Bear Lake County v. Budge

• Decision Date: 24 February 1904
• Citation: 9 Idaho 703,75 P. 614
• Parties: BEAR LAKE COUNTY v. BUDGE, JUDGE
• Court: Idaho Supreme Court

75 P. 614

9 Idaho 703

BEAR LAKE COUNTY v. BUDGE, JUDGE

Supreme Court of Idaho

February 24, 1904

APPLICATION FOR WRIT OF PROHIBITION-ACTIONS TO SETTLE PRIORITY TO USE OF WATER-SERVICE OF SUMMONS-CONSTRUCTIVE SERVICE THEREOF BY PUBLICATION-CONSTITUTIONAL LAW-DUE PROCESS OF LAW-POLICE POWER.

1. The provisions for the service of summons in actions brought under the provisions of an act entitled "An act to regulate the appropriation and diversion of the public waters and to establish rights to the use of such waters and the priority of such rights," approved March 11, 1903, held unconstitutional and void.

2. The remedy by due course of law guaranteed by both the federal and state constitution requires, before there is a judicial determination affecting the right to life, liberty or property, that process to obtain jurisdiction must be issued and personally served when practicable; constructive service can only be made effective when actual service is impracticable.

3. Before constructive service of summons can be legally made some necessity therefor must appear.

4. That provision of section 13, article 1 of our state constitution which declares that no person shall be deprived of life liberty or property without due process of law, prohibits the legislature from dispensing with personal service of summons in actions to quiet title or to settle private adverse rights to property when personal service is practicable and is usual under the general laws of the state.

5. Under certain facts, constructive service of summons must, of necessity, be sufficient to give a court jurisdiction, and the general law of the state provides for such service.

6. The rule here laid down does not apply to cases of taxation.

7. The provisions of said sections 34, 35 and 36 of said act are repugnant to the provisions of section 26, article 5 of our state constitution which requires all laws relating to courts to be general and of uniform application, and that the organized judicial powers, proceedings and practices of courts of the same class shall be uniform.

8. The legislature has no authority to compel a county to pay the costs, disbursements and attorney's fees in an action to settle the right to the use of water and the priority of such rights between private parties, when such county is not properly a party to such action.

9. Under the police power of the state, the legislature cannot authorize a public officer to bring a suit to settle private rights to the use of water or the priority of such rights.

(Syllabus by the court.)

ORIGINAL application for writ of prohibition to restrain the judge of the Fifth Judicial District of Idaho in and for Bear Lake County, from proceeding to try an action brought under the provisions of an act concerning the regulation of waters appropriated for a beneficial purpose, approved March 11 1903. Writ granted.

Writ granted.

John A Bagley, Attorney General, James E. Babb, E. M. Wolfe and Jesse R. S. Budge, for Plaintiff.

In sections 4 and 5 of this statute, pages 228, 229, there is provision, in effect, for a determination by the state engineer of the quantity of water which can be diverted and conducted to the place of intended use, and a determination of the lands, by giving a description of them for which water is made available by such works. If the determination of the availability of the waters of the lands is to involve a determination of the right of such lands to such waters, third persons would be affected by such a determination. The water would not be available for such lands unless there were rights to the use of such water for such lands, and it is therefore a provision for a determination of the physical and legal availability of water for such lands. This provision is unconditional, for each of the following reasons, to wit: 1. Because it vests judicial power in the state engineer in violation of section 2 of article 5 of the constitution. (Thorp v. Freed, 1 Mont. 657; Fitch v. Board of Auditors, 133 Mich. 178, 94 N.W. 952; Davidson v. Johnson, 113 Ky. 202, 67 S.W. 996; Pratt v. Breckenridge, 112 Ky. 1, 65 S.W. 136; People v. Chase, 165 Ill. 527, 46 N.E. 454, 36 L. R. A. 105; People v. Simon, 176 Ill. 165, 68 Am. St. Rep. 175, 52 N.E. 910, 44 L. R. A. 801; State v. Gerry, 68 N.H. 495, 38 A. 272, 278 et seq., 38 L. R. A. 228; Arkle v. Board of Commrs., 41 W.Va. 471, 23 S.E. 804; State v. Guilbert, 56 Ohio St. 575, 60 Am. St. Rep. 756, 47 N.E. 551, 38 L. R. A. 519; Risser v. Hoyt, 3 Mich. 185, 18 N.W. 611.) 2. Because even if such judicial power is lawfully vested in the state engineer, the exercise of it, as provided, is unconstitutional. (State v. Guilbert, 56 Ohio St. 575, 60 Am. St. Rep. 756, 47 N.E. 551, 38 L. R. A. 579; People v. Simon, 176 Ill. 165, 68 Am. St. Rep. 175, 52 N.E. 910, 44 L. R. A. 801, approving State v. Guilbert; Brown v. Board, 50 Miss. 468; Tyler v. Judges of the Court of Registration, 175 Mass. 71, 55 N.E. 812, 51 L. R. A. 433; Webster v. Reid, 11 How. 437, 13 L.Ed. 761; Reed v. Wright, 2 Greene (Iowa), 15.) 3. Because it violates section 26 of article 5 of the constitution of Idaho providing that all laws relating to courts shall be of general and uniform operation, and the organized judicial powers, proceedings and practices of all courts of the same class or grade shall be uniform. (Art. 3. sec. 19, subd. 3.) The provisions for service by publication in this case is not uniform with the provision for service in other classes of cases to quiet title or determine adverse interests. The same provisions are violated by provision authorizing suits to quiet title by a public official who is not the real party in interest. The same provisions are also violated by sections 34 to 37, in that they provide a special proceeding to quiet title to water rights only on streams where decrees have been previously entered. (Cullen v. Glendora Water Co., 113 Cal. 503, 39 P. 769.) This statute provides for the several counties paying attorneys' fees of counsel employed by the water commissioners in violation of section 6 of article 18 of the constitution. These statutory provisions impose the liability for these items of expense upon the counties, and impose upon them the duty of raising taxes for the payment thereof in violation of section 6 of article 7 of the constitution. (Knox v. Board of Supervisors of Los Angeles County, 58 Cal. 59; State v. Barnes, 24 Fla. 29, 3 So. 433.) The statute is unconstitutional, in that in sections 29 and 35 thereof it was provided that the county shall pay, and there shall be assessed against lands, the amount of the claims of the water-master and commissioners as certified by them, without any discretion on the part of the commissioners of the county or the land owners, and without any time provided for a hearing of the question of the correctness and justness of the accounts. Such legislation is invalid. (People v. Houston, 54 Cal. 536; Felix v. Board of Commrs., 62 Kan. 832, 84 Am. St. Rep. 424, 62 P. 667; State v. Mayor, 72 Mo. 639; Church v. Town of South Kingston, 22 R. I. 381, 48 A. 3, 53 L. R. A. 739.) Section 36 deprives parties of control without due process and violates section 13 of article 5 of Idaho constitution. Statute finds no justification in police power. States cannot under police power institute suits to quiet titles in order to encourage improvement and settlement of country. (Reed v. Wright, 2 Greene (Iowa), 15; Trega v. Board of Directors of Modesto Irr. Dist., 164 U.S. 179, 17 S.Ct. 52, 41 L.Ed. 395.) The legislature, though having power to provide what shall be prima facie evidence, has not authority to declare what shall be conclusive evidence. (Tiedeman on State and Federal Control.) Police power is limited to health, safety, public peace, etc. Encouragements to development of public resources is the power of eminent domain. Section 14, article 1, Idaho constitution, which is exercised only on compensation.

N. M. Ruick and Standrod & Terrell, for Defendant.

Costs and expenses of litigation to the county not a party to this action and not interested therein: So far as this phase of the question is concerned, we do not deem it of much importance, and merely call attention to the fact that if the law in question can be held to deal with a proper subject of legislation and falls within the police power of the state (which we think is beyond question), then the costs imposed upon the county by reason of the litigation is in no wise dissimilar to other costs which are made a county charge in the enforcement of the police statutes of the state. Determining the rights of parties without due process of law Due process of law does not necessarily require that a person whose property is sought to be affected should have personal notice of the proceeding. The notice may be actual or constructive, and it is sufficient if a notice be provided by which it is reasonable to believe that the person who is affected be apprised of the proceeding against him. (10 Am. & Eng. Ency. of Law, p. 299; Gilchrist v. Schmidling, 12 Kan. 263; Happy v. Mosher, 48 N.Y. 318.) This is an action in rem. It is dealing with a tangible res, and in such cases a proceeding may be instituted and carried to judgment without personal service upon claimants within the state. (Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565; Freeman on Judgments, 4th ed., secs. 606-611; Black on Judgments, 792, 784, 795.) But we claim that the question of due process of law has no application to the statute involved here. We are fully convinced that the question involved is one purely of police power, and if we are correct in our conclusion, then neither the fourteenth amendment to the constitution of the United States nor section 13 of the Declaration of Rights of the constitution of...