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Ormsby County v. Kearney; Anderson v. Kearney

December 31, 1914

ORMSBY COUNTY AND THE COUNTY COMMISSIONERS OF ORMSBY COUNTY, RELATORS, V. WILLIAM M. KEARNEY, AS STATE ENGINEER, RESPONDENT. NO. 2115 JOHANNES ANDERSON, ET AL., RESPONDENTS, V. WILLIAM M. KEARNEY, APPELLANT.


Appeal from the Sixth Judicial District Court, Humboldt County; Edwin A. Ducker, Judge.

John M. Chartz, District Attorney of Ormsby County, for Relator.

Summerfield & Richards, for Respondent.

Cheney, Downer, Price & Hawkins, amicus curiae.

Geo. B. Thatcher, Attorney-General, for Appellant.

Cheney, Downer, Price & Hawkins, for Respondents.

Opinion by Norcross, J. (after stating the facts):

The water law of 1913 contains ninety sections and was manifestly designed to be a comprehensive statute covering the water law of this state. Many of the provisions of the act are not questioned in these proceedings. Those sections only are attacked which authorize the state engineer to determine the relative rights of the appropriators of water upon the streams in this state, which provide for appeals to the courts from the determinations made by him, and which provide for state control, through the office of the state engineer, of the distribution of such waters to the persons entitled thereto.

[1] It is manifest, both from the title and body of the act, that one of the main purposes of this law, and doubtless the principal purpose, was to place the distribution of the waters of the streams or stream systems of the state to the persons entitled thereto, under state control. The manner of such control is prescribed in sections 52 to 56, inclusive. It is not seriously urged, if we understand counsel correctly, that the state, within its police power, may not so regulate the distribution of the waters of the state. It is a matter, we think, clearly within the lawful exercise of such power. The public welfare is very greatly interested in the largest economical use of the waters of the state for agricultural, mining, power, and other purposes. While the police power cannot be made an excuse for the enactment of unreasonable, unjust, or

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oppressive laws, it may be legitimately exercised for the purpose of preserving, conserving, and improving the public health, safety, morals, and general welfare.

“Private rights are often involved in its exercise, but a law is not on that account rendered invalid or unconstitutional.” (In Re Street Railway Corporation, 24 R. I. 603, 54 Atl. 602, 61 L. R. A. 612.)

As said by Judge Cooley in his work on Constitutional Limitations (7th ed.), p. 829: It “embraces its whole system of internal regulation by which the state seeks not only to preserve the public order and to prevent offenses against the state, but also to establish for the intercourse of citizens with citizens those rules of good manners and good neighborhood which are calculated to prevent a conflict of rights, and to insure to each the uninterrupted enjoyment of his own so far as is reasonably consistent with a like enjoyment of rights by others.”

See, also, In Re Boyce, 27 Nev. 299, 75 Pac. 1, 65 L. R. A. 47, 1 Ann. Cas. 66; Ex Parte Pittman, 31 Nev. 43, 99 Pac. 700, 22 L. R. A. n. s. 266, 20 Ann. Cas. 1319; Noble State Bank v. Haskell, 219 U. S. 104, 31 Sup. Ct. 186, 55 L. Ed. 112, 32 L. R. A. n. s. 1062, Ann. Cas. 1912a, 487; Davidson v. New Orleans, 96 U. S. 97, 24 L. Ed. 616; State v. Bunting, 139 Pac. 731, and authorities therein cited.

It is difficult to perceive how there may be any effective regulation or control over the water rights of a stream system like that of the Humboldt River and its tributaries, except through some form of state supervision. This river extends for a distance of about 300 miles, is in five counties and three judicial districts. According to the brief of counsel for respondent in case No. 2115, there are from 700 to 1,000 water users on the Humboldt River system. Undoubtedly other claimants are constantly applying for water rights on this system. The state at large is not only interested in protecting prior appropriators in their rights, but is interested in the conservation of the waters of the stream system to the end that the largest possible amount of land may be brought under cultivation through an economical

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diversion and use of such waters. To accomplish this beneficent object, the state has a right to exercise a superintending control over the entire river system. It is not to be assumed that so great and so important an undertaking cannot be fairly and intelligently administered. If so administered, it would seem that it ought to be particularly advantageous to prior appropriators. It is the history of irrigation in this and other states that the first appropriators of waters upon the natural streams are frequently forced into long, vexatious, and expensive litigation to protect their rights against subsequent appropriators. The case of Bliss v. Grayson & Anderson in the state courts, involving water rights on the Humboldt River, and Miller & Lux v. Rickey, et al., in the federal court, involving water rights on the Walker River, are conspicuous examples, showing the need of some kind of intelligent state intervention. The case of Bliss v. Grayson, begun in the district court of Humboldt County in July 1889, reached the supreme court a decade later, with the result of a reversal and a new trial ordered. (Bliss v. Grayson, 24 Nev. 422, 56 Pac. 231.)

[2] If it may be conceded that the relative rights of all water users upon a river system may be ascertained by some lawful method of procedure, then no constitutional right can be said to be infringed by a system of state control over the water of a river system such as is provided in sections 52 to 56, inclusive, for such system is designed to protect all water users in their rights. The courts of all the states that have adopted similar water laws have held the same to be within the lawful exercise of the police power of the state. See authorities hereinafter cited.

[3] In considering the constitutionality of section 18 to 51, inclusive, they should be viewed with reference to the purpose designed to be accomplished by sections 52 to 56. The latter sections are clearly administrative. Before they can be put into force, the relative rights of water users upon a stream must be ascertained.

[4] It is contended here that the manner prescribed

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by the statute for the ascertainment of these relative rights is violative of the constitution in that it amounts to a deprivation of property rights, without due process of law; that it confers judicial powers upon an executive officer; and that it invades the jurisdiction of the district courts.

It cannot, we think, be said that the provisions of the act contemplate the deprivation of property without due process of law. It should, we think, be assumed that water claimants or appropriators will present their claims according to their respective rights, and it must be presumed, until the contrary appears, that a public officer will perform his duties. The act contemplates the securing to water users their rights, not the taking of the same away. The fact that human judgment is liable to err will not justify an assumption in advance that it will err in all or any cases. Assuming, however, that errors will be made by the state engineer in determining the amount or time of an appropriators' right, such right would not thereby be taken from the appropriator without due process of law. For purposes of the state's exercise of its powers of administration, the enjoyment of such right may be affected, temporarily at least, but only after a notice and a hearing. The right, however, to have the matter finally adjudicated by the courts is not attempted to be taken away. Most water rights upon the streams of this state are undetermined by any judicial decree or other record. While the right exists, it is undefined. For the state, however, to administer such rights, it is necessary that they should be defined.

[5] For the purposes of administration, the act prescribes a method of notice and a hearing that applies alike to all similarly situated. True, this is not a determination by a court, but applicants are not for that reason deprived of property without due process of law. As said in 8 Cyc. 1084:

“Although the due process of law implies generally the course of judicial proceedings established at the time the constitution was framed, due process is not limited

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to such, but refers also to many measures of a summary nature.”

This court in a few cases has had occasion to refer to the constitutional guaranty of due process of law, but those cases were dealing with matters of court procedure; and, while certain expressions were therein used which, taken literally, would seem to restrict the meaning of due process of law to determinations by a court, no question was presented in those cases as to whether the constitutional guaranty had any such restricted limitations. Many cases may be found sustaining the authority of administrative officers or boards to determine personal or property rights as not violative of due process of law.

In Black v. Glenn, 85 Kan. 735, 119 Pac. 67, 43 L. R. A. n. s. 1030, Ann. Cas. 1913a, 406, the Supreme Court of Kansas said:

“It has been held by the Supreme Court of the United States that the phrase ‘due process of law' does not necessarily mean a judicial proceeding. (McMillen v. Anderson, 95 U. S. 37, 24 L. Ed. 335.) On the other hand it does not necessarily mean a special tribunal created for the express purpose of hearing the merits of the particular controversy. Where ample notice is provided which gives to the property owner an opportunity to have a hearing in any court of competent jurisdiction before his property is affected, he is afforded due process of law.”

In Enterprise Irrigation District v. Tri-State Land Co., 138 N. W. 179, and in Farm Investment Co. v. Carpenter, 9 Wyo. 110, 61 Pac. 258, 50 L. R. A. 747, 87 Am. St. Rep. 918, the Supreme Courts of Nebraska and Wyoming held similar provisions in the water laws of those states to be due process of law.

See, also, Wedemeyer v. Crouch, 68 Wash. 14, 122 Pac. 366, 43 L. R. A. n. s. 1090; Louisville & N. R. Co. v. Garrett, 231 U. S. 298, 34 Sup. Ct. 48; San Diego L. & T. Co. v. National City, 174 U. S. 739, 19 Sup. Ct. 804, 43 L. Ed. 1154; Spring Valley Water Works v. San Francisco, 82

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Cal. 296, 22 Pac. 910, 6 L. R. A. 756, 16 Am. St. Rep. 116; Meyers v. Shields, 61 Fed. 713; Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565; Klafter v. State Board of Examiners of Architects, 259 Ill. 15, 102 N. E. 193, 46 L. R. A. n. s. 532, Ann. Cas. 1914b, 1221; Stettler v. O'Hara, 139 Pac. 743.

The provisions of the act in question do not violate the due process of law provisions of the state or federal constitutions.

[6] It is contended that these provisions of the statute are in violation of article 3 of the state constitution. Considering this article, this court in Sawyer v. Dooley, 21 Nev. 390, 396, 32 Pac. 437, 439, speaking through Bigelow, J., said: “That article divides the state government into three great departments, and directs that ‘no person charged with the exercise of powers properly belonging to one of these departments shall exercise any functions appertaining to either of the others, except in the cases herein expressly directed or permitted.' As will be noticed, it is the state government, as created by the constitution, which is divided into departments. These departments are each charged by other parts of the constitution with certain duties and functions, and it is to these that the prohibition just quoted refers. For instance, the governor or the judiciary shall not be members of the legislature, nor shall they make the laws under which we must live. But this is quite a different thing from saying that no member of the executive or judicial departments shall exercise powers in their nature legislative, but which are not particularly charged by the constitution upon the legislative department; such as where the board of commissioners for the insane makes rules for the management of the asylum, or a court establishes rules for the transaction of the business coming before it. It would be impossible to administer the state government were the officers not permitted and required, in many instances, to discharge duties in their nature judicial, in that they must exercise judgment and discretion in determining the facts concerning

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which they are called upon to act, and in construing the laws applicable to them. * * * This construction is supported by two well-considered cases decided by the Supreme Court of California (People v. Provines, 34 Cal. 520; Staude v. Commissioners, 61 Cal. 313), where the matter will be found elaborately discussed. See, also, Story, Const. sec. 525, and Mayor v. State, 15 Md. 376, 455, 74 Am. Dec. 572.”

In State v. State Bank and Trust Co., 31 Nev. 456, 103 Pac. 407, 105 Pac. 567, we held that the state banking law providing that, if the bank commissioners, either from the report of the bank examiner, or from their own knowledge, decide that it is unsafe for any such corporation to continue to transact business, they shall authorize the bank examiner to take such control of such corporation, and to hold possession of the same until the order of the court thereafter to be obtained, did not confer judicial powers upon an executive board in violation of the constitution. See, also, State, ex rel. Williams, v. District Court, 30 Nev. 225, 94 Pac. 70. This identical question has been considered by the supreme courts of two states having similar laws, and from which many of the provisions of our statute have been copied. (Farm Investment Co. v. Carpenter, 9 Wyo. 110, 61 Pac. 258, 50 L. R. A. 747, 87 Am. St. Rep. 918; Crawford Co. v. Hathaway, 67 Neb. 325, 367, 93 N. W. 781, 60 L. R. A. 889, 108 Am. St. Rep. 647; McCook Irrigation & W. P. Co., v. Crews, 70 Neb. 115, 102 N. W. 249; Enterprise Irr. District v. Tri-State Land Co., 92 Neb. 121, 142, 138 N. W. 171, 178.)

In Enterprise Irrigation District v. Tri-State Land Co., supra, the Nebraska court says: “In the face of these decisions, it hardly seems necessary to again consider the question, but we have done so, and have examined further authorities. It is a matter of common knowledge that, both in the administration of the laws of the United States and of the several states, boards of individuals, for the purpose of exercising executive or administrative functions, are often compelled to inquire into and determine questions requiring the exercise of powers judicial in their nature. Some of such determinations are often,

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by virtue of the statutes defining the functions and power of the tribunal, final and decisive, and others are made reviewable by appeal to the courts. * * * Whether reviewable by the courts or not, the exercise of such powers by tribunals of this nature has seldom been held to be a violation of the constitution in this respect. (McGhee, Due Process of Law, 162, 368; Reetz v. Michigan, 188 U. S. 505, 23 Sup. Ct. 390, 47 L. Ed. 563; Gardner v. Bonestell, 180 U. S. 362, 21 Sup. Ct. 399, 45 L. Ed. 574; Bates & Guild Co. v. Payne, 194 U. S. 106, 24 Sup. Ct. 595, 48 L. Ed 894; People, ex rel. Deneen, v. Simon, 176 Ill. 165, 52 N. E. 910, 44 L. R. A. 801, 68 Am. St. Rep. 175; Farm Investment Co. v. Carpenter, 9 Wyo. 110, 61 Pac. 258, 50 L. R. A. 747, 87 Am. St. Rep. 918; State v. Thorne, 112 Wis. 81, 87 N. W. 797, 55 L. R. A. 956; Gee Wo v. State, 36 Neb. 241, 54 N. W. 513; Lincoln Medical College v. Poynter, 60 Neb. 228, 82 N. W. 855.) We are satisfied with the conclusion reached by this court in the cases cited, which were followed by Farmers' Canal Co. v. Frank, 72 Neb. 136, 100 N. W. 286, and see no reason to change our conclusion in this respect.”

In Farm Investment Co. v. Carpenter, supra, the Supreme Court of Wyoming, considering this question, said: “The statute nowhere attempts to divest the courts of any jurisdiction granted to them by the constitution to redress grievances and afford relief at law or in equity under the ordinary and well-known rules of procedure. A purely statutory proceeding is created to be set in motion by no act or complaint of any injured party, but which in each instance is to be inaugurated by order of the board—a proceeding which is to result, not in a judgment for damages to a party for injuries sustained, nor the issuance of any writ or process known to the law for the purpose of preventing the unlawful invasion of a party's rights or privileges, but the finality of the proceeding is a settlement or adjustment of the priorities of appropriation of the public waters of the state, and is followed by the issuance of a certificate to each appropriator showing his relative standing among other claimants, and the amount of water to which he is found to be

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entitled. * * * The supervision of the board affects the water of natural streams, the title to which, while flowing in its accustomed channels, remains in the state or public, and of such a peculiar character that public control is demanded to insure its orderly, economical, and fair distribution. The determination required to be made by the board is, in our opinion, primarily administrative rather than judicial in character. The proceeding is one in which a claimant does not obtain redress for an injury, but secures evidence of title to a valuable right—a right to use a peculiar public commodity. That evidence of title comes properly from an administrative board, which, for the state in its sovereign capacity, represents the public, and is charged with the duty of conserving public as well as private interest. The board, it is true, acts judicially, but the power exercised is quasi-judicial only, and such as, under proper circumstances, may appropriately be conferred upon executive officers or boards.”

In Speer v. Stephenson, 16 Idaho, 707, 102 Pac. 365, the Supreme Court of Idaho, considering the provisions of the Idaho statute providing for a contest of a permit issued by the state engineer and vesting power in that officer to cancel such permit, and providing for an appeal to the district court from an order of the state engineer revoking or refusing to revoke such permit, said: “By this statute, where a permit has been granted by the state engineer, permission is also granted to any person holding a permit post-dated to present facts, showing that the holder of the permit has not complied with the law, and authorizes the state engineer, if he finds that the law has not been complied with, to cancel such permit. This is purely a ministerial duty connected with the administration of the law as it is imposed upon the state engineer. A very exhaustive discussion of this question may be found in the case of Farm Investment Co. v. Carpenter, 9 Wyo. 110, 61 Pac. 258, 50 L. R. A. 747, 87 Am. St. Rep. 918. See, also, Ewing v. Mining Co., 56

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Cal. 649. Many other authorities might be cited which deal with the power exercised by an officer in the administration of his office, but we believe the true rule to be that when a ministerial officer is called upon to decide and determine matters arising in the administration of his office, when such acts are not made final or binding upon the courts of the state, and full opportunity is given to any person aggrieved to have such matters adjudicated in the proper tribunals of the state, the acts of such officer are ministerial, and not judicial.”

See, also Waha-Lewiston L. & W. Co. v. Lewiston Sweetwater Irrigation Co. (C. C.) 158 Fed. 137; In Re Silvies River (D. C.) 199 Fed. 495, 501.

The soundness of the reasoning in the Wyoming and Nebraska decisions holding that the rulings of the state engineer or water board, as the case may be, are primarily administrative, and quasi-judicial only, has been questioned by Wiel and Kinney, text-writers on the subject of water law. If the question were before us, unsupported by the decisions of at least two courts, we might be disposed to give more weight to the reasoning advanced by these text-writers and the arguments of counsel supporting the contention that certain provisions of the act are void because vesting judicial powers in an executive officer in violation of the constitution. In a consideration of a question of this kind, however, courts must be governed by rules of construction. It is a fundamental rule that all presumptions are in favor of legislative enactments. Another well-settled rule is that a mere doubt as to whether a statute is violative of a constitutional provision must be resolved in favor of the statute. In the face of the decisions of the courts of two states, which courts have given extensive and repeated consideration to the question, it would be almost presumptuous for a court of a state which has adopted these statutory provisions from the laws of such states, after they had been construed by the highest courts of those states, to say, notwithstanding, that they are unconstitutional beyond all reasonable doubt. The decisions of the

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Supreme Court of Idaho on an analogous question and the decisions of federal courts, hereafter quoted from, support the view taken by the Wyoming and Nebraska decisions.

The line between acts of executive officers which are essentially judicial and those which are administrative rather than judicial, although quasi-judicial, is not always easy to draw. Some courts have adopted a more liberal rule than is applied by other courts in determining such questions. The decisions of this court would seem to follow the more liberal constructions.

We think the court below properly held that the provisions of the act in controversy were not violative of the provisions of the constitution regulating the distribution of the powers of state government.

[7] The court below, however, held certain provisions of the act violative of section 6 of article 6 of the constitution, which provides:

“The district courts in the several judicial districts of this state shall have original jurisdiction in all cases in equity; also, in all cases at law, which involve the title of the right of possession to, or the possession of real property. * * * They shall also have final appellate jurisdiction in cases arising in justices' courts, and such other inferior tribunals as may be established by law.”

We think the court below was in error in so holding. The determinations made by the state engineer of the relative rights of water users upon a stream are not made in “cases in equity” or “cases at law,” as those terms are used in the constitutional provision quoted, supra.

As said in Farm Investment Co., supra: “In an earlier part of this opinion we had occasion to allude to some of the particulars wherein the statutory proceeding differs from an ordinary suit in the courts. Affirmative relief in favor of one party as against another is not its object. Adversary pleadings, as they are commonly employed and understood, are not involved. Indeed, in the strict

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sense, except in case of contest, it is doubtful if the various claimants can be regarded as adversaries.”

In dealing with an analogous situation, involving an appeal to the district court from the action of the state engineer of Idaho, revoking a water permit, under the provisions of the Idaho statute, and a removal of the matter on appeal to the Circuit Court of the United States for the District of Idaho, Judge Dietrich, in denying a motion to remand, said: “The proceedings prescribed by the Idaho statutes to be taken before and by the state engineer are essentially non-judicial in their character, and are purely administrative, and in no sense do they constitute a suit at law or in equity. * * * The state engineer's proceedings are ex parte, and are neither in form nor substance judicial in their nature. The legislature may have contemplated that in some, if not many, instances licensees would not resist cancellation of permits, and that the proceedings before and by the engineer would furnish a simple and inexpensive mode for formally and publicly declaring the termination of the licenses, and of clearing the public record of an apparent, though nonexistent, right. In case, however, the holder of the permit has not abandoned his right, and claims that the same is not forfeited, having notice of the action of the state engineer, he may institute a judicial inquiry. Other modes might have been provided for instituting the action, but the legislature in its wisdom saw fit to call the proceedings an ‘appeal.' Whether the means and method prescribed are sufficient to enable the state court to acquire jurisdiction of the parties is not a question now under consideration. It simply need be said that the legislature intended and attempted to confer jurisdiction upon a judicial tribunal, and whether its intention in that regard has been rendered effectual is for the court in which such question is raised, be it state or federal, to determine.” (Waha-Lewiston L. & W. Co. v. Lewiston Sweetwater Irrigation Co., supra.)

In Re Silvies River, 199 Fed. 501, Bean, District Judge,

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speaking for the Circuit Court of the United States, District of Oregon, said:

“The phrase ‘suits at common law and in equity' embraces not only ordinary actions and suits, but includes all the proceedings carried on in the ordinary law and equity tribunals, as distinguished from proceedings in military, admiralty, and ecclesiastical courts. It is a very comprehensive term, and is understood to apply to any proceedings in a court of justice by which an individual pursues a remedy which the law affords. Modes of proceeding may vary, but, as it affects the right of removal, any civil proceeding in a state tribunal in which a judgment or decree is sought as to the rights of the parties and presented by the pleadings for judicial determination is an action or suit within the meaning of the statute, regardless of the forum or tribunal before which the matter is pending. (Weston v. City Council of Charleston, 2 Pet. 449-464, 7 L. Ed. 481; Gaines v. Fuentes, 92 U. S. 10, 23 L. Ed. 524.) And the state cannot, by creating special proceedings or special tribunals, deprive the federal court of jurisdiction of such a suit or prevent a removal. (In Re The Jarnecke Ditch, 69 Fed. 161.) But a proceeding carried on by or before executive or administrative officers in the exercise of their proper functions cannot be regarded as a suit or action, although it may become such on appeal to a court having power to determine questions of law and fact, either with or without a jury, and where there are parties litigant to contest the case on one side or the other. (Upshur Co. v. Rich, 135 U. S. 467, 10 Sup. Ct. 651, 34 L. Ed. 196; Waha-Lewiston L. & W. Co. v. Lewiston Sweetwater I. Co., 158 Fed. 137.)

“Now the preliminary proceedings before the state board of control, in taking testimony and making findings of fact concerning the rights of the various claimants to the waters of a given stream, are, in my judgment, not judicial, but rather administrative. The powers of the board are not brought into action by the filing of a paper in the nature of a complaint setting up asserted rights,

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but by the mere presentation to it of a petition or request by one or more users of water, without any allegations of issuable facts, other than that the petitioner is a water user on the stream, and a request for the determination of the relative rights of the various claimants to such waters. No affirmative relief is asked, and no adverse pleadings are required or permitted, or issues joined, until after the evidence taken by the board is open to the inspection of the various claimants and owners. After the filing of the petition, the proceedings are to be conducted by the board and upon its initiative. Neither the petitioner nor the claimants obtain any redress for an injury as the result of such proceedings, but merely evidence of their title or right to the use of the water. It is true the board is vested with power to issue notice to the various claimants requiring them to present their claims, to take testimony and make findings of fact, but these findings must be confirmed by the court. The board has no power to make an adjudication of the rights of the claimants. Its duty is to ascertain the facts and present them to the court for its consideration. After the evidence and determination of the board has been filed with the court, the proceeding probably becomes a suit or action, but, until the board has completed its examination, made its determination, and filed its report, the proceedings are purely administrative.

“In so far as the board has jurisdiction over the adjudication of water rights, it is in effect a standing examiner, created by the state, charged with the duty, when requested by the users of water, of examining into and reporting to the court the facts on which the rights of the various claimants are based, so that such rights may be authoritatively settled and determined by a judicial tribunal. Until the report is made and filed with the court, there is no action or suit within the meaning of the removable statute.”

The Oregon law under consideration by the federal court in the Silvies River case, supra, differs from the Nevada, Wyoming, and Nebraska laws in that, after the

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board of control, under the Oregon statute, “has entered of record in its office an order determining and establishing the several rights to the waters of the stream,” it is the duty of the board to transmit the original evidence and a certified copy of its determination to the clerk of the circuit court of the county in which said stream or some part thereof is situated, where the whole matter will be heard by the court, both as to the determinations made by the board where there has been no contest and where there has been a contest. It is provided, however, that: “Pending the consideration of the matter by the court, the findings of the board shall be in force and effect, unless stayed by the giving of a bond as provided in the act.”

And further that: “During the time the hearing of the order of the board of control is pending in the circuit court, and until a certified copy of the judgment, order, or decree of the circuit court is transmitted to the board of control, the division of water from the stream involved in such appeal shall be made in accordance with the order of the board.” (Silvies River Case, supra, 199 Fed. 499; Wattles v. Baker County, 59 Or. 255, 117 Pac. 417; Lord's Oregon Laws, secs. 6648, 6652.)

In practical effect, there is little difference between the Oregon statute and the Nevada, Wyoming, and Nebraska statutes. Both in Oregon and the other three states mentioned, the findings of the state engineer or water board are in force and effect until stayed or set aside by the court. The Oregon statute requires the court to adjudicate the relative rights of all water users, whether there is any dispute as to the determination of the water board or not, and this adjudication is initiated by the state itself. Under the laws of the latter states, parties contesting must initiate an adjudication by the courts, and only those cases go before the court where there is an actual controversy. In cases where the parties are satisfied with the determination made by the water officials, it may be possible that the subsequent adoption and approval of a court gives to such determinations a more

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binding effect in the nature of a judicial decree, but, for the practical purposes of the administration of the flow of the stream by the state's administrative officers, there is no difference either as to those officers or to the water claimants.

It is unnecessary to consider other constitutional questions raised by counsel in these cases, for they are not essential to a determination of the cases before us. Courts as a rule will not determine such questions, except as is necessary to completely dispose of the cases as presented.

[8] In so far as the law authorizes the state engineer to investigate and determine the relative rights of water appropriators or users upon any stream or stream system, or requires statements to be made by the several claimants of their respective claims, and requires such claimants to support the same with proofs, and authorizes the state engineer to determine contests, or authorizes the state engineer or other executive officers to control the distribution of the waters of a stream to the persons found to be entitled thereto, the law is valid.

[9] It will be time enough to consider other questions when they shall arise in a specific case, such as whether the determinations made by the engineer have any force other than as being controlling for purposes of the administration of the law, until modified, suspended, or set aside by some order or decree of court, or whether the methods prescribed for appeal from the decisions of the state engineer in cases of contest are valid, and, if so, whether such appeals are “merely a continuation of those proceedings in an appellate tribunal,” as held by the Wyoming court in Willey, et al., v. Decker, et al., 11 Wyo. 548, 73 Pac. 210, 100 Am. St. Rep. 939, or become in the nature of a case at law or in equity, as would seem to be the view of the Nebraska, Idaho, and federal courts, which have had occasion to consider the question. Nor need we now consider whether the ordinary rights of action are at all affected by the prescribe methods of appeal. Whether that portion of section 25, providing

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that a failure to present a claim in time shall be given a later priority than those claimants who have filed in time, and other provisions not affecting the essential features of the general scheme of the act, will be determined only when a case arises making it necessary to determine such questions.

[11] It is contended that under the provisions of section 84, quoted supra, none of the other provisions of the act were intended to apply to water rights acquired prior to the adoption of the act; in other words, that the scheme of state control over the diversion of water to parties entitled thereto was to apply only to subsequent appropriations. We think the section is not subject to such construction. The section must be construed in connection with other provisions of the act. The whole scope and purpose of the act show that it was intended to apply to all water rights, whether acquired before or after its adoption. There would be little or no use in attempting state control over a stream or stream system unless all water rights were brought under that control. The greater portion of the water rights upon the streams of the state were acquired before any statute was passed prescribing a method of appropriation. Such rights have uniformly been recognized by the courts as being vested under the common law of the state. Nothing in the act shall be deemed to impair these vested rights; that is, they shall not be diminished in quantity or value. As they are all prior in time to water rights secured in accordance with later statutory provisions, such priorities must be recognized. As before stated in this opinion, while these rights exist and must be recognized and upheld, in the majority of cases, they are undefined. It is made the duty of the owners of such rights to present their claims and to support the same by proofs, in order that such rights may be determined for administrative purposes under the act. The act contemplates that the state engineer shall determine the same for such administrative purposes in accordance with the actual facts, and it is to be presumed, until the contrary is shown, that he

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will so determine such rights. The act gives the state engineer no discretion to award an appropriator a less amount of water than the facts show he is entitled to, or to give him a later relative priority. True, as before stated, the state engineer may err in his determination, but, if so, the claimant has his remedy in the courts. Appropriations made in pursuance of the provisions of prior statutes are not to be “impaired or affected.” Rights thus secured are supported by documentary evidence and are to be recognized accordingly. See Lord's Oregon Laws, sec. 6595.

[11] It is not an unlawful interference with the vested rights of water appropriators to so control those rights that each may have what belongs to him, but that he may not voluntarily, whether through a mistaken conception of his rights or not, interfere with the rights of others. (Irrigation Co. v. Water S. & S. Co., 29 Colo. 474, 68 Pac. 781.)

A question has been raised as to whether the proceeding in prohibition (Case No. 2107) was an appropriate remedy, but, as that proceeding must be dismissed in any event, we will not consider that question. In case No. 2107 the proceeding is dismissed.

The district court is directed to modify the temporary injunction so as to only restrain the state engineer from making determinations which would in any way impair vested rights.

Opinion of Talbot, C. J.:

I concur in the orders.

How far may the state engineer proceed under the act of 1913, creating the water law? To what extent are the provisions of that statute constitutional? The act purports to authorize this officer, by detailed procedure, to determine the relative rights of water users, and subject to rehearings and appeals to make his determinations conclusive and to empower him to administer and regulate the use of water in accordance with such determinations.

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Section 87 of the water law provides: “Each section of this act and every part of each section is hereby declared to be independent sections, and parts of sections, and the holding of any section or part thereof to be void or ineffective for any cause shall not be deemed to affect any other section or any part thereof.”

From this it appears that the legislature may have been in doubt as to the validity of certain parts of this statute.

[1] Under the decisions of this court, it has long been settled that, if a section or a part of a section is unconstitutional, this will not prevent the enforcement of the remainder of the act. If the legislature has attempted to confer upon the state engineer the power to determine water rights for the purposes of his regulation and control of the use of the water and of having a final adjudication of those rights, and if under the constitution the latter power can be executed only by the courts, or if it be conceded that he has no right to make a final adjudication of the relative water rights, there is no good reason why he may not be allowed to make the determination for administrative purposes.

[2] It is well settled that the state may inspect, regulate, and exercise a superintending control over various kinds of business and property. Statutes regulating the hours of labor in underground mines and in smelters, quartz mines, and ore-reduction plants have been sustained. Laws providing for factory inspectors and for safety appliances in mines and factories and on railroads, and regulating transportation of passengers, freight, and live stock, are no longer questioned. Statutes regarding headlights, safety couplers, and train crews are illustrations. Laws providing that payment for the mining of coal should be made upon the basis of weight after it has been screened have been sustained by the Supreme Court of the United States. Other statutes forbid the polluting of streams, running of water upon highways, and the speeding of automobiles. For administrative purposes, bank, railroad, and public service commissions may often act judicially and investigate,

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have hearings, and determine facts to guide them for the purpose of fixing rates and exercising their control, but their determinations are not conclusive ...


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