Magma Flood Control Dist. v. Palmer
Decision Date | 20 September 1966 |
Docket Number | No. 2,CA-CIV,2 |
Citation | 4 Ariz.App. 137,418 P.2d 157 |
Parties | MAGMA FLOOD CONTROL DISTRICT, a municipal corporation, Appellant, v. Clayton D. PALMER, Appellee. 274. |
Court | Arizona Court of Appeals |
Thomas E. Johnson and Harry Bagnall, Coolidge, for appellant.
Johnson, Shelley, Roberts & Riggs, by J. LaMar Shelley, Mesa, for appellee.
Cox & Johnson, by Donald C. Cox, Eloy, for Green Reservoir Flood Control District and Florence Area Watershed Flood Control District, amicus curiae.
Rawlins, Ellis, Burrus & Kiewit, by William D. Baker, Phoenix, for Maricopa Flood Control District, Stanfield Flood Control District and Picacho Flood Control District, amicus curiae.
This is an appeal from a judgment dismissing a condemnation action brought by the Magma Flood Control District seeking to acquire certain real property for the purpose of erecting dikes, dams and diversion structures for the purpose of providing flood control within the district. The judgment in the lower court is expressly predicated upon the holding that certain sections of our statutory code pertaining to flood control districts were repealed by implication by subsequent legislation on the subject.
On appeal, the judgment below is defended on two additional grounds: (1) that the plaintiff flood control district was improperly created because in the resolution of the Board of Supervisors of Pinal County, authorizing its existence, reference is made to the statutory law authorizing the creation of Drainage districts rather those pertaining to Flood control districts, and (2) that the plaintiff flood control district has no power of eminent domain because such power has not been delegated to it by the legislature.
We examine first the contention that those provisions of the code under which the plaintiff herein purports to have been created have been impliedly repealed by subsequent legislation. A.R.S. § 45--2301, which became a part of our legislative code by chapter 151 of the Laws of 1921, is the section under which the plaintiff claims to be incorporated. This law reads as follows:
The above quoted section, together with the succeeding section authorizing any flood control district organized under this article to accept donations from the state, public municipalities or private sources, constitutes article 1 of chapter 10 of title 45 of the Arizona Revised Code of 1956. Chapter 10 of title 45 is devoted to 'Flood Control' and article 1 thereof is entitled in the codification 'Flood Control Districts.'
The subsequent legislation which it is argued repeals by implication the above referred to article is chapter 113 of the Laws of 1959. This act is entitled:
'RELATING TO FLOOD CONTROL; PROVIDING FOR THE ESTABLISHMENT OF FLOOD-CONTROL DISTRICTS; PRESCRIBING THEIR POWERS AND DUTIES; AUTHORIZING THE ISSUANCE OF BONDS THEREBY; PROVIDING FOR THE LEVY OF TAXES; GRANTING RIGHTS OF WAY TO SUCH DISTRICTS; MAKING BONDS ISSUED THEREBY LEGAL INVESTMENTS FOR CERTAIN PURPOSES, AND AMENDING TITLE 45, CHAPTER 10, ARIZONA REVISED STATUTES, BY ADDING ARTICLE 5, SECTIONS 45--2351 TO 45--2371, INCLUSIVE.' (Emphasis added)
This 1959 act commences as follows:
'Be it enacted by the Legislature of the State of Arizona:
(Emphasis added)
There are various apparent differences between article 1 of chapter 10 of this title, under which the appellant deems itself to be incorporated, and article 5 added by the 1959 act. Among such differences are: (1) an old, or as the plaintiff refers to it, the 'general' flood control district may be proposed by the petition of five or more property owners , while the new or 'special' flood control district can only be initiated by the board of supervisors of the county in which the district is to be formed (A.R.S. § 45--2354); (2) the governing body of the old or 'general' flood control district is a board of directors consisting of electors and resident freeholders within the district elected by the real property owners within the district (A.R.S. §§ 45--1207 through 45--1209), while the governing body of the 'special' flood control district is the board of supervisors of the county in which the district is located ; and (3) under the old law, a flood control district could consist of portions of two or more counties , while under the provisions pertaining to 'special' flood control districts it would appear that the district must lie within the county governed by the board of supervisors which establishes it (A.R.S. § 45--2353). There may be other material differences between the provisions of the two enactments, but these are sufficient for the purposes of discussion here.
Repeals by implication are not favored unless it is manifest from inherent repugnancy or inconsistency that the legislature must have intended to repeal the earlier enactment by the later law. State v. Morf, 80 Ariz. 220, 223, 295 P.2d 842 (1956).
Once we assume that the legislature intended by its 1959 enactment to authorize a new and additional kind of a flood control district, in addition to the type already in existence under the 1921 act, we find no inherent inconsistency between the provisions of article 1 of chapter 10, title 45, and article 5, chapter 10 of title 45.
The defendant argues on appeal that even though there is no repugnancy between earlier and later legislation, there may be an implied repeal of legislative enactment by reason of the obvious intent of the later legislation to preempt the particular field or subject matter. The following quotation is given to us from an encyclopedia of law:
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