Johnson v. Chandler ( 1922 )

ROSS, C. J.

The statement of the case by the appellant, and his assignments of error, are as follows :

“This is a proceeding brought by the board of directors of the Auxiliary Eastern Canal Irrigation District under the provisions of section 28 of chapter 149, Laws of 1921, to obtain a judicial determination as to the legality of the organization of the district and the regularity and legality of the proceedings of the board of directors of said district providing for and authorizing the issue and sale of the first series of $2,000,000 of 7 per cent bonds of said district.

“An answer was filed to the petition by John Johnson, appellant herein, which raised the issue, as provided in the said act, by general demurrer, first, as to the constitutionality of the act known as chapter 8, Laws of 1915, under which the district was organized, and of the act approved March 19, 1921, under which the proceedings for the issue of said bonds were had; and, second, as to the regularity of the proceedings relating to the issue of said bonds.

‘ ‘ The respondent also raised, by way of answer, an issue as to the authority of the board of directors of the district to enter into a contract with the Salt Biver Valley Water Users’ Association under.which certain of the proceeds of the sale of said bonds is proposed to be used in the acquisition of certain power rights.

“The petition set forth in extenso the various proceedings leading to the organization of the district and to the proceedings leading to the issue of said bonds by the district. The pleading of John Johnson also set forth the facts relating to the proposed contract with the Salt Biver Valley Water Users’ Association. The facts so set forth were admitted by the petitioners in a reply made to the answer filed by respondent.

“The court heard the case upon the agreement and stipulation of counsel that the facts as contained in the petition and in the answer of John Johnson were true and correct and upon certain documentary evidence as to the powers of the Salt Biver Valley Water Users’ Association with relation to the proposed contract.

“The trial court entered its judgment based upon findings of fact and conclusions of law.

“First, sustaining the constitutionality of the acts above mentioned;

“Second, affirming’ and approving the proceedings of the district with respect to the issue of said bonds and confirming and approving the legality of said bonds; and

‘ ‘ Third, confirming the authority of the district and of the Salt Biver Valley Water Users’ Association to enter into the contract above mentioned.

“From this judgment the respondent John Johnson has appealed to this court.

“Assignments of Error.

“I. The court erred in holding that the act known as chapter 8 of the Laws of 1915, Second Special Session, is constitutional and a valid act of the Legislature :

“First, because the act attempts to create a class of public corporations not authorized by the Constitu-. tion of the state.

“Second, because said act confers upon the board of supervisors of a county legislative powers in the creation of corporations;

“Third, because it authorizes the levy by irrigation districts of taxes, upon real estate without limitation;

“Fourth, because it violates the provisions of section 1 of article 9 of the Constitution of the state by providing a system of taxation which excludes from its operation all personal property within the district;

“Fifth, because it violates the provisions of section 1 of article 9 of the state Constitution in that the taxes authorized to be levied in the district are not uniform;

“Sixth, because said act conflicts with the Constitution of the United States by authorizing the appropriation of private property, without the owner’s consent, to a mere private use;

“Seventh, because it conflicts with section 1 of the Fourteenth Amendment of the Constitution of the United States by authorizing the appropriation of the property of nonresidents without due process of law.

“II. The court erred in holding that chapter 149 of the Laws of 1921, being the act approved March 19, 1921, is constitutional and a valid act of the Legislature of the state of Arizona, for the reasons enumerated and set forth in the foregoing assignment.

“III. The court erred in entering its judgment and decree in that the findings of the court do not sustain said judgment:

“First, because the facts found do not sustain the conclusion of law that the district was duly and regularly organized;

“Second, in that they do not sustain the conclusion of law that the proceedings with respect to the issuance of bonds were regular and in accordance with law;

‘ ‘ Third, that the facts found do not sustain the conclusion of law that the board of directors of the district has authority to enter into the proposed contract with the Salt Eiver Valley Water Users’ Association because the contract proposed does not contemplate the ownership by the district of the works for the construction of which the contribution is to be made by the district under its terms.”

There is no controversy whatever about the facts, or that the proceedings in the organization of Auxiliary Eastern Canal Irrigation District and the proceedings concerning the proposed bond issue were entirely regular and in exact conformity with the statute, the only questions presented for our consideration being questions involving the constitutionality of chapters 8 and 149 referred to in the statement of facts, as applied to those facts. It may be stated preliminarily that all of the Pacific Coast states, and two states of the middle west (Nebraska and Kansas), have enacted laws providing for the organization of irrigation districts for the purpose of reclaiming their arid lands. The pioneer in such legislation was California, when in 1887 it enacted what is known as the Wright Irrigation Law. Other states adopting similar laws are Idaho, Oregon, Utah, Colorado, Nevada, Washington, Montana, Kansas and Nebraska. The enactments by the legislature of Arizona, in 1915 and in 1921, as we understand, are in all essential features like the Wright Law as amended from time to time, and the laws of the other named states. In fact, it is certain such laws were used as a guide rathe drafting of ours. We are fortunate in that respect, as the Wright Law and its prototypes have many times been before the highest courts of the states adopting it, and once before the Supreme Court of the United States, and in all of these courts the law has been upheld as constitutional. We are cited to no case, and in our research we have found none, taking a contrary view, except the case of Bradley v. Fallbrook Irr. Dist. (C. C.), 68 Fed. 948, which later, upon appeal to the Supreme Court of the United States, was reversed in 164 U. S. 112, 41 L. Ed. 369, 17 Sup. Ct. Rep. 56 (see, also, Rose’s U. S. Notes). So that it may be truthfully said that the courts, national and state, where the Wright Irrigation Law, and others of a similar character, have been brought into review, have all been in accord in upholding the power of the legislature to enact such laws. We will not undertake to discuss each of the assignments separately and indicate oúr rulings thereon, hut suffice it to say that all of the objections raised herein, by the appellant, have many times been presented and passed upon by the courts of the states having the Wright Act, or acts similar thereto, and we shall content ourselves by stating in the language of Kinney on Irrigation and Water Sights, volume 3, section 1406, the objections made to the act and the rulings of the courts thereon:

“It was therefore contended that the statute, in violation of the Constitution of the United States and of the state, attempted to authorize the assessment and the taking of private property for a private use, and that a district formed under the act was a private and not a public corporation. It has been repeatedly held by the courts that this contention was not well taken, and that: ‘The formation of one of these districts amounts to the creation of a public corporation, and their officers are public officers.’ It is therefore held by the courts that an irrigation district formed under these laws is a public corporation, and its object is the promotion of the general welfare, and the assessment of the property under the provisions of the law is not the ‘taking’ of property for a private, but for a public, use. It therefore also follows that property may be taken by a district by virtue of the power of eminent domain. It is also held that the fact that the use of the water under the law is limited to the landowner, and is not given to every resident of 'the district, does not prevent the use being public; but that land which can be beneficially used without irrigation may be so much improved by the use of it upon other lands in the district, that such land may be properly within a district, and assessed for its benefit as a public improvement, and such use of the water is a public use.

“It was also contended that the law was unconstitutional because it authorized the taking of private property without due process of law. There were a number of phases of this branch of the question presented in the various cases, but the courts invariably held against them all, and held the law to be constitutional. It being held that, whenever a state law imposes a tax, assessment, servitude, or other burden upon property for a public use, either of the whole of the state or a limited portion thereof, and such law provides a mode of confirming or contesting such charge in the ordinary courts of justice, with due notice to the owner, the judgment in such proceedings does not deprive the owner of his property without due process of law. The adoption of a method of assessment according to the value of all the real property within a district, or an ad valorem method, for the expenses of the improvements of the district, is not the taking of property without due process of law. Again, these district laws are not unconstitutional on the ground that the power thereby conferred upon districts to levy taxes is without limitation. And, again, the fact that the statute makes no provision for notice to the landowner that on a particular day the board of directors will assess benefits to the lands within the district will not render such statute unconstitutional, upon the ground of taking property without due process of law, where the statute does provide for notice to be given of the proceedings to organize such district, and notice for the hearing for the confirmation of the organization and the proceedings of such district, at which hearing the court is required to' examine all proceedings for the organization of such district including the assessment of benefits.

"That the law was unconstitutional was also urged, upon the ground that it was a delegation to others of the legislative power to create a public corporation. But, as said in the Fallbrook case: £We do not think that there is any validity to the argument. The legislature delegates no power. It enacts conditions upon the performance of which the corporation shall be regarded as organized with the powers mentioned and described in the act.’ ”

The cases cited by the learned author sustaining the propositions of law set forth are, among others: In re Madera Irr. Dist., 92 Cal. 298, 27 Am. St. Rep. 106, 14 L. R. A. 755, 28 Pac. 272; Lincoln & Dawson County Irr. Dist. v. McNeal, 60 Neb. 613, 83 N. W. 847; Board of Directors v. Collins, 46 Neb. 411, 64 N. W. 1086; Fallbrook Irr. Dis. v. Bradley, supra; Imperial Water Co. No. 1 v. The Board of Supervisors, 162 Cal. 14, 120 Pac. 780; O’Neill v. Yellowstone Irr. Dist., 44 Mont. 492, 121 Pac. 283; People v. Cardiff Irr. Dist., 51 Cal. App. 307, 197 Pac. 384; Turlock Irr. Dist. v. Williams, 76 Cal. 360, 18 Pac. 379; Anderson v. Grand Valley Irr. Dist., 35 Colo. 525, 85 Pac. 313; Kinkade v. Witherop, 29 Wash. 10, 69 Pac. 399; Knowles v. New Sweden Irr. Dist., 16 Idaho, 217, 101 Pac. 81; Lundberg v. Green River Irr. Dist. (Utah), 119 Pac. 1039; Herrett v. Warmsprings Irr. Dist., 86 Or. 343, 168 Pac. 609. In the ease of Board of Directors v. Collins, supra, practically the same objections were made to the Nebraska law as are made by the appellant here, and the court there summarized its rulings in the following language:

“The conclusions we reach from an examination of the foregoing authorities are, First, that the term ‘due process of law’ relates primarily to the remedy or means of redress where property rights are invaded rather than to matters of substantive law, and that the provision of our statute for a hearing, upon notice, of all questions pertaining to the organization of irrigation districts and the imposition by them of taxes and assessments fully satisfies the requirements of the state and federal Constitution; second, the end and purpose of said act is, in a constitutional sense, public, and, therefore, resting in the wisdom and discretion of the Legislature. The reasoning based upon the decision in Bradley v. Irrigation Dist. (68 Fed. 948) must accordingly be rejected.

“The objection to said act on the ground that it authorizes the creation by county boards of municipal corporations in violation of section 3 of article 1 of the Constitution, is fully met by the California cases cited holding that irrigation districts are public and not, strictly speaking, municipal corporations, and that their officers are agents of the state.

“To the proposition that the authority conferred upon irrigation districts to levy taxes, without limitation upon the property within their boundaries, is an invasion of the provisions of the state Constitution, it may be answered: First — that the power of taxation is an attribute of sovereignty, having its source in the necessities of organized society. That power has, by the people, been committed to the discretion of the legislature, and the limits within which it may be exercised depend, in the absence of express limitation upon such power, upon the exigencies of the public, and for an abuse of the trust thus imposed the remedy is an appeal to the people themselves in the manner ordained by the Constitution. Second — the power of taxation so conferred is not, as counsel assume, unlimited, but is restricted to revenue sufficient to meet the obligations voluntarily assumed by the taxpayers themselves. Third — although ample provision is made for resisting the issuance of bonds, by taxpayers and others interested, the record contains no suggestion of an abuse in this instance of the taxing power; nor does said act conflict with section 1 of article 9 [our section 1, article 9] of the Constitution, requiring taxation to be equal and uniform. That provision relates to the revenue required for the general purpose of government, state and municipal, and has no application to taxes or assessments levied for local improvements.”

We are satisfied that the objections to chapter 8, Laws of 1915, and chapter 149, Laws of 1921, are without merit, and that the proceedings in the organization of Auxiliary Eastern Canal Irrigation District, from and including the petition for the organization thereof, and all other proceedings affecting the legality and validity of the proposed bond issue, were legal and valid and should be approved and affirmed.

Appellant’s last assignment of error questions the validity of a proposed contract between the Auxiliary Eastern Canal Irrigation District and the Salt Eiver Valley Water Users’ Association, wherein and whereby the district is to acquire, by purchase and lease, from the Salt Eiver Valley Water Users’ Association, at a cost estimated at about $500,000, certain rights or easements, in a dam proposed to be built by the latter company at Mormon Flats on Salt Eiver for the purpose of storing, for the district, flood and surplus waters, and a hydroelectric plant in connection therewith, and in existing canals to be enlarged and improved by the district for carrying purposes, and for the installation of pumping plants for irrigation purposes.' Section 12 of chapter 149 authorizes an irrigation district organized under the laws of the state to sell its bonds from time to time to raise money for the purposes for which they are voted. One of the purposes for which the series of bonds in question were voted, according to the court’s finding, was—

“The construction and installation of a pumping plant on the Salt River, or elsewhere, or the acquisition of an interest in any such plant by which power for the operation of pumping plants and the furnishing of power for domestic purposes may be secured for the benefit of the lands included within the district.”

Section 5 of chapter 149 provides that—

The board of directors of an irrigation district shall possess the power “to purchase or acquire, water rights, acquire or lease real estate and personal property, when necessary for its purposes, ... to construct, acquire, purchase, any and all canals, ditches, reservoirs, reservoir sites, water, water rights, rights of way, or other property by it deemed necessary for the use of the district, and power to acquire the right to enlarge any ditch, canal or reservoir, already constructed or partially constructed; also power to provide for the construction, operation, leasing and control . . . and lease of electrical energy. ...”

Section 11 of said act makes it the duty of an irrigation district when organized, to adopt some general plan for the purpose of procuring necessary irrigation water, water and water rights, developing electrical energy, and acquiring the necessary property in connection therewith, and otherwise carrying out the provisions of the act. The board of directors of the district, in pursuance of the authority given, and the duty imposed by section 11, did adopt a general plan which provided for a large pumping plant, sufficient to divert at least 350 second-feet of water from one of the main canals of the Salt Eiver Valley Water Users’ Association into the distributing system of the district under and by virtue of the contract heretofore referred to between it and the Salt Eiver Valley Water Users’ Association, and also the construction and installation of power plants for the purpose of furnishing power for the operation of said pumping plant, and also .provided for the furnishing of power to land owners within the district for pumping and domestic purposes, and also the construction of substations and transmission lines and the installation of motors for the operation of pumps for the purpose of developing the underground waters within the district.

From the findings of fact it appears that one, and perhaps the chief, source of water to irrigate the lands in the district, and the only source for electric power, is from the Salt and Verde Eivers, and that because-of rights already acquired by, and vested in, the Salt Eiver Valley Water Users’ Association, in the waters of said rivers, and power sites thereon, it is necessary that the district, by mutual and satisfactory arrangements, with the Salt Eiver Valley Water Users’ Association, avail itself of the present and future equipment and facilities of the association, in order to obtain water and power for its purposes. This arrangement is incorporated into the general plans of the district and is so essential that without it the undertaking would most likely be a failure. We have no doubt but that the contractual arrangement is one the district, under the law, may legally make; it being necessary to effectually carry out the purposes for which the district was organized. Chapter 149 gives such authority and power to the district, and we can think of no reason why it may not exercise the power so granted.

The judgment of the lower court is affirmed.

MoALISTER and FLANIGAN, JJ., concur.