PETERS et al.
FRYE et al
A. L. Maltby, of Phoenix, for appellants.
Warren L. McCarthy, County Attorney, Phoenix, and Anthony O. Jones, Deputy County Attorney, Phoenix, for appellees.
Udall, Justice. La Prade, C. J., and Stanford, Phelps and De Concini, JJ., concur.
[71 Ariz. 31] This appeal is from an order of the superior court dismissing application of plaintiffs-appellants for a writ of mandamus and quashing the alternative writ theretofore [71 Ariz. 32] allowed, and from judgment rendered for defendant-appellee board of supervisors (hereinafter called the board). The matter is presented upon an agreed statement of facts made pursuant to section 21-905, A.C.A.1939.
As approved by the trial court, this statement in part reads:
"Plaintiffs with others petitioned the Board of Supervisors of Maricopa County, Arizona, to organize an irrigation water delivery district under the provisions
of Article V, paragraph 75-500, et seq. ACA 1939. The petition was examined and found by the Board of Supervisors to conform to the provisions of the act, a bond was fixed, bond was provided by the plaintiff, and thereupon a hearing was set for the purpose of affording to the owners of land within the proposed district an opportunity to appear and object to the organization, or to the proposed boundaries thereof, or to the inclusion of his land therein. The Board then heard objections at hearings which were adjourned from time to time, finally resulting in the Board's refusal to organize such district, and making the following finding: (Statement by Supervisor Lecky)
"'With reference to a water delivery district in Pomelo Park -- it appears to me that there is only a small number of these lots developed at this time and that until a substantial portion of the area is developed there should be no need for a water delivery district being formed. I therefore move that the application be denied at this time. However, as soon as there is a substantial number of lots developed in this area a new petition should be submitted at which time I would feel inclined to vote in favor of the formation of such a district;' that said motion was adopted unanimously and became the official act of said Board.
"Thereafter, plaintiffs filed this action and secured issuance of an alternative writ of mandamus to compel the Board to proceed under the statute to organize the district. On the return filed by the Board, and at the hearing thereon, motions for judgment were made by both parties. The Board admitted in open Court that the petitioners had fully complied with all the requirements of 75-502 and 75-503, ACA 1939, and based its refusal on paragraph 75-504 thereof, which literally empowers the Board to refuse to organize the district. The trial court agreed with that view and denied plaintiffs' motion and quashed the alternative writ. * * *"
It is plaintiffs' contention that the Board based its refusal upon a condition, to wit, "need", not specifically enumerated in the statute; that its action therefore was arbitrary and capricious and that the Board in effect legislated a new and ...