Gutierrez v. Middle Rio Grande Conservancy Dist. , 34 N.M. 346 ( 1929 )

ON MOTION FOR REHEARING Two questions raised by appellants justify further comment.

In the motion for rehearing, great stress is placed upon the fact that chapter 45, Laws 1927, includes, as a purpose justifying the organization of a conservancy district, that of providing for irrigation where needed, while chapter 140, Laws 1923, did not. Because of this, it is argued (1) that the Ohio and Colorado decisions heretofore cited, and our own decision, In re Proposed Middle Rio Grande Conservancy District, 31 N.M. 220,242 P. 683, are not in point; and (2) that, whereas the petitioners were moved by a desire only for flood control, a corporation has resulted with power to make irrigation the principal object of its program.

[13] That reclamation by irrigation is a matter within the police power of the state does not, of course, follow from the decision that flood control is. But it is so well established as hardly to require the citation of authority, other than those cited in the original opinion. Both purposes being within the police power, the particular powers conferred upon the district and the procedure prescribed must meet the same constitutional tests. We know of no classification of the matters properly embraced within the police power, whereby some may be considered more important or as justifying greater interference with property rights. Both flood control and irrigation are public uses for which private property may be taken. In either case there must be the same compensation and the same due process.

[14] Since it is here pleaded that the district was organized under the earlier act, we must assume as facts now before us both that the petition so "described the purpose of the contemplated improvement" as to bring it within section 201 of the earlier act, and that the court, after hearing, found "that the allegations of the petition were true." Thus we have a district organized, as we determined in the earlier case, for the purpose of flood control.

So far as such a district is concerned, the change in the law is immaterial. It had power under the old act to construct irrigation and drainage works or systems necessary to maintain the irrigability of lands within the district. Section 201(1)(f). The fact that under the new law another district may be organized solely for irrigation does not affect the case, so far as we can see. Inclusion of irrigation as a primary purpose sufficient in itself to authorize the organization of a district has not changed the character of the present district as one organized for the main purpose of flood control, with irrigation and drainage incident thereto.

So we are not persuaded that the distinction between the two statutes, so strongly urged upon our attention, has any material bearing upon the case before us.

[15] Appellants contend that the provisions of section 910, c. 45, Laws 1927, whereby it is attempted to preserve the entity and status of conservancy districts organized under the provisions of chapter 140, Laws 1923, and perpetuate their existence under the provisions of and with the powers enumerated in said chapter 45, are unconstitutional and void, for the reason that the same are not included within the title of said chapter 45, and therefore violate section 16, art. 4, of our Constitution.

Counsel in their brief say:

"This point was not presented under the original argument having been overlooked by counsel."

We might add that it is not within the issues pleaded, was not presented to nor passed upon by the trial court, nor designated in appellants' brief as one of the points upon which reversal is sought.

Moreover, appellants have pleaded and proceeded upon the theory that the Middle Rio Grande Conservancy District is an entity created under the old act, and that it purports to function under and by virtue of the authority of both old and new acts.

We are disposed, however, to decide the question upon another ground. Appellants in their brief say:

"Under their 10th point, counsel for appellants make a direct attack upon the very existence of the conservancy district."

We quite agree that the effect, and the only effect, of the present contention, is as counsel state. If so, their contention cannot be entertained in an equity proceeding. Corporate existence can be challenged only by quo warranto. The Community Ditches or Acequias of Tularosa Townsite v. Tularosa Community Ditch et al., 16 N.M. 200, 114 P. 285; State ex rel. v. Huller,23 N.M. 306-319, 168 P. 528, 1 A.L.R. 170.

We must therefore adhere to our original opinion and deny defendants' motion for a rehearing and it is so ordered.

BICKLEY, C.J., WATSON and PARKER, JJ., and KIKER, District Judge, Concur.

KIKER, District Judge, called in in place of SIMMS, J., disqualified.