Rehearing Denied June 5, 1962.
[91 Ariz. 155] Boyle, Bilby, Thompson & Shoenhair, Tucson, for petitioner.
Darnell, Holesapple, McFall & Spaid, Tucson, for respondent Tucson Gas, Electric Light and Power Co.
Snell & Wilmer, Phoenix, for Arizona Public Service Co., and El Paso Natural Gas Co., amici curiae.
BERNSTEIN, Chief Justice.
This is an original proceeding for a Writ of Certiorari to the Superior Court of Pima County, through which the Petitioner, Hughes Tool Company, seeks to have declared invalid an order of that court permitting the Respondent, Tucson Gas, Electric Light & Power Company, into immediate possession of property of the petitioner. An Alternative Writ of Certiorari has been issued by this Court.
Tucson Gas, under the power of eminent domain conferred in § 12-1111 A.R.S. commenced proceedings against the Hughes Tool Company to condemn power line rights
of way through properties owned by Hughes. Concurrently with the complaint in this proceeding, tucson Gas filed its application for an order permitting immediate possession and use under the provisions of § 12-1116. The Superior Court of Pima County entered its order granting immediate possession and use upon the filing with the court of a bond in the amount of $100,000, to which the parties had agreed in lieu of the deposit of double the probable damages required by § 12-1116 A.R.S.
[91 Ariz. 156] The parties agree that the sole issue raised by this petition is whether Tucson Gas, a privately owned public service corporation, is precluded by the provisions of Art. 2, § 17, Arizona Constitution, A.R.S. from obtaining immediate possession and use under § 12-1116 A.R.S.
We have considered this as a companion case to Desert Waters v. Superior Court of Pima County, 91 Ariz. 163, 370 P.2d 652 (1962), because of the close relationship between some of the issues involved. In the Desert Waters case we held § 12-1116 was constitutional as applied to a municipal corporation obtaining immediate possession and use of properties of a privately owned utility sought to be condemned by the city. We were there concerned with the general clause of Art. 2, § 17, Arizona Constitution which reads:
'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, * * *.'
We there construced the phrase 'or paid into court for the owner,' to permit, as an alternative to prior jury determination of the condemnee's damages, the payment of an amount, and upon such terms, as will adequately guarantee to the condemnee compensation for all damages that might result from granting immediate possession.
In this case we are concerned with the right of way clause of Art. 2, § 17, Arizona Constitution, which immediately follows the general clause set forth above:
'* * * 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.'
It is apparent that the clause first quoted above is general in its application and without exception, either as to persons or parties subject to its mandate, or types of property covered by its rule. In contrast, the right of way clause applies only to rights of way, exempts municipal corporations from some or all of its provisions and sets a more explicit standard of performance required of all other corporations in the cases to which it applies. It follows that the right of way clause is not an exception to the general clause, but imposes further limitations and conditions on the acquisition of rights of way by private corporations through the exercise of powers of eminent domain.
[91 Ariz. 157] The limitations in addition to those of the general clause which the right of way clause imposes on the acquisition of property by private corporations through the exercise of eminent domain powers are: full compensation must be made in money or be ascertained and paid into court for the owner; no set-off for benefits accruling to the condemnee by reason of the intended improvement is permitted; and compensation must be ascertained by a jury unless waived.
In Bugbee v. Superior Court, 34 Ariz. 38, 267 P. 420 (1928), an order of the Superior Court permitting an irrigation district to enter into immediate possession and use was challenged as violating this constitutional provision. This Court stated:
'It is plain from this provision that the court's order, putting the Roosevelt Irrigation District into the immediate possession of the property before the
damages were paid or ascertained, is void, unless such district is a municipal corporation within the meaning of such provision. * * ...