Maricopa County Municipal Water Conservation District Number One v. Prade

• Decision Date: 17 January 1935
• Docket Number: Civil 3588
• Citation: 40 P.2d 94,45 Ariz. 61
• Parties: MARICOPA COUNTY MUNICIPAL WATER CONSERVATION DISTRICT NUMBER ONE, Plaintiff, v. ARTHUR T. LA PRADE, as Attorney General of the State of Arizona, Defendant
• Court: Arizona Supreme Court

40 P.2d 94

45 Ariz. 61

MARICOPA COUNTY MUNICIPAL WATER CONSERVATION DISTRICT NUMBER ONE, Plaintiff, v. ARTHUR T. LA PRADE, as Attorney General of the State of Arizona, Defendant

Civil No. 3588

Supreme Court of Arizona

January 17, 1935

Original proceeding in Mandamus. Alternative writ made peremptory.

Messrs Elliott & Lewis and Mr. H. A. Elliott, for Plaintiff.

Mr Arthur T. La Prade, Attorney General, and Mr. Charles L Strouss, Assistant Attorney General, for Defendant.

OPINION

LOCKWOOD, C.J.

This is an original proceeding by Maricopa County Municipal Water Conservation District No. 1, an irrigation district organized under chapter 149, Session Laws of Arizona 1921, hereinafter called the district, asking for a writ of mandamus against Arthur T. La Prade, as Attorney General of the state of Arizona, hereinafter called defendant, directing him to certify certain contracts in the manner set forth in chapter 6 of the Third Special Session of the Elevanth Legislature, hereinafter called the act.

Defendant has demurred generally to the complaint on the ground that it does not state a cause of action, and specially that it appears the proceeding is an attempt to control his discretionary action, and that the act is unconstitutional for some thirteen reasons, and has then answered, admitting all of the allegations of fact and conclusions of law of the complaint; that the proceedings mentioned therein were had in the form and manner prescribed by the act; and that the contracts set forth therein are, as a matter of law, in conformity with the Constitution and laws of Arizona.

The complaint is a mere trifle of some 350 typewritten pages, and we shall therefore summarize it only in a very sketchy narrative form at first, reserving for a later portion of this opinion a more extended reference to such parts of the complaint as may from time to time be necessary.

The district embraces some 39,000 acres of land west of Phoenix, susceptible of irrigation from the Agua Fria River, and in 1925-1927 it erected a large dam on said river to store water for irrigating such lands, and built a distributing system appurtenant thereto. To secure funds for this work it issued and sold two series of bonds; the first for $3,325,000, and the second for $1,175,000, which bonds are all now outstanding obligations of the district. Thereafter, for various reasons, the dam and distributing system above described have greatly impaired and it will require the expenditure of a large sum of money to put them in proper shape to furnish water for the district's lands. The district has been in default of the interest charges on its bonds since January 1, 1930, and its situation is such that it is impossible to borrow money in the ordinary manner to rehabilitate its plant, and without such rehabilitation its financial situation is bound to grow continuously worse. For this reason it has been negotiating with the Reconstruction Finance Corporation, commonly and hereinafter called the RFC, to secure the $1,350,000 which it believes necessary to rehabilitate its affairs. As a result of these negotiations a plan was worked out under which the RFC has signified its willingness to loan the money. This plan may be briefly summarized as follows: (a) The present bondholders of the first and second series of bonds of the district are to deposit their bonds with a certain group of men, hereinafter called the committee; (b) a new private corporation, the Maricopa Reservoir & Power Company, hereinafter called the company, will issue its bonds in the sum of $4,500,000 and of two classes, to be exchanged with the present bondholders for the bonds so deposited with the committee; (c) the RFC will select from the bonds of the district deposited as above $1,350,000 face value, and pay the par value therefor, which sum is to be used for the rehabilitation of the district works as aforesaid and the remaining bonds to be canceled; (d) plaintiff will cause 15,000 acres of the land in its boundaries to be transferred to the company; will turn over to it the operation of its storage and distributing system for the term of the contract and will levy taxes and assessments sufficient to pay the bonds in the hands of the RFC, principal and interest as they become due, and certain specified sums annually to the company for its services; (e) the company will operate the storage and distribution plant of the district and spend a fixed amount for the development of a new water supply. The contracts providing for these things were approved by a majority of the real property taxpayers of the district, who were also qualified electors of the state and of the district, and were then submitted to the Attorney General for his approval and certification as provided in the act. He refused either to approve or disapprove, on the ground that the act was unconstitutional for many reasons, stating them, and thereafter this suit was filed and the alternative writ issued.

It is obvious from the entire record that this is, in effect, a proceeding of a character like those referred to by us in Re Verde River Irr. Dist., 37 Ariz. 580, 296 P. 804, Day v. Buckeye Water etc. Dist., 28 Ariz. 466, 237 P. 636, and Allison v. City of Phoenix, 44 Ariz. 66, 33 P.2d 927, 93 A.L.R. 354, and for the reasons set forth in those cases our judgment herein is limited to the precise questions discussed and decided by us and none other, reserving as open any other questions which might have been, but have not been, so expressly decided.

The first question is whether mandamus is an appropriate proceeding to determine the matters involved herein. Section 11 of the act, by virtue of which the district claims it is the duty of defendant to certify the contracts hereinbefore referred to, reads as follows:

"Sec. 11. Attorney General to pass upon validity. That notwithstanding the provisions of any general, special or local law, any district may submit to the Attorney General of the State of Arizona, any such contract or agreement or any bonds to be issued under any such contract or agreement entered into pursuant to the provisions of this Act after such bonds shall have been prepared, signed and sealed. Upon any such submission to the Attorney General, it shall be the mandatory duty of the Attorney General to examine into and pass upon the validity of such contract or agreement or of any such bonds and the regularity of all proceedings in connection with the execution and issuance thereof. If such contract, agreement and bonds have been executed and issued in conformity with the Constitution and Laws of the State of Arizona and are binding, legal and valid obligations of such district and enforceable according to the terms thereof, the Attorney General shall certify in substance upon the back of each of such bonds and on the back of any such contract or agreement or of a certified copy thereof so submitted to him, that it is issued or executed pursuant to the Constitution and the Laws of the State of Arizona. Such certificate shall be conclusive evidence of the authority of the district to enter into such contract or agreement and/or to issue such bonds and of the validity thereof."

It is defendant's contention that this section confers a discretion on him to determine whether or not the act is constitutional, and under such circumstances, having exercised his discretion in holding that it is not, mandamus does not lie to compel him to act further. It is the position of the district that if the act is, as a matter of law, constitutional, he has no discretion as to whether or not he shall proceed to perform the duty imposed on him by section 11, supra.

The general rule of law is that where the performance of an act is a matter of discretion on the part of a public officer, mandamus does not lie to compel him to do the act. Prina v. Board of Supervisors, 16 Ariz. 252, 143 P. 567; 38 C.J., p. 659, and notes. But where as a matter of law he is bound to act in some manner, even though he have discretion as to how he shall act, he can be compelled to act. United States ex rel. Ness v. Fisher, 223 U.S. 683, 32 S.Ct. 356, 56 L.Ed. 610; State v. Hinkle, 120 Wash. 85, 206 P. 942. And if it appear in the proceeding that there is only one legal way he can act on an admitted state of facts, is would seem that he no longer has any discretion, that his duty, although discretionary if the facts are in dispute, decomes ministerial only, and that logically there is no reason why mandamus should not lie to compel him not only to act, but to act in the only manner which the law permits.

The constitutionality of an act of the legislature of Arizona and its legal effect are of course questions of law, the final determination of which is for this court, and such determination is not subject to review, except so far as federal matters are concerned.

The complaint herein alleges, in substance, that the contracts in question are executed in all respects in conformity to the Constitution and laws of Arizona, and particularly in accordance with the act, and it is alleged that defendant does not deny this; his refusal to certify being based solely on the claim that the act, for certain specified reasons, is unconstitutional. The answer of defendant admits this. If therefore, the act is constitutional, on the pleadings as they are before us it is defendant's duty to certify the contracts. It has been held in other states, under analogous circumstances, that mandamus does lie, and that the issue is the legal meaning and constitutionality of the statute imposing the duty, and that the court in such a proceeding, no issue of fact being raised, will determine the whole matter. Tarrant County Water Control & Imp. Dist. No. 1 v. Pollard, ...