The Salt River Project Agricultural Improvement and Power
District (District), a governmental entity, stores and delivers
untreated water to the owners of 236,000 acres of land in central
Arizona, and, to subsidize its water operations, sells electricity
to hundreds of thousands of people in an area including a large
part of metropolitan Phoenix. Under state law, the system for
electing the District's directors limits voting eligibility to
landowners and apportions voting power according to the number of
acres owned. A class of registered voters living within the
District but owning either no land or less than an acre of land
there filed suit, claiming that the election scheme violated the
Equal Protection Clause of the Fourteenth Amendment. They alleged
that, because the District has such governmental powers as the
authority to condemn land and sell tax-exempt bonds, and because it
sells electricity to virtually half the State's population and
exercises significant influence on flood control and environmental
management, its policies and actions substantially affect all
District residents, regardless of property ownership. The District
Court upheld the constitutionality of the voting scheme, but the
Court of Appeals reversed. It held that the case was governed by
the one-person, one-vote principle established in
Reynolds v.
Sims, 377 U. S. 533,
rather than by the exception to that principle established in
Salyer Land Co. v. Tulare Lake Basin Water Storage Dist.,
410 U. S. 719,
which upheld a state law permitting only landowners to vote for
directors of a water district because of its special limited
purpose and the disproportionate effect of its activities on
landowners as a group.
Held: The District's purpose is sufficiently
specialized and narrow and its activities bear on landowners so
disproportionately as to release it from the strict demands of the
Reynolds principle. As in
Salyer, supra, the
voting scheme for the District is constitutional because it bears a
reasonable relationship to its statutory objectives. Pp.
451 U. S.
362-371.
(a) The distinctions between the more diverse and extensive
services furnished by the District here and those furnished by the
water district involved in
Salyer, supra, do not amount to
a constitutional difference. The District does not exercise the
sort of governmental
Page 451 U. S. 356
powers that invoke the strict demands of
Reynolds. It
cannot impose
ad valorem property taxes or sales taxes or
enact laws governing citizens' conduct. Nor does it administer
normal government functions such as the maintenance of streets, the
operation of schools, or sanitation, health, or welfare services.
Pp.
451 U. S.
365-336.
(b) The District's water functions, which constitute its primary
and originating purpose, are relatively narrow. Although, unlike in
Salyer, as much as 40% of the water delivered by the
District goes for nonagricultural, urban purposes, the
constitutionally relevant fact is that all water is distributed
according to land ownership, and the District cannot control the
use to which the water is put by the landowners. Pp.
451 U. S.
367-368.
(c) Nor is the legality of the District's property-based voting
scheme affected by the fact that, as one of the largest suppliers
of electric power in the State, it meets most of its capital and
operating costs by the selling of such power. The provision of
electricity is not, in itself, the sort of general or important
governmental function that would make the government provider
subject to the
Reynolds doctrine. And, in any event, the
District's electric power functions are only incidental to, and
thus cannot change the character of, its water functions. Pp.
451 U. S.
368-370.
(d) And the District's functions bear a disproportionate
relationship to the specific class of people whom the system makes
eligible to vote. Voting landowners are the only residents of the
District whose lands are subject to liens to secure District bonds,
who are subject to the District's acreage-based taxing power, and
who committed capital to the District. Pp.
451 U. S.
370-371.
613 F.2d 180, reversed and remanded.
STEWART, J., delivered the opinion of the Court, in which
BURGER, C.J., and POWELL, REHNQUIST, and STEVENS, JJ., joined.
POWELL, J., filed a concurring opinion,
post, p.
451 U. S. 372.
WHITE, J., filed a dissenting opinion, in which BRENNAN, MARSHALL,
and BLACKMUN, JJ., joined,
post, p.
451 U. S.
374.
Page 451 U. S. 357
JUSTICE STEWART delivered the opinion of the Court.
This appeal concerns the constitutionality of the system for
electing the directors of a large water reclamation district in
Arizona, a system which, in essence, limits voting eligibility to
landowners and apportions voting power according to the amount of
land a voter owns. The case requires us to consider whether the
peculiarly narrow function of this local governmental body and the
special relationship of one class of citizens to that body releases
it from the strict demands of the one-person, one-vote principle of
the Equal Protection Clause of the Fourteenth Amendment.
I
The public entity at issue here is the Salt River Project
Agricultural Improvement and Power District, which stores and
delivers untreated water to the owners of land comprising 236,000
acres in central Arizona. [
Footnote
1] The District, formed as a governmental entity in 1937,
subsidizes its water operations by selling electricity, and has
become the supplier of electric power for hundreds of thousands of
people in an area including a large part of metropolitan Phoenix.
Nevertheless, the history of the District began in the efforts of
Arizona farmers in the 19th century to irrigate the arid lands of
the Salt River Valley, and, as the parties have stipulated, the
primary purposes of the District have always been the storage,
delivery, and conservation of water.
As early as 1867, farmers in the Salt River Valley attempted to
irrigate their lands with water from the Salt River. In 1895,
concerned with the erratic and unreliable flow of the river, they
formed a "Farmers Protective Association," which helped persuade
Congress to pass the Reclamation Act of 1902, 32 Stat. 388, 43
U.S.C. § 371
et seq. Under
Page 451 U. S. 358
that Act, the United States gave interest-free loans to help
landowners build reclamation projects. The Salt River Project, from
which the District developed, was created in 1903 as a result of
this legislation. In 1906, Congress authorized projects created
under the Act to generate and sell hydroelectric power, 43 U.S.C. §
522, and the Salt River Project has supported its water operations
by this means almost since its creation. The 1902 Act provided that
the water users who benefited from the reclamation project had to
agree to repay to the United States the costs of constructing the
project, and the Salt River Valley Water Users Association was
organized as an Arizona corporation in 1903 to serve as the
contracting agent for the landowners. The Association's Articles,
drafted in cooperation with the Federal Reclamation Service, gave
subscribing landowners the right to reclamation water and the power
to vote in Association decisions in proportion to the number of
acres the subscribers owned. The Articles also authorized
acreage-proportionate stock assessments to raise income for the
Association, the assessments becoming a lien on the subscribing
owners' land until paid. For almost 15 years, the Federal
Reclamation Service operated and maintained the project's
irrigation system for the landowners; under a 1917 contract with
the United States, however, the Association itself took on these
tasks, proceeding to manage the project for the next 20 years.
The Association faced serious financial difficulties during the
Depression as it built new dams and other works for the project,
and it sought a means of borrowing money that would not overly
encumber the subscribers' lands. The means seemed to be available
in Arizona's Agricultural Improvement District Act of 1922, which
authorized the creation of special public water districts within
federal reclamation projects. Ariz.Rev.Code of 1928, § 3467
et
seq. Such districts, as political subdivisions of the State,
could issue bonds exempt from federal income tax. Nevertheless,
many Association members opposed creating a special district
for
Page 451 U. S. 359
the project, in part because the state statute would have
required that voting power in elections for directors of the
district be distributed per capita among landowners, and not
according to the acreage formula for stock assessments and water
rights. In 1936, in response to a request from the Association, the
state legislature amended the 1922 statute. Under the new statutory
scheme, which is essentially the one at issue in this case, the
legislature allowed the district to limit voting for its directors
to voters, otherwise regularly qualified under state law, who own
land within the district, and to apportion voting power among those
landowners according to the number of acres owned.
Ariz.Rev.Stat.Ann. §§ 4909, 4983 (Supp. 1981981). [
Footnote 2] The Salt River Project
Agricultural Improvement and Power District was then formed in
1937, its boundaries essentially the same as the Association's.
Under the 1937 agreement, the Association made the District its
contracting agent, and transferred to the District all its
property, and the Association, in turn, agreed to continue to
operate and maintain the Salt River Project. Under the current
agreement, the District itself manages the power and water storage
work of the project, and the Association, as agent for the
District, manages water delivery. As for financing, the statute now
permits the special districts to
Page 451 U. S. 360
raise money through an acreage-proportionate taxing power that
mirrors the Association's stock assessment scheme,
Ariz.Rev.Stat.Ann. §§ 45-1014, 45-1015 (1956), or through bonds
secured by liens on the real property within the District, though
the bonds can simultaneously be secured by District revenues,
Ariz.Rev.Stat.Ann. § 45-936 (Supp. 1980-1981).
II
This lawsuit was brought by a class of registered voters who
live within the geographic boundaries of the District and who own
either no land or less than an acre of land within the District.
The complaint alleged that the District enjoys such governmental
powers as the power to condemn land, to sell tax-exempt bonds, and
to levy taxes on real property. It also alleged that, because the
District sells electricity to virtually half the population of
Arizona, and because, through its water operations, it can exercise
significant influence on flood control and environmental management
within its boundaries, the District's policies and actions have a
substantial effect on all people who live within the District,
regardless of property ownership. Seeking declaratory and
injunctive relief, the appellees claimed that the acreage-based
scheme for electing directors of the District violates the Equal
Protection Clause of the Fourteenth Amendment.
On cross-motions for summary judgment and on stipulated facts,
the District Court for the District of Arizona held the District
voting scheme constitutional, and dismissed the complaint. A
divided panel of the Court of Appeals for the Ninth Circuit
reversed. 613 F.2d 180. Noting this Court's repeated application of
the one-person, one-vote principle established in
Reynolds v.
Sims, 377 U. S. 533, the
Court of Appeals turned its attention to the case in which this
Court marked a significant exception to that principle by upholding
a state law permitting only landowners to vote in the election of
directors of a water district:
Salyer Land Co. v. Tulare Lake
Basin Water Storage District, 410 U.
S. 719. The decision
Page 451 U. S. 361
in
Salyer resulted from this Court's examination of the
nature of the services provided by the water district in that case,
and its conclusion that, "by reason of its special limited purpose
and of the disproportionate effect of its activities on landowners
as a group," the water district there was not subject to the strict
one-person, one-vote demands of the
Reynolds decision. 410
U.S. at
410 U. S. 728.
Accordingly, the Court of Appeals considered the constitutionality
of the Salt River District's electoral system by comparing the
purposes and effects of the activities of the Salt River District
with those of the Tulare Lake Basin Water Storage District.
The Court of Appeals stressed that the water district in
Salyer covered a sparsely populated area of wholly
agricultural land. 613 F.2d at 183. It also noted that the primary
function of the Tulare Lake Basin Water Storage District had
remained the storage and delivery of water for agriculture, and
that the district did not provide such other general public
services as utilities.
Ibid. Finally, the Court of Appeals
pointed out that the income for the district in
Salyer
came completely from assessments against the landowners. 613 F.2d
at 183. The Court of Appeals found the Salt River District, at
least in its modern form, very different. It pointed out that the
Salt River District is a major generator and supplier of
hydroelectric power in the State, and that roughly 40 of the water
it delivers goes to urban areas for nonagricultural uses.
Id. at 183-184. The court therefore concluded that the
Salt River District does not serve the sort of special, narrow
purpose that proved decisive in
Salyer. 613 F.2d at
183-184. Moreover, though it recognized that the District has $290
million of general obligation bonds outstanding that are secured by
a lien on lands owned by the voting members, the Court of Appeals
found it significant that all the general obligation bonds have so
far been serviced out of the District's electricity revenues, and
that all capital improvements have been financed by revenue bonds,
which have been issued in the amount of $600 million, and
Page 451 U. S. 362
which are junior to the general obligation bonds.
Id.
at 184. The court thus concluded that the actual financial burden
of running the District has not fallen primarily on the voting
landowners, and therefore that the activities of this water
district, unlike those of the district in
Salyer, do not
disproportionately affect landowners as such. 613 F.2d at 184-185.
[
Footnote 3]
The Court of Appeals was correct in conceiving the question in
this case to be whether the purpose of the District is sufficiently
specialized and narrow, and whether its activities bear on
landowners so disproportionately, as to distinguish the District
from those public entities whose more general governmental
functions demand application of the
Reynolds principle. We
conclude, however, that, in its efforts to distinguish
Salyer the Court of Appeals did not apply these criteria
correctly to the facts of this case.
III
Reynolds v. Sims, supra, held that the Equal Protection
Clause requires adherence to the principle of one-person, one-vote
in elections of state legislators.
Avery v. Midland
County, 390 U. S. 474,
extended the
Reynolds rule to the election of officials of
a county government, holding that the elected officials exercised
"general governmental powers over
Page 451 U. S. 363
the entire geographic area served by the body." 390 U.S. at
390 U. S. 485.
[
Footnote 4] The Court,
however, reserved any decision on the application of
Reynolds to
"a special-purpose unit of government assigned the performance
of functions affecting definable groups of constituents more than
other constituents."
390 U.S. at
390 U. S.
483-484. [
Footnote
5] In
Hadley v. Junior College District, 397 U. S.
50, the Court extended
Reynolds to the election
of trustees of a community college district because those trustees
"exercised general governmental powers" and "perform[ed] important
governmental functions" that had significant effect on all citizens
residing within the district. 397 U.S. at
397 U. S. 53-54.
But in that case, the Court stated:
"It is, of course, possible that there might be some case in
which a State elects certain functionaries whose duties are so far
removed from normal governmental activities and so
disproportionately affect different groups that a popular election
in compliance with
Reynolds . . . might not be required. .
. ."
Id. at
397 U. S. 56.
[
Footnote 6]
The Court found such a case in
Salyer. The Tulare Lake
Basin Water Storage District involved there encompassed 193,000
acres, 85% of which were farmed by one or another of four
corporations.
Salyer Land Co. v. Tulare Lake Basin Water
Storage District, 410 U.S. at
410 U. S. 723.
Under California law, public water districts could acquire, store,
conserve, and distribute water, and though the Tulare Lake Basin
Water
Page 451 U. S. 364
Storage District had never chosen to do so, could generate and
sell any form of power it saw fit to support its water operations.
Id. at
410 U. S.
723-724. The costs of the project were assessed against
each landowner according to the water benefits the landowner
received.
Id. at
410 U. S. 724.
At issue in the case was the constitutionality of the scheme for
electing the directors of the district, under which only landowners
could vote, and voting power was apportioned according to the
assessed valuation of the voting landowner's property. The Court
recognized that the Tulare Lake Basin Water Storage District did
exercise "some typical governmental powers," including the power to
hire and fire workers, contract for construction of projects,
condemn private property, and issue general obligation bonds.
Id. at
410 U. S. 728,
and n. 7. Nevertheless, the Court concluded that the district had
"relatively limited authority," because
"its primary purpose, indeed the reason for its existence, is to
provide for the acquisition, storage, and distribution of water for
farming in the Tulare Lake Basin."
Id. at
410 U. S. 728
(footnote omitted). The Court also noted that the financial burdens
of the district could not but fall on the landowners in proportion
to the benefits they received from the district, and that the
district's actions therefore disproportionately affected the voting
landowners.
Id. at
410 U. S. 729.
[
Footnote 7] The
Salyer Court thus held that the strictures of
Reynolds did not apply to the Tulare District, and
proceeded to inquire simply whether the statutory voting scheme
based on land valuation at least bore some relevancy to the
statute's objectives. [
Footnote
8]
Page 451 U. S. 365
The Court concluded that the California Legislature could have
reasonably assumed that, without voting power apportioned according
to the value of their land, the landowners might not have been
willing to subject their lands to the lien of the very assessments
which made the creation of the district possible. 410 U.S. at
410 U. S.
731.
As noted by the Court of Appeals, the services currently
provided by the Salt River District are more diverse and affect far
more people than those of the Tulare Lake Basin Water Storage
District. Whereas the Tulare District included an area entirely
devoted to agriculture and populated by only 77 persons, the Salt
River District includes almost half the population of the State,
including large parts of Phoenix and other cities. Moreover, the
Salt River District, unlike the Tulare District, has exercised its
statutory power to generate and sell electric power, and has become
one of the largest suppliers of such power in the State. Further,
whereas all the water delivered by the Tulare District went for
agriculture, roughly 40% of the water delivered by the Salt River
District goes to urban areas or is used for nonagricultural
purposes in farming areas. [
Footnote 9] Finally whereas all operating costs of the
Tulare District were born by the voting landowners through
assessments apportioned according to land value, most of the
capital and operating costs of the Salt River District have been
met through the revenues generated
Page 451 U. S. 366
by the selling of electric power. [
Footnote 10] Nevertheless, a careful examination of the
Salt River District reveals that, under the principles of the
Avery, Hadley, and
Salyer cases, these
distinctions do not amount to a constitutional difference.
First, the District simply does not exercise the sort of
governmental powers that invoke the strict demands of
Reynolds. The District cannot impose
ad valorem
property taxes or sales taxes. It cannot enact any laws governing
the conduct of citizens, nor does it administer such normal
functions of government as the maintenance of streets, the
operation of schools, or sanitation, health, or welfare services.
[
Footnote 11]
Page 451 U. S. 367
Second, though they were characterized broadly by the Court of
Appeals, even the District's water functions, which constitute the
primary and originating purpose of the District, are relatively
narrow. The District and Association do not own, sell, or buy
water, nor do they control the use of any water they have
delivered. The District simply stores water behind its dams,
conserves it from loss, and delivers it through project canals.
[
Footnote 12] It is true, as
the Court of Appeals noted, that as much as 40% of the water
delivered by the District goes for nonagricultural purposes. But
the distinction between agricultural and urban land is of no
special constitutional significance in this context. The
constitutionally relevant fact is that all water delivered by the
Salt River District, like the water delivered by the Tulare Lake
Basin Water Storage District, is distributed according to land
ownership, [
Footnote 13] and
the District does not and cannot control the use to
Page 451 U. S. 368
which the landowners who are entitled to the water choose to put
it. As repeatedly recognized by the Arizona courts, though the
state legislature has allowed water districts to become nominal
public entities in order to obtain inexpensive bond financing, the
districts remain essentially business enterprises, created by and
chiefly benefiting a specific group of landowners.
Niedner v.
Salt River Project Agricultural Improvement and Power Dist.,
121 Ariz. 331,
590 P.2d 447;
Uhlmann v. Wren, 97 Ariz. 366, 374,
401 P.2d 113,
124;
Local 266, I.B.E.W. v. Salt River Project Agricultural
Improvement and Power Dist., 78 Ariz. 30, 41-42,
275 P.2d 393,
402. As in
Salyer, the nominal public character of such an
entity cannot transform it into the type of governmental body for
which the Fourteenth Amendment demands a one-person, one-vote
system of election. [
Footnote
14]
Finally, neither the existence nor size of the District's power
business affects the legality of its property-based voting scheme.
As this Court has noted in a different context, the provision of
electricity is not a traditional element of governmental
sovereignty,
Jackson v. Metropolitan Edison Co.,
419 U. S. 345,
419 U. S. 353,
and so is not, in itself, the sort of general or important
governmental function that would make the government provider
subject to the doctrine of the
Reynolds case. [
Footnote 15] In any event, since the
electric power functions were stipulated to be incidental to the
water functions which are the District's primary purpose, they
cannot change
Page 451 U. S. 369
the character of that enterprise. [
Footnote 16] The Arizona Legislature permitted the
District to generate and sell electricity to subsidize the water
operations, which were the beneficiaries intended by the statute.
[
Footnote 17] A key part of
the
Salyer decision was that the voting scheme for a
public entity like a water district may constitutionally reflect
the narrow primary purpose for which the district is created. In
this case, the parties have stipulated that the primary legislative
purpose of the District is to store, conserve, and deliver water
for use by District landowners, that the sole legislative reason
for making water projects public entities was to enable them to
raise revenue through interest-free bonds, and that the development
and sale of electric power was undertaken not for the primary
purpose of providing electricity to the public, but
"to support the primary irrigation functions by supplying power
for reclamation uses and by providing revenues which could be
applied to increase the amount and reduce the cost of water to
Association subscribed lands."
The appellees claim, and the Court of Appeals agreed, that the
sheer size of the power operations and the great
Page 451 U. S. 370
number of people they affect serve to transform the District
into an entity of general governmental power. But no matter how
great the number of nonvoting residents buying electricity from the
District, the relationship between them and the District's power
operations is essentially that between consumers and a business
enterprise from which they buy. [
Footnote 18] Nothing in the
Avery, Hadley, or
Salyer cases suggests that the volume of business or the
breadth of economic effect of a venture undertaken by a government
entity as an incident of its narrow and primary governmental public
function can, of its own weight, subject the entity to the
one-person, one-vote requirements of the
Reynolds
case.
The functions of the Salt River District are therefore of the
narrow, special sort which justifies a departure from the popular
election requirement of the
Reynolds case. And as in
Salyer, an aspect of that limited purpose is the
disproportionate relationship the District's functions bear to the
specific class of people whom the system makes eligible to vote.
The voting landowners are the only residents of the District whose
lands are subject to liens to secure District bonds. Only these
landowners are subject to the acreage-based taxing power of the
District, and voting landowners are the only residents who have
ever committed capital to the District through stock assessments
charged by the Association. [
Footnote 19]
Page 451 U. S. 371
The
Salyer opinion did not say that the selected class
of voters for a special public entity must be the only parties at
all affected by the operations of the entity, or that their entire
economic wellbeing must depend on that entity. Rather, the question
was whether the effect of the entity's operations on them was
disproportionately greater than the effect on those seeking the
vote. [
Footnote 20]
As in the
Salyer case, we conclude that the voting
scheme for the District is constitutional because it bears a
reasonable relationship to its statutory objectives. Here,
according to the stipulation of the parties, the subscriptions of
land which made the Association and then the District possible
might well have never occurred had not the subscribing landowners
been assured a special voice in the conduct of the District's
business. Therefore, as in
Salyer, the State could
rationally limit the vote to landowners. Moreover, Arizona could
rationally make the weight of their vote dependent upon the number
of acres they own, since that number reasonably reflects the
relative risks they incurred as landowners and the distribution of
the benefits and the burdens of the District's water operations.
[
Footnote 21]
Page 451 U. S. 372
The judgment of the Court of Appeals is reversed, and the case
is remanded for further proceedings consistent with this
opinion.
It is so ordered.
[
Footnote 1]
The review in this opinion of the history, organization,
functions, and financing of the District is drawn from the
stipulation of facts in the District Court.
[
Footnote 2]
In recent years, the method of electing the Board of Directors
has departed somewhat from the strict one-acre, one-vote system
originally used by the Association and the District. In 1969, the
state legislature amended the Agricultural Improvement Act to
permit owners of less than one acre to cast fractional votes in
proportion to their acreage. Ariz.Rev.Stat.Ann. § 45-983C (Supp.
1980-1981). A second change had to do with the membership of the
Board of Directors itself. Before 1976, there were 10 directors,
each elected from a designated geographical part of the District.
In 1976, after the District Court had dismissed the complaint in
this case, the state legislature enlarged the Board to 14 members
and provided that the 4 new members were to be elected at large,
with each landowner in the District having one vote in the at-large
election. Ariz.Rev.Stat.Ann. §§ 45-961B, 45-963 (Supp. 1980-1981).
Each special water district also has a President and Vice
President, elected at large on an acreage-weighted basis. §
4963.
[
Footnote 3]
In holding that the one-person, one-vote principle of
Reynolds applies to the Salt River District, the Court of
Appeals stressed the scope of the District's power operations and
the diversity of its water operations, and rejected the appellees'
argument that the power operations are essentially business
activities incidental to the District's narrow primary purpose of
storing and delivering water:
"[T]he scale of the District's operations simply does not permit
the interpretation that the electric utility is a side venture that
the District dabbles in to pick up a little extra money in order to
benefit the landowners. The operation of the utility has taken on
independent significance. . . . The electric utility operations of
the District are so substantial in scope and are so closely
interwoven with the water delivery functions of the District that
it is not a special limited purpose district whose operations have
a disproportionate effect on landowners as a class."
613 F.2d at 184-185.
[
Footnote 4]
Among the duties of the County Commissioners Court in
Avery were establishing courthouses and jails, appointing
health officials, building roads and bridges, administering
welfare, setting the county tax rate, adopting the county budget,
and equalizing tax assessments. 390 U.S. at
390 U. S.
476.
[
Footnote 5]
"[T]he Constitution does not require that a uniform straitjacket
bind citizens in devising mechanisms of local government suitable
for local needs and efficient in solving local problems."
Id. at
390 U. S.
485.
[
Footnote 6]
The Court held that the Junior College District in
Hadley did not fall within this exception because
"[e]ducation has traditionally been a vital governmental function,
and these . . . are governmental officials in every relevant sense
of that term." 397 U.S. at
397 U. S. 56.
[
Footnote 7]
On the same day it decided
Salyer, the Court upheld a
similar scheme in Wyoming, under which the voters in a referendum
on the creation of a water district had to be landowners, and in
which the decision to create the district required the votes of
landowners representing a majority of the acreage of the lands
within the proposed district.
Associated Enterprises, Inc. v.
Toltec Watershed Improvement Dist., 410 U.
S. 743 (per curiam).
[
Footnote 8]
In
Kramer v. Union Free School District No. 15,
395 U. S. 621,
395 U. S. 627,
the Court stated that the exclusion of otherwise qualified voters
from a particular election must be justified by some compelling
state interest. But in considering whether the voting scheme for
the Tulare Lake Basin Water Storage District bore some relevancy to
the purpose for which the scheme was adopted,
Salyer
imposed no such requirement.
[
Footnote 9]
Approximately 15% of the water delivered by the District is used
in farming areas for nonagricultural irrigation purposes such as
schools, playgrounds, and parks. Another 25% is delivered to
municipalities. Of the latter, some belongs to the municipalities
themselves as landowners, and some belongs to landowning city
residents who have chosen the cities as their receiving agents.
[
Footnote 10]
As the Court of Appeals noted, the District has $290 million of
general obligation bonds outstanding that are secured by the
statutory lien on District lands, but the bonds have been serviced
entirely out of the District's power earnings, and, since 1973, all
borrowing for capital improvements has been secured by pledges of
revenues. The District now has outstanding $600 million of these
revenue bonds, which are junior to the general obligation bonds.
The voting landowners have also committed some capital to the Salt
River Project, through stock assessments charged by the
Association, but the Association last exercised its assessment
power in 1951.
[
Footnote 11]
In
Salyer, we recognized that the powers to contract
for and staff projects, to condemn property, and to issue bonds do
not amount to such general governmental authority. 410 U.S. at
410 U. S. 728,
n. 8. And as recognized by the dissenting opinion in the companion
case to
Salyer, the power to levy and collect special
assessments also does not create such general governmental
authority.
Associated Enterprises, Inc. v. Toltec Watershed
Improvement Dist., supra, at
410 U. S. 749
(Douglas, J.).
In other cases, the Court has found invalid state laws tying
voting eligibility to property ownership in elections to approve
issuance of bonds to finance a city library,
Hill v.
Stone, 421 U. S. 289, and
a municipal utility,
Cipriano v. City of Houma,
395 U. S. 701 (per
curiam), and to issue general obligation bonds secured by a lien on
real property,
Phoenix v. Kolodziejski, 399 U.
S. 204. In those cases, however, the elections concerned
the operations of traditional municipalities exercising the full
range of normal governmental powers, and so the cases do not bear
on the question of a special-purpose governmental entity like the
Salt River District.
See Salyer Land Co. v. Tulare Lake Basin
Water Storage District, 410 U.S. at
410 U. S.
727.
[
Footnote 12]
The appellees have alleged that the District's power over flood
control affects all residents within District boundaries, and
therefore represents the sort of important governmental function
that invokes the
Reynolds one-person, one-vote doctrine.
However, as we held in
Salyer, where such a power over
flood control is incidental to a District's primary water
functions, it is not of decisive constitutional significance. 410
U.S. at
410 U. S. 728,
n. 8. Indeed, in both the
Salyer and
Associated
Enterprises, Inc., cases, control of erosion and flooding was
one of the express statutory purposes of the water districts; the
Salt River District has no such express statutory power, and so any
influence it exerts over flood control is simply an effect of the
exercise of its more limited statutory water functions.
[
Footnote 13]
The Court of Appeals slightly misconstrued the facts in stating
that a significant portion of water delivered by the District "is
used and paid for in a manner unrelated to agriculture
or land
ownership." 613 F.2d at 184 (emphasis added). Though some
landowning city residents have designated their cities as
contracting agents to receive their water allotments,
see
n 9,
supra, the
stipulated facts show that all entitlement to water in the District
derives from land ownership, whether rights to surface water
appurtenant to land or acreage-based entitlements to stored
water.
[
Footnote 14]
Significantly, though the District's nominal status as a
governmental body technically exempts it from state taxes, it makes
ad valorem contributions to the state treasury according
to the same formula by which the State's private utilities pay
property taxes. Ariz.Rev.Stat. nn. § 42201
et seq. (Supp.
1980-1981).
[
Footnote 15]
The Tulare Lake Basin Water Storage District in
Salyer
had the statutory power to generate and sell electricity at any
time and in any manner, 410 U.S. at
410 U. S. 724,
but that fact did not alter the Court's view that the district's
purpose was too narrow to invoke the
Reynolds
principle.
[
Footnote 16]
The stipulated facts show that, measured as a percentage of
gross power revenues, the amount of District revenues used to
support the water operations is roughly equal to the sum of the
dividends paid to common stockholders in a comparable private
electric utility.
[
Footnote 17]
As stated by the Arizona Supreme Court:
"Most municipal corporations are owned by the public and managed
by public officials. . . . Such is not the case here. . . . The
public does not own the District. The governmental entity such as a
city or town does not manage or benefit from the profits of this
District. Instead, the owners are private landholders. The profits
from the sale of electricity are used to defray the expense in
irrigating these private lands for personal profit. The public
interest is merely that of consumers of its product, for which they
pay. . . . The District does not function to 'serve the whole
people,' but rather the District operates for the benefit of these
'inhabitants of the district' who are private owners."
Local 266, I.B.E.W. v. Salt River Agricultural Improvement
and Power Dist., 78 Ariz. 30, 44,
275 P.2d 393,
402-403.
[
Footnote 18]
Indeed, this consumer-business relationship is somewhat obscured
by the appellees' claim of standing. The stipulated facts show that
the District delivers 15% of its electric power to customers
outside the District boundaries, and that 15% of lands within the
District receive electricity from a private utility, rather than
the District. Thus, if the appellees' claim of a constitutional
right to vote for directors of the District rests on their
relationship to the power functions of the District, they represent
the wrong class of putative voters.
[
Footnote 19]
The Court of Appeals found it significant that 98% of the
District's revenues come from sales of electricity, and only 2%
from charges assessed for water deliveries. 613 F.2d at 184. This
fact in no way affects the constitutionality of the voting scheme.
When the consumers of electricity supply those power revenues, they
are simply buying electricity; they are neither committing capital
to the District nor committing any of their property as security
for the credit of the District.
[
Footnote 20]
The appellees, of course, are qualified voters in Arizona, and
so remain equal participants in the election of the state
legislators who created and have the power to change the
District.
[
Footnote 21]
It in no way upsets the rationality of this scheme that the 40%
of District acreage owned by corporations and municipalities is not
voted at all. The lands owned by the corporations and cities are
exclusively streets, alleys, canal rights of way, and the bed of
the Salt River. Moreover, those lands are not subject to the
District's acreage-based taxing power. Finally, it can hardly be
said that the legislature acted irrationally in limiting voting
eligibility to landowners who were otherwise qualified electors
under state law.
JUSTICE POWELL, concurring.
I concur fully in the Court's opinion, and write separately only
to emphasize the importance to my decision of the Arizona
Legislature's control over voting requirements for the Salt River
District.
The Court previously has held that, when a governmental entity
exercises functions that are removed from the core duties of
government and disproportionately affect a particular group of
citizens, that group may exercise more immediate control over the
management of the entity than their numbers would dictate.
Salyer Land Co. v. Tulare Lake Basin Water Storage
District, 410 U. S. 719
(1973).
See Hadley v. Junior College District,
397 U. S. 50,
397 U. S. 56
(1970);
Avery v. Midland County, 390 U.
S. 474,
390 U. S.
483-484 (1968). This rule is consistent with the
principle of "one person, one vote" applicable to the elections of
bodies that exercise general governmental powers.
Reynolds v.
Sims, 377 U. S. 533
(1964). The Salt River District is a governmental entity only in
the limited sense that the State has empowered it to deal with
particular problems of resource and service management. The
District does not exercise the crucial powers of sovereignty
typical of a general purpose unit of government, such as a State,
county, or municipality. [
Footnote
2/1]
Page 451 U. S. 373
Our cases have recognized the necessity of permitting
experimentation with political structures to meet the often novel
problems confronting local communities.
E.g., Holt Civic Club
v. Tuscaloosa, 439 U. S. 60,
439 U. S. 71-72
(1978). As this case illustrates, it may be difficult to decide
when experimentation and political compromise have resulted in an
impermissible delegation of those governmental powers that
generally affect all of the people to a body with a selective
electorate. But state legislatures, responsive to the interests of
all the people, normally are better qualified to make this judgment
than federal courts. [
Footnote 2/2]
Given the broad reforms effected by
Reynolds v. Sims, we
should expect that a legislature elected on the rule of one person,
one vote will be vigilant to prevent undue concentration of power
in the hands of undemocratic bodies. The absence of just such a
political safeguard was a major justification for the Court's role
in requiring legislative reapportionment.
See Baker v.
Carr, 369 U. S. 186,
369 U.S. 258-259 (1962)
(Clark, J., concurring).
The Court's opinion convincingly demonstrates that the powers
exercised by the Salt River District are not powers that always
must be exercised by a popularly elected body.
Ante at
451 U. S.
366-371. Both storage and delivery of water are
functions that, in other areas of the Nation, are performed by
private or administrative bodies. These tasks sometimes are
performed by an elected government entity, because of the aridity
of the Southwest, federal water policy, and the historical
Page 451 U. S. 374
interest of Arizona landowners in irrigation, not because of
their inherent character nor an insistent demand that the people as
a whole decide how much water each will receive or how much each
will pay for electricity.
Appellees argue that control of water is of prime importance in
the Southwest, and that many people purchase electricity from the
District. These observations raise the question whether this Court
should interfere with the constitution of the District, but do not
answer it. The Arizona Legislature recently has demonstrated its
control over the electoral processes of the District. It has
reformed the District to increase the political voice of the small
householder at the expense of the large landholder.
Ante
at
451 U. S. 359,
n. 2. This reform no doubt reflects political and demographic
changes in Arizona since the District was established.
The authority and will of the Arizona Legislature to control the
electoral composition of the District are decisive for me in this
case. The District is large enough and the resources it manages are
basic enough that the people will act through their elected
legislature when further changes in the governance of the District
are warranted. We should allow the political process to operate.
For this Court to dictate how the Board of the District must be
elected would detract from the democratic process we profess to
protect.
[
Footnote 2/1]
The Court has held that school boards must be elected on a
strictly majoritarian basis.
Hadley v. Junior College
District, 397 U. S. 50
(1970);
Kramer v. Union Free School District No. 15,
395 U. S. 621
(1969). These cases reflect the Court's judgment as to the unique
importance of education among the functions of modern local
government.
See Brown v. Board of Education, 347 U.
S. 483,
347 U. S. 493
(1954).
Cf. Holt Civic Club v. Tuscaloosa, 439 U. S.
60 (1978) (nonresidents may be subject to "police
jurisdiction" of neighboring city without being constitutionally
entitled to vote in the city).
[
Footnote 2/2]
The Court deprecated the significance of control of voting
requirements for a special purpose election by a fairly elected
legislature in
Kramer, supra, at
395 U. S. 628.
See also Avery v. Midland County, 390 U.
S. 474,
390 U. S. 481,
n. 6 (1968). The holding in
Kramer is affected neither by
Salyer nor by the decision of the Court today,
see 451
U.S. 355fn2/1|>n. 1,
supra, but it must be evident
that some of the reasoning in that case has been questioned.
See, e.g., ante at
451 U. S.
364-365, n. 8.
JUSTICE WHITE, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and
JUSTICE BLACKMUN join, dissenting.
In concluding that the District's "one-acre, one-vote" scheme is
constitutional, the Court misapplies the limited exception
recognized in
Salyer Land Co. v. Tulare Lake Basin Water
Storage District, 410 U. S. 719
(1973), on the strained logic that the provision of water and
electricity to several hundred thousand citizens is a "peculiarly
narrow function." Because the Court misreads our prior cases and
its opinion is conceptually unsound, I dissent.
Page 451 U. S. 375
I
The right to vote is of special importance because the franchise
acts to preserve "other basic civil . . . rights."
Reynolds v.
Sims, 377 U. S. 533,
377 U. S. 562
(1964). It is presumed that "when all citizens are affected in
important ways by a governmental decision," the Fourteenth
Amendment "does not permit . . . the exclusion of otherwise
qualified citizens from the franchise."
Phoenix v.
Kolodziejski, 399 U. S. 204,
399 U. S. 209
(1970). Any state statute granting the franchise to residents on a
selective basis poses the "danger of denying some citizens any
effective voice in the governmental affairs which substantially
affect their lives."
Kramer v. Union Free School District No.
15, 395 U. S. 621,
395 U. S. 627
(1969). [
Footnote 3/1]
See
Avery v. Midland County, 390 U. S. 474
(1968). As a result, any classification restricting the franchise,
except those involving residence, age, or citizenship, is
unconstitutional "unless the district or State can demonstrate that
the classification serves a compelling state interest."
Hill v.
Stone, 421 U. S. 289,
421 U. S. 297
(1975).
See Kramer, supra, at
395 U. S.
626-627;
Phoenix, supra, at
399 U. S. 209
(giving power to property owners alone "can be justified only by
some overriding interest of those owners that the State is entitled
to recognize").
This fundamental principle has been applied in a variety of
contexts to invalidate discriminatory election schemes limiting the
franchise, in whole or in part, to property owners. In
Kramer, the Court found invidious a system for local
school district elections which limited eligibility to those who
either (1) owned or leased taxable realty in the locality; or (2)
were parents or custodians of children enrolled in the local
public
Page 451 U. S. 376
schools. In
Cipriano v. City of Houma, 395 U.
S. 701 (1969), a case with particular relevance to the
present action, the Court invalidated a state law which limited
participation in a bond election for the support of a municipal
utility system to property holders. The revenue bonds, secured by
funds generated by the utility system itself, did not create any
enforceable lien against any property in the city.
Id. at
395 U. S. 705.
Noting that the impact fell on property and nonproperty owners
alike, since all persons "use the utilities and pay the rates," the
Court rejected the voting classification scheme disenfranchising
nonproperty owners. Nor may the vote be limited to property owners
in bond issuance elections with respect to general obligation bonds
secured by property tax revenues.
Phoenix, supra, at
399 U. S.
209-213.
See also Police Jury of Parish of Vermilion
v. Hebert, 404 U. S. 807
(1971),
summarily rev'g 258 La. 41, 245 So. 2d 349 (cannot
limit vote for road improvement bonds to property holders). The
Court has thus rejected the view that, simply because property is
directly burdened because of some governmental action, that fact
alone justifies limiting the franchise to property owners where
nonowners are also substantially affected.
Hill, supra, at
421 U. S.
299.
To be sure, the Court approved limiting the vote to landowners
in electing the board of directors of a Water Storage District in
Salyer Land Co. v. Tulare Lake Basin Water Storage
District. [
Footnote 3/2]
See Associated Enterprises, Inc.
v. Toltec
Page 451 U. S. 377
Watershed Improvement District, 410 U.
S. 743 (1973). But nothing in
Salyer changed
the relevant constitutional inquiry. Rather, the Court held the
Reynolds-Avery-Kramer line of cases inapplicable to the
water district because of its "special limited purpose
and
the disproportionate effect of its activities on landowners as a
group. . . ." 410 U.S. at
410 U. S. 728
(emphasis supplied). Although the water district there involved
exercised certain governmental authorities, its purposes were quite
narrow. The Water Storage District was also found to have only an
insubstantial effect on nonvoters. Only 77 persons lived within its
boundaries, and most worked for one of the four corporations which
owned 85% of the land within the District. On the other hand, the
burdens of the District fell entirely on landowners, since all of
the costs associated with the District's projects were assessed
against landowners in proportion to the benefits received. There
was "no way that the economic burdens of district operations can
fall on residents
qua residents. . . ."
Id. at
410 U. S.
729.
An analysis of the two relevant factors required by
Salyer demonstrates that the Salt River District possesses
significant governmental authority, and has a sufficiently wide
effect on nonvoters to require application of the strict scrutiny
mandated by
Kramer.
II
The District involved here clearly exercises substantial
governmental powers. The District is a municipal corporation
organized under the laws of Arizona, and is not, in any sense of
the word, a private corporation. Pursuant to the Arizona
Constitution, such districts are
"political subdivisions of the State, and vested with all the
rights, privileges and benefits, and entitled to the immunities and
exemptions granted municipalities and political subdivisions under
this
Page 451 U. S. 378
Constitution or any law of the State or of the United
States."
Ariz. Const., Art. 13, § 7. Under the relevant statute
controlling agricultural improvement districts, the District is
"a public, political, taxing subdivision of the state, and a
municipal corporation to the extent of the powers and privileges
conferred by this chapter or granted generally to municipal
corporations by the constitution and statutes of the state,
including immunity of its property and bonds from taxation."
Ariz.Rev.Stat.Ann. § 4902 (1956). [
Footnote 3/3] The District's bonds are tax-exempt, and
its property is not subject t;o state or local property taxation.
This attribute clearly indicates the governmental nature of the
District's function. The District also has the power of eminent
domain, a matter of some import. The District has also been given
the power to enter into a wide range of contractual arrangements to
secure energy sources. [
Footnote
3/4] Inherent in this authorization is the power to control the
use and source of energy generated by the District,
Page 451 U. S. 379
including the possible use of nuclear power. Obviously, this
broad authorization over the field of energy transcends the limited
functions of the agricultural water storage district involved in
Salyer.
The District here also has authority to allocate water within
its service area. It has veto power over all transfers of surface
water from one place or type of use to another, and this power
extends to any "watershed or drainage area which supplies or
contributes water for the irrigation of lands within [the]
district. . . ." Ariz.Rev.Stat.Ann. § 45-172.5 (Supp.
1980-1981).
Like most "private" utilities, which are often "natural
monopolies,"
see Otter Tail Power Co. v. United States,
410 U. S. 366
(1973), private utilities in Arizona are subject to regulation by
public authority. The Arizona Corporation Commission is empowered
to prescribe "just and reasonable rates," as well as to regulate
other aspects of the business operations of private utilities.
See Ariz.Rev.Stat.Ann. § 40-321 (1974). The rate structure
of the District now before us, however, is not subject to control
by another state agency, because the District is a municipal
corporation, and itself purports to perform the public function of
protecting the public interest that the Corporation Commission
would otherwise perform.
See Ariz. Const., Art. 13, § 7,
Art. 15, § 2.
See also Rubenstein Construction Co. v. Salt
River Project Agricultural Improvement Power Dist., 76 Ariz.
402,
265 P.2d 455
(1953) (Salt River Project is not a public service corporation, and
therefore statute forbidding certain business practices did not
apply). Its power to set its own rates and other conditions of
service constitutes important attributes of sovereignty. When
combined with a consideration of the District's wide-ranging
operations which encompass water for agricultural and personal
uses, and electrical generation for the needs of hundreds of
thousands of customers, it is clear that the District exercises
broad governmental power. With respect to energy management and the
provision of water
Page 451 U. S. 380
and electricity, the District's power is immense, and its
authority complete.
It is not relevant that the District does not do more -- what is
detailed above is substantially more than that involved in the
Water Storage District in
Salyer, and certainly enough to
trigger application of the strict standard of the Fourteenth
Amendment under our prior cases. Previous cases have expressly
upheld application of the strict requirements of the Fourteenth
Amendment in situations where somewhat limited functions were
involved.
Salyer itself suggested that it would be a
different case if a water district like the one involved in that
case generated and sold electricity. In concluding that the Tulare
District did not exercise normal governmental authority, the Court
specifically noted that the District provided
"no other general public services such as schools, housing,
transportation,
utilities, roads, or anything else of the
type ordinarily financed by a municipal body."
410 U.S. at
410 U. S.
728-729 (emphasis supplied). In
Cipriano v. City of
Houma, 395 U. S. 701
(1969), we held that a bond election which concerned only a city's
provision of utilities involved a sufficiently broad governmental
function. In
Kramer, the Court noted that the "need for
close judicial examination" did not change,
"because the district meetings and the school board do not have
'general' legislative powers. Our exacting examination is not
necessitated by the subject of the election; rather, it is required
because some resident citizens are permitted to participate, and
some are not."
395 U.S. at
395 U. S. 629.
In
Hadley v. Junior College District, 397 U. S.
50 (1970), the Court applied
Kramer despite the
fact that the powers exercised by the trustees of a Junior College
District were substantially less significant than those exercised
in
Avery v. Midland County, 390 U.
S. 474 (1968). It was sufficient that the trustees
performed important governmental functions with sufficient impact
throughout the District.
Page 451 U. S. 381
I therefore cannot agree that this line of cases is not
applicable here. The authority and power of the District are
sufficient to require application of the strict scrutiny required
by our cases. This is not a single-purpose water irrigation
district, but a large and vital municipal corporation exercising a
broad range of initiatives across a spectrum of operations.
Moreover, by the nature of the state law, it is presently
exercising that authority without direct regulation by state
authorities charged with supervising privately owned corporations
involved in the same business. The functions and purposes of the
Salt River District represent important governmental
responsibilities that distinguish this case from
Salyer.
III
In terms of the relative impact of the Salt River District's
operations on the favored landowner voters and those who may not
vote for the officers of this municipal corporation, the contrast
with the Water District in
Salyer is even more pronounced.
A bird's-eye view of the District's operations will be helpful.
Historically, the Salt River District was concerned only with
storing water and delivering it for agricultural uses within the
District. This was a crucial service, but it proved too expensive
for a wholly private concern to maintain. It needed public help,
which it received. It became a municipal corporation, a
transformation which rendered its bonds and property tax exempt. It
also needed a public subsidy, which was provided by authorizing it
to engage in the generation and sale of electricity. It was also
authorized to supply water for municipal and other nonagricultural
uses.
The area within the District, once primarily rural, now
encompasses eight municipalities and a major part of the city of
Phoenix. Its original purpose, the supply of irrigation water, now
provides only a tiny fraction of its gross income. For the fiscal
year ending April 30, 1980, the District
Page 451 U. S. 382
had a total operating income of approximately $450 million, 98%
of which was derived from the generation of electricity and its
sale to approximately 240,000 consumers.
See Salt River
Project, 1979-1980 Annual Report, p. 25. The District is now the
second largest utility in Arizona. Furthermore, as of April 30,
1980, the District had outstanding long-term debt of slightly over
$2 billion. Approximately $1.78 billion, or about 88%, of that debt
are in the form of revenue bonds secured solely by the revenues
from the District's electrical operations. All of the District's
capital improvements since 1972 have been financed by revenue
bonds, and the general obligation bonds, now representing a small
fraction of the District's long-term debt, are being steadily
retired from the District's general revenues. It must also be noted
that, at the present time, 40% of the water delivered by the
District is used for nonagricultural purposes -- 25% for municipal
purposes and 15% to schools, playgrounds, parks, and the like.
With these facts in mind, it is indeed curious that the Court
would attempt to characterize the District's electrical operations
as "incidental" to its water operations, or would consider the
power operations to be irrelevant to the legality of the voting
scheme. [
Footnote 3/5] The facts
are that, in
Salyer, the burdens
Page 451 U. S. 383
of the Water District fell entirely on the landowners who were
served by the District. Here the landowners could not themselves
afford to finance their own project and turned to a public agency
to help them. That agency now subsidizes the storage and delivery
of irrigation water for agricultural purposes by selling
electricity to the public at prices that neither the voters nor any
representative public agency has any right to control. Unlike the
situation in
Salyer, the financial burden of supplying
irrigation water has been shifted from the landowners to the
consumers of electricity. [
Footnote
3/6] At the very least, the structure of the District's
indebtedness, together with the history of the District's
operations, compels a finding that the burdens placed upon the
lands within the District are so minimal that they cannot possibly
serve as a basis for limiting the franchise to property owners.
Like the Court of Appeals, I cannot help but conclude as
follows:
"[T]he operation of the utility has taken on independent
significance. In view of the magnitude of the electric utility
operations and the large percentage of the water services which are
used and paid for in a manner unrelated to land ownership, it would
elevate form over substance
Page 451 U. S. 384
to characterize the District as functioning solely for the
benefit of the landowners."
613 F.2d at 184. In
Cipriano, the only item at issue
was an election concerning bonds to be used solely for the
improvement of the municipally owned utility system. Of substantial
importance to the resolution of this case, the Court said:
"Of course, the operation of the utility systems -- gas, water,
and electricity -- affects virtually every resident of the city,
nonproperty owners as well as property owners. All users pay
utility bills, and the rates may be affected substantially by the
amount of revenue bonds outstanding. Certainly property owners are
not alone in feeling the impact of bad utility service or high
rates, or in reaping the benefits of good service and low
rates."
395 U.S. at
395 U. S. 705.
[
Footnote 3/7]
It is apparent in this case that landowning irrigators are
getting a free ride at the expense of the users of electricity. It
would also seem apparent that, except for the subsidy, utility
rates would be lower. Of course, subsidizing agricultural
operations may well be in the public interest in Arizona, but it
does not follow that the amount of the subsidy and the manner in
which it is provided should be totally in the hands of a select
few. [
Footnote 3/8]
Page 451 U. S. 385
To conclude that the effect of the District's operations in this
case is substantially akin to that in
Salyer ignores
reality. As recognized in
Salyer, there were
"no towns, shops, hospitals, or other facilities designed to
improve the quality of life within the district boundaries, and it
does not have a fire department, police, buses, or trains."
410 U.S. at
410 U. S. 729.
In short, there was nothing in the Water Storage District for its
operations to affect except the land itself. The relationship
between the burdens of the District and the land within the
District's boundaries was strong. Here, the District encompasses
one of the major metropolitan areas in the country. The effects of
the provision of water and electricity on the citizens of the city
are as major as they are obvious. There is no strong relationship
between the District's operation and the land
qua land.
The District's revenues and bonds are tied directly to the
electrical operation. Any encumbrance on the land is, at best,
speculative. Certainly, any direct impact on the land is no greater
than in
Phoenix v. Kolodziejski, 399 U.
S. 204 (1970), where we rejected the same argument
presented today. Simply put, the District is an integral
governmental actor providing important governmental services to
residents of the District. To conclude otherwise is to ignore the
urban reality of the District's operations. [
Footnote 3/9]
Page 451 U. S. 386
IV
Underlying the Court's conclusion in this case is the view that
the provision of electricity and water is essentially private
enterprise, and not sufficiently governmental -- that the District
"simply does not exercise the sort of governmental powers that
invoke the strict demands" of the Fourteenth Amendment because it
does not administer "such normal functions of government as the
maintenance of streets, the operation of schools, or sanitation,
health, or welfare services."
Ante at
451 U. S. 366.
This is a distinctly odd view of the reach of municipal services in
this day and age. Supplying water for domestic and industrial uses
is almost everywhere the responsibility of local government, and
this function is intimately connected with sanitation and health.
Nor is it any more accurate to consider the supplying of
electricity as essentially a private function. The United States
Government and its agencies generate and sell substantial amounts
of power, and, in view of the widespread existence of municipal
utility systems, it is facetious to suggest hat the operation of
such utility systems should be considered as an incidental aspect
of municipal government. Nor will it do, it seems to me, to return
to the proprietary-governmental dichotomy in order to deliver into
wholly private hands the control of a major municipal activity
which acts to subsidize a limited number of landowners. [
Footnote 3/10]
Page 451 U. S. 387
In
Indian Towing Co. v. United States, 350 U. S.
61,
350 U. S. 67-68
(1955), the Court remarked:
"'Government is not partly public or partly private, depending
upon the governmental pedigree of the type of a particular activity
or the manner in which the Government conducts it.'
Federal
Crop Insurance Corp. v. Merrill, 332 U. S.
380,
332 U. S. 383-384. On the
other hand, it is hard to think of any governmental activity on the
'operational level,' our present concern, which is 'uniquely
governmental,' in the sense that its kind has not, at one time or
another, been, or could not conceivably be, privately
performed.'"
In
Lafayette v. Louisiana Power & Light Co.,
435 U. S. 389
(1978), JUSTICE STEWART, after quoting the above passage from
Indian Towing Co., described the distinction between
"proprietary" and "governmental" activities as a "quagmire"
involving a distinction "
so finespun and capricious as to be
almost incapable of being held in the mind for adequate
formulation.'" Id. at 435 U. S. 433
(dissenting opinion) (quoting Indian Towing Co., supra, at
350 U. S. 68).
JUSTICE STEWART went on to conclude that, whether proprietary or
not, the action of providing electrical utility services "is surely
an act of government." 435 U.S. at 435 U. S.
434.
In
Salyer, the Court nowhere suggested that the
provision of water for agricultural purposes was anything but
governmental action for a public purpose. The Court expressly
recognized that the Water District was a public entity. The
question presented, in part, was whether its operations and
authority were so narrow as not to require application of the
Kramer rule. In
Cipriano, the Court necessarily
held
Page 451 U. S. 388
that the provision of electrical, water, and gas utility
services was a sufficiently important governmental service to
require application of the Fourteenth Amendment's strict scrutiny
safeguards. 395 U.S. at
395 U. S. 705.
If the provision of electrical and other utility services by a
municipal corporation was so "proprietary" or "private" as not to
require application of the stricter standards of the Fourteenth
Amendment,
Cipriano could not have been decided as it was.
The Court's facile characterization of the electrical service
provided by the municipal corporation in this case as essentially a
private function is a misreading of our prior holdings.
V
The purpose and authority of the Salt River District are of
extreme public importance. The District affects the daily lives of
thousands of citizens who, because of the present voting scheme and
the powers vested in the District by the State, are unable to
participate in any meaningful way in the conduct of the District's
operations. [
Footnote 3/11] In my
view, the Court of Appeals properly reasoned that the limited
exception recognized
Page 451 U. S. 389
in
Salyer does not save this voting arrangement. I
cannot agree with the Court's extension of
Salyer to the
facts of the case, and its unwise suggestion that the provision of
electrical and water services are somehow too private to warrant
the Fourteenth Amendment's safeguards. Accordingly, I dissent.
[
Footnote 3/1]
States, of course, have substantial latitude in structuring
local government, and nonlegislative positions need not be elected
at all.
Kramer v. Union Free School District No. 15, 395
U.S. at
395 U. S. 629.
But once a State provides for elections, the Fourteenth Amendment
requires that any discriminations be scrutinized under the
principles enunciated in
Kramer and its progeny.
[
Footnote 3/2]
The possibility of departing from the one-person, one-vote logic
of
Reynolds in the case of special purpose districts was
suggested in
Avery v. Midland County, 390 U.
S. 474 (1968). But the Court left open the question
whether a special purpose unit of government assigned the
performance of functions affecting definable groups of constituents
more than other constituents "may be apportioned in ways which give
greater influence to the citizens most affected by the
organization's functions."
Id. at
390 U. S.
483-484. Thus, even assuming that the landowners are
more directly affected,
Avery suggests that there may be
situations where total exclusion is unconstitutional, but where the
exact one person, one vote rule does not apply. The Court's
decision today ignores the possibility of some alternative plan and
instead sanctions an unjustifiable total exclusion.
[
Footnote 3/3]
Arizona state court decisions have described such agricultural
improvement districts as primarily business-oriented.
See
ante at
451 U. S. 368.
See also Local 266, International Brotherhood of Electrical
Workers v. Salt River Project Agricultural Improvement & Power
Dist., 78 Ariz. 30,
275 P.2d 393
(1954);
Mesa v. Salt River Project Agricultural Improvement
& Power Dist., 92 Ariz. 91,
373 P.2d 722
(1962),
appeal dism'd, 372 U. S. 704
(1963). Of course, these state court descriptions do not control
the question whether the municipal corporation possesses sufficient
authority or function to require application of the voting
procedures mandated.by the Fourteenth Amendment. That inquiry is a
constitutional question to be resolved by the courts.
[
Footnote 3/4]
Arizona Rev.Stat.Ann. § 45-935.B (Supp. 1980-1981) provides:
"For the purpose of acquiring or assuring a supply of electric
power and energy to serve the district's customers, the board, for
the and in the name of the district may, without the boundaries of
the state, acquire, develop, own, lease, purchase, construct,
operate, equip, maintain, repair and replace, and contract for . .
. any form of energy or energy resources including but not limited
to coal, oil, gas, oil shale, uranium and other nuclear materials,
hot water, steam, and other geothermal materials or minerals, solar
energy, wind, water, and water power and compressed air. . . ."
[
Footnote 3/5]
The parties did not stipulate that the electrical services were
unimportant or legally insignificant. In the context of the
historical development of the District's power and authority, it
was stipulated that the electrical generating function was
"incident" to the primary purpose of providing water to District
members. Stipulated Statement of Facts, Nos. 12, 17. This
historical view, however, in no way undercuts the present inquiry.
Even acknowledging that water service remains the "primary"
function of the District in some legal sense, the relevant question
here is whether the other services are of such a nature to require
application of the strict standards of the Fourteenth Amendment.
The fact that the generation of electricity is an incident of the
water function of the District is not the same as concluding that
the provision of electricity is "incidental" in the sense that it
is insignificant. Indeed the parties also stipulated that the
"District provides a reliable supply of essential electric
energy and water in substantial portions of the Salt River Valley;
thus, the District operation is important to the development of the
Salt River Valley."
Id., No. 46.
[
Footnote 3/6]
The extent of the subsidy is substantial. The parties stipulated
that:
"During the last ten years, about 83% of the water system costs
have been financed with power revenues. In 1974, revenues from
water and irrigation activities were $2,613, 184. The expenses,
including depreciation, for irrigation and water operations
exceeded revenues by about $14,000,000, and that deficit was met
from power revenues. Water support has averaged approximately
$10,000,000 annually since 1965. These amounts do not include
expenditures for additions and improvements to the irrigation plant
and for repayment of long-term debt, which must also be met from
power revenues. Any decrease in support from power revenues would
have to be met from increased water delivery charges."
Id., No. 45.
[
Footnote 3/7]
The Salt River District authorities thought the issue in
Cipriano to be so substantially akin to the issue with respect to
its operations that it decided to file an
amicus brief in
that case.
See Brief for the Salt River Project
Agricultural Improvement and Power District as
Amicus
Curiae, O.T. 1968, No. 705. The District argued that the bonds
at issue in
Cipriano went only to the city's conduct of
its utility function, and thus affected "only a particular segment
of those general governmental powers,"
id. at 5, so that
Kramer should not be applied. We necessarily rejected the
District's arguments on the merits in
Cipriano.
[
Footnote 3/8]
It may well be that, if given a chance to participate,
nonproperty owners will seek to lessen the subsidy. But this is no
excuse for denying them the vote. A State is constitutionally
prohibited from disenfranchising any "sector of the population
because of the way they may vote. . . ."
Carrington v.
Rash, 380 U. S. 89,
380 U. S. 94
(1965).
[
Footnote 3/9]
Nothing in
Cipriano turned on the fact that the city's
utility activities were connected with its broader grants of police
power and were not conducted by a separately elected board or
commission. While the Court noted that any profits from the utility
operations would go into the city's general fund, this fact did not
contribute to the Court's decision to extend the franchise. Rather,
the Court noted that property and nonproperty taxpayers may have
different views concerning provision of city funds for utilities,
and that it was this concern with the utility services which
required application of
Kramer.
It is also significant that the Court's decision today is
inconsistent with the narrow, and correct, reading given
Salyer in various other courts in circumstances akin to
those in the present case.
See, e.g., Choudhry v.
Free, 17 Cal. 3d
660, 552 P.2d 438 (1976);
Johnson v. Lewiston Orchards
Irrigation Dist., 99 Idaho 501, 584 P.2d 646 (1978).
[
Footnote 3/10]
In this regard, the Court's citation of
Jackson v.
Metropolitan Edison Co., 419 U. S. 345
(1974), is totally misplaced. In that case, the Court held that
actions of a privately owned utility do not constitute state action
for purposes of the Fourteenth Amendment. The Court noted that the
provision of utility services is "not traditionally the exclusive
prerogative of the State."
Id. at
419 U. S. 353.
But this observation necessarily implies that the provision of
utilities, if actually provided by the State, is a valid government
activity. Thus, the question whether the Fourteenth Amendment may
require certain safeguards
if the State, in fact, does
itself provide utility services is in no way reached by
Jackson. See id. at
419 U. S. 354,
n. 9 (States may not segregate public schools so as to exclude any
religious group while private religious schools may so exclude).
Once a State provides such services, constitutional safeguards
necessarily apply.
[
Footnote 3/11]
It is suggested by the Court in a footnote,
see ante at
451 U. S. 371,
n. 20, and by JUSTICE POWELL in his concurring opinion, that, since
the nonvoters living in the District may, of course, vote in the
state legislature elections, their interests are sufficiently
represented, since the state legislature maintains ultimate control
over the operation and authority of the District. This suggestion
lacks merit, and has been specifically rejected in past decisions
of this Court.
Avery v. Midland County, 390 U.S. at
390 U. S. 481.
See Kramer, 395 U.S. at
395 U. S. 628,
n. 10. In most situations involving a state agency or even a city,
the state legislature, and ultimately the people, could exercise
control, since any municipal corporation is a creature of the
State. The Fourteenth Amendment requires a far more direct sense of
democratic participation in elective schemes which is not satisfied
by the indirect and imprecise voter control suggested by the Court
and by JUSTICE POWELL.
Cf. Lafayette v. Louisiana Power &
Light Co., 435 U. S. 389,
435 U. S. 406
(1978) (rejecting argument that Sherman Act should not apply to
municipally owned utility because dissatisfied consumers had
recourse in state legislature).