David C. DAVIS, J. W. Spray and Jay Bateman, members of and constituting the Board of Supervisors of Pinal County, Arizona, Appellants,
D. R. BRITTAIN, John O. Combs and J. G. Waggoner on behalf of Petitioners, Appellees. In the Matter of the Petition of Certain Freeholders for the Formation of an Electrical District in Pinal and Maricopa Counties, Arizona.
Rehearing Granted April 25, 1961.
[89 Ariz. 90] T. J. Mahoney, County Atty., Pinal County, for appellants.
Stoker, Bagnall & Moring, Coolidge and Kramer, Roche, Burch & Streich, Phoenix, for appellees.
Nicholas H. Powell, Perry Ling, Snell & Wilmer, Jennings, Strouss, Salmon & Trask, and Evans, Kitchel & Jenckes, Phoenix, Wolfe & Beeks, and Darnell, Holesapple, McFall & Spaid, Tucson, amici curiae.
LAURENS L. HENDERSON, Superior Court Judge.
The appellants in this case are the members of the Board of Supervisors of Pinal County, Arizona. The appellees are certain land owners in Pinal County who petitioned the said Board of Supervisors to organize an electrical district under the Electrical District Act of Arizona for the purpose of furnishing power for irrigation [89 Ariz. 91] water wells. The Board of Supervisors denied the petition to organize the power district and an appeal from that ruling was taken by the land owners to the superior court, which reversed the order of the Board, and ordered the Board of Supervisors to organize the proposed district in accordance with the provisions of the said Electrical District Act. The Board of Supervisors prosecuted this appeal from the order of the superior court.
The lands concerned herein comprise approximately 51,000 acres lying in what is generally known as the Queen Creek area, partly in Maricopa County and principally in Pinal County. Substantially all of the land area is under cultivation, having been developed as farm lands through irrigation from water wells. The power to pump the water has been by gas supplied by Arizona Public Service Company and electricity supplied by that company and the Salt River Project.
Electrical districts organized under the Arizona Electrical District Act get priority for power from the Arizona Power Authority, which Authority gets its power from the Colorado River and other sources. All of the power of the Arizona Power Authority is contracted until the year 1970, but the possibility exists that such contracts may be terminated after 1962, and that thereafter a reallocation of power might be made to include districts organized and applying for power no later than 1959, which would include the proposed district with which we are here involved; hence, the attempt by the petitioning land owners to form a district and to qualify for power which might be allocated to it after 1962 from the Arizona Power Authority.
The primary purpose of the petitioning land owners is to form a power district under the Electrical District Act in order to obtain cheaper power for irrigation of their farm lands. The difference in cost in Power Authority electricity obtained under an electrical district so formed as compared with existing power would amount to a saving of about $3.81 per acre per year. Practically all the lands susceptible of cultivation in this area have been heretofore put under cultivation.
It is uncontroverted that land in this area cannot be dry farmed and in its original natural state was desert land unable to produce agricultural crops without irrigation. The area lies within that portion of the State of Arizona where the legislature has prohibited the drilling of new water wells.
The section of the statute in question under which the petitioners sought to organize an electrical power district and which relates specifically to the requirement that the Board of Supervisors make certain findings is Section 30-505 A.R.S.., 1956, which reads in part as follows:
[89 Ariz. 92] A. At the hearing on the petition called by the board of supervisors, it shall first proceed to determine whether
the operations as proposed will constitute a public use. The board shall for such purpose determine:
'1. Whether the lands in the proposed district are arid lands.
'2. Whether they are fertile and reclaimable.
'3. Whether there is a supply of water which can be made efficiently available by the proposed power system.
'4. Whether the development reasonably certain to result from the production of power is of such interest and benefit to the whole district as to impress it with a public use.'
Other paragraphs of that section of the statute outline for the Board the method of determining its findings and vest certain discretionary powers in the Board. The statute provides that the decision of the Board shall be binding upon all persons interested unless reversed on appeal as provided by said Act.
Pursuant to this section, the Board of Supervisors of Pinal County found and ruled as follows:
'After motion made and duly seconded and unanimously carried, said Board denied the petition for the reasons and on the grounds that it is the decision of the Board:
'1. That lands in the proposed district are not arid lands.
'2. That said lands are fertile and have been reclaimed.
'3. That there is presently a supply of water furnished to the farmers in said area.
'4. And that the area within the boundaries of said proposed district has been developed and power is presently being served to said area.'
Upon appeal to the superior court, the court set aside the order of the Board of Supervisors and the court made findings of fact and conclusions of law, under the foregoing statutory requirement, as follows:
'XI That the lands in the proposed District are arid lands.
'XII That the lands in the proposed District are fertile ...