of producing good returns to their owners, as well as materially increasing the taxable property of the state, but which without water are of little value to anyone.

The general scheme of chapter 49, Laws of 1915, for the organization of electrical districts, is as follows: When a petition signed by twenty-five freeholders in a proposed electrical district, defining the boundaries thereof, is presented to the board of supervisors, requesting the formation of such district, it is made the duty of the board, within thirty days, to call an election of the resident freeholders therein, to determine for or against such formation.The qualification of a voter at such election is ownership or equitable interest in real property located in the proposed district, thirty days' residence therein prior to election, besides the general qualification of an elector of the district.If a majority of such voters favor the formation of such district, it is made the duty of the board of supervisors to enter an order in their records declaring its formation, setting forth its boundaries, and thereupon appoint from such electors seven trustees for the district.The board of trustees are given power to acquire for the use and benefit of the persons living within such electrical district, by purchase, rental, generation manufacture or otherwise, a power plant, and such personal and real property as may be needed or useful in the conduct of the affairs of the district.For the purpose of constructing, maintaining and repairing their plant, to pay interest on bonds, overhead charges, salaries and to provide a redemption fund for the...