DESERT WATERS, INC., an Arizona corporation, and Nicholas Traficanti and Rose Traficanti, husband and wife, Petitioners,
SUPERIOR COURT of the State of Arizona, IN AND FOR the COUNTY OF PIMA, and Lee Garrett, Judge thereof, Respondents, and The City of Tucson, a municipal corporation, Real Party in Interest.
Rehearing Denied April 24, 1962.
[91 Ariz. 165] Scruggs & Rucker, Tucson, for petitioners.
H. Earl Rogge, Jr., City Atty., Tucson, for respondent City of Tucson.
Johnson, Darrow, D'Antonio, Hayes & Morales, Tucson, for Home Water Co. and Home Development Co., amici curiae.
Wade Church, Phoenix, for Public Utilities Assn. of Ariz., amicus curiae.
John R. Franks, Phoenix, for City of Phoenix, amicus curiae.
William G. Barnes, Tempe, for City of Tempe, amicus curiae.
Irving H. Bahde, Jr., Phoenix, for City of Glendale, amicus curiae.
J. LaMar Shelley, Mesa, for City of Mesa and League of Ariz. Cities and Towns, amici curiae.
BERNSTEIN, Chief Justice.
This is an original proceeding for a Writ of Prohibition, sought by the petitioner, Desert Waters, Inc. to prohibit the Superior Court of Pima County from issuing an order permitting the City of Tucson to go into immediate possession of the property of petitioner's utility. An alternative Writ of Prohibition was issued by this Court.
At a special election held August 5, 1958, the voters of The City of Tucson approved a proposition under which the City of Tucson would 'improve and extend its Water Utility by acquiring by purchase or by eminent domain the property, plant, facilities, rights, or assets of any public utility company or undertaking rendering water service within or without the corporate limits of said City.' Thereafter the City of Tucson commenced eminent domain proceedings against the petitioner water company, and served upon it an application for immediate possession under the provisions of § 12-1116 A.R.S. On December 27, 1961, the Superior Court of Pima County granted the City's application for immediate possession, whereupon these proceedings were commenced.
[91 Ariz. 166] In considering the complex issues presented by this and the companion case of Hughes Tool Company v. The Superior Court of Pima County, 91 Ariz. 154, 370 P.2d 646 (1962), the Court has been ably assisted by the comprehensive briefs of the parties and the amici curiae.
The arguments in favor of the petitioner may be summarized as follows: (1) The
immediate possession statute, § 12-1116 A.R.S. violates Art. 2, § 17, of the Arizona Constitution, A.R.S.; (2) § 9-518 A.R.S., a special law governing condemnation of utilities by municipal corporations, precludes the application of § 12-1116, a general eminent domain statute; (3) § 12-1116 cannot be used because the prerequisite findings required by § 12-1112 have not been made; (4) If immediate possession under § 12-1116 is permitted, but compensation is fixed as of the date of trial under § 9-518, an unconstitutional taking without just compensation results; (5) The City of Tucson has not complied with § 9-514 which requires an election when each particular utility company is condemned; (6) The City of Tucson has not complied with Ch. 4, § 1, subdivision 25 of the Tucson City Charter, which also requires an election when each particular utility is condemned.
Contention No. 1
It is urged on behalf of the petitioner that the immediate possession statute, § 12-1116 A.R.S. is unconstitutional because it violates the provisions of Article 2, § 17 of the Arizona Constitution. This section provides in pertinent part:
'* * * No private property shall be taken or damaged for public or private use without just compensation having first been made, or paid into court for the owner, and no right of way shall be appropriated to the use of any corporation other than municipal, until full compensation therefor be first made in money, or ascertained and paid into court for the owner, irrespective of any benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury, unless a jury be waived as in other civil cases in courts of record, in the manner prescribed by law.'
The charge is made that § 12-1116 violates this section in so far as it permits the condemnor to go into immediate possession of the condemned property upon payment into court of twice the amount set by the court as probable damages. According to petitioner this provision does not satisfy the requirement that just compensation must first be made or paid into court for the owner, nor the requirement that such compensation shall be ascertained by a jury. It is argued that the only purpose of the phrase 'or paid into court for the owner' is to permit the condemnor to pay the ascertained[91 Ariz. 167] amount into court if the condemnee refused to accept the award of the jury.
These contentions find support in some of the early cases. The constitutional provision in question was adopted from the constitution of Washington, Verbatim Report, Arizona Constitutional Convention, 1910, Vol. 3: Afternoon Session of November 25, 1910, page 6. Prior to its adoption by this state, the Supreme Court of Washington considered the section i Lewis v. City of Seattle, 5 Wash. 741, 32 P. 794 (1893). The City of Seattle had appropriated a street right of way under an ordinance which provided that, after appropriation, compensation would be determined by a board of appraisers. The Washington Court reversed a judgment for the condemnee on the theory that the second clause of the constitutional provision permitted the city to offset benefits accruing to the condemnee's remaining land because of the opening of the street, which benefits in the case were alleged to be greater than the value of the right of way taken. The court stated:
'By construing this constitutional provision as requiring payment to be first made in all cases, and giving the second clause the effect of laying down a rule of damages as to the appropriation of a right of way by corporations other than municipal, all conflict between the clauses is avoided, and full force is given to each and every part. Such is the best-sustained construction it can receive.' 5 Wash. at 754, 32 P. at 798.
It should be noted that the Washington court did not have before it the clause 'or
paid into court for the owner,' as the ordinance under consideration did not contain any provision securing in advance a guarantee of payment to the condemnee.
In a more recent decision, State ex rel. Eastvold v. Yelle, 46 Wash.2d 166, 279 P.2d 645 (1955), the Washington Court considered a statute which permitted the state to enter upon land sought to be condemned upon paying into court an amount equal to the last unaccepted offer of the state for the property. This statute was held to violate the provision of the Washington Constitution which is identical to Art. 2, § 17 of the Arizona Constitution:
'We conclude that, under Art. I, § 16, amendment 9 of the state constitution, a property owner is entitled to a judicial determination of just compensation, and payment thereof, before the state can deprive him of possession under the power of eminent domain. This includes the right to a jury trial unless waived. RCW 8.04.090, inasmuch as it denies the owner these rights, is unconstitutional.' 46 Wash.2d at 174, 279 P.2d at 650.
[91 Ariz. 168] In Steinhart v. Superior Court of Mendocino County, 137 Cal. 575, 70 P. 629, 59 L.R.A. 404 (1902), the Supreme Court of California considered the contention that a statute permitting a condemnor to enter the property sought to be condemned upon payment of, or giving security for, an amount sufficient to compensate the condemnee in case the land is finally taken violated a constitutional provision similar to Art. 2, § 17. The court there said:
'* * * The purpose of the amendment is perfectly obvious. If the preliminary possession during the pendency of the proceeding is a taking, within the meaning of the constitution, it cannot be authorized until the damage resulting therefrom has been judicially ...