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V. L. & S. Co. v. District Court

December 31, 1918

VINEYARD LAND AND STOCK COMPANY (A CORPORATION), PETITIONER AND RELATOR, V. THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF ELKO, AND HONORABLE E. J. L. TABER, DISTRICT JUDGE OF SAID DISTRICT COURT, AND W. M. KEARNEY, AS STATE ENGINEER OF THE STATE OF NEVADA, RESPONDENTS.


Petition for prohibition, on the relation of the Vineyard Land and Stock Company, a corporation, against the District Court of the Fourth Judicial District of the State of Nevada in and for the County of Elko, E. J. L. Taber, District Judge of said District Court, and W. M. Kearney, as State Engineer of the State of Nevada. Alternative writ vacated, and permanent writ denied, McCarran, C. J., dissenting.

Charles B. Henderson and Carey Van Fleet, for Petitioner.

Cheney, Downer, Price & Hawkins, Amici Curiae.

Geo. B. Thatcher, Attorney-General, and W. M. Kearney, for Respondents.

By the Court, Coleman, J.:

This is a proceeding in prohibition. It appears from the petition that the state engineer, upon the application of petitioner, initiated proceedings under the water law (Stats. 1913, p. 192, as amended by Stats. 1915, p. 378) of this state, to determine, for administrative purposes the relative rights of the appropriators of the water of the Salmon River and its tributaries, situated in Elko County, Nevada.

After the preliminary steps provided for in the statute had been complied with by the state engineer, and after a copy of the order of determination made by him establishing the relative rights of appropriators of the water of said stream had been filed in the office of the clerk of the district court of Elko County, and after an order had been made by that court fixing a time for hearing upon such order of determination, these proceedings were instituted to prohibit said court from proceeding with such hearing or taking any action whatever in the matter.

The act in question provides that, subject to existing

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rights, the water of all sources of supply belongs to the public, and makes provision for the appointment of a state engineer, to whom application may be made to appropriate any unappropriated water in a public stream. It is provided also that the state engineer may, on his own initiative, or upon the application of one or more users of water of any stream in the state, make an order for the determination of the relative rights of the water users of such stream; and by section 19 of the act it is made the duty of the state engineer to publish for four weeks notices of such order and the date when examination of the rights of water users will begin, and notify all claimants of rights in the water of the stream to make proof of their claims. Sections 20 and 21 provide for an independent investigation by the state engineer and the making of surveys and maps. Section 22 provides that after such investigation is made, and maps, etc., are filed, the state engineer shall give notice, by publication and by registered mail, of the commencement of the taking of proofs by him and of the date prior to which the same must be filed. Section 33 of the amendatory act provides for the making by the state engineer of an order determining the relative rights to the waters of the stream, a certified copy of which, together with the original evidence, shall be filed with the clerk of the district court, whereupon the court shall make an order, fixing a time for a hearing upon such order of determination, which the state engineer shall cause to be published for four consecutive weeks in one or more newspapers, and a copy of which he shall send, by registered mail, to each party in interest. Interested parties may, pursuant to the act, five days prior to the day set for hearing by the court, file with the clerk of the court exceptions to the order of determination made by the state engineer. Section 35 of the amendatory act also provides:

“The order of determination by the state engineer and the statements or claims of claimants and exceptions made to the order of determination shall constitute the

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pleadings, and there shall be no other pleadings in the cause. If no exceptions shall have been filed with the clerk of the court as aforesaid, then on the day set for the hearing, on motion of the state engineer, or his attorney, the court shall enter a decree affirming said order of determination. On the day set for hearing all parties in interest who have filed notices of exceptions as aforesaid shall appear in person or by counsel, and it shall be the duty of the court to hear the same or set the time for hearing, until such exceptions are disposed of, and all proceedings thereunder shall be as nearly as may be in accordance with the rules governing civil actions.”

Section 38 of the amendatory act reads:

“From and after the filing of the order of determination, evidence, and transcript with the county clerk as aforesaid, and during the time the hearing of said order is pending in the district court, the division of water from the stream involved in such determination shall be made by the state engineer in accordance with said order of determination.”

The operation of said order of determination may be stayed, in whole or in part, by the giving of a bond in an amount to be fixed by the judge of the district court.

The foregoing statement of the water law, together with such other provisions as we may call attention to in this opinion, are, we think, sufficient for a full understanding of the questions involved in this case.

The questions presented in this matter are not new; in fact, we think it may be said that the law involved is well settled adversely to the contention of the petitioner. The purposes of the water law were fully set forth by Norcross, J., in Ormsby County v. Kearney, 37 Nev. 314, 142 Pac. 803, where the statute of 1913 (before amendments) was considered, and we will not undertake to restate them at length, contenting ourselves by saying generally that the moving cause therefor was to provide a method whereby unappropriated water might be appropriated, and whereby the relative rights of existing

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appropriators of the waters of the public streams of the state might be determined without great delay and expense to such appropriators, and to enable the state to supervise and administer the distribution of such waters so that the greatest good might be attained therefrom for the development of our agricultural resources.

In approaching the consideration of this case, we wish to say that the main questions upon which this decision must turn were considered and determined in the interpretation of similar laws, from which ours was chiefly taken, in the following cases: In Re Willow Creek, 74 Or. 592, 144 Pac. 507, 146 Pac. 475; Pacific Live Stock Co. v. Lewis (D. C.) 217 Fed. 95; Id., 241 U. S. 440, 36 Sup. Ct. 637, 60 L. Ed. 1084; Farm. Inv. Co. v. Carpenter, 9 Wyo. 110, 61 Pac. 258, 50 L. R. A. 747, 87 Am. St. Rep. 918; Enterprise Irr. Dist. v. Tri-State Land Co., 92 Neb. 121, 138 N. W. 171. And the statutes now under consideration were ably and exhaustively analyzed in the case of Bergman v. Kearney (D. C.) 241 Fed. 884. Just here we may well say, as did the learned judge in Pacific Live Stock Co. v. Lewis (D. C.) 217 Fed. 95, but with added force because of the decision of the Supreme Court of the United States in the same case, supra, and the decision in the Bergman case, supra, “it would be mere reiteration to attempt to add anything to what has already been said on this subject.”

1, 2. Nor would it be out of place at the threshold of this inquiry to call attention to the well-known canons of construction when a statute is being assailed as being unconstitutional—namely, that every presumption is in favor of the validity of the act, that all doubts must be resolved in its favor, and that unless it is clearly in derogation of some constitutional provision, it must be sustained. It is also a well-known rule that the courts have nothing to do with the general policy of the law.

3. We will first consider the contention that the water law of 1913, as amended in 1915, is unconstitutional in that it is in violation of the fourteenth amendment to the federal constitution, prohibiting the taking of property

[42 Nev. 1, Page 15]

without due process of law. As stated, Norcross, J., set forth at length, in the case of Ormsby County v. Kearney, supra, the purpose of the 1913 statute, and held that in so far as the same was administrative it was valid, and in this view Talbot, C. J., concurred; but it was also held in that case that, since that statute sought to make the determination of the state engineer conclusive, subject to the right of appeal, and since no appeal could be taken because of constitutional limitations, that portion of the act providing for an appeal was unconstitutional; hence the amendment of 1915, which provided for a course of procedure in the district court, by the state engineer, almost identical with the procedure which is provided for by the Oregon statute.

As we understand the contention of counsel, it is that that portion of the act which provides for the procedure by the state engineer from the time of the filing by him of a copy of his order of determination with the clerk of the district court is void as not being due process of law. It certainly cannot be said that this law is in violation of the constitutional provision mentioned because of failure to provide for the giving of ample notice to all interested parties, for we doubt if in the history of legislation an act was ever passed in which so many safeguards were provided that a man might not be deprived of his property in a proceeding without knowledge of such proceeding being brought to his attention. The first notice of the proceedings under the water law is the publication for four weeks of an order granting a petition for the determination of the relative rights of the users to the waters of a public stream, and of a time when the state engineer will begin to make examinations. This is followed by proceedings under section 22 of the act, which provides for the publication of notice of the taking of testimony before the state engineer, and in addition thereto requires him to serve upon each interested party personally a copy of such notice, or else to send it by registered mail; and after the taking of testimony before the state engineer is completed, and an order of

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determination of the water rights has been made by him, and a copy thereof filed with the clerk of the district court, that court must make an order fixing the time for the hearing upon such order of determination. The order fixing the time of the hearing before the court must be published in one or more newspapers once a week for four consecutive weeks, and a copy thereof must also be sent by registered mail to each of the parties whose interests can be affected by such proceedings.

Thus far it will be seen that, before a final decree can be entered by the court in the matter, an interested party, who is known, gets five different notices of the proceedings before a decree is entered, whereas in an ordinary action to quiet title to real estate a defendant receives only one notice of the pendency of the suit. But, so that by no possible chance may a final decree affecting a person's water right to his detriment be entered, it is further provided by section 13 that any person who has not been served, and who has had no actual knowledge of the pendency of the proceedings, may, at any time within six months from the entry of the decree of the court, petition the court for relief. Thus it would seem that the legislature took every precaution conceivable to prevent a final decree being entered, affecting detrimentally the rights of an interested party, without first giving him actual notice; for, as provided by the statute, the water is distributed in accordance with the order of determination of the state engineer as soon as a copy thereof is filed in the office of the clerk of the district court, unless a bond is given to stay such distribution, in which event the stay is probably effective as to the party giving the bond only. Surely if the order of determination and the distribution of the water in accordance therewith is a violation of the rights of any person, it will not take him long to learn that he is being deprived of his water, especially if it be during the irrigating season; and, if any contest whatever is made in the district court, it is more than likely that no decree could be entered in less than six

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months from the time of the filing by the state engineer of his order of determination, in which event, and with six months therefrom in which to petition for relief, it will be seen that at least one irrigating season will have passed before the time will have expired for those who had no actual knowledge of the pendency of such proceeding to petition for relief. If no contest is made, such person will have about seven months from the time when the right of distribution accrued. Hence we see the remote possibility of the passing of the six-month period after the entry of the decree of distribution without actual notice thereof being brought to the knowledge of an interested party.

We have already mentioned certain decisions which we think are controlling upon the questions involved in the case at bar. To our mind, we might well base our conclusion upon the decisions cited growing out of the Oregon statute and the Bergman case, supra, without giving further attention to the points urged. As we understand the contention of the learned counsel who have appeared to assail the constitutionality of the water law of Nevada, it is not claimed that the decisions construing the Oregon statute are not sound, but that they are not controlling because, as urged, the Oregon constitution empowers the legislature of that state to create a tribunal to take jurisdiction over just such proceedings as provided for in the Oregon water code, and that it is by virtue of such a constitutional provision that the water board in Oregon acquired jurisdiction to act, while in Nevada the constitution (art. 6, sec. 1) limits the judicial authority to certain designated courts, whereas the water law undertakes to confer judicial authority upon the state engineer. Conceding that there is such a constitutional provision in Oregon as contended, certainly petitioner ought not to be able to find comfort in that fact, for the reason that no contention was made in the Oregon case that the statute in question was valid because of such provision. On the other hand, the law was assailed upon the identical ground here urged, as

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pointed out in the opinion of the court, where it was said that it was contended that the Oregon statute “undertakes to vest judicial power in a tribunal and officers not recognized by the constitution (italics ours).” In Re Willow Creek, supra. We think this should suffice to show the utter lack of force of the contention. The opinion in that case turned upon the point that the duties imposed upon the water board were not judicial in character, but at most were only quasi-judicial; the court saying:

“The statute prescribing the duties to be performed by the water board and its members in their respective official capacities in a determination of water rights does not confer judicial powers or duties upon the board or such officers in any sense as indicated by the constitution. Their duties are executive or administrative in their nature. In proceedings under the statute the board is not authorized to make determinations which are final in character. Their findings and orders are prima facie final and binding until changed in some proper proceeding. The findings of the board are advisory rather than authoritative. It is only when the courts of the state have obtained jurisdiction of the subject-matter and of the persons interested, and rendered a decree in the matter determining such rights, that, strictly speaking an adjudication or final determination is made. It might be said that the duties of the water board are quasi-judicial in their character. Such duties may be devolved by law on boards whose principal duties are administrative.”

Not only the cases growing out of the Oregon law, but all other cases growing out of similar statutes, have held that the powers conferred upon the official designated under the statute to supervise and administer the laws were, at most, quasi-judicial. Such was the holding in Farmers' Inv. Co. v. Carpenter, supra, where it is said:

“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

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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. The jurisdiction bears some resemblance to that of the land department of the government concerning the disposal of the public lands. That department is not regarded as a court, or as a branch of the judicial department; nor is its jurisdiction upheld upon the basis of any authority residing in Congress to establish courts. It is considered as an administrative department, and its powers are held to be quasi-judicial only. Orchard v. Alexander, 157 U. S. 372, 15 Sup. Ct. 635, 39 L. Ed. 737. There exists the same partial resemblance to the state board of land commissioners of our own state. State v. State Board of Land Commrs., 53 Pac. 292, 7 Wyo. 478. We are not persuaded that the act is void as conferring judicial power upon the board in violation of the constitution.”

But it is urged that that decision was of no weight in determining the question before the court, for the reason that the Wyoming constitution authorized the creation of a tribunal with power to adjudicate water rights. The Wyoming constitution (art. 8, sec. 2) on that point reads:

“There shall be constituted a board of control, to be composed of the state engineer, and superintendents of the water divisions; which shall, under such regulations as may be prescribed by law, have the supervision of the waters of the state and of their appropriation, distribution and diversion, and of the various officers connected therewith. Its decisions to be subject to review by the courts of the state.”

So far as we are able to see, there is nothing in that

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section of the Wyoming constitution conferring judicial power upon the board of control. To us it seems clear that the power of the board is limited to the determination of questions of a quasi-judicial nature, such as may arise in the investigation and granting of permits to appropriate unappropriated water in a public stream, and in the supervision and administration of the distribution of the waters of the public streams. There is a wide difference between having authority to supervise and administer and having authority to determine questions involving vested rights. The former may, we think, with propriety, be left to an administrative officer, while the latter is properly a question for the courts.

Furthermore, from another standpoint we see no way of escaping the conclusion stated that no judicial power was vested by the Wyoming constitution in the board of control, for the reason that the constitution itself states just where the judicial power of the state is vested. It reads:

“The judicial power of the state shall be vested in the senate sitting as a court of impeachment, in a supreme court, district courts, justices of the peace, courts of arbitration, and such courts as the legislature may, by general law, establish for incorporated cities or incorporated towns.” Const. Wyo. art. 5, sec. 1.

This provision limits the exercise of judicial power to the courts mentioned therein, so we think it must be clear that the distinction sought to be made between the Wyoming statute and our statute because of the fact that we have no provision in our constitution such as article 8, section 2, of the Wyoming constitution is without support. See Bergman v. Kearney, supra. On this point the Supreme Court of Nebraska, in considering a statute similar to ours prior to the amendment of 1915, 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

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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, 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. McGehee, 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, 62 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 in Farmers' Canal Co. v. Frank, 72 Neb. 136, 100 N. W. 286, and see no reason to change our conclusion in this respect.” Enterprise Irr. Dist. v. Tri-State Land Co., 92 Neb. 121, 138 N. W. 179.

But it is contended that since nothing is said in the constitution of Nebraska about irrigation, and since the doctrine of riparian rights existed in Nebraska, the case just quoted from should not be considered as an authority by this court. We fail to see the force of this contention. As we understand the law, unless the state or federal constitution prohibits legislation upon a subject, the power of the legislature is plenary; and the legislature of Nebraska, evidently being of this view, passed an irrigation act. This act was first brought to the attention of the supreme court of that state in the

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case of Crawford v. Hathaway, 60 Neb. 754, 84 N. W. 271, where the court gave it scant consideration. On an application for a rehearing, the statute was more fully considered. 61 Neb. 317, 85 N. W. 303. Another rehearing was had in the case, where the full scope of the act was set out. Upon this rehearing the former opinions were reversed, and it was held that the irrigation act was constitutional, but that no vested riparian rights could be violated. 67 Neb. 325, 93 N. W. 781, 60 L. R. A. 889, 108 Am. St. Rep. 647. In that opinion it was also held that as to unappropriated water the act in question controlled, and that vested riparian rights might be condemned under the right of eminent domain. Following the case just mentioned was the case of Enterprise Irr. Dist. v. Tri-State land Co., from which we have quoted supra.

We are unable to see the force of the distinction sought to be made between the Nebraska statute and the Nevada statute. The fact is that the constitution of neither of these states has a word to say about irrigation, but in Nevada the courts “took the bull by the horns,” and in effect repealed the doctrine of riparian rights without awaiting the action of the legislature (Reno Smelting Works v. Stevenson, 20 Nev. 269, 21 Pac. 317, 4 L. R. A. 60, 19 Am. St. Rep. 364), while in Nebraska it was left for the legislature to pass an irrigation act.

The only difference between the constitutions of Wyoming and Nebraska and that of Nevada, so far as to warrant a different conclusion as to the Nevada statute of 1913, is that there is nothing in the constitutions of the first two states prohibiting an appeal from the order of distribution made pursuant to the water laws of those states, while in Nevada the constitution prohibits such a proceeding; hence, since the amendment of 1915, the reasoning and logic of the Wyoming and Nebraska cases apply with full force to the situation now presented to us.

It is also contended, if we correctly understand counsel, that there can be no due process of law except in a

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proceeding in court, where summons is regularly issued and served in accordance with the usual practice in actions pending in such tribunals. While we do not deem it necessary to determine this question, for the reason that we think, as will be shown later, that the real proceeding wherein an adjudication is made is after the proceedings are instituted in the district court, however, as pointed out by Norcross, J., in his opinion in the Ormsby County case, supra, the Supreme Court of the United States, to which we must look for a final interpretation of the federal constitution, took the contrary view. In that case Mr. Justice Norcross quoted from Balch v. Glenn, 85 Kan. 735, 119 Pac. 67, 43 L. R. A. (N. S.) 1080, Ann. Cas. 1913a, 406, as follows:

“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. McMillan 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.”

See, also, Reetz v. Michigan, 188 U. S. 507, 23 Sup. Ct. 391, 47 L. Ed. 563; 8 Cyc. 1084; 6 R. C. L. p. 459.

4. Counsel seem to labor under the impression that there can be no due process of law unless the methods, means, and instrumentalities which were in existence at the time of the adoption of our constitution are adhered to. Such was never the rule in Nevada, as shown by the opinion in the case of State v. Millain, 3 Nev. 466, where it is said:

“Counsel further insists that a constitutional right of defendant's is violated, because the indictment does not conform to the requirement at common law, and founds his objections on a part of section 8, article 1, of the state constitution, which provides that no person shall

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be deprived of life, liberty, or property, without due process of law. The same rights are preserved in article 5 of Amendments to the Constitution of the United States, which is held to be a restriction of the government of the United States and the proceedings of the federal courts, and does not apply to the state governments. But this is of no moment, as we observe the same provision obtains in the state constitution. It has been universally held, under a like constitutional restriction, that it does not mean ‘the process,' or, otherwise expressed, ‘the proceeding,' shall be the same as pursued at common law, but that the mode and manner of their procedure may be regulated and prescribed by statute.”

A similar rule has also been adopted by the Supreme Court of the United States, as shown in the well-considered case of Hurtado v. State of California, 110 U. S. 516, 4 Sup. Ct. 111, 292, 28 L. Ed. 232, where the question is considered at length. In that case the court quotes approvingly from Rowan v. State, 30 Wis. 129, 11 Am. Rep. 559, as follows:

“But its design was not to confine the states to a particular mode of procedure in judicial proceedings, and prohibit them from prosecuting for felonies by information, instead of by indictment, if they chose to abolish the grand jury system. And the words ‘due process of law,' in this amendment, do not mean and have not the effect to limit the powers of the state governments to prosecutions for crimes by indictments, but these words do mean law in its regular course of administration according to prescribed forms and in accordance with the general rules for the protection of individual rights. Administration and remedial proceedings must change, from time to time, with the advancement of legal science and the progress of society; and, if the people of the state find it wise and expedient to abolish the grand jury and prosecute all crimes by information, there is nothing in our state constitution * * * and nothing in the fourteenth amendment to

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the constitution of the United States which prevents them from doing so.”

See, also, 8 Cyc. 1090, and cases cited in note 2.

Without considering the question at greater length, we think the contention of counsel, that the statutes mentioned are in violation of the fourteenth amendment, is fully and completely answered in the opinion in Bergman v. Kearney, supra, wherein the court quotes copiously from the Oregon and federal decisions, and we content ourselves with calling attention to that opinion.

5. But it is said that a water right is real estate, and hence the provisions in the water law of 1913, as amended in 1915, authorizing the proceedings here sought to be prohibited, are in violation of section 6, article 6, or our constitution, wherein it is provided:

“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 or the right of possession to, or the possession of, real property. * * *”

Conceding for the purposes of this case that a water right is real property, we are unable to see wherein the law in question is in any way in violation of the provision of the constitution which we have quoted. The fact of the matter is that the entire proceedings amount to nothing until a copy of the order of determination of the state engineer is filed in the office of the clerk of the district court. When this document is filed in that office it operates as and has the force and effect of a complaint, and from the time of the filing thereof the water of the public stream concerning which the order is made is divided among claimants according to the terms of such order, unless a bond is given pending a decree of the district court. As said in Pacific Live Stock Co. v. Lewis, 241 U. S. 440, 36 Sup. Ct. 637, 60 L. Ed. 1084:

“A serious fault in this contention is that it does not recognize the true relation of the proceeding before the

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board to that before the court. They are not independent or unrelated, but parts of a single statutory proceeding, the earlier stages of which are before the board and the later stages before the court. In notifying claimants, taking statements of claim, receiving evidence, and making an advisory report, the board merely paves the way for an adjudication by the court of all the rights involved. As the supreme court of the state has said, the board's duties are much like those of a referee. * * * That the state, consistently with due process of law, may thus commit the preliminary proceedings to the board and the final hearing and adjudication to the court is not debatable.” (Italics ours.)

If this language means anything, it means that the adjudication—the determination, the decree—is made by the court; and the proceedings before the water board in Oregon, to which the state engineer in Nevada holds relatively the same position, is nothing more than the routine of preparing and filing the complaint in the court, which invests the court with jurisdiction to act.

Suppose the water law had provided that the attorney-general might proceed exactly as it now provides that the state engineer may proceed, up to the point of the making by the state engineer of an order of determination, and in lieu of the proceeding provided under the law as it now stands, from the time of making the order of determination, had provided that the attorney-general should, from the information to be gathered in the same manner as now provided by law, prepare and file in the district court a complaint setting forth substantially the same facts contained in the state engineer's order of determination, and that from the filing thereof the proceedings thereupon should be identically the same as those now contemplated by the water law—would any one insist that any constitutional right would be violated? We think not. Yet, what is the difference between conferring such power upon the state engineer and the attorney-general? We see no difference.

We do not accept radical changes without protest. If

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a statute radically different from anything to which we have been accustomed is enacted, the average lawyer becomes alarmed and at once brands it as unconstitutional. Lawyers generally were very much excited and alarmed when the statutes of the various states creating railroad commissions, corporation commissions, industrial insurance commissions, and the like, were enacted. They considered them not only unconstitutional but revolutionary. Lawyers do not feel that way about the matter today, because they have become used to such statutes. We do not wish to be misunderstood as saying that we can make an unconstitutional act constitutional merely by becoming familiar with its workings. We simply desire to impress forcibly our illustration relative to a statute providing for a proceeding by the attorney-general.

We are too prone to view legislation as unconstitutional, unmindful of the fact that, unless a statute violates the letter or spirit of some portion of the constitution, it should be upheld. We think every lawyer and judge in the land could profit by a reading of the magnificent address of Geo. B. Rose, which appears in Case and Comment for October, 1917, in which he says:

“If we undertake to make the constitution a dam to stem the tide of human progress, we may be sure that it will be swept away. It should not be an obstruction. It should be the broad channel, with high and well-defined banks, between which the stream of progress may flow on forever in calm and majestic strength. * * * These hidebound constructions are unnecessary, and they imperil the existence of constitutional government. The constitutional guaranties must be maintained; but the only way to maintain them is to mold them to the requirements of modern civilization. They must be reins to guide the chariot of progress in the road of safety, not barriers across its track.”

6. It is also contended that the water law is void because it is in violation of section 1, article 3, and section 1, article 6, of the state constitution. These sections read:

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“The powers of the government of the State of Nevada shall be divided into three separate departments—the legislative, the executive, and the judicial; and no persons 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.” Sec. 1, art. 3.

“The judicial power of the state shall be vested in a supreme court, district courts, and in justices of the peace. The legislature may also establish courts, for municipal purposes only, in incorporated cities and towns.” Sec. 1, art. 6.

The point which is made is that the legislature attempted by the terms of the water law to confer judicial powers upon the state engineer, whereas the constitution limits the exercise of such powers to the courts provided for in the constitution. This question was considered at length in the Ormsby County case, supra, in the opinion of Norcross, J., where he held that the view now urged was not well taken, though a majority of the court took the contrary view. But, conceding that the conclusion of the majority of the court was correct, the reason which justified such conclusion does not exist under the law as amended in 1915, because, as we have shown, the procedure before the state engineer leading up to the determination by the district court simply “paves the way for an adjudication by the court,” and is in no sense a judicial proceeding.

7. It is also urged that the water law is unconstitutional, in that it is in violation of section 8, article 1, of the state constitution, which provides, inter alia, “nor shall private property be taken for public use without just compensation. * * *” We are of the opinion that there is not the least foundation for this contention. Nowhere does the law contemplate or suggest the taking of private property for public or any other use. ...


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