Rubenstein Const. Co. v. Salt River Project Agr. Imp. & Power Dist., 5790

• Decision Date: 21 December 1953
• Docket Number: No. 5790,5790
• Citation: 265 P.2d 455,76 Ariz. 402
• Parties: , 2 P.U.R.3d 158 RUBENSTEIN CONST. CO. v. SALT RIVER PROJECT AGR. IMPROVEMENT & POWER DIST.
• Court: Arizona Supreme Court

Page 455

265 P.2d 455

76 Ariz. 402, 2 P.U.R.3d 158

RUBENSTEIN CONST. CO. v. SALT RIVER PROJECT AGR. IMPROVEMENT & POWER DIST.

No. 5790.

Supreme Court of Arizona.

Dec. 21, 1953.

James E. Flynn, and Allan K. Perry, Phoenix, for appellant.

Jennings, Strouss, Salmon & Trask, and J. A. Riggins, Jr., Phoenix, for appellee.

STANFORD, Chief Justice.

Rubenstein Construction Company, a corporation (plaintiff-appellant), during the years 1951-1952 constructed five hundred dwelling units at Williams Air Force Base. Each unit was and is served by the Salt River Project Agricultural Improvement and Power District, a corporation (defendant-appellee), with electrical energy for lighting, etc. As a condition precedent to such service, defendant demanded from plaintiff a connection charge of $25 per unit, which was paid. The parties will be referred to as they appeared in the lower court.

Plaintiff by this action sought the return of the payments it had made for these connection charges, claiming the same had been illegally exacted. It alleges such a service charge is prohibited by Section 76-109, A.C.A.1939, which reads as follows:

'Regulation of utility rates--Minimum.--It shall be unlawful for any person to sell water, electric energy or gas, used or to be used for commercial or domestic purposes, except by meter measurement if the consumer shall request the same; or to charge and collect for a greater amount than actually furnished during the period for which the charge was made; but an allowance of not exceeding three (3) per cent may be made for inaccuracy in meter measurement. The corporation commission may permit a minimum charge, not exceeding one dollar ($1.00) per month. No charge shall be made by any public service corporation for making connection for water, gas, electricity for lighting, or telephones. Any public service corporation demanding and receiving a deposit of money from any consumer shall pay to such consumer eight (8) per cent interest per annum thereon. The inspector and sealers shall be under the direction of the corporation commission in all matters pertaining to meter inspection.' (Emphasis supplied.)

Defendant answered, alleging itself to be a political subdivision and municipal corporation of the State of Arizona within the meaning of Section 7, Article 13, of the Constitution of Arizona, and thereby entitled to all the privileges and immunities granted such political subdivisions.

The defendant, after the issues were joined, filed a motion for summary judgment, accompanied by an affidavit of its secretary stating its corporate status to be that alleged in its answer, and stating that it is an agricultural improvement district duly organized and existing under and by virtue of Chapter 75, Article 7, A.C.A.1939. Defendant's motion for summary judgment was predicated upon the theory that the provisions of Section 76-109, supra, had no application to it in its capacity as a municipal corporation. The trial court granted the motion and judgment was entered accordingly, from which this appeal is...