(specially concurring).
I cannot agree with the reasoning by which the majority reaches its result. The condemnation involved in this suit is for a transmission line necessary for the delivery of interchange power to the Salt River Project. I agree with the majority that the Salt River Project is a municipal corporation for all purposes relevant to this case- I also agree that the condemnation procedure used here is lawful.
The only question in this case is whether Salt River Project has authority to condemn the land described in its petition in the Superior Court. We need not pass upon the suggestion that the Project can go into the power business anywhere in the state so long as it uses its profits to decrease the cost of irrigation within the district. The answer to this suggestion would seem obviously to be “No”. The majority decision goes much further than we need go to dispose of this case. It is enough to say that this land may be condemned, and to leave broader questions to the legislature or to future litigation with other parties and a fuller record.
However, since the majority goes into the problem of the extent of the authority which has been delegated to the District pursuant to the legislation under which it is presently operating, it is appropriate for me to give my views on the question.
I agree that the federal legislation is pertinent. Since 1902, all state reclamation legislation has been enacted under the stimulus of federal programs, and the same *393has been true of state electric power legislation for the last 30 years. When federal funds are to be advanced, federal requirements may determine the exact wording of the legislation. However, Truck Insurance Exchange v. Hale, 95 Ariz. 76, 386 P.2d 846 relied upon by the majority to read federal legislative history into the Arizona statute, dealt with the McCarran Act, 15 U.S.C.A. § 1011 et seq. which specially authorized state regulation of the insurance industry. The field preempted by Congress was relinquished to the states on the condition that the state would regulate the insurance industry. Certainly the intent of Congress was controlling. Here also, the federal acts under which funds were made available to the District in 1936 are relevant to an understanding of the legislation enacted in that year to enable the District to participate in the then existing federal programs. Truck Insurance Exchange stands for no more. If Congress broadens the powers of the Secretary of the Interior or other federal officials, state agencies deriving their powers from the state legislature, must have similar broadening legislation. The legislature, in 1936, did not force, and did not authorize the District to cooperate with a program of the federal government not conceived until almost 30 years later.
Where a municipal corporation is involved, specific legislative authority must be found for all of its activities. Judge Dillon in his classic work on Municipal Corporations, expressed the rule in the following language:
“§237(89). Extent of Power; Limitations; Canons of Construction. — It. is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted ; third, those essential to the accomplishment of the declared objects and purposes of the corporation, — not simply convenient, but indispensable. Any fair, reasonable, substantial doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied. Of every municipal corporation the charter or statute by which it is created is its organic act. Neither the corporation nor its officers can do any act, or make any contract, or incur any liability, not authorized thereby, or'by some legislative act applicable thereto. All acts beyond the scope of the powers granted are void. Much less can any power be exercised, or any act done, which is forbidden by charter or statute. These principles are of transcendent importance, and lie at the foundation of the law of municipal corporations. Their reasonableness, their necessity, and *394their salutary character have been often vindicated, but never more forcibly than by the learned Chief Justice Shaw, who, speaking of municipal and public corporations, says: ‘They can exercise no powers but those which are conferred upon them by the act by which they are constituted, or such as are necessary to the exercise of their corporate powers, the performance of their corporate duties, and the accomplishment of the purposes of their association. This principle is derived from the nature of corporations, the mode in which they are organized, and in which their affairs must be conducted.’ ” (Emphasis in original.)
An analysis of the legislation conferring power on the Salt River Project convinces me that the extensive power activities of the Salt River Project, and particularly the contract here involved, to generate power in Colorado and New Mexico and exchange it for power from Glen Canyon Dam to be brought to the Salt River Project over the transmission line involved in this case, has not been authorized by the state legislation governing agricultural improvement districts.
When the Federal Bureau of Reclamation was first organized it was not given authority to sell power. Today, its power activities may overshadow its irrigation activities. For example over 50% of the revenue from the Central Project in California will come from power production. See Ivanhoe Irrigation Dist. v. McCracken, 357 U.S. 275, 78 S.Ct. 1174, 2 L.Ed.2d 1313. With regard to an appropriation for the Columbia Basin Project, the Court of Claims has held that Congress has power to change its standing policy that the primary purpose in Reclamation Laws was irrigation, and to give primacy to hydro-electric development. Winston Bros. Company v. United States, 130 F.Supp. 374, 131 Ct.Cl. 245.
Increased emphasis on power is notable in the Water Supply Act of 1958 which is Title III of the Flood Control Act of 1958, 72 Stat. 319, now 43 U.S.C.A. § 390b et seq. and the Colorado River Storage Project Act of 1956, 70 Stat. 105, 43 U.S.C.A. § 620 et seq. Secretary of the Interior may construct transmission lines to deliver power to purchasers under these acts.
Golzé, cited by the majority, supra note 1, classifies the Salt River Project as a single purpose project. The first multipurpose project was Hoover Dam in 1928, and the first river basin project the Missouri River in 1944. The Colorado River Storage Project from which the power here involved will come is a river basin project dependent upon pooling the revenues from the power facilities to aid in repaying the cost of construction of irrigation projects.
*395There has been no corresponding expansion of the authorization for power activities of the Salt River Project in the state legislature. In 1922 Federal policy was changed so that contracts were no longer made by the Reclamation Service directly with landowners, but joint liability contracts could he made with districts. Act of May 15, 1922, 42 Stat. 541. In the same year, the Arizona Legislature authorized the creation of Agricultural Improvement Districts, Ch. 23, Laws 1922, now A.R.S. § 45-901 et seq., modeled after California legislation which has since been superceded. The only reference to power was in section 45-903, subsection A, paragraph 6 which reads “to provide power * * * for the use of the owners or occupants of such lands.”
The Act authorized the creation of agricultural improvement districts by five or more holders of title within the exterior boundaries of a United States reclamation project. It was under this Act that the Salt River District was organized in 1937, after amendments had been adopted. Prior to 1937, the Salt River Project relied upon the authorizations in its articles of association for its power activities, and the activities as they were carried on at that time were approved by this court. Bethune v. Salt River Valley Water Users’ Ass’n., 26 Ariz. 525, 227 P. 989.
The 1936 amendments of A.R.S. § 45-903 were adopted to make possible a federal plan for refinancing. The Water Users’ Association power revenue was definitely contemplated as a security for bonds to be issued. See, Reichenberger v. Salt River Project, etc., 50 Ariz. 144, 70 P.2d 452. Subsection A, paragraph 7 was added to A.R.S. § 45-903 in 1936 at the request of the Water Users’ Association. It reads as follows:
“To reduce the cost of irrigation, drainage and power to the owners of the lands in the district by the sale of surplus water or power produced, owned or controlled by the district, and the construction, maintenance, , extension, replacement, financing and refinancing of the works useful for such purpose.”
It is in this section that the majority finds authority for the interchange agreement. I do not read it so broadly.
In Kaukauna Water-Power Co. v. Green Bay, etc., Canal Co., 142 U.S. 254, 273, 275-276, 12 S.Ct. 173, 177, 178-179, 35 L.Ed. 1004, the Supreme Court of the United States stated the allowable limits upon a municipality in creating a “surplus.” The Supreme Court said:
“But if, in the erection of a public dam for a recognized public purpose, there is necessarily produced a surplus of water, which may properly be used for manufacturing purposes, there is no sound reason why the State may not *396retain to itself the power of controlling or disposing of such water as an incident of its right to make such improvement.
* * :(= * *
“The true distinction seems to be between cases where the dam is erected for the express or apparent purpose of obtaining a water-power to lease to private individuals, or where in building a dam for a public improvement, a wholly unnecessary excess of water is created, and cases where the surplus is a mere incident to the public improvement, and a reasonable provision for securing an adequate supply of water at all times for such improvement. No claim is made in this case that the water-power was created for the purpose of selling or leasing it, or that the dam was erected to a greater height than was reasonably necessary to create a depth of water sufficient for the purposes of navigation at all seasons of the year. So long as the dam was erected for the bona fide purpose of furnishing an adequate supply of water for the canal, and was not a color-able device for creating a water-power, the agents of the state are entitled to great latitude of discretion in regard to the height of the dam and the head of water to be created; and, while the surplus in this case, may be unnecessarily large, there does not seem to have been any bad faith or abuse of discretion on the part of those charged with the construction of the improvement.”
“Surplus power” is discussed in, among other cases, Light v. City of Danville, 168 Va. 181, 203-206, 190 S.E. 276, 285; Holmes v. City of Fayetteville, 197 N.C. 740, 150 S.E. 624, 626; Public Service Co. of Colorado v. City of Loveland, 79 Colo. 216, 245 P. 493, 499. The right to sell surplus power is based upon the dictates of common business prudence, but I find no case where the production of surplus power for sale outside the municipality is permitted to overshadow the primary enterprise.
Surplus power is not objectionable so long as it is a normal and natural incident to the operation of the project. That is, it does not appear to have been an obvious excess built with a knowledge and deliberately planned as a subterfuge to create surplus. If it is merely an incident to operation of the project it is acceptable, but if it clearly appears to be built to create excess surplus power it is bad.
I do not find Burley Irr. Dist. v. Ickes, 73 App.D.C. 23, 116 F.2d 529 (1940), cert. denied 312 U.S. 687, 61 S.Ct. 614, 85 L.Ed. 1124, helpful to the majority in this case. It involved the division of profits from the resale of power to commercial customers. The power was received from the *397Idaho Power Company by the Secretary of Interior, under an interchange agreement. The power replaced and supplemented power which could have been generated by a dam in which two irrigation districts had an interest. The dam was not operated for power purposes during a portion of the year, because it was closed down to conserve all of the water for later use in irrigation.
Judge Wiley Rutledge held that the Secretary of the Interior had power to execute a plan of conservation whereby he stopped the winter flow of water through a power plant in an irrigation district, ceasing to produce power during the nonirrigating season in order to conserve water for irrigation and contracted with a private power company to supply commercial demands in the district, thus preserving the profitable commercial power business which would otherwise have been lost because of lack of dependable power.
In Burley the Secretary acted in an emergency. Power was not available because of a water shortage. Farms would have been without sufficient water and existing profitable commercial business would have been lost if this plan had not been adopted. Here the projected electrical needs of the project are based upon future growth in the area. There is no showing that without this transmission line existing customers must be cut off or existing contracts breached or that there will not be sufficient power to meet the needs of future customers within the boundaries of the district.
Burley indicates only that the courts will give favorable consideration to plans of conservation, so long as they are within powers granted by the legislature. “The statute and its amendments are reclama tion acts, not commercial power development acts” (116 F.2d at 531. Emphasis in original)
In the 1936 amendments, A.R.S. § 45-903, subsection A, paragraph 7, the legislature continued the authority for power activities which had been undertaken by the Water Users and approved by this court in Bethune. It approved the plans being made by the Salt River Project, in cooperation with federal agencies, and in broad terms authorized the contracts necessary to carry them out. A.R.S. § 45-936, subsection A, paragraph 4. This legislation was not a blank check authorization to go into the power business, nor an advance adoption of any new power policy which the federal government might thereafter follow. The Act remained a reclamation act, and reclamation, not power, is still its primary purpose.
The legislature again had an opportunity to bring the state legislation in line with present day federal electrical power policies in 1963, when it adopted A.R.S. § 45-*3982201 et seq. It did not do so. Although the committee which reported to the legislature knew of the contract which is the basis for this suit, the legislature neither forbade or authorized it. Under the principles of law governing municipal corporations, authorization was necessary. Silent acquiescence is insufficient in this situation. Dillon, supra.
The fact that broader authority was specifically conferred on the Secretary of Interior with regard to the Salt River Project, by the Act of September 18, 1922, 42 Stat. 847, 43 U.S.C.A. § 598, does not increase the authorized powers of the Project. 43 U.S.C.A. § 598 reads:
“Whenever a development of power is necessary for the irrigation of lands under the Salt River reclamation project, Arizona, or an opportunity is afforded for the development of power under said project, the Secretary of the Interior is authorized, giving preference to municipal purposes, * * * ” (Emphasis supplied.)
This statute is, by its express terms, an authorization to the Secretary of the Interior. Congress could not, and did not, attempt to confer powers under 43 U.S. C.A. § 598 on a district which the state did not create until years afterwards.
Similarly, Bethune, supra, and Orme v. Salt River Valley Water Users’ Assn., 25 Ariz. 324, 217 P. 935, dealt with the powers of the Water Users’ Association under its charter. In Bethune we said:
“It is obviously to the advantage of the association, which has impounded the waters at great cost, and partly developed the power supplied by such waters, to complete such development, and to retain control of the waters at all points from the outlet at the reservoir to their application directly to the lands of the shareholders of the association. Much of the power thus far developed by the various power plants of the association has been applied directly to the needs of irrigation, and some has been sold to be used for other purposes, and the proceeds applied to lighten the burdens of assessments to meet the cost of original construction. It is proposed to make similar use of the power resources of the works contemplated by this improvement.
“The United States - government has granted to the association a preference right to construct works at that place. The articles under which the association is incorporated expressly prove 'that it may create, transmit, use, sell and dispose of power for the accomplishment of any of the purposes or objects of the association.’ The works contemplated by this project, if con*399structed, would be used like other units of its system, and in connection with such others for the development of electrical power precisely as such other elements of its system already constructed and now in use.
“What conclusion should be arrived at where it proposed or contemplated to construct such works wholly apart and independent of other parts of the association’s system of irrigation work is not worth while here to consider. This question is entirely different from that. The principle involved in no way differs from the principle involved in the construction of other units of the same system. Orme v. Salt River Valley Water Users’ Association, 25 Ariz. 324, 217 P. 935.”
“We conclude, therefore, that the construction of these works already approved by the Secretary of the Interior, is not in contravention of any law, and is within the scope of business authorized by the association’s articles of incorporation.” (Emphasis supplied.) 26 Ariz. at 531, 533, 227 P. at 991, 992.
It was pursuant to this authority in the Water Users’ articles of incorporation that the Horse Mesa Dam was constructed, and the proceeds of the contract with the Inspiration Consolidated Copper Company to sell power to it, were pledged as part of the security necessary for the bonds sold to finance the project.
The authorization to create power was not carried over into the Agricultural Improvement District Act.
This court has had occasion to consider the powers of the Salt River Project in entering contracts with labor organizations and upheld its power to enter such contracts in the same way that a private public service corporation might. Local 266, etc. v. Salt River Project Agr. Imp. & P. Dist., 78 Ariz. 30, 275 P.2d 393. Labor decisions involve many factors peculiar to labor relations problems, and are an unsafe guide in other fields. Protection of the rights of government employees may be achieved by civil service law or by contract, and it is not unusual to use the contractual method in the case of municipal corporations exercising proprietary functions. To do so casts no doubt on the basic municipal character of the Salt River Project.
The language of the court in City of Mesa v. Salt River Project Agr. Imp. & P. Dist., 92 Ariz. 91, 373 P.2d 722, should be read as descriptive of the activities of the Project in the “service area”. That decision should not be read as approval of the activities described, as the issues of ultra vires and the basic powers of the Project were not raised in that case. Certainly that case clearly holds the Project *400is not a public service corporation, as does Rubenstein Construction Co. v. Salt River Project Agr. Improvement & Power Dist., 76 Ariz. 402, 265 P.2d 455.
The general manager of the Salt River Project testified that the contract for power to be transmitted over the transmission line involved here was based upon the estimated future needs of the “service area” of the project, beginning with 1965. In view of the trial judge’s order, we accept these estimates of need as being as reasonably accurate as estimates can be. Somebody must furnish this power over transmission lines to be located somewhere to the people within the area if Arizona is to continue to grow and prosper.
The “service area”, however, is a factual and engineering concept not a legal entity. No legislation establishes a “service area” or sets up a procedure by which one may be established. The phrase is not used in any of the relevant legislation.
A map, showing the “Service Area of the Salt River Project” was introduced at the trial, and attached to the petition for certiorari. It shows the area referred to in the testimony. This area, on the map is divided as follows:
1. - Area served exclusively by Salt River Project.
2. Area where the Salt River Project provides power requirements of Arizona Public Service for resale except for mining leads.
3. Area where the Salt River Project provides full power requirements of Arizona Public Service for resale.
4. Area served by Arizona Public Service.
5. Area served by City of Mesa.
In part the division of the “service area” was made by private arrangement between the Project and the Arizona Public Service Company. These arrangements were entered into in order to facilitate the sale of bonds of the Project. See City of Mesa v. Salt River Project Agr. Imp. & Power District, 92 Ariz. 91, 96, 373 P.2d 722, 726.
A private corporation, by its actions and representations, may incur an obligation to serve an area, to continue service, and to expand its service as demand increases. See Note, “Effect of rendering incidental service to members of the public to constitute an individual or corporation whose principal business is of a different nature a public utility,” 18 A.L.R. 764. A public utility may be ordered to make additional capital investments. Arizona Corp. Comm. v. Tucson Gas, Electric Light & P. Co., 67 Ariz. 12, 19, 189 P.2d 907, 911. But a municipal corporation, even though authorized to sell surplus power or water outside its boundaries, incurs no such obligation, and its customers for surplus power may be cut *401off if there is a deficiency for any reason. Long v. Town of Thatcher, 62 Ariz. 55, 65, 153 P.2d 153, 157; City of Phoenix v. Kasun, 54 Ariz. 470, 474, 97 P.2d 210, 212, 127 A.L.R. 84.
It is impossible, from the record before us, to determine at just what point the Salt River Project stepped over the line into ultra vires power activities. The testimony is directed to the projected needs of the “service area.” It is clear that the Project is seeking to avoid a situation where it might be forced to cut off any of its “surplus” customers by making ample provision for the future. Although, as the majority points out, the Project’s legal authority to sell power within its own boundaries comes from subsection A, paragraph 6, and its authority to sell “surplus power” anywhere it can find a customer comes from subsection A, paragraph 7, the testimony does not show the needs of these two areas separately, and this case has been considered as if “surplus power” were all that is involved. With regard to “surplus power” the Project cannot create a surplus upon a surplus, and expand indefinitely, under its present legislative authorization.
The present and proposed transactions of the Salt River Project in the development and transmission of additional “surplus” power are ultra vires. Unless the legislature gives specific authorization, in the manner traditionally used to grant powers to municipal corporations, further power activities are not authorized, and the Project’s existing legal authority to go into the power business has long since been stretched to the limit. An incidental reference to “surplus power” in a reclamation act is too flimsy a basis upon which to erect a regional power empire, at least where the rules of construction applicable to acts creating municipal corporations are applicable.
Here we have a condemnation action brought by a municipal corporation, and a defense of ultra vires is imposed. The traditional view is that ultra vires can only be raised in a quo warranto action brought by the Attorney General on behalf of the State, and that to permit private individuals to raise the issue might lead to fraud or harassment. Harris v. Independence Gas Co., 76 Kan. 750, 92 P. 1123, 1126, 13 L.R. A.,N.S., 1171; Zinc Carbonate Co. v. First Natl. Bank, 103 Wis. 125, 79 N.W. 229.
In a railroad condemnation case the Louisiana court has said, “The defendant in this suit cannot be heard to invoke the rights of the municipality”, Louisiana & N. W. R. Co. v. Nelson, 128 La. 390, 54 So. 917 (1911). See also Memphis & S. L. R. Co. v. Union Ry. Co., 116 Tenn. 500, 95 S.W. 1019, 1025 (1906). The lack of, or necessity for, a certificate of public convenience and necessity cannot be raised by á landowner in a condemnation action. *402Colorado Central Power Co. v. City of Englewood, 89 F.2d 233, 235 (10th Cir. 1937).
In Arizona there is no need to strain to find a remedy for ultra vires acts. A.R.S. § 12-2041 authorizes the Attorney General to bring an action in quo warranto, “upon his own information or upon the verified complaint of any person * * * against any person who usurps * * * any franchise within this state.” The gravamen of petitioners’ complaint against the Salt River Project, though couched in terms of ultra vires, is that the Salt River Project has, without any authority, usurped a franchise to act as a public service corporation in the service area which it has carved out for itself. In essence, the defense is that the authorization to sell “surplus power” gives the needed authority. In my view the authorization to sell “surplus power” does not give it the necessary authority, but the issue is one ideally suited for proper presentation in quo warranto proceedings. No application has been made to the Attorney General to take action against the Project, and if he refused, the issue of whether he had sufficient grounds to refuse could be presented to a court in mandamus proceedings. Buggeln v. Doe, 9 Ariz. 81, 93, 78 P. 367; Duffield v. Ashurst, 12 Ariz. 360, 100 P. 820, appeal dismissed 223 U.S. 697, 32 S.Ct. 838, 56 L.Ed. 1262. This court has said with regard to the quo warranto statutes that “the Legislature has provided a complete and ample remedy where there is a usurpation of any of the state’s franchises.” Faulkner v. Board of Sup’rs. of Gila County, 17 Ariz. 139, 145, 149 P. 382, 384.
It is true that ultra vires may be raised as a defense in proper cases by a municipal corporation, Dillon, supra, §§ 791, 792, 796, 1610-1611, but in other cases it may be es-topped to do so. Zion’s Sav. Bank & Trust Co. v. Tropic & East Fork Irr. Co., 102 Utah 101, 126 P.2d 1053. In some cases ultra vires may be raised in a taxpayer’s action by analogy to the minority stockholders’ action, Dillon, supra, §§ 1579-1581. City of Middlesboro v. Kentucky Utilities Co., 284 Ky. 833, 146 S.W.2d 48, in which the carrying out of a contract between the city and the Tennessee Valley Authority was enjoined as ultra vires, was a suit in which taxpayers joined. Taxpayers and a competing private power company joined as plaintiffs in McGuinn v. City of High Point, 217 N.C. 449, 8 S.E.2d 462, 128 A.L.R. 608, in which use of a license to construct a power dam granted by the Federal Power Commission and the acceptance of a grant from the Public Works Administration for the cost, was enjoined. Yadkin County v. City of High Point, 217 N.C. 462, 8 S.E.2d 470, in which it was held that county home and highway property already devoted to a public use, could not be con*403denined, was a companion case and followed McGuinn, in which the project had already been held to be ultra vires. Petitioners here are not taxpayers within the Salt River Agricultural Improvement District. Galloway v. Mitchell County Electric Membership Corp., 190 Ga. 428, 9 S.E. 2d 903, in which the doctrine of ultra vires was invoked to block a loan for a cold storage plant by an R.E.A. co-op, was a minority stockholders’ action, specifically authorized by the Georgia statute.
There is no necessity for litigating the issue of ultra vires in this condemnation case, and good reason suggests that it not be permitted. The result would be to force this court, on the basis of an insufficient record, to decide this major matter of state policy.
This case is strikingly similar to Light v. City of Danville, 168 Va. 181, 198, 190 S.E. 276, 282. In that case opponents of a municipal power plant sought a policy decision condemning a scheme which involved federal co-operation in the construction of the plant, in a condemnation action involving a small tract of land. The Virginia court said :
“We shall not inquire into these economic or political theories, or the grounds of necessity or expediency upon which they are founded. * * *
“Such defenses are irrelevant and immaterial in this condemnation proceeding, and do not herein constitute proper defenses.”
The multitude of cases where lack of public purpose has been successfully urged to block condemnation should be distinguished. If a condemnation is not for a public use it is unconstitutional, and no act of the legislature could cure the defect. See Dillon, supra, §§ 1031, 1033. It is self evident that a power transmission line is for a public purpose. Light v. City of Danville, 168 Va. 181, 190 S.E. 276; McCrady v. Western Farmers Electric Cooperative, 323 P.2d 356 (Okl.1958); State ex rel. Chelan Electric Co. v. Superior Court, 142 Wash. 270, 253 P. 115, 58 A.L.R. 779. Construction of this line cannot be blocked in this type of proceeding. The legislature can determine which public agency should operate it, or if it should be sold to a private agency, as well after it is constructed as before.
I point out that the fact that state lines are crossed in the proposed undertaking does not influence my view that the proposed expansion of the power activities of the Salt River Project is ultra vires. Where a municipal corporation is properly authorized to engage in the power business generally, it is immaterial if carrying out a legal contract requires it to cross a state line into another state. State ex rel. John*404son v. Consumers Public Power Dist., 143 Neb. 753, 10 N.W.2d 784, 152 A.L.R. 480, 492. A mine mouth operation in Colorado or New Mexico, in itself is no more objectionable than the purchase of coal in these states would be.
I agree with those sections of the majority opinion headed “Power of Eminent Domain”, “Status of District as a Municipal Corporation”, and “Equal Protection of the Laws.”
For the foregoing reasons I concur in the result and to prevent further litigation commend the policy questions raised by this litigation to the legislature.