These two cases, which have been consolidated on appeal, raise common issues relating to a proposed $44 million bond issue to finance the replacement of the American Falls Storage Reservoir on the Snake River in southern Idaho. This Court has previously considered the financing of this project in Barker v. Wagner, 96 Idaho 214, 526 P.2d 174 (1974), which held that the limitations on indebtedness of Art. 8, § 3, of the Idaho Constitution do not apply to irrigation districts.
Before examining in detail the issues raised by these two consolidated appeals, it is necessary to explain briefly the circumstances from which both actions arose. The original American Falls dam was built in
As early as 1929 the cement in the dam began to deteriorate, weakening the structure, and the Bureau of Reclamation therefore later placed restrictions on the maximum water level. A 1966 Bureau of Reclamation report concluded that the dam no longer met the agency's safety standards and included a proposal for the dam's replacement. The 1966 replacement proposal estimated that the replacement project would cost approximately $15 million, of which the water users would pay about $6 million. The report noted that replacement of the dam was urgent because the present water level restrictions could result in a water shortage for irrigators in extremely dry years. The report gave the project "highest priority." Studies by a private board of consultants in 1968 confirmed the bureau's findings concerning the safety of the dam and the need for the dam's replacement or rehabilitation.
In 1972 the maximum level was further restricted. That same year the Bureau of Reclamation's regional director completed a preliminary report which contained a plan for replacing the dam. The cost was estimated at about $29 million, of which water users would pay approximately $19 million. The report and the replacement proposal were never fully reviewed by the Department of Interior.
Following the maximum level restrictions imposed in 1972, several individuals, who purported to represent the interests of some of the entities having storage rights in the reservoir, formed a committee known as the "Committee of Eight." The committee's principal objective was to pursue a private financing plan for the replacement of the dam. The committee believed that private financing would be a faster and surer method for replacing the dam than federal financing through the Bureau of Reclamation. In a resolution adopted in January of 1973, the American Falls Reservoir District (AFRD), an irrigation district with storage rights in the reservoir, resolved to pursue a private financing plan as an alternative to the Bureau of Reclamation proposal. A few days later the "Committee of Eight" adopted a similar resolution. The private financing plan being considered was a proposal by Idaho Power Company to finance the construction of a replacement dam by purchasing the "falling water" rights of the new dam for power generation. In the initial discussions Idaho Power estimated that the cost of the replacement dam would be about $20 1/2 million, of which it would absorb about $19 million as consideration for the falling water rights. This would leave about $1 1/2 million to be paid by the water users.
Implementation of the Idaho Power proposal required both state and federal legislation. In 1973 Idaho Code Title 43, chapter 4, was amended by adding § 43-401A, which authorized an irrigation district to contract for the replacement of dams and other structures and, following approval by
In 1973 the United States Congress enacted Public Law 93-206 which authorized the Secretary of Interior to enter into agreements with the AFRD or other agency representing the spaceholders (referred to as the constructing agency) to finance the construction of the replacement dam.
In 1974 Chapter 22 was added to Title 43 of the Idaho Code. I.C. §§ 43-2201 through
Idaho Power subsequently determined that the construction of the replacement dam would cost substantially more than $20 million. It was ultimately decided that authority for a bond issue of $44,750,000 would be necessary. Idaho Power agreed to increase its share by the cost of water quality facilities which had to be constructed in order for the project to satisfy environmental standards. Of the $44,750,000, $22,965,734.00 was ultimately allocated to Idaho Power and $21,784,266.00 was apportioned among the 35 entities having storage rights in the present reservoir. Construction of the replacement dam was to be financed by bonds issued by the AFRD. In accordance with the provisions of I.C. § 43-2201(D) the AFRD would also make the bond payments but only from a special fund into which it would deposit (1) assessments collected on lands in its district, (2) payments it would receive pursuant to repayment contracts with other spaceholders, and (3) payments from Idaho Power for the falling water rights.
In order to implement this proposed arrangement several contracts were negotiated. The most significant were:
1. The "government contract" between the United States and the AFRD as authorized by Public Law 93-206.
2. The "falling water contract" between the AFRD and Idaho Power in which Idaho Power agreed to pay a portion of the construction cost as consideration for the falling water rights.
3. The "water quality facilities contract" between the AFRD and Idaho Power, which delineates their obligations concerning these facilities.
4. The "spaceholder contracts" between the United States, a present spaceholder and the AFRD for repayment of the spaceholder's proportionate share of the construction cost.
On November 4, 1975, the Board of Directors of the AFRD adopted a resolution pursuant to I.C. § 43-2203 stating that the interest of the AFRD and the public interest and necessity demanded the construction of the replacement dam and a bond issue of $44,750,000. The resolution also allocated the cost of paying the bonds among Idaho Power and the various water users. I.C. § 43-2203 provides that if a referendum petition is submitted to the board within 15 days after the adoption of the resolution the board must hold an election on the question of the bond issue. No such petition was filed. However, the statute has no provision for notice to the electorate of the adoption of the resolution.
On December 2, 1975, the Board of Directors of the AFRD adopted another resolution calling for an election on whether the district should enter into the proposed contracts. The election was held and the proposal was approved by more than two-thirds of the voters. Similar elections were held in other districts with storage rights in the reservoir on whether to execute the proposed spaceholder contracts and to impose assessments for their share of the construction costs. However, there was a dispute whether the voters were adequately informed about the terms, costs and implications of the proposal and about the possible Bureau of Reclamation alternative.
The proposal was ultimately approved by all but eight of the 35 entities with storage rights in the existing reservoir. Those eight which did not approve the proposal and have not executed spaceholder contracts are generally referred to as "non-participating water users." According to the terms of the falling water contract, Idaho Power is obligated to make the payments
In a memorandum to the Secretary of Interior in late December, 1975, William Burpee, field solicitor for the Department of Interior, commented on possible federal liability in connection with the replacement dam project. Burpee noted that the proposed contracts, pursuant to Public Law 93-206, make the delivery of water contingent upon the execution of a spaceholder contract. In the memorandum, Burpee indicated that a non-participating water user with storage rights in the existing reservoir might argue that it had no obligation to pay the costs of the replacement dam but that the United States was required by the existing contract to replace the dam and that a refusal by the United States to deliver water because of the user's refusal to pay its share of the construction costs would be a breach of that contract. Burpee stated that a non-participating water user might also argue that Public Law 93-206, which authorized the United States not to deliver water to non-participating users, was an unconstitutional taking of property or a taking of their contract right to interest free federal financing under the reclamation laws. Burpee noted, however, that provisions in the government contract required the AFRD to indemnify the United States for all such claims.
As a consequence of this memorandum and after voter approval of the proposed contracts, clauses were inserted in the government contract and the spaceholder contracts specifically stating that if the AFRD is required to indemnify the United States for any such claims, the indemnity payments would be paid first from the construction fund as a cost of construction and then from the regular operating and maintenance payments.
Following the elections, petitions requesting a new election were submitted to the boards of directors of the A & B Irrigation District and the American Falls Reservoir
From this sequence of events, the two actions involved in this appeal resulted.
In the first, Kerner v. Johnson, No. 12356, the plaintiff appellants Kerner et al. commenced an action in the Fifth Judicial District Court, Lincoln County, seeking a declaratory judgment that the execution of the spaceholder contract by AFRD No. 2 was ultra vires and therefore null and void and requesting the court to order a new election. The plaintiffs alleged that the action was ultra vires because a confirmation proceeding had not been held prior to the execution of the contract, because the board had failed to institute the judicial proceedings provided by § 43-2205 in order to compel Kerner to execute the contract and to test its legality, and because the contracts were substantially altered after the election. The district court dismissed the action on the ground that the confirmation proceedings which I.C. § 43-2204 required the boards to institute was the appropriate forum in which to decide these issues. The plaintiff appellants have appealed from that dismissal.
The second action consolidated in this appeal, Boards of Directors v. Wixom, No. 12656, involves a confirmation proceeding commenced pursuant to I.C. § 43-2204 to obtain judicial review and confirmation of the various acts, proceedings and contracts relating to the proposed bond issue by the AFRD. The petitioners, who are respondents on appeal, are the boards of directors of various irrigation districts which have approved the proposal and have executed spaceholder contracts. In response to the confirmation petition the Minidoka Irrigation District, a non-participating water user, filed an answer alleging that it had storage rights in the present dam under an existing contract with the United States and that any provisions in the government or spaceholder contracts which would terminate or impair those rights because of its status as a non-participating user were unlawful. The answer prayed that the confirmation order be limited to those provisions of the contracts which did not interfere with its rights, that the court determine the extent of its storage rights, and that the petitioning districts be enjoined from interfering with those rights.
The respondents below (appellants on appeal), who are landowners in three of the participating districts, moved to dismiss the petition for lack of personal and subject matter jurisdiction, failure to join indispensable parties and improper venue. Following the submission of the Minidoka Irrigation District's answer and the respondents' motion to dismiss, the petitioners filed a motion in limine seeking an order that the court had no jurisdiction over the existing contracts of non-participating users. The petitioners and the Minidoka Irrigation District later stipulated that the court had no jurisdiction over those existing contracts and that the judgment in the confirmation proceeding could not affect the rights of the non-participating districts under the existing contracts with the United States.
We now consider the legal issues raised in these two appeals. In the two proceedings below and on appeal the parties have acquired several procedural names. In order to avoid confusion, we refer to the four plaintiff-appellants in Kerner v. Johnson, No. 12356, and the eight respondents below who have appealed in Boards of Directors v. Wixom, No. 12656, as "appellants"; and the defendants in Kerner and the petitioners in Wixom as "districts."
The appellants have made numerous assignments of error. We consider first those concerning the confirmation proceeding in Wixom and then those concerning the dismissal of the declaratory judgment action in Kerner.
Before addressing the specific arguments advanced by the appellants, we believe it is important to clarify the nature and purpose of the confirmation proceeding involved in Wixom. The districts filed the petition for confirmation pursuant to I.C. § 43-2204. Although § 43-2204, as it applies to this case, concerns a unique situation — the replacement of a dam or related structure involving the participation of several irrigation districts — the judicial review required by that section is the same kind of proceeding which has long been a part of bond issuances by irrigation districts in Idaho. In American Falls Irrigation District v. Thrall, 39 Idaho 105, 228 P. 236 (1924), which coincidentally involved a confirmation proceeding in connection with the construction of the original American Falls dam, the Court stated:
Accord, Nampa & Meridian Irrigation Dist. v. Brose, 11 Idaho 474, 83 P. 499 (1905); 3 C. Kinney, A Treatise on the Law of Irrigation and Water Rights, §§ 1420, 1421 (2d ed. 1912). Likewise, the confirmation proceedings we consider here are designed to settle at an early stage issues concerning the legality of the various acts and proceedings which underlie the proposed bond issue and thereby insure the validity of that bond issue.
1. The appellants first raise a procedural issue concerning their status in the confirmation proceedings. The appellants argue that they are individual landowners representative of other landowners within their respective districts and are therefore entitled to maintain their protest as a class
However, we need not reach the issue whether a class action may be maintained in confirmation proceedings under § 43-2204 since these appellants have failed to satisfy the requirements for a class proceeding prescribed by I.R.C.P. 23. I.R.C.P. 23(a) and (b) list the prerequisites and conditions to a class action.
2. The appellants make several arguments concerning the subject matter and personal jurisdiction of the district court. Although phrased in various ways, these arguments essentially call into question the district court's action in granting the motion in limine and continuing with the confirmation proceedings in the absence of the non-participating water users and without considering the effect of Public Law 93-206 and the new contracts on the existing contracts of the non-participating users. The order granting the motion in limine was based on stipulations between the petitioning districts and two non-participating irrigation districts that the district court had no jurisdiction over the existing contracts between the non-participating water users and the United States and that the judgment of confirmation would not affect the contract rights of the non-participating users.
The jurisdiction and duty of the district court in this confirmation proceeding is prescribed by I.C. § 43-2204, which provides in pertinent part:
Although § 43-2204 directs the court to examine a broad range of matters, that section does not require the court to resolve in a confirmation proceeding every legal issue which may arise in connection with the project, particularly a project as massive and complex as the replacement of a major federal dam. See United States v. Imperial Irrigation Dist., 559 F.2d 509, 525 (9th Cir.1977) (considering a California confirmation proceeding). Rather, the district court in a confirmation proceeding pursuant to § 43-2204 is only required to consider those matters which affect or are somehow pertinent to the proposed bond issue.
In this regard it is important to remember that the non-participating irrigation
3. The appellants next argue that the new contracts and Public Law 93-206 constitute an unconstitutional taking or impairment of their vested property interests in violation of Art. 1, § 14, of the Idaho Constitution and the Fifth Amendment and Art. 1, § 10, of the United States Constitution.
The appellants first assert that the new contracts divest them of their rights secured by the existing contracts and the reclamation laws. In this regard the appellants cite various sections of the federal reclamation laws which generally concern the repayment of the construction and operation costs of a federally financed reclamation project.
It appears that the heart of the appellants' grievance is an apparently genuine belief that the execution of the spaceholder contracts was a wrong decision and that the interests of the districts and the landowners would have been better served by the pursuit of a federal financing plan. However, that is a policy decision entrusted to the boards of directors of the districts and subject to the approval of the voting landowners. That decision has been made and was
The appellants also claim to have vested interests in the falling water rights and argue that those interests are taken from them by the new contracts. In 1923 the federal government acquired from Idaho Power Company the site of the original dam and the water rights for power production. The government included the cost of those acquisitions as a construction charge to the spaceholders. The appellants, who are landowners in districts which have been repaying these construction charges, claim that they therefore "own" some of the falling water rights. However, it is clear that the rights for power production are the property of the United States. Burley Irrigation Dist. v. Ickes, 73 App.D.C. 23, 33, 116 F.2d 529, 539 (1940), cert. denied 312 U.S. 687, 61 S.Ct. 614, 85 L.Ed. 1124 (1941). See generally 2 Waters & Water Rights § 123.2(I), supra. For example, the existing repayment contract with the AFRD No. 2 provides:
The landowners do not own any of the falling water rights and the United States, as owner of those falling water rights could, through Public Law 93-206, authorize the AFRD, the constructing agency, to contract with Idaho Power Company regarding the falling water rights in order to finance the construction of the replacement dam.
The appellants lastly argue that their vested property rights are somehow impaired because the new contracts require them to pay for public use aspects of the project. Assuming arguendo that some features of the present project, the costs of which will be charged to the spaceholders, would have been considered a public use had the Bureau of Reclamation financed the project and therefore either not allocated to the spaceholders or considered a nonreimbursable expense, see generally 2 Waters & Water Rights §§ 112.3(P), 123.2(A), supra, the present allocation of costs and obligations of the spaceholders as provided by the new contracts were nevertheless approved by the districts and the voters. In this respect, the districts may well have been able to get a better bargain under a federally financed project. However, as we emphasized earlier, those questions are not within our scope of review.
4. Appellants argue that the AFRD illegally acted as a representative of the other spaceholders and exercised power over them without their consent and without statutory authorization. The appellants alternatively argue that if chapter 22 of title 43 of the Idaho Code does impose an agency relationship between the AFRD and the other water users, the chapter violates Art. 3, § 19, and Art. 11, § 2, of the Idaho Constitution. Those constitutional provisions contain prohibitions against special laws and charters.
We need not reach the constitutional questions because chapter 22 does not impose an agency relationship between the
Although the AFRD was certainly an ardent proponent of the private financing plan and played a major role in its development, it exercised no power over and had no agency relationship with any other irrigation district except as was created by the spaceholder contracts. Chapter 22 of title 43 does not require other irrigation districts to enter into contracts with the AFRD; it merely empowers the districts to do so. Neither chapter 22 nor Public Law 93-206 require the AFRD to act as the constructing agency and to issue the bonds. The other entities with storage rights in the present reservoir were free to reject the proposal and to present an alternative with another entity acting as the constructing agency or with a different financing arrangement. In sum, I.C. § 43-2201 merely empowers the irrigation districts, at their option and in their discretion, to enter into legal arrangements for the replacement or improvement of dams and related structures. The AFRD and the participating irrigation districts properly exercised that authority in execution of the various contracts for the replacement of the American Falls dam.
5. The appellants argue that the district court improperly delegated the preparation of the formal findings of fact and conclusions of law to counsel for the districts. Following a protracted trial of this very complicated case, the trial judge issued a lengthy and detailed memorandum decision resolving the pertinent issues of fact and law. The memorandum decision did, however, request counsel for the districts to prepare proposed findings of fact and conclusions of law consistent with the decision. Preparation of those findings and conclusions in this case of course required very detailed findings concerning the election results in several irrigation districts and the exact allocation of the bond payments among the several participating districts and water users. The record indicates that the trial judge reviewed the initial findings and conclusions prepared by counsel and returned them to counsel requesting certain deletions. The trial court held a hearing on the appellants' objections to those findings and conclusions, and the trial judge stated that he "did feel that the final product was adopted as my product rather than theirs." Moreover, the appellants on appeal have not cited any portion of the final findings of fact and conclusions of law which is inconsistent with the trial court's memorandum decision. The procedure followed by the trial court was proper and appropriate under the circumstances of this case. See I.R.C.P. 52(a); Compton v. Gilmore, 98 Idaho 190, 560 P.2d 861 (1977); 9 C. Wright &. A. Miller, Federal Practice & Procedure, Civil § 2578 (1971).
6. The appellants argue that I.C. § 43-2203 violates the due process clause of Art. 1, § 13, of the Idaho Constitution. I.C. § 43-2203 empowers the board to impose a bonded indebtedness upon the lands of the irrigation district by resolution and provides that the resolution will become final unless a referendum petition seeking an election on the question is filed within fifteen days after the passage of the resolution. I.C. § 43-2203 does not require notice to the electorate of the adoption of a resolution and such notices were not given in this case, and the appellants argue that unless the landowners are given notice of the resolution they will not be afforded an opportunity to object and submit a referendum petition.
7. The appellants next argue that I.C. § 43-2203, which authorizes the board of directors of the constructing district to determine whether the public interest or necessity demands the replacement of a dam or related structure, constitutes an unconstitutional delegation of legislative power under Art. 3, § 1, of the Idaho Constitution. That section of the Constitution vests the legislative power of the state in the Senate and the House of Representatives.
Although it is well established that the legislature cannot delegate any of its power to make laws to any other body or authority, the legislature can empower an agency or an official to ascertain the existence of facts or conditions upon which the
I.C. § 43-2203 provides in pertinent part:
Thus, § 43-2203 authorizes the board to adopt a resolution for the replacement or improvement of a dam or related structure only when necessary, in the interest of the district or the public, "to preserve, restore, protect and maintain rights of storage, diversion and delivery of water necessary and appurtenant to the purposes" for which the district was organized. The board is not given unbridled authority to replace dams but is only authorized to do so when it finds that those conditions are present. We conclude, therefore, that § 43-2203 does not constitute an unlawful delegation of legislative authority; rather, the board is authorized to act only for a limited purpose in a limited manner after finding that certain conditions exist. See Board of County Comm'rs v. Idaho Health Facilities Authority, supra; Boise Redevelopment Agency v. Yick Kong Corp., supra.
8. The appellants next advance two alternative arguments concerning the findings of fact forming the basis of the resolution adopted by the Board of Directors of the AFRD. The appellants first argue that if the board's findings are conclusive then § 43-2203 constitutes an unconstitutional delegation of judicial power. The appellants then argue that if the findings are not conclusive, but are reviewable by the courts, then § 43-2204 requires the districts to set forth in a confirmation hearing the evidence considered by the board in making those findings and establish that such evidence supports the board's findings. The appellants argue that in this case the board did not consider any evidence but merely adopted a prepared resolution.
Neither argument has merit. The findings of the board are reviewable by the courts, and indeed I.C. § 43-2204 requires such judicial review. The particular resolution adopted by the AFRD states that the water level restrictions imposed on the American Falls dam because of its deteriorating condition resulted in a loss of storage capacity and adversely affected the water users.
9. The appellants argue that chapter 22, I.C. §§ 43-2201 to -2207, violates Art. 3, §§ 16 and 18, of the Idaho Constitution. Art. 3, § 16 of the Idaho Constitution provides:
The appellants contend that there is insufficient unity between the subject and the title of the act adding chapter 22 to title 43 of the Idaho Code in that the act contains matters not expressed in the title. The title to the act in question states:
The law is settled that to warrant the nullification of a statute because its subject is not expressed in its title as required by this constitutional section "the violation must not only be substantial, but plain, clear, manifest and unmistakable." Golconda Lead Mines v. Neill, 82 Idaho 96, 103, 350 P.2d 221, 224-25 (1960). The purpose of this constitutional provision is to prevent fraud and deception in the enactment of laws and to provide reasonable notice to the legislators and the public of the general intent and subject matter of the act. State v. O'Bryan, 96 Idaho 548, 531 P.2d 1193 (1975). As such, the title of the legislative act need not serve as a catalog or index to the subject matter of the act, but need only set forth the general subject. State v. O'Bryan, supra. The title to the act in question here satisfies this standard. The title provides general notice of the subject matter contained in the act. The body of the act is not broader than the title and does not encompass subjects which are not germane to or which are incongruous with the title.
The appellants also contend that chapter 22 of title 43 was enacted in violation of Art. 3, § 18, of the Idaho Constitution since it purported to amend title 43 but did not set forth and publish at full length the section as amended.
Art. 3, § 18, of the Idaho Constitution provides:
Section 1 of the act in question states "that title 43, Idaho Code, be, and the same is hereby amended by the addition thereof of a new chapter, to be known and designated as chapter 22, and to read as follows: . ." 1974 Idaho Sess. Laws, ch. 1, § 1. The act was not an amendment or revision of an "act" or "section" within the meaning of Art. 3, § 18, of the Idaho Constitution, but was an entirely new and independent addition to title 43.
10. The appellants argue that the proposed bond issue would constitute an unlawful extension of the credit of the irrigation districts to Idaho Power in violation of Art. 8, § 4,
However, regardless of our decision in Barker, the proposed bond issue is not violative of either Art. 8, § 4, or Art. 12, § 4, of the Idaho Constitution. We recently considered a similar issue in Idaho Water Resource Board v. Kramer, 97 Idaho 535, 548 P.2d 35 (1976). That case involved a joint
11. The appellants contend that the resolution of the AFRD, the execution of the spaceholder contracts and the removal of appellant Kerner as president of the AFRD No. 2 were all ultra vires acts and were therefore void.
(a) The appellants argue that the resolution for the bond issue adopted by the board of directors of the AFRD violated the provisions of I.C. § 43-322, which limits an irrigation district's power to incur debts. The appellants' argument is not well taken. In adopting the resolution proposing the bond issue, the board of directors of the AFRD was exercising the powers the legislature had given it in chapter 22 of title 43. I.C. §§ 43-2201 to -2207. I.C. § 43-2207 provides:
(b) The appellants also argue that until the spaceholder contracts were executed, the provisions of chapter 22 applied only to the "constructing district" (AFRD) and not to the "contracting districts." On this basis, the appellants argue that the contracting districts, such as the AFRD No. 2, executed spaceholder contracts unlawfully since I.C. § 43-404A requires a judicial confirmation, prior to the execution of the contract, in the county in which the district's office is located. In contrast to the provisions of I.C. § 43-404A, I.C. § 43-2204 requires the constructing district to commence the confirmation proceeding either before or after execution of the contracts and requires the contracting districts to join in that confirmation proceeding. It is apparent that both the AFRD, the constructing district, and the other participating districts, the contracting districts, were proceeding pursuant to chapter 22. As we discussed above, I.C. § 43-2207 specifically states that the restrictions in other statutes are not to apply to a district exercising the authority granted by that chapter. Accordingly, the irrigation districts, both the contracting and the constructing districts, need only comply with the requirements of chapter 22 with respect to confirmation proceedings. Moreover, the legislature, by requiring in I.C. § 43-2204 the constructing district to file a confirmation petition and by requiring the other participating districts to join in the petition, intended to spare the irrigation districts the burden of duplicative and repetitious confirmation proceedings in the situation where a number of districts were participating in a joint project to replace a dam. The appellants' interpretation of the statute, which would require each individual contracting district to hold a separate confirmation proceeding prior to executing the spaceholder contract and then join in another confirmation proceeding with the constructing district, would defeat the legislative purpose of § 43-2204 and would effectuate an unnecessary and burdensome result. See Lawless v. Davis, 98 Idaho 175, 560 P.2d 497 (1977).
(c) The appellants next argue that even if the provisions of chapter 22 control the actions of the contracting districts before execution of the spaceholder contracts, the board of directors of the AFRD No. 2 illegally removed appellant Kerner as president when he refused to execute the contract. The appellants contend that I.C. § 43-2205 required the board to institute legal proceedings to compel Kerner to execute the contract and to test the contract's validity and that the reorganization of the board and the subsequent execution of the contract by the new president therefore violated that section. I.C. § 43-2205 provides:
That section, which authorizes the board to institute judicial proceedings to compel an official to execute a contract, is clearly permissive, neither mandatory nor exclusive. Idaho statutes clearly provide that the president of an irrigation district serves at the pleasure of the board. I.C. § 43-301 states in pertinent part:
Moreover, it is well established under general principles of law that the tenure of an officer in a municipal corporation, unless fixed by statute or otherwise, is at the will of the authority which appointed the officer. Gowey v. Siggelkow, 85 Idaho 574, 382 P.2d 764 (1963); 3 E. McQuillan, The Law of Municipal Corporations § 12.112 (3d ed. rev. vol. 1973); 56 Am.Jur.2d, Municipal Corporations, Counties, and Other Political Subdivisions, § 333 (1971). Cf. Buckalew v. City of Grangeville, 97 Idaho 168, 540 P.2d 1347 (1975) (removal of city police chief appointed to fixed term). In sum, the board of directors of the AFRD No. 2 was not statutorily required to institute legal proceedings pursuant to I.C. § 43-2205, and the board did not act improperly in removing Kerner as president, reorganizing and executing the contract.
12. The appellants argue that the notices of the elections were inadequate because they failed to fully advise the electors of the effect the proposed contract would have on their rights under the existing contracts. In particular, the appellants contend that the notices did not inform the electors that under the new spaceholder contracts water would not be made available to a defaulting spaceholder or a non-participating water user. However, the notices of election specifically stated that delivery of water was contingent upon the execution of the spaceholder contract and upon the continued fulfillment of the obligations under that contract.
13. The appellants argue that the additions to the government and spaceholder contracts made subsequent to the elections substantially affected the rights of the landowners and that new elections to approve those changes were therefore required. The notices of the elections stated that "proposed contracts in substantially
Accord, 64 Am.Jur.2d, Public Securities and Obligations, § 185 (1972). I.C. § 43-2204, which concerns the confirmation proceedings, provides in part that "[t]he court shall disregard any error, irregularity or omission which does not affect the substantial rights of the parties." However, I.C. § 43-2201(E) provides with respect to a reallocation of the costs:
Therefore, the contracts actually executed by the districts need not be identical in every respect to the contracts approved by the voters in the election. The districts may make minor changes in the details of the contracts without submitting them to the voters provided such changes do not increase the obligation of any irrigation district. If the district's obligation is increased, the modified contracts would have to be resubmitted to the voters for approval. I.C. §§ 43-2201(D)(1), 2201(D)(2), and -2201(E). It is the appellants' contention that the additions to the government and spaceholder contracts, which were made after the elections, increased the obligation of the participating districts and in effect reallocated to the participating districts the sums which would have been paid by those districts which rejected the proposal.
The form of the spaceholder contract which was on file at the time of the election provided that the costs of construction would consist of, among other things, payments to the constructing agency (the AFRD) necessary to reimburse it for payments made or costs incurred in connection with the construction of the replacement dam. That draft of the spaceholder contract further provided that the costs of construction would include payments of any other costs and expenses related to the construction of the replacement dam which would constitute a cost or expense for which monies in the construction fund could be used under Public Law 93-206, the Idaho statutory provisions and the indenture.
Based on these contracts Field Solicitor Burpee of the Department of Interior concluded in his memorandum that even though the non-participating water users may have a cause of action against the
The trial court ruled that these additions were only "clarifying revisions" and did not "affect the substantial rights of any spaceholder, the owner of any land within the area served by a spaceholder, or impose any greater obligation upon any spaceholder or landowner." The districts contend that these additions were made because Burpee's memorandum may have left the impression that the AFRD itself would be obligated to indemnify the United States when in fact the terms of the contracts approved in the elections provided that these indemnity payments were to be included as part of the total project costs and were not special obligations of the AFRD. The districts argue that these additions were merely procedural, clarifying the manner in which such reimbursements, if any, to the United States would be made, and did not impose any obligation on the spaceholders or landowners which was not already present under the prior drafts. We agree. It is apparent that the obligation to indemnify the United States for any claims for damages resulting from construction of the replacement dam existed under the drafts of the contracts approved in the elections. The subsequent additions did not alter that indemnity obligation but only specified the procedure for making those reimbursements.
14. The appellants in Wixom lastly argue that the district court should have denied the confirmation petition because of fraud, collusion, oppression and concealment by the AFRD and Idaho Power. The trial court found that "there is no evidence of collusion, fraud, conspiracy, oppression or concealment in connection with the American Falls replacement dam program." I.R.C.P. 52(a) provides in part: "Findings of fact shall not be set aside unless clearly erroneous. In the application of this principle regard shall be given to the special opportunity of the trial court to judge the credibility of those witnesses who appear personally before it." The trial court made its finding following a lengthy trial in
The judgment of the district court in Boards of Directors v. Wixom, No. 12656, is affirmed.
In Kerner v. Johnson, No. 12356, the appellants argue that the district court of the Fifth Judicial District erred in dismissing the appellants' declaratory judgment action. The appellants brought the action pursuant to Title 10, chapter 12, of the Idaho Code, which authorizes declaratory judgments. I.C. §§ 10-1201 through -1217. The justiciable controversies alleged by the appellants in their complaint for a declaratory judgment were essentially (1) whether the repayment contract executed by the AFRD No. 2 was null and void because a confirmation proceeding had not been brought prior to its execution as required by I.C. § 43-404A and because the board of directors of the AFRD No. 2 had improperly removed appellant Kerner as president and had reorganized and executed the contract without instituting the legal proceedings provided by I.C. § 43-2205, and (2) whether the board was required to call a new election because of the additions to the spaceholder contract and the government contract. On this basis the appellants prayed in their complaint for a judgment (1) declaring the spaceholder contract null and void as to the AFRD No. 2, (2) ordering the board to call a new election to approve the amended contracts, (3) requiring confirmation proceedings pursuant to I.C. § 43-404A, and (4) enjoining the district from giving any legal effect to the spaceholder contract. The district court dismissed the action on the ground that the issues raised could be litigated in the confirmation proceedings required by I.C. § 43-2204 and that those proceedings afforded the appellants an adequate remedy.
The appellants argue that the court had jurisdiction over the declaratory judgment action and was under a duty to exercise it. The appellants refer to I.R.C.P. 57 which provides in part that "[t]he existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate."
The order of the trial court dismissing the declaratory judgment action was dated May 4, 1976, approximately one week prior to the time the confirmation petition in Wixom was filed on May 12, 1976. Therefore, there was not "another action pending between the same parties for the same cause" within the meaning of I.R.C.P. 12(b)(8) which would have authorized the dismissal of the action under that rule. Neither does it appear that there was any reason contemplated by I.C. § 10-1206 which would have justified the district court in refusing to enter a declaratory judgment. Therefore, unless the enactment of I.C. §§ 43-2204 and -2205 resulted in an implied repeal of title 10, chapter 12, regarding declaratory judgments, as that act relates to matters within the scope of title 43, chapter 22, the district court erred in dismissing the declaratory judgment proceeding. The provisions of I.C. § 43-2204, which provide for judicial examination of proceedings to confirm a proposal for the sale and issuance of bonds pursuant to that chapter, appear to mandate such a confirmation proceeding "prior to the sale and issuance of any bonds," but there is no requirement that bonds be sold or issued even though an election has been conducted. Likewise, the proceeding authorized by I.C. § 43-2205, as we have already stated above, is permissive and not mandatory. Therefore, it is doubtful whether the enactment of I.C. §§ 43-2204 and -2205 constituted an implied repeal of the declaratory judgment act, I.C. §§ 10-1201 to -1217, as it relates to the circumstances in this case. In the absence of such an implied repeal, the district court would have erred in dismissing the action.
However, it is unnecessary to resolve that issue in this case. Regardless of the dismissal of the declaratory relief action, on May 4, 1976, all of the issues raised in the declaratory judgment action in Kerner were fully litigated in the confirmation proceeding in Wixom. We have affirmed
SHEPARD, C.J., and McFADDEN, DONALDSON and BISTLINE, JJ., concur.
"Sec. 2(a) Replacement of the existing dam as authorized in section 1 hereof shall in no way alter or change the present proportionate storage rights of present spaceholders in the American Falls Reservoir and shall constitute a reaffirmation of existing contract rights between the Secretary and the spaceholders except as otherwise provided in this Act.
"Sec. 3. The constructing agency may enter into repayment contracts with the spaceholders in the existing American Falls Reservoir providing for the repayment by the spaceholders of proportionate shares of the total project costs incurred by the constructing agency for engineering, financing, designing, and constructing the replacement dam, and the Secretary shall be a party to said contracts and the delivery of water to the spaceholders shall be contingent upon the execution of such contracts and the fulfillment of the obligations thereunder: Provided, That said contracts shall be consistent with the terms of existing contracts between the Secretary and the spaceholders for repayment of the costs of the existing American Falls Dam.
"Sec. 4. The constructing agency may contract with an appropriate non-Federal entity for the use of the falling water leaving the dam for power generation, which contract shall provide for a monetary return to the constructing agency to defray the costs of construction of the replacement dam. The constructing agency may enter into agreements with an appropriate non-Federal entity to coordinate the construction of hydroelectric power facilities with the construction of the replacement dam. The contract and agreements for use of the falling water shall not be subject to the limitations of section 9(c) of the Reclamation Project Act of 1939 (53 Stat. 1194), or any similar limitations in any other applicable Acts of Congress: Provided. That said contract for falling water shall be approved by the Secretary and shall not impair the efficiency of the project to serve the other purposes of the Minidoka project."
"Section 3.4. Supplemental Falling Water Payments. (A) The Constructing Agency and the Idaho Power Company recognize that a higher investment quality rating for the Bonds will be obtained from the respective rating agencies by the Constructing Agency (resulting in a lower net interest cost on the Bonds), if the Idaho Power Company would agree to make to the Trustee on behalf of the Constructing Agency, Supplemental Falling Water Payments in the manner contemplated in this Section 3.4, in the event that Waterusers fail to execute Spaceholder Contracts hereby becoming Non-Participating Waterusers or in the event that Spaceholders to which Article 17 of the Government Contract applies default in the making of all or any part of a Spaceholder Payment. Accordingly, within seven (7) days after the occurrence thereof, the Constructing Agency, or the Trustee on behalf of the Constructing Agency, or the Contracting Officer, as the case may be, shall give notice to the Idaho Power Company, the Contracting Officer, the Constructing Agency, the Defaulted Spaceholder and the Non-Participating Wateruser as the case may be, in the manner provided in Section 14.6 hereof, of:
"(1) any default by any Spaceholder to which Article 17 of the Government Contract applies under a Spaceholder Contract of its obligation to make all or any part of a Spaceholder Payment, or
"(2) failure to receive all or any part of a Spaceholder Payment which would have been due with respect to the space of a Non-Participating Wateruser had the Non-Participating Wateruser executed a Spaceholder Contract.
"(B) The Idaho Power Company shall make a Supplemental Falling Water Payment to the Trustee, within ten (10) days after the notice provided for in (A) of this Section 3.4 has been given, which shall be sufficient:
"(1) to pay all Spaceholder Payments including penalties and interest, or any portion thereof, then in default and due under any Spaceholder Contract, and
"(2) to pay all Spaceholder Payments, including penalties and interest, or any portion thereof, which would have been due and payable with respect to the space of a Non-Participating Wateruser had the Non-Participating Wateruser executed a Spaceholder Contract and defaulted on the Spaceholder Payments becoming due and payable thereunder, as contemplated in Article 17(b) of the Government Contract."
"[I.R.C.P.] 23(b). CLASS ACTIONS MAINTAINABLE. — An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
"(1) the prosecution of separate actions by or against individual members of the class would create a risk of
"(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
"(B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
"(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
"(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action."
"19. (a) ... The provisions of the Existing Spaceholder Contract shall in all respects remain in full force and effect except that the provisions of this Spaceholder Contract with respect to the Replacement Dam, including but not limited to the operation and maintenance there of and the distribution of water therefrom, shall prevail over the provisions of the Existing Spaceholder Contract wherever and to whatever extent the provisions of the Existing Spaceholder Contract are in conflict with the provisions of this Spaceholder Contract. The provisions of the Existing Spaceholder Contract which have application to any other reserved works of the Minidoka Project shall, in all respects, continue in effect and shall continue to apply to any other reserved works of the Minidoka Project."
The government contract provides:
"9. (a) This Government Contract is entered into by the Secretary in accordance with the Act of December 28, 1973, to authorize the Constructing Agency to finance and provide for the construction of the American Falls Replacement Dam Program to replace the Existing Dam. The American Falls Replacement Dam Program shall in no way alter or change the present proportionate storage rights of the Waterusers, except as provided herein and as set forth in the Spaceholder Contracts."
"All meetings of the board must be public, and a majority shall constitute a quorum for the transaction of business; but on all questions requiring a vote there shall be a concurrence of at least a majority of the members of the board. All records of the board shall be open to the inspection of any elector during business hours."