ORMSBY COUNTY AND THE COUNTY COMMISSIONERS OF ORMSBY COUNTY, Relators, v. WILLIAM M. KEARNEY, as State Engineer, Respondent; JOHANNES ANDERSON, Et Al., Respondents, v. WILLIAM M. KEARNEY, Appellant
Ormsby County v. Kearney
ORMSBY COUNTY AND THE COUNTY COMMISSIONERS OF ORMSBY COUNTY, Relators, v. WILLIAM M. KEARNEY, as State Engineer, Respondent. JOHANNES ANDERSON, Et Al., Respondents, v. WILLIAM M. KEARNEY, Appellant.
[No. 2107]
[No. 2115]
ORMSBY COUNTY AND THE COUNTY COMMISSIONERS OF ORMSBY COUNTY, Relators, v. WILLIAM M. KEARNEY, as State Engineer, Respondent. JOHANNES ANDERSON, Et Al., Respondents, v. WILLIAM M. KEARNEY, Appellant.
[142 Pac. 803]
Opinion oe Norcross, J.
1. Waters and Watercourses — State Regulation — Police Power.
The state, within its police power, may regulate the distribution of the waters of the state. The state is not only interested in protecting prior appropriators in their rights, but is also interested in the conservation of the waters to the end that the greatest possible amount of land may be brought under cultivation through an economical diversion and use of such waters. To accomplish this object the state has a right to exercise a superintending control.
2. Waters and Watercourses — State Regulation — Police Power —Constitutional Law.
Assuming the establishment of the relative rights of water users on a stream system, no constitutional right is infringed by a system of state control such as is provided in sections 52 to 56 of the water law of 1913 (Stats. 1913, c. 140).
3. Waters and Watercourses — State Regulation — Police Power —Constitutional Law.
The constitutionality of sections 18 to 51 of the act of 1913, providing a method of determining the relative rights of water users upon a stream system by the state engineer, should be viewed with reference to the purpose designed to be accomplished by sections 52 to 56 of said act, which latter sections are clearly administrative in character.
4. Waters and Watercourses — State Regulation — Police Power —Constitutional Law — Due Process oe Law.
The provisions of sections 18 to 51, inclusive, do not contemplate the deprivation of property without due process of law; they contemplate the securing to water users their rights, not the taking of the same away. For purposes of administration the enjoyment of such rights may be affected, but only after notice and hearing, and the right to adjudication by the courts is not taken away.
5. Constitutional Law — Due Process oe Law — Courts.
Due process of law is not limited to judicial proceedings, but also comprehends determinations by administrative officers or boards where notice and a hearing are provided.
6. Constitutional Law — Judicial Functions- — -Water Law of 1913.
The provisions generally of sections 18 to 51, inclusive, of the water law of 1913, considered for purposes of administration, are not violative of article 3 of the state constitution, dividing the state government into three coordinate departments.
7. Constitutional Law — Jurisdiction of Courts — Water Law of 1913.
The provisions of sections 18 to 51, inclusive, are not violative of section 6 of article 6 of the constitution, fixing the appellate and original jurisdiction of district courts, in that the determinations made by the state engineer of the relative rights of water users are not made in “eases in equity” -or “cases at law,” as those terms are used in said section.
8. Constitutional Law — Water Law of 1913.
In so far as the water law of 1913 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 control of the distribution of the waters of a stream to the persons found to be entitled thereto, the law is valid.
9. Constitutional Law — Questions Unnecessary to Determine.
Questions presented in certain of the provisions of sections 18 to 51, inclusive, such as whether the determinations made by the state 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 the court, or whether the methods prescribed for appeal from the decisions of the state engineer in cases of contest are valid, are unnecessary to be determined in this case, and will not be considered under the rule that constitutional questions not essential to a determination of the case will not usually be determined.
10.Waters and Watercourses — Water Law of 1913.
The provisions of section 84 of the water law of 1913 providing: “Nothing in this act contained shall impair the vested right of any person, * ® * nor shall the right of any person * * * be impaired or affected by any of the provisions of this act where appropriations have been initiated in accordance with law prior to the approval of this act,” does not limit the power of the state engineer to determine for administrative purposes relative rights of water appropriators or users vested prior to the passage of the act, and to administer such prior acquired rights in accordance with such determinations subject to remedy by the courts for errors in determinations.
11. Waters and Watercourses — State Regulation — Vested Rights, Wi-iat Is Unlawful Interference With.
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 interfere with the rights of others.
Opinion of Talbot, C. J.
1. Statutes — Partial Invalidity.
Where a part of a section of a statute is unconstitutional, such invalidity will not necessarily prevent the enforcement of the remainder.
2. Waters and Watercourses — State Water Supply — Regulation —Control—Police Power.
The state, in the exercise of its police power to prescribe laws for the general welfare, may provide for inspection, regulation, and exercise a superintending control over the waters and watercourses of the state, and Stats. 1913, c. 140, known as the water act, and giving the state engineer the right to institute proceedings to determine the rights of the owners and persons controlling water rights in the state, if construed as administrative only and not to impair vested rights, is valid.
3. Constitutional Law — Governmental Authority — Division— Encroachment on Judiciary.
Stats. 1913, c. 140, providing for the establishment of water rights in proceedings before the state engineer, and authorizing such administrative officer to make decrees which, in the absence of appeal, are declared final, in so far as it attempts to make such decrees conclusive on the parties, is unconstitutional as impairing the constitutional power of the judiciary, under Const, art. 0, sec. 1, declaring that the judicial power of the state shall be vested in certain specified courts.
Opinion of McCarran, J. (Dissenting Generally)
1. Constitutional Law — Water Law of 1913 — Powers of State Engineer.
Sections 18 to 51, inclusive, of the water law of 1913 are unconstitutional and void in that they attempt to invest the state engineer with powers to affect or destroy the property rights of water appropriators or users in violation of the due process of law provisions of the federal and state constitutions, and because they attempt to invest the state engineer with judicial powers reposed in the courts, in violation of article 3, section 1, and article 6, sections 1 and 6, of the state constitution.
2. Waters and Watercourses — Water Law of 1913 — Statutes Adopted from Other States, Rule of Construction.
Courts of a state which have adopted a statute from another state, after it has been construed by the courts of that state, are not bound by such construction, where the organic law of the two states differ in essential particulars affecting the law in question, or where the laws are not identical, or where the circumstances of the people of the adopting state are essentially different. Held, also, that the Nevada water law of 1913 differs in essential particulars from the water laws of Wyoming and Nebraska, and that the constitutions of those states also differ in material particulars, hence, this court is not bound by the decisions of the highest courts of those states construing the provisions of their water laws.
3. Waters and Watercourses — Water Law oe 1913 — Retroaction.
It was the purpose of the legislature, particularly emphasized by section 84 of the water law of 1913, to recognize appropriations made under former laws or legislative acts and to keep those appropriations free from being affected 'Or impaired by anything contained in the water law of 1913.
No. 2107. Original proceeding in prohibition by Ormsby County to prohibit the State Engineer from proceeding under the water law of 1913 (Stats. 1913, c. 140) to determine the relative rights of the appropriators and users of waters of Clear Creek.
Writ dismissed.
No. 2115. Appeal from the Sixth Judicial District Court, Humboldt County; Edwin A. Ducker, Judge.
Suit by Johannes Anderson and others against W. M. Kearney, as State Engineer, to restrain him from taking proceedings under the water law of 1913 (Stats. 1913, c. 140), to determine the right of complainants and others to appropriations of the water of the Humboldt River and its tributaries. From an order denying the motion to set aside a temporary injunction, the State Engineer appeals.
Order modified.
Statement of Facts
Cases No. 2107 and 2115 involve substantially the same questions and were heard together. Case 2107 was a proceeding in prohibition against the state engineer to prohibit that officer from proceeding to determine the relative priorities of water users or appropriators upon Clear Creek; the county of Ormsby being one of such users or appropriators. ' Case 2115 was an action instituted by Johannes Anderson and fifty other claimants or appropriators of the waters of the Humboldt River for themselves and for all other claimants or appropriators of the waters of said river to obtain a decree establishing: " That defendant, state engineer, has no right or authority to hear or determine any matter or thing relating to or concerning the relative right of plaintiffs, or either of them, or any other claimant to or appropriation of the water of said Humboldt River and its tributaries, which said rights to or appropriations of said waters have been made and completed prior to the approval of said act, approved March 22, 1913. * * * That sections 18 to 58, both inclusive, of said act, approved March 22, 1913, are, and each of said sections is, and each and every part of each of said sections is, unconstitutional, invalid, null, and void.”
In case No. 2115 a temporary injunction was also prayed for and granted. From an order denying a motion to. set aside such temporary injunction, the state engineer appeals.
These cases involve the constitutionality of certain provisions of what is known as the state water law of 1913 (Stats. 1913, p. 192). The act in question is entitled: "An act to provide a water law for the State of Nevada; providing a system of state control; creating the office of the state engineer and other offices connected with the appropriation, distribution and use of water; prescribing the duties and powers of the state engineer and other officers and fixing their compensation; prescribing the duties of water users and providing penalties for failure to perform such duties; providing for the appointment of water commissioners, defining their duties and fixing their compensations; * * * and other matters properly connected therewith, and to repeal all acts * * * in conflict with this act, ” etc.
A brief synopsis of the principal provisions of the sections of the act, involved in these cases, follows.
By section 18 it is provided that, upon petition to the state engineer of one or more of the water users of a stream or stream system or upon his own initiative, it is the duty of the state engineer to enter an order for the determination of relative rights.
Section 19 provides for publication of notice of such order and the date when the state engineer shall begin examination of the rights of water users, and that water claimants will be required to furnish proofs of their claims.
Sections 20 and 21 provide for the gathering of certain .data and information by the state engineer and matters essential to the proper determination of the water rights of the stream, which data shall consist of surveys, maps, measurements, etc.
Section 22 provides that, upon the filing of such data and information, the state engineer shall publish and mail notice to claimants of the date when he is to commence the taking of proofs of the water rights and the date prior to which the same must be filed.
Sections 23 and 24 provide that there shall be enclosed in such written notice a blank form, to be filled out and verified by the water claimant in furnishing information for the determination of the claimant’s rights.
Section 25 provides that it shall be the duty of the state engineer to commence the taking of proofs on the day fixed in the notice, and that he shall proceed therewith during the period fixed by him and named in the said notice, after which no proofs can be received or filed, except for cause shown; that failure to furnish proofs within the time prescribed is a misdemeanor; that the state engineer may, in his discretion, accept and use certain records as proof of claims; that a finding rendered by the state engineer upon a water claim, the holder of which is in default, shall be given a later priority than the rights of claimants whose proofs were duly filed.
Section 26 provides for the intervention of persons interested, upon whom no service of notice shall have been had.
Section 28 provides that, as soon as practicable after the expiration of the period fixed in which proofs may be filed, the state engineer shall assemble all proofs filed and prepare an abstract which shall be printed; that thereafter the state engineer shall prepare a notice fixing and setting a time and place when and where the evidence taken by or filed by him shall be open to inspection of all interested persons; that a copy of said notice, together with a printed copy of the abstract of proofs, shall be delivered or sent by registered mail at least thirty days prior to the first day of such period of inspection to each person who has appeared and filed proof; that such proofs shall be open to inspection.
Section 29 provides that any person, claiming any interest in the stream system, whether claiming under vested title or under permit from the state engineer, who desires to contest any of the statements and proof of claims filed, shall, within twenty days after said evidence and proofs shall have been open to public inspection, in writing, notify the state engineer, stating with reasonable certainty the grounds of the proposed contest; that the statement or proofs of the person whose rights are contested and the verified statement of the contestant shall be deemed sufficient to constitute a proper cause for such contest.
Section 30 provides for the hearing of such contest before the state engineer, the time and manner of conducting the same, and that the evidence in such proceeding shall be confined to the subject enumerated in the notice of contest and answer and reply, when the same are permitted to be filed, and that all testimony taken at such hearing shall be reported and transcribed in its entirety.
Section 33 provides that, after the hearing of contests, it shall be the duty of the state engineer to cause to be entered of record in his office and served on interested parties an order determining and establishing the several rights to the waters of said stream; that the determination of the state engineer shall be in full force and effect from and after the date of such entry unless stayed by an appeal to the courts.
Section 34 provides that aggrieved parties may have, within six months, an appeal from the order of the state engineer to the district court.
Section 35 provides that parties appealing shall file in the district court an undertaking and a notice in writing stating that such parties appeal from the determination and order of the state engineer.
Section 36 provides for notice to the state engineer and to the parties whose rights may be affected by the appeal.
Section 37 provides that the appellants shall file with the clerk of the district court a certified transcript of the order of determination and the records, maps, evidence, and papers used in the hearing, together with the petition setting out the cause of the complaint of the party or parties appealing, to which petition all parties joined as appellees shall be served with notice by the issuance of a summons as in actions of law.
Section 38 provides that the proceedings on appeal shall be conducted according to the provisions of the civil code of procedure governing appeals from the justice court to the district court and from the district court to the supreme court.
Section 39 provides that a copy of any judgment rendered by the district court shall be transmitted to and be controlling upon the state engineer.
Section 43 provides that the civil practice act shall govern appeals from the decrees of the district court and for rehearings in the supreme court.
Section 44 provides that the final orders or decrees of the state engineer in the proceedings shall be conclusive as to all prior appropriations, and the rights of all existing claimants subject to the provisions for appeals, rehearings, and for the reopening of orders and decrees therein.
Section 45 provides that, in any suit which may be brought in any district court for the determination of water rights, all interested persons shall be made parties; that, in the case of any suit now pending or hereafter commenced, the same may be transferred to the state engineer for determination, as in this act provided.
Section 52 provides for the appointment by the state board of irrigation of water commissioners for each water district, and provides for the salary and duties of such commissioners, and that the same shall be charged against the water users.
Section 53 provides that the state engineer shall divide the state into water districts to be so constituted as to insure the best protection for the water users and the most economical supervision upon the part of the state; said water districts to be created as the necessity therefor shall arise, and shall be created from time to time as the priorities and claims to the streams of the state shall be ■determined.
Section 54 provides that it shall be the duty of the state engineer to divide, or cause to be divided, the waters of the natural streams, or other sources of supply in the state, among the several ditches or reservoirs taking water therefrom, according to the respective rights of users, in whole or in part, and to regulate, or to cause to be regulated, the controlling works of reservoirs as may be necessary to insure proper distribution of waters thereof.
Sections 54-56, inclusive, contain other and additional provisions relative to the powers and duties of the state engineer and water commissioners in the administration of the distribution of the waters of any stream or stream system.
Section 84 of the act provides: "Nothing in this act contained shall impair the vested right of any person to the use of water, nor shall the right of any person to take and use water be impaired or affected by any of the provisions of this act where appropriations have been initiated in accordance with law prior to the approval of this act. Any and all appropriations based upon applications and permits now on file in the state engineer’s office, shall be perfected in accordance with the laws in force at the time of their filing. ”
Section 87 of the act 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 section or any part thereof. ”
John M. Chartz, District Attorney of Ormsby County, for Relator:
The provisions of the water law of 1913 authorizing the state engineer to determine relative rights of water appropriators and users is unconstitutional in that it deprives the owners of such rights of due process of law. (Am. & Eng. Enc. of Law, vol. 10, p. 291; Braceville Coal Co. v. People, 147 111. 66; Hager v. Reclamation District, 111 U. S. 701; Davidson v. New Orleans, 96 U. S. 97; Bertholf v. O’Reilly, 74 N. Y. 98; Davis v. McKeeby, 5 Nev. 569; Gibson v. Mason, 5 Nev. 283.)
The water law of 1913 violates article 3, section 1, and article 6, section 1, of the state constitution in that it invests the state engineer with judicial powers. {Thorp v. Woolman, 1 Mont. 168.)
The water law of 1913 is violative of article 6, section 6, of the constitution of the state prescribing the jurisdiction of district courts. {Caulfield v.Hudson, 3 Cal. 389; Reed v. McCormick, 4 Cal. 342; People v. Fowler, 9 Cal. 85.)
Summerfield & Richards, for Respondent:
The fatal mistake made by the assailants of the water law of 1913 is in assuming that the phrase " due process of law” necessarily is confined to proceedings of a strictly judicial nature. One of the many correct definitions of the phrase is: "An orderly proceeding adapted to the nature of the case, in which the citizen has an opportunity to be heard, and to defend, enforce, and protect his rights.” {Meyersv. Shields, 61 Fed. 713; Zeiglerv. SmithR. Co., 58 Ala. 594; McGavockv. Omaha, 40 Neb. 64; State v. Billings, 55 Minn. 467; In Re Union R. Co., 112 N. Y. 61; Gibson v. Mason, 5 Nev. 283; Pennoyer v. Neff, 95 U. S. 714; 8 Cyc. 1082.)
The act under assault all the way scrupulously provides for orderly procedure and carefully makes notice to all interested parties a requisite to proceeding. It affords to all whose rights may be affected the most ample opportunities to be heard, to defend, and to protect their rights. If this act is fairly observed, no real or substantial rights can be lost by any one except as a result of his neglect or indifference.
Again, it has been well said "the constitutional provisions that no person shall be deprived of life, liberty, or property without due process of law extend to every governmental proceeding which may interfere with personal or property rights, whether the proceeding be legislative, judicial, administrative, or executive.” (8 Cyc. 1083; Holden v. Hardy, 169 U. S. 366; Hurtado v. California, 110 U. S. 516; Dorman v. State, 34 Ala. 216; Sherman v. Buick, 32 Cal. 241; Camp v. Rogers, 44 Conn. 291; Foule v. Mann, 53 Iowa, 42; Louisville v. Cochrane, 82 Ky. 15;’ State v. Doherty, 60 Me. 504; Crane v. Waldron, 94 N. W. 593; State v. Examiners, 34 Minn. 387; Clark v. Mitchell, 64 Mo. 564; Low v. Printing Co., 41 Neb. 127; Stuart v. Palmer, 74 N. Y. 183; Huber v. Reilley, 53 Pa. St. 112; Davis v. State, 3 Lea, 376.)
The procedure prescribed by the law attacked preserves the substance of all acquired water rights and amply provides opportunities for the dissatisfied to invoke the equal protection of law by appropriate and adequate judicial proceedings. This being so, it is difficult to perceive how it denies due process of law. (8 Cyc. 1095; Farm Inv. Co. v. Carpenter, 61 Pac. 258; Ludeling v. Chaffu, 143 U. S. 301; Leeper v. Texas, 139 U. S. 462; Lynde v. Lynde, 181 U. S. 183; Salt Creek Co. v. Parks, 50 Ohio St. 568.)
The powers conferred by the act are administrative and quasi-judicial and are not judicial in the constitutional sense in violation of article 3, section 1, of the state constitution. (Farm Inv. Co. v. Carpenter, 61 Pac. 258; Crawford v. Hathaway, 93 N. W. 781.)
While it is true that the Wyoming constitution created a board of control to have supervision of the appropriation, distribution, and diversion of the water of that state (7 American Constitutions and Charters, 4138), yet that fact does not weaken the force of the decision in Farm Inv. Co. v. Carpenter, supra, as applied to the facts of this proceeding. What is not constitutionally inhibited belongs as fully to the lawmaking power as though it was constitutionally conferred.
It is well to remember, however, that the constitution of Nebraska is, like our own, silent upon the subject of irrigation and water rights. (4 American Constitutions and Charters, 2631, et seq.)
It would seem, therefore, that the decision in Crawford v. Hathaway, supra, is well worthy of careful consideration in this proceeding and especially for the reason that it adopted the views of the Wyoming Supreme Court regardless of the fact that the Wyoming constitution contained an express article on irrigation and water rights.
That the Carpenter act does not attempt to confer upon the state engineer any powers nearer a judicial nature than is conferred by law upon some of our state commissions and officials, such as the railroad commission, the industrial commission, the state board of health, state board of bank commissioners and bank examiners, and numerous other bodies or officials created by statute is clearly manifest. It seems equally apparent that none of them exercise the powers belonging to the judiciary in the constitutional sense.
The act is not violative of section 20 of article 4 of our state constitution. The act in no wise attempts to strip courts of their constitutional jurisdiction or to fasten on them a novel course of practice, but, upon the contrary, expressly permits all aggrieved parties to invoke the exercise of the full powers of the courts in proceedings de novo in character, and under simplified pleadings already framed, if they so desire. (State v. McKinney, 5 Nev. 194; Holmes v. Mattson, 111 111. 27; Insurance Co. v. Bachler, 44 Neb. 549; Dallas v. Western Co., 83 Tex. 243; McDonald v. Conniff, 99 Cal. 386; Citizens Co. v. Jolly, 161 Ind. 80; Cincinnati Co. v. Felix, 25 Ohio Cir. Ct. 393; Jacksonville Co. v. Adams, 33 Fla. 608; Rider v. Mt. Vernon, 87 Hun, 27; Boggs v. Ganeard, 148 Cal. 711; State v. Lumber Co., 170 Mo. 7; Title Co. v. Kenigan, 150 Cal. 289.)
The water law of 1913 is not violative of section 6 of article 4 of the state constitution. Our constitution does not, in words, vest in the district courts exclusive jurisdiction or exclusive final appellate jurisdiction. While the court may have original jurisdiction or final appellate jurisdiction in the cases enumerated in the organic law, yet it does not necessarily follow that such jurisdiction is exclusive. The word "appeal” as used in the act (secs. 34, 35, 36, 41, 42) means neither more nor less than that any one feeling himself aggrieved at the rulings of the state engineer may refer his grievance to the proper district court, which, in the exercise of its original jurisdiction, may try the case de novo, unhampered and unrestricted by any previous action of the state engineer, and that, after the district court has rendered its judgment or decree in the matter, appeal therefrom is expressly permitted to the supreme court.
Section 44 of the act is not an usurpation of the functions of the courts for the reason that the very same section provides that the same shall be "subject, however, to the provisions of law for appeals, rehearings, and for the reopening of the orders or decrees therein. ”
The act under consideration may be compared with other acts found in our statute books with reference to the extent and nature of the power and authority conferred upon officials and boards created by statute. (State v. State B. & T. Co., 31 Nev. 456; Southern Pacific Co. v. Bartine, et al., 170 Fed. 725.)
Cheney, Downer, Price & Hawkins, amicus curiae.
[Note — See brief under No. 2115.]
Geo. B. Thatcher, Attorney-General, for Appellant:
Under the doctrine of appropriations in the arid states, there is no property in the stream itself. (Wheeler v. Irrigation Co., 17 Pac. 487; Fort Morgan Co. v. South Platte Co., 30 Pac. 1032; Farm Inv. Co. v. Carpenter, 50 L. R. A. 757; Strait v. Brown, 16 Nev. 317; RenoS. Works v. Stevenson, 20 Nev. 269; Jones v. Adams, 19 Nev. 78; Cutting’s Compiled Laws, sec. 354.)
If the state is the owner of the water and the streams, most assuredly it would seem to follow that the state has the right to regulate and control. It has the right through administrative officers to make investigation of the streams, determine the amount of water appropriated, and the amount unappropriated and remaining in the state, and to police and regulate the distribution to appropriators. To do these things it is necessary that some one be authorized by law to make these investigations, and under the water law of 1913 the state engineer is vested with these powers. (White v. Farmers’ Highline C. & R. Co., 43 Pac. 1028.)
That the state regulation and control is within the police power of the state has been decided in numerous cases. (Farmers’ Independent Ditch Co. v. Agricultural Ditch Co., 45 Pac. 444; White v. Farmers’ Highline C. & R. Co., 43 Pac. 1028, 31 L. R. A. 828; Louden Irr. Co. v. Handy Ditch Co., 43 Pac. 535.)
The water law of 1913 is not violative of section 1 of article 3, dividing the state government into three distinct departments, or with section 1 of article 6, which invests the judicial power of the state in the supreme court, district courts, and justices of the peace. {Farm. Inv. Co. v. Carpenter, 50 L. R. A. 747; Crawford Co. v. Hathaway, 67 Neb. 325; McCook Irr. Co. v. Crews, 70 Neb. 115; Irrigation District v. Tri-State Land Co., 138 N. W. 180; Farmers’ Canal Co. v. Frank, 72 Neb. 136-152; Sawyer v. Dooley, 21 Nev. 390.)
This court will observe from a reading and comparison of the Nevada act and the Wyoming and Nebraska acts that our act is adopted from those states. The sections under attack here and the corresponding sections of the Wyoming and Nebraska acts are as follows:
Nevada Wyoming Nebraska Nevada Wyoming Nebraska
Sec. 18 763-4 6795-7 Sec. 35 780 6802
Sec. 19 765 6797 Sec. 36 781 6803
Sec. 20 776 6798 Sec. 37 782 6804
Sec. 22 767 6798 Sec. 38 783 6804
Sec. 23 768 6799 Sec. 39 784
Sec. 24 769 Sec. 40 785
Sec. 25 6805 Sec. 41 786
Sec. 28 770-1 Sec. 42 787
Sec. 29 772-3 Sec. 43 787 6804
Sec. 32 774 Sec. 44 793
Sec. 33 777-8 Sec. 51 6800
Sec. 34 779 6801
The construction placed upon substantially the same acts'by the courts of Wyoming and Nebraska is binding upon the courts of this state. (Cowkick v. Shingle, 5 Wyo. 87, 63 Am. St. Rep. 1; Laportev. Gamewell Tel. Co., 146 Ind. 466, 58 Am. St. Rep. 359.)
The water law of 1913 is not violative of section 6 of article 6 of the constitution prescribing the original and appellate jurisdiction of district courts. (Farm Inv. Co. v. Carpenter, 50 L. R. A. 755; Dickson v. Corbett, 10 Nev. 439.)
Cheney, Downer, Price & Hawkins, for Respondents:
There are three primary questions to be determined:
First — Does the water law of 1913, in fact, authorize and empower the state engineer to adjudicate and determine — thereby fixing the date of priority, the quantity of water and the place and manner of use, by a final order or decree — the right, title, and interest of plaintiffs to the use of water, when those rights, titles, and interests were initiated and became vested property rights, according to the law prior to the creation of the office of state engineer, and prior to any statute in reference thereto, and prior to the approval of said water law of 1913?
Second — Does said water law of 1913 mean what it says in section 84 thereof, and therefore upon its face show that it does not apply to the vested right of any person to the use of water acquired in accordance with law prior to the approval of said water law of 1913?
Third — If said water law of 1913 does in fact authorize and empower the state engineer to adjudicate and determine — thereby fixing the date of priority, quantity of water and the place and manner of use by final order or decree — the right, title, and interest of plaintiffs and other appropriators to the use of water, when those rights, titles, and interests were initiated and became vested property rights according to the law, prior to the creation of the office of state engineer, and prior to any statute in reference thereto, and prior to the approval of said water law of 1913 — are the sections of said water law of 1913, so attempting to vest in the state engineer such powers, in contravention of the provisions of the constitution of the United States and the constitution of the State of Nevada?
If the statute is given the construction contended for by plaintiffs and respondents — to the effect that it does not apply to or govern or provide for the adjudication and determination by the state engineer of appropriations which were vested property rights before the creation of the office of state engineer — no hardship will be imposed upon any appropriator of water. It is well settled that the right to the use of water appropriated is real property and governed by the rules and laws applicable to real property. If the title or right to the use of water is questioned by any one,' the parties thereto are entitled to have their rights determined in court; if the construction of the statute by the state engineer, to the effect that he may adjudicate and determine these controversies, is true, then the state engineer may take from one appropriator his vested property right and give it to another claimant, which said final order and decree of the state engineer is, according to section 44 of said statute, conclusive, subject, however, to the right of appeal, etc.; but the right of appeal mentioned is so hedged about and is so expensive as to preclude the average farmer who owns a few hundred acres of land from having or obtaining his day in court to justify his claim to the property right, which became under the laws a vested property right. Can it be said that such provision is in harmony with section 2 and section 84 of said water law of 1913?
If the statute only applies to appropriations initiated and made subsequent to the approval of said water law of 1913, the solution is easy because " all persons having interests adverse to the parties appealing” would be only those persons whose rights had accrued subsequent to the approval of the water law of 1913, and procedure would be an easy matter, and of little expense. The construction contended for by us would not impair the operation of the statute, nor would it impair or affect the vested rights of any person to the use of water where the appropriations have been initiated in accordance with the law prior to the approval of this act.
An appropriation of water may be made in the absence of constitutional or statutory provisions, and the appropriations thus made becomes a vested property right, and it is the duty of both national and state governments to protect it. It seems clear that the appropriations, made in the absence of restrictions, cannot be impaired by subsequent legislation, but such legislation would only apply to appropriations made after and in accordance with such legislation. (Coffin v. Left Hand Ditch Co., 6 Colo. 443.)
When the appropriations now owned by plaintiffs were acquired, there were no statutes placing any limitations upon the appropriation, place or manner of use — by the water law of 1913 the final order and decree of the state engineer will place limitations upon these vested rights, which limitations will impair or affect the appropriations, which is contrary to the express provisions of section 84 of said water law of 1913, and also in violation of law.
The contention of the state engineer, that the water law of 1913 should receive the same construction by this court as was given the water statute of Wyoming and Nebraska by the courts of those states, is without any support in fact or law.
While it is true that the water law of 1913 is, in some respects, similar to the water statute of Wyoming and of Nebraska, yet it is also true that upon the whole it is entirely different. There is not to be found in the statute of Wyoming or of Nebraska any such provisions as are contained in section 84 of the water law of 1913. This difference alone is so marked and clear-cut as to clearly distinguish the statutes and decisions of Wyoming and Nebraska from the water law of 1913.
We, therefore, submit that the proper construction of the water law of 1913 will result in answering the first question, hereinabove submitted, in the negative, and in answering the second question, hereinabove submitted, in the affirmative.
We will now consider the third question hereinabove submitted. Our contention is that if .the water law of 1913 is to be construed as contended for by the state engineer — which is to the effect that all appropriations of water which were made and became vested property rights prior to the approval of said water law of 1913 must be submitted to and adjudicated by said state engineer, said adjudication and determination having the same force and effect as an adjudication and determination of said rights if made by court — then those sections of said water law of 1913, being sections 18 to 58, both inclusive, except section 45, are in contravention of certain provisions of the constitution of the United States and certain provisions of the constitution of Nevada, and are, therefore, invalid, null and void.
Appellant argues that in order that the state may properly, or at all, regulate the use and distribution of water and grant further appropriations, it is necessary that the state, through its administrative officers, determine the relative rights of the appropriators upon the streams and stream systems. That such a. contention is not correct is clearly shown by the authorities cited by appellant in support of the proposition announced by him, which authorities are from Colorado, where the administrative officers have nothing to do with the adjudication or determination of the relative or any rights of appropriators upon the streams or stream systems.
The general purpose of all water statutes, such as we are now considering, is to provide a statutory procedure whereby the rights already acquired and vested may be, in one general proceeding, reduced to permanent form and embodied and preserved in an order or decree. The proceeding, strictly speaking, is not one in personam, nor is it a proceeding in rem, but is rather a sui generis proceeding to quiet title or to perpetuate in permanent form the rights theretofore acquired. {New Mercer Ditch Co. v. Armstrong, 40 Pac. 989.)
The decree gives no new right, but only establishes an old one and perpetuates evidence thereof. (Alamosa Co. v. Nelson, 93 Pac. 1114; Rickey Land Co. v. Miller & Lux, 152 Fed. 11; Crippen v. X. Y. Irr. Ditch Co., 76 Pac. 794, 797.)-
A priority right to the use of water being a property right, it is protected by the constitution so that no person can be deprived of it without due process of law. Is the adjudication and determination of a priority right to the use of water a judicial determination? Wyoming and Nebraska are the' only states in the Union which have answered the question last submitted in the negative.
Under the water law of 1913, if it is to receive from this court the construction placed upon it by appellant, the state engineer is vested with the absolute power to take from one and give to another real property — not in accordance with law governing all other kinds of real property, but according to the conclusion reached by the state engineer as to what is just and right, from ex parte statements of interested parties and from investigations made by the state engineer and his assistants. The appropriator whose rights are thereby impaired may never know upon what evidence the decision or decree of the state engineer is based. Such a proposition was submitted in Interstate Commerce Comm. v. L. & N. R. Co., 227 U. S. 88, 93, and the contentions of the government were overruled.
If the adjudication and determination by the state engineer were only for the purpose of enabling his office to determine whether or not an application to appropriate waters, claimed by the applicant to be unappropriated, should be granted or denied, or to enable the state engineer to determine whether or not he would cancel a permit to appropriate water (as was the Idaho case of Speer v. Stephenson, 102 Pac. 365, cited by appellant), we would have a different question, and such determination would be an exercise of an administrative function. Such decisions do not affect any vested property rights. (Kinney on Irr. and Water Rights, 2d ed. voJ. 3, sec. 1586, p. 2884; sec. 1595, p. 2901-3; Davies v. McKeeby, 5 Nev. 369, 371.)
The provisions of the constitution contravened by the' water law of 1913 are: Fourteenth Amendment to the Constitution of the United States; State Constitution, sec. 8, art. 1; sec. 1, art. 3; sec. 20, art. 4; see. 21, art. 4; sec. 1, art. 6; sec. 4, art. 6; sec. 6, art. 6.
The statutory declaration, to the effect that the water of all sources of water supply not held in private ownership belong to the public, which was first declared by Statutes 1903, p. 24, does not and cannot affect any vested right to the use of water acquired prior to such statutory declaration. (Palmer v. R. R. Comm, of California, 138 Pac. 997,1002.)
The public parted with whatever title it may have had to the water so appropriated, and if the appropriator does not, by some act of his own, lose the right to the use of the water so appropriated, the state or public has not and cannot acquire any further right, title or interest therein.
Every authority, both text and decision, so far as we are advised, except the courts in Wyoming and Nebraska, holds that the proceedings for the determination of existing vested rights to the use of water are strictly judicial.
The case cited (Southern Pacific Co. v. Bartine, 170 Fed. 725) is easily distinguished from the case at bar, as are the other cases cited by the state engineer.
Nevada has no constitutional provision concerning water or water rights, as distinguished from any other property rights. (Thorpe v. Woolman, 1 Mont. 168, 170.)
Other decisions construing similar statutes conferring similar powers upon a non judicial officer or board, and holding that the powers conferred were judicial and that the proceedings therein were judicial, and that the statutes, therefore, were unconstitutional, are: People v. Mallary (111.) 63 N’ E. 508; InReDumford (Kan.) 53 Pac. 92; Fitch v. Board of Auditors of Claims (Mich.) 94 N. W. 952; People v. Dunn (N. Y.) 52 N. E. 572; Witter v. Cook County Comrs. (111.) 100 N. E. 148; State v. Blaisdell (N. D.) 132 N. W. 769; Carolina Glass Co. v. State (S. C.) 69 S. E. 391; State v. Brill (Minn.)'ill N. W. 294, 639; State v. Chaney (Okl.) 102 Pac. 133; Dupree v. State (Tex.) 119 S.W. 301; Weil on Water Rights in the Western States, 3d ed. vol. 2, sec. 1194, p. 1108.
Moreover, where a state enacts & statute of another state, which has been construed by the latter’s courts, the former state is not bound by such construction, when not in harmony with the spirit of its legislation and decisions. (F. M. Davis Iron Works Co. v. White, 71 Pac. 384; Bowers v. Smith, 20 S. W. 101; Oleson v. Wilson, 52 Pac. 372; Smith v. Dayton C. & I. Co., 92 S. W. 62; State v. Mortenson, 73 Pac. 562; Ancient Order of Hibernians v. Sparrow, 74 Pac. 197; Swooford Bros. Dry Goods Co. v. Mills, 86 Fed. 556, 560; Voss v. Waterloo Water Co., 71 N. E. 208, 212-213.)
Section 84 of the water law of 1913 does not appear in the Wyoming or Nebraska statute, which fact alone, if nothing else appeared in the statute, distinguishes our statute from the Wyoming and Nebraska statutes, and shows that the statutory rule of construction contended for by appellant has no application here. (Kirman v. Downing, 25 Nev. 378, 397.)
It will be admitted that the state engineer may, under the water law of 1913, deprive one of his vested property. If one is so deprived, is it by due process of law? To take from one that which he claims and give it to another, is to adjudicate the title to disputed ownership of property. Such adjudication cannot be had under the water law of 1913. {Gibson y. Mason, 5 Nev. 283, 302; Per sing v. Reno B. Co., 30 Nev. 342, 349; Golden v. District Court, 31 Nev. 250, 264; State v. Guilbert, 47 N. E. 551; People v. Simon, 52 N. E. 910; Brown v. Board, 50 Miss. 468.)
Section 6, art. 6, Nevada Constitution, is violated by the water law of 1913, in that it provides for the first trial, to establish existing vested rights to the use of water, to be had before the state engineer, ánd thereby deprives the district court of its original jurisdiction and transforms the district court from a court of original jurisdiction into an appellate court. We submit, under the express terms of section 6, art. 6, of our constitution, that no appeal lies from the final order or decree of the state engineer adjudicating vested property rights, and that •the district court has no jurisdiction > to entertain an appeal from such final order or decree of the state engineer, and that the statute attempting to confer or give the right of appeal from such order to the district court is unconstitutional. (Caulfield v. Hudson, 3 Cal. 389, 390; Reed v. McCormick, 4 Cal. 342; People v. Fowler, 9 Cal. 85; Lake v. Lake, 17 Nev. 230, 238.)
Under section 6, art. 6 of our constitution, the district courts have original jurisdiction of the adjudication and determination of existing rights to the use of water. If these rights are determined by the state engineer in the first instance, then the district court is necessarily deprived of its original jurisdiction, and'the act is unconstitutional and void. (Castnerv. Chandler, 2 Minn. 86, 88; Reed v. McCormick, 4 Cal. 342; People v. Fowler, 9 Cal. 85, 86; State v. Rising, 10 Nev. 97,101-102.)
Under the provisions of the Wyoming and Nebraska constitutions the courts of those states held that an appeal from the board of control and from the board of irrigation, respectively, would lie to the respective district courts, therefore holding that the proceedings before the respective boards was a "case,” from the determination of which an appeal would lie, and the contention of appellant that the proceeding before the state engineer is not a "case” to be without merit.
This court has construed section 6, article 6, of the constitution as making the appellate jurisdiction of the district court final in the following cases: Paul v. Beegan, 1 Nev. 329/333; Leonardo. Peacock, 8 Nev. 157,161; State v. Rising, 10 Nev. 97, 101; Bancroft v. Pike, 33 Nev. 53, 80; Floyd v. Sixth Judicial District Court, 36 Nev. 349.
Whenever an act undertakes to determine, or to confer upon some one the power to determine, a question of right or obligation or of title to property as the foundation upon which it proceeds, such as is the contention of the state engineer under the present act, to determine existing vested rights to the use of water, such act is to that extent a judicial one. (Smith v. Strother, 8 Pac. 852, 854; Tanner v. Nelson, 70 Pac. 984, 986; In Re Sinking Fund Cases, 99 U. S. 700, 761; Whitaker v. Chicago R. I. & P. R. Co., 160 S. W. 1009, 1012; Marbury v. Madison, 1 Cranch, 368, 388.)
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.
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 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 respondents 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 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.)
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.
In considering the constitutionality of sections 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.
It is contended here that the manner prescribed 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 appropriator's 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.
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 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 Blach 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 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.
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 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; 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 in 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 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 interests. 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 providingffor 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 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 court's of those states, to say, notwithstanding, that they are unconstitutional beyond all reasonable doubt. The decisions of the 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 <¡ms¿-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.
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 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 nonjudicial 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 cancelation 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, 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 j udicial determination is an action or suit within the meaning of the statute, regardless of the forum or tribunal before which thematter ispending. (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, 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 j udicial 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 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 j udgment, 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 binding effect in the nature of a j udicial 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.
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.
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, Jor 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 prescribed methods of appeal. Whether that portion of section 25, providing 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.
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 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.
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.