Ball v. James
Concurring Opinion
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, 56 (1970); Avery v. Midland County, 390 U. S. 474, 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.
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 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 his-
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 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.
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 eases reflect the Court’s judgment as to the unique importance of education among the functions of modem local government. See Brown v. Board of Education, 347 U. S. 483, 493 (1954). Cf. Holt Civic Club v. Tuscaloosa, 439 U. S. 60 (1978) (nonresidents may be subject to
The Court deprecated the significance of control of voting requirements' for a special-purpose election by a fairly elected legislature in Kramer, supra, at 628. See also Avery v. Midland County, 390 U. S. 474, 481, n. 6 (1968). The holding in Kramer is affected neither by Salyer nor by the decision of the Court today, see n. 1, supra, but it must be evident that some of the reasoning in that case has been questioned. See, e. g., ante, at 364-365, n. 8.
Opinion of the Court
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.
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 seg. Under
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
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 deei
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 nonagri-cultural 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
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
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 723. Under California law, public water districts could acquire, store, conserve, and distribute water, and though the Tulare Lake Basin Water
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 nonagricul-tural purposes in farming areas.
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.
Finally, neither the existence nor size of the District's power business affects the légality 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, 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.
The appellees claim, and the Court of Appeals agreed, that the sheer size of the power operations and the great
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.
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.
It is so ordered.
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.
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. § 45-963.
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.
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 476.
“[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 485.
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 56.
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).
In Kramer v. Union Free School District No. 15, 395 U. S. 621, 627, the Court stated that the exclusion of otherwise qualified voters from a par
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.
As the Court of Appeals noted, the District has $290 million of general obligation bonds outstanding that are secured by the statutory hen 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.
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 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 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
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 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.
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.
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. Ann. §45-2201 et seq. (Supp. 1980-1981).
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 724, but that fact did not alter the Court’s view that the district’s purpose was too narrow to invoke the Reynolds principle.
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.
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.
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.
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
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.
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.
Dissenting Opinion
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.
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, 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, 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, 627 (1969).
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
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.
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
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
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 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 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.
Ill
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 nonagri-cultural 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 Dis
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.
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 sub*384 stance 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 705.7
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.
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 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 that 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.
“ '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, 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 433 (dissenting opinion) (quoting Indian Towing Co., supra, at 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 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
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.
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 629. But once a State provides for elections, the Fourteenth Amendment requires that any dis-criminations be scrutinized under the principles enunciated in Kramer and its progeny.
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 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-
Arizona state-court decisions have described such agricultural improvement districts as primarily business-oriented. See ante, at 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.
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 . . . .”
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
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.
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.
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 disenfranchis
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 non-property 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
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 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 Amend
It is suggested by the Court in a footnote, see ante, at 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 481. See Kramer, 395 U. S., at 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, 406 (1978) (rejecting argument that Sherman Act should not apply to municipally owned utility because dissatisfied consumers had recourse in state legislature).
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