(dissenting).
I regret that I am unable to agree with the conclusion reached by the majority in *420this case. I find no fault with the abstract principle of law enunciated in the majority opinion but I do find fault with its application to the facts.
Since the enactment of the law under consideration, this court by a majority opinion in the case of Bristor v. Cheatham, 75 Ariz. 227, 255 P.2d 173, has declared that ground water which is the subject of the act belongs to the owner of the soil.
The question presented is whether the legislature in enacting the law here under consideration known as the 1948 Water Code, in the exercise of its police power, violated the provisions of article 2, section 13 of the Arizona Constitution, and section 1 of the 14th Amendment to the Federal Constitution prohibiting the enactment of any law denying to any person within the jurisdiction of the state “equal protection of the laws.”
I recognize that the police power of the state is broad when exercised in the interest of the safety, health, morals or general welfare of the state and it has been said that it is one of the least limitable of governmental powers and its operation often cuts down property rights. Queenside Hills Realty Co. v. Saxl, 328 U.S. 80, 85, 66 S.Ct. 850, 90 L.Ed. 1096; Hadacheck v. Sebastian, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348; Miller v. Schoene, 276 U.S. 272, 48 S.Ct. 246, 72 L.Ed. 568, and many others. However, all of those cases are easily distinguishable from the instant case.
The police power may not be exercised arbitrarily or with unjust discrimination. We quoted with approval the following from 16 C.J.S., Constitutional Law, § 505, in the case of Valley National Bank of Phoenix v. Glover, 62 Ariz. 538, 159 P.2d 292, 300, to the effect that:
“ * * * The equality clauses (of state and federal constitutions) do not prevent a state from resorting to classification for legislative purposes and confining such legislation to a certain class ‘prescribing different sets of rules for different classes, or discriminating in favor of, or against, a certain class, provided the classification or discrimination is reasonable, rather than arbitrary, and rests on a real and substantial difference or distinction which bears a just and reasonable relation to the legislation or the subject or object thereof, and provided also that the legislation operates equally, uniformly, and impartially on all persons or property within the same class.’ ” (Emphasis supplied.)
An examination of many authorities on this subject indicates that this is a fair statement of the universal rule.
It is stated in Truax v. Corrigan, 257 U. S. 312, 42 S.Ct. 124, 131, 66 L.Ed. 254, 27 A.L.R. 375, that:
“ * * * ‘Classification * * * must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the *421classification is proposed, and can never be made arbitrarily and without any such basis. * * It must therefore obtain in and determine legislation; but it must regard real resemblances and real differences between things and per- ' sons, and class them in accordance with their pertinence to the purpose in hand.”
The court further held that:
“If, as is asserted, the granting of equitable remedies falls within the police power, and is a matter which the Legislature may vary as its judgment and discretion shall dictate, this does not meet the obj ection under the equality clause which forbids the granting of equitable relief to one man and the denying of it to another under like circumstances and in the same territorial jurisdiction.”
In Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 22 S.Ct. 431, 46 L.Ed. 679, in which an act of the Illinois legislature was under consideration wherein it was provided that the combination of capital, skill or acts of two or more persons or corporations, etc., to carry on a restriction in trade; to prevent competition in manufacturing certain products, fixing prices, etc., constituted a criminal offense but provided that the act should not apply to agricultural products or to livestock while in the hands of the producer or raiser. The court held the act unconstitutional upon the ground that agriculture and stockraising are in the same class as any of the others named in the act in that they were all engaged in domestic trade. In the instant case all the parties involved in this litigation are engaged in agricultural pursuits and so far as the record discloses, all are equally capable of contributing to the economy and general welfare of the state if permitted to exercise their rights over their private property to the same extent as other farmers in the area.
Bearing this in mind let us examine the legislation under consideration. Section 3 of the act purports to establish a declaration of public policy concerning underground water and after stating that large areas of rich argricultural land in Arizona are dependent in whole or in part upon groundwater basins underlying such lands for their water supply and that in a number of such basins withdrawal of ground water greatly in excess of the safe annual yield thereof, is converting the lands of rich farming communities into critical groundwater areas resulting in serious injury to the general economy and welfare of the state and its citizens, declares the public policy of the state to be as follows, Section 75-147, 1952 Cum.Supp., A.C.A.1939:
“ * * * It is therefore declared to be the public policy of the state, in the interest of the agricultural stability, general economy and welfare of the state and its citizens to conserve and protect the water resources of the state from, destruction, and for that purpose *422to provide reasonable regulations for the designation and establishment of such critical groundwater areas as may now or hereafter exist within the state.” (Emphasis supplied.)
It will be observed that the only provisions made for the conservation and protection of the water resources of the state from destruction is to provide reasonable regulations for the designation and establishment of such critical groundwater areas as may now or hereafter exist within the state but does nop. provide any authority for a reduction of the-use. of water in such critical groundwater areas when established. Let me- pose' -the very pertinent question: Does the abov¡e;provision even tend -to achieve the object of the-act-when it expressly maintains the status quo of the.greatly excessive withdrawal of -water - from the critical groundwater 'area over the estimated recharge thereof, thus carefully preserving the existing conditions which are recognized in'the act-as the sole cause of creating the established “critical groundwater area?” If logic now prompts no response the future .will.
Section 6 of the act, Section 75-150(a), 1952 Cum.Supp., A.C.A.1939, provides that:
“ (a) — The (state land) commissioner is hereby authorized and it shall be his duty, from time to time, as adequate ■ factual data become available justifying such action, to designate critical groundwater areas, and as future con-.ditions may require and factual data justify, to alter the. boundaries thereof.”
Section 7, section 75-151, 1952 Cum.Supp., A.C.A.1939, insofar as here material, 'provides that: : . - .
“No person except as hereinafter provided shall construct any irrigation well in any critical groundwater'afea established as herein provided without a permit therefor. * * * No ¡permit shall be required for the completióñ of any well located within . a critical ' groundwater area and . substantially commenced prior to the designation, of • such critical groundwater area, of for the construction of any well in'any such . area an uncancellable and binding- contract in-writing for the construction-'of ■ which shall have been - made ' and entered into prior to the effective date ¡of this act (§§ 75-145 — 75-160); -provided, however, that the well or .other works for the withdrawal of grounds water thus substantially -commenced or under contract for construction shall be completed within one year from the date of designation or alteration of such critical groundwater area.”
Section 8, section 75-152, 1952 Cum.Supp., A.C.A.1939, provides:
“Issuance of permit. — Upon application made as provided in section 7 (§ 75-151), the commissioner shall issue a permit for the construction of the proposed well, except that no permit shall be issued for the construction of an ir*423rigation well within any critical groundwater area for the irrigation of lands which shall not at the effective date of this act be irrigated, or shall not have been cultivated within five years prior thereto.”
Section 16 of the act, section 75-160, 1952 Cum.Supp., A.C.A.1939, provides:
“Nothing in this act (§§ 75-145 — 75-160) shall be construed to affect * * * the right of any person to continue the use of water from existing irrigation wells or any replacements of such wells.”
Section 5, section 75-149,1952 Cum.Supp., Á.C.A.1939, of the act provides for the designation or alteration of groundwater basins or subdivisions thereof within the state, giving to the commissioner and to his official representatives reasonable access to the lands included therein but expressly provides that the authority given shall not be construed as giving the commissioner 'authority to regulate the drilling or operation of walls in such groundwater basin or subdivision.
The records in the case disclose that pursuant to the provisions of the 1948 Water Code, a hearing was held in the high school auditorium at Casa Grande for the purpose of determining whether the area within the Gila-Santa Cruz Subdivision of the Santa Cruz and the Gila and Salt River Groundwater Basin should be declared a critical water area, at which 130 interested parties were present and given an opportunity to present any data they wished. ' The State Land Commissioner then had in his possession a report made under the supervision of the U. S. Geological Survey after a technical investigation made by it in response to the request of and in cooperation with the said State Land Commissioner, pursuant to the provisions of section 4, Senate Bill No. 3, chapter 12, Laws of 1945. Thereafter on June 18, 1951, the State Land Commissioner declared the area within, the Gila-Santa Cruz subdivision groundwater basin to be a critical water area and ordered that the drilling of all wells in such subdivision would be done only in compliance with the terms of the 1948 Water Code.
Based upon the technical investigation and report of the U. S. Geological Survey the commissioner found, among other things, the following facts:
“1. That the average drop in the water table in the Florence-Casa Grande area since 1940 has been about 34 feet, and that the annual pumpáge is about 15 times the estimated recharge.
“2. That the average drop :in the water table in. the Maricopa-Stanfield area since 1940 has been about 35 feet, and that the annual pumpage is about-37 times the annual recharge.”
The commissioner found further that the Florence-Casa Grande area and the Mari-copa-Stanfield area are all one interconnected basin so that the draft from one part *424of the basin will eventually affect all of the area.
The majority interprets the act to mean that the classification involved here is based upon the “difference between present agricultural users and potential agricultural users of ground water in critical areas.” By “present” agricultural users I presume the majority meant the agricultural users at the effective date of the act.
We will assume that the classification stated in the majority opinion rests upon a correct basis. The test to be applied in determining whether the classification provided confers equal protection guaranteed in the state and federal constitutions, is:
1. What is the object the state seeks to accomplish by the challenged statute ?
2. Does the statute place persons in two or more classes and apply differently to the different classifications?
3. Can it reasonably be argued that the object of the statute will be promoted by a recognition of the differences between the classes and the different application of the statute to the several classes?
The authority for the above test is found in Joseph S. Finch & Co. v. McKittrick, D.C., 23 F.Supp. 244. This case was affirmed by the Supreme Court of the United States in an opinion written by Mr. Justice Brandéis without comment on the above test. See 305 U.S. 395, 59 S.Ct. 256, 83 L. Ed. 246, cited frequently.
If question No. 3 can be answered affirmatively then the classification is not arbitrary and capricious and the equal protection clause is not violated. The welfare of the people of the state of Arizona is declared in the act to depend upon the conservation and protection of the underground water resources from destruction, to the end that the lands now in cultivation will not return to the desert. If the act under consideration does not bring about this result then the answer to question No. 3 must be in the negative and the equal protection clauses of the state and federal constitutions are violated.
The avowed object of the act and policy of the state under the.provisions of the act is to conserve and protect the groundwater resources of the state from destruction. Does it do that? Let us look again at the provisions of the act. It provides that no person whose land shall not be irrigated at .the effective date of the act or shall not have been cultivated within five years prior thereto shall be permitted to drill an irrigation well upon his land located in a critical groundwater area. It expressly provides, however, that all persons who at the effective date of the act have existing irrigation wells may continue to use water therefrom or from any replacements thereof without any reduction whatever upon the use thereof.
Where the water is being withdrawn from a critical groundwater area as found by the U. S. Geological Survey at the rate of from 15 to 37 times greater than the es*425timated recharge, can it he said that the declared purpose of the act to conserve and protect the water resources of the state from destruction is being promoted by a recognition of the differences between the classes and the different application of the statute to the several classes? Can it be said the classification set up in the act has any reasonable relation to the avowed purpose and object of the act? The answer is unequivocally No. The mere designation of such an area as a critical groundwater area and at the same time permitting the continued withdrawal of water therefrom at a rate of from 15 to 37 times greater than the recharge thereof does not promote the object and purpose of the act at all. Common sense dictates that in any area where the withdrawal of water is in excess of the recharge that disaster is eventually inevitable and where as in the finding of the State Land Commissioner, the withdrawal is 15 times greater in the Florence-Casa Grande critical groundwater area than the estimated recharge, and in the Maricopa-Stanfield area 37 times greater than the estimated recharge, disaster is imminent and the statute under consideration will not and cannot prevent the return of the area involved, to the desert in the very near future.
There is the further incurable defect in the language of the statute in that there is no distinct line of differentiation between the two classes. The exceptions of persons from the operation of the act who had substantially commenced to drill an irrigation well at the date the area was designated as a critical groundwater area and persons who had a binding written contract to drill a well at the time the act became effective, amounts to a flagrant discrimination as between persons within the same class. This is not permitted under the law. The law makes it a criminal offense for appellant and others in the same class to drill wells and withdraw water from beneath the soil while the person excepted from the operation of the law may do so with impunity provided they complete the drilling of the well within one year from the designation of the “critical groundwater area” within which their land is located.
If the majority opinion states the correct basis of classification then the persons included in the exceptions fall in the same class as appellant and others similarly situated for they were not irrigating their land at the effective date of the act and had not been within five years prior thereto and the fact that they had substantially commenced to drill an irrigation well or had a binding written agreement to have one drilled, forms no reasonable basis for the exceptions made and extending the time for one year within which to complete the well. Under the classification upon which the majority opinion rests they must have been irrigating their land with underground water at the effective date of the act or have-done so within five years prior to that date.
*426There is nothing in the record to indicate how many farmers were included in the exception. And it is immaterial whether they were few or many for the reason that by the very terms of the act they were excepted from its operation which renders the act violative of the equal protection clauses of the state and federal constitutions and therefore cannot stand as -a valid law. It is the universal rule that all persons within the same class are guaranteed the equal protection of the law under both the state and federal constitutions. Any legislation which violates these constitutional provisions is void. This case is analogous to and falls within the rule laid down in Connolly v. Union Sewer Pipe Co., supra.
I find no case in the books where, under the' police power the state has said to a property owner that he cannot use his property for any purpose whatsoever. It is only iii the emergencies of war, pestilence, disease, fire, etc., where it is necessary to destroy such property for the safety, morals, health or general welfare of the community, the state-dr nation, that destruction of property without adequate compensation is sanctioned, as in Miller v. Schoene, supra; Hadacheck v. Sebastian, supra; United States v. Caltex (Philippines), Inc., 344 U. S. 149, 73 S.Ct. 200, 97 L.Ed. 157.
In many cases restrictions upon the use of private property have been upheld by the courts, - such as- zoning ordinances limiting the' kind ' o-f; buildings- which may be constructed in certain areas, their use, distance from the sidewalks and sidelines, etc. In cases involving natural gas a legislative restriction upon the use of what is defined as sweet gas suitable primarily for heating and manufacturing purposes provided that it can only be used for the purposes therein designated, has been upheld. Henderson Co. v. Thompson, D.C., 14 F. Supp. 328. But the classification in those cases had a reasonable relation to the subject and object of the law, to wit, to prevent waste of natural resources whereas in the instant case there is no such relation in the classification set up to the object and purposes of the law. In states where oil has been found legislation has been enacted designed to prevent waste and to protect all property owners in' the field upon the basis of an equitable distribution. In California it is required that oil wells shall be spaced a certain distance apart. Wotton v. Bush, 41 Cal.2d 460, 261 P.2d 256. Other states have similar methods of equitable distribution and conservation of such natural resources. •
In the instant case appellants and others similarly situated are by the terms of this act not only denied the right to use and enjoy that which this court has solemnly declared to be their private property but has rendered worthless the land under which it is located. Its complete destruction by others is authorized for the exclusive benefit of those who are destroying it and upon whom no restraints are imposed in the act, but on the other hand are *427expressly authorized to continue in their destructive course by permitting them to withdraw water from these critical groundwater areas at a rate 15 to 37 times greater in volume than the estimated recharge.
In summation, it is my sincere view that the attempted classification has no reasonable relation to the subject or object of the legislation, the avowed purpose of which is the conservation and protection of the underground water resources of the state from destruction and consequent return of present agricultural lands to the desert. Neither does it draw á distinct line of differentiation between the classes established but provides expressly for exceptions authorizing the transfer of a nonuser of water at the time the act became effective to participate in the use of water thereafter, if at the time the act is effective he has a binding contract to drill a well upon his property or if he has commenced the drilling of a well prior to the designation of the area as critical in which his land is located. In other words, these persons although not irrigating at the effective date of the act or within five years prior thereto, are excepted from its operation. This in itself under all of the authorities, renders the statute invalid. Certainly it cannot be reasonably argued that the object of the statute, to wit, the conservation of water in the restricted area will be promoted by the recognition of the differences between the classes set up in the act and the different application of the statute to such classes in light of the unquestioned, undisputed fact that the water is now being withdrawn and has at all times since the Geological Survey subsequent to 1945, been withdrawn at the rate of from 15 to 37 times greater than the -recharge. The act expressly preserves the status quo of withdrawal over the rate of recharge.
It is therefore my view, and I am convinced beyond a reasonable doubt that the act is unconstitutional as in violation of the equal protection clauses of both the state and federal constitutions and that the judgment of the trial court should be reversed with directions to enter judgment for appellant.