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State ex rel. Sullivan v. Burns

Supreme Court of Arizona

March 14, 1938

STATE OF ARIZONA ex Rel. JOHN L. SULLIVAN, Attorney General, Appellant,

APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge. Judgment reversed and cause remanded with instructions.

Mr. Joe Conway, Attorney General of Arizona, Mr. A. R. Lynch and Mr. Jack Choisser, his Assistants, for Appellant.

Messrs. Armstrong, Kramer, Morrison, Roche & Duffy, for Appellees.


[51 Ariz. 385] LOCKWOOD, J.

This is an action by the State of Arizona, hereinafter called plaintiff, asking for a writ of mandamus compelling W. J. Burns, W. S. Stevens, C. O. Vosburgh, as members of and constituting the board of directors of Roosevelt Irrigation District, hereinafter called defendants, to make a tax levy upon the lands of the district, which plaintiff claims it is the duty of defendants to make by the provisions of section 4, chapter 102, of the Session Laws of 1929. Judgment was rendered for defendants, and plaintiff has appealed.

The facts of the case are not in dispute, and may be stated as follows: The Roosevelt Irrigation District was organized in 1923 under the laws of Arizona relating to irrigation districts, and embraces approximately, 41,000 acres within its boundaries. It is supplied with water by means of pumps, and does not make use of a dam or storage reservoir in connection [51 Ariz. 386] with its operations. Duringthe year 1927 it issued

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and sold its serial bonds in the aggregate amount of $3,065,000, which bonds were approved by the State Certification Board of Arizona, hereinafter called the board, and certified by the state auditor, under the provisions of chapter 149 of the Session Laws of 1921. The money received from the sale of such bonds was used for the construction of the irrigation system of the district. In 1931 and 1932 the district proposed to issue $600,000 worth of bonds additional to those already outstanding, and at the time the board approved their issuance after plans for the work which was to be done with the proceeds of the bonds had been submitted to the board by the district, and engineering determinations as to the feasibility of the work made by the state engineer. However, for various reasons these bonds were never sold. In 1934, the Eleventh Legislature, at its third special session, passed chapter 6, commonly called the District Enabling Act of 1934, which enabled irrigation districts, among other organizations, to make contracts with the federal government to secure loans and grants of money from that government, either for the purpose of making repairs or improvements to their property or works, or to refund or refinance their existing indebtedness. The district had arranged with the Reconstruction Finance Corporation of the United States, commonly called the RFC, to refinance its outstanding indebtedness by a loan, provided that it made a satisfactory agreement with its bondholders, and further provided that certain canals, which supplied the district with water, were lined with cement. In order to finance the work of lining the canals, the district also made application to the Public Works Administration, usually called the PWA, for a grant of $211,000, and a loan of $545,000, which loan was to be covered by bonds purchased by the PWA under the [51 Ariz. 387] terms of the agreement. The district made application to the board for approval of its agreement with the PWA for the loan of $545,000 and grant of $211,000, as aforesaid, asking that the board approve such agreement, and authorize and approve the issuance of the bonds provided therein. After due consideration, the board made its order reciting, among other things, that the installation of the cement lining to be paid for by the proceeds of the agreement with the PWA was highly necessary and beneficial for the district, and that such project and agreement were approved. Thereupon, satisfactory arrangements having been made with the bondholders, the RFC did agree to refinance the district's already existing bond indebtedness, a contract was let by the district for the lining of the canals, as aforesaid, and the work was begun and completed during the year 1936. The state engineer went upon the ground and inspected the relining of the canals from time to time, over the repeated protest and objection of the district. The board made demand on the district that it levy an assessment to pay the fees provided by section 4 of chapter 102, supra, to the state engineer, claiming that it was the duty of the district to do so by reason of the law and the facts. This the district refused to do, and this action was brought.

The sole question presented for our consideration is whether, under the facts, it was the duty of the district to make the levy as requested. This depends upon the construction of our statutes applying to such a situation, and we review them so far as necessary. In 1921, chapter 149 of the Regular Session Laws of that year provided for the organization of irrigation districts and their government, repealing various previous statutes covering the same subject. This chapter was subsequently carried forward into the Code of 1928. Among other things, it provided for the establishment [51 Ariz. 388] of a state certification board, in the following language:

"§ 3416. Creation of state certification board. There is hereby created the state certification board of the state of Arizona, the members of said certification board to be the attorney general, the state engineer and the superintendent of banks; said certification board shall elect one of its members chairman, and one or more of such members of said certification board shall from time to time as may be required, designate from his or their regularly employed clerks and assistants such clerks and assistants as may be necessary, who shall perform without extra compensation the duties herein imposed."

Apparently the only circumstances under which the board could act at that time, and the limitations upon its action, are found in sections 3417, 3418, 3419, 3421, and 3422, which read, so far as material, as follows:

"§ 3417. Resolution filed with certification board. Whenever the board of directors of any irrigation district or water conservation district organized and existing under and pursuant to the laws of the state of Arizona shall by resolution declare that it deems it desirable that any contemplated

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or outstanding bonds of said district, including any of its bonds authorized but not sold, shall be made available for the purposes provided for in section 3422 of this article, the board of directors shall thereupon file a certified copy ...

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