Appeal from Superior Court, Maricopa County; Edwin Beauchamp, Judge.
Petition by Chester Sabin for a writ of mandamus against the Town of Wickenburg, a municipal corporation, to furnish petitioner with electric current and water. From a judgment granting the writ, defendant appeals.
Norman Wykoff, of Wickenburg, and Snell, Wilmer, Walsh & Melczer, of Phoenix, for appellant.
Edward B. Ashurst, of Wickenburg, for appellee.
Udall, Justice. Stanford, C.J., and LaPrade, J., concurring.
[68 Ariz. 76] This appeal is from a judgment of the superior court of Maricopa County, requiring appellant, the Town of Wickenburg, a municipal corporation, under the compulsion of a peremptory writ of mandamus to forthwith furnish to appellee, Chester Sabin, electric current and water for domestic use in his home.
The facts will be stated in the light most favorable to a sustaining of the judgment. Appellant is the owner of both the municipal water and electric distribution systems, and it has an exclusive monopoly in these fields within the boundaries of the town. Appellee Sabin is an inhabitant of the town and is the owner of lot 3 in block 1 of Reed's Addition to the Wickenburg Townsite upon which he resides with his wife and two small children. This subdivision had become a part of the town some five and a half months prior to the happening of the events in question. On April 5, 1947, the appellee made application to Bernard Hill, the town clerk, for water and electric service to the tent house in which Sabin lived, tendering the usual and customary fee of $ 5.00 for each of such services. Irrespective of the fact that both
the water distributing system and the electric lines had been previously extended by appellant into the immediate area adjacent to appellee's home in Reed's Addition, the appellee was advised by the town clerk that his application for utility services would be denied unless he put up a $ 50.00 deposit to guarantee the building of a permanent residence on the lot. As the appellee refused to comply with this condition, the appellant denied him both water and electric service. Immediately thereafter a mandamus action was brought by appellee to compel the town to extend to him this utility service. An alternative writ was issued and after a hearing before the court and consideration by it of the briefs submitted by the parties, it was ordered that a peremptory writ of mandamus issue ordering and directing the town to furnish the services upon payment of the usual and customary fees. This appeal by the town followed. Within ten days, however, from the date of the judgment the town complied with the order of the court, and the appellee has since been receiving continuous service. Further pertinent facts will be stated as we proceed to a consideration of specific assignments.
At the outset it seems obvious from a study of the briefs filed by the respective parties that they have very divergent theories as to the ultimate proven facts and the legal principles controlling in the case. The appellee (plaintiff) presented his whole case upon the theory of an arbitrary and unjust discrimination against him by the [68 Ariz. 77] appellant. It was conceded that appellant was supplying both water and electric service to a man by the name of Chapman who was living in a similar tent house on an adjacent lot, and that no deposit other than the customary fees had been paid by him. However the appellant stoutly maintained that the action taken which resulted in the installation of service to Chapman had been without the approval of the town council. The town admittedly had an abundant supply of water and sufficient electric power to supply the needs of all within its limits. Furthermore, the evidence offered by the appellee, if believed, established that to connect his home with the water line serving the Chapman place would require approximately two hours of labor and not to exceed 100 feet of three-quarter inch pipe. Other testimony would also establish that it would only require some four hours of labor, one pole, and 600 feet of wire to connect appellee's home with the existing power line serving his neighbor Chapman. The town clerk admitted from the witness stand that there had been no official ordinance or resolution enacted or passed requiring the collection of a $ 50.00 deposit or the giving of a bond to insure the construction of permanent buildings, nor had any such deposit or bond been exacted of any other user of water or electric current in the town of Wickenburg. Clerk Hill further testified:
"The Court: The reason for the refusal of water and electric service to this man Sabin was due to the fact that he had a tent house rather than what you considered to ...