Boise City Irrigation & Land Co. v. Stewart

• Decision Date: 21 May 1904
• Citation: 77 P. 25,10 Idaho 38
• Parties: BOISE IRRIGATION AND LAND COMPANY v. STEWART, JUDGE
• Court: Idaho Supreme Court

77 P. 25

10 Idaho 38

BOISE IRRIGATION AND LAND COMPANY v. STEWART, JUDGE

Supreme Court of Idaho

May 21, 1904

CONSTITUTIONAL LAW-TITLE TO ACT-PUBLIC WATERS-REGULATION OF APPROPRIATION-OWNERSHIP IN WATER-LOCAL AND SPECIAL LAWS-STATE ENGINEER-HOW PAID-COSTS OF MAPS AND PLATS-JUDGE MAY REQUEST STATE ENGINEER TO FURNISH MAPS AND PLATS-DISCRETIONARY-REGULATING PROCEDURE-NO PERSON HAS VESTED RIGHT IN PROCEDURE-RETROSPECTIVE LAW-EVIDENCE IN WATER SUIT-APPOINTMENT OF REFEREE TO TAKE TESTIMONY.

1. The title to an act entitled "An act to regulate the appropriation and diversion of the public waters and to establish rights to the use of said waters and the priority of such rights," approved March 11, 1903 (Sess. Laws 1903, p. 223), held sufficient to include all of the provisions of said act particularly referred to in this proceeding and not repugnant to the provisions of section 16 article 3 of the constitution of Idaho.

2. The term "public waters" as used in said act refers to all water running in the natural channel of the streams, and the state may by proper legislation regulate the appropriation and use thereof.

3. The private rights to the use of such waters are rights to use the same, and not an ownership of them while they are flowing in the natural channel of the streams.

4. The title of said act is sufficient to include provisions for the appropriation of such waters and the settlement of the priorities of rights to the use thereof.

5. The provisions of sections 4 and 5 of said act are not repugnant to the provisions of section 2 of article 5 of the state constitution.

6. Said act is not a local or special law within the meaning of subdivision 3 of section 19 of the state constitution, and is not repugnant to sections 2 and 26 of article 5 of the constitution.

7. The work required to be done by the state engineer under the provisions of section 33 of said act must be paid for by the state, and that done under the provisions of section 37 must be paid for by parties to the action.

8. In an action to determine the rights and priorities to the use of water when the defendants file cross-complaints and ask for affirmative relief, the awarding of costs is in the sound discretion of the court.

9. Under the provisions of said section 37 the state engineer is only entitled to recover his actual and necessary costs for the work performed by him, and any party to the action may contest his right to recover the amount claimed by him and the court should only allow his actual and necessary costs.

10. That provision of said section which provides that the "judge of such court shall request the state engineer to make, etc.," is directory and not mandatory, and that matter is left in the sound legal discretion of the judge.

11. The state has the right to prescribe reasonable rules and regulations, whereby the rights and priorities of appropriators to the use of water may be settled and to require them to pay the necessary costs incurred therein.

12. If it is shown that such maps and plats are incorrect in any material particular as to the rights of any of the parties to the suit, the state engineer is not entitled to recover such party's pro rata share of the cost of preparing the same.

13. No person has a vested right in any particular mode of procedure for the enforcement or defense of his rights, and if before trial of a cause a new law as to procedure is enacted and goes into effect, it will from that time govern and regulate the proceedings, unless the statute provides to the contrary.

14. The legislature has authority to provide by statute that the statements, maps and plats referred to in section 37 of said act should be accepted as evidence on the trial of actions to establish rights to the use of water and the priority of such rights.

15. The law of evidence is a part of the remedy and is within legislative control.

16. Under the provisions of section 4493, Annotated Code of Civil Procedure (Sess. Laws 1901, p. 132), the court or judge has authority to appoint a referee to take the testimony in the action where the parties are numerous and the convenience of the witnesses and the ends of justice would be promoted thereby.

ORIGINAL proceeding in the supreme court for a writ of prohibition. Writ denied.

Writ denied.

Wood &amp Wilson and Hawley, Puckett & Hawley, for Plaintiff.

This case is already practically decided by the case of Bear Lake County v. Budge, 9 Idaho 703, 75 P. 615. By that decision, sections 34, 35 and 36 of the act in question were declared void. It is hardly probable that the legislature would have enacted a series of unconstitutional sections contained in that act without the enaction of sections 34, 35 and 36, which have been held void. If the last proposition is true the whole act must necessarily fall with the sections already declared unconstitutional. (Ballentine v Willey, 3 Idaho 496, 95 Am. St. Rep. 17, 31 P. 994.) The authorities all hold that while it is an elementary principle that the same statute may be in part constitutional and in part unconstitutional, those parts held constitutional must be wholly independent of the parts declared to be unconstitutional. But "if they are so mutually connected with and dependent upon each other as conditions considerations or compensations for each other as to warrant a belief that the legislature intended them as a whole, and that, if all could not be carried into effect the legislature would not pass the residue independently, and some parts are unconstitutional, all the provisions which are thus dependent, conditional or connected must fall with them." (Warren v. Charlestown, 2 Gray, 84.) Again, the statute in question has no application to the case at bar, because unless the contrary manifestly appears, all statutes act prospectively only. This suit was commenced many months before the enactment of the statute, and it is fair to assume that the parties thereto commenced preparations for their cases and the accumulation of evidence under the statutes existing when the suit was commenced. Statutes are to be considered prospective unless the language is such as to show that they were intended to be retrospective. (Ellis v. Connecticut Mut. Life Ins. Co., 8 F. 83, 19 Blatchf. 383, and authorities cited; 44 American Digest, Century ed., col. 2923; State ex rel. Parker v. Thompson, 41 Mo. 25; Garrett v. Doe, 2 Ill. (1 Scam.) 335, 30 Am. Dec. 653; Grinder v. Nelson, 9 Gill, 229, 52 Am. Dec. 694; Auditor General v. Chandler, 108 Mich. 569, 66 N.W. 482; Trist v. Cabenas, 18 Abb. Pr. 143; Merwin v. Ballard, 66 N.C. 298; Chew Heong v. United States, 112 U.S. 536, 5 S.Ct. 255, 28 L.Ed. 770.) The petitioner in this proceeding has one of the oldest and most extensively developed canal systems in southwestern Idaho. Its maps, its surveys and its records are ample and complete, and it was prepared to proceed to trial without the assistance of the executive branch of the state government, and without being required to have its property taken for the costs of a similar survey. This provision of the statute alone, providing for the taxation of these surveys as costs, is a taking of property without due process of law. It compels the petitioner here to submit to an excessive judgment for costs incurred in securing evidence against itself, over which it has no control, not even the privilege of verification of the information contained in the surveys, examinations and maps, by cross-examination of the parties making surveys and collecting the information sought to be used as evidence. In Cullen et al. v. Glendora Water Co., 113 Cal. 503, 39 P. 769, the supreme court of California passed upon the question in that particular case as to what was special legislation within the inhibition of the California constitution, article 4, paragraph 25, similar to our own. Section 37, which is the important section attacked in this action, refers to maps, etc., to be used in the determination of private as well as public rights, and section 41 expressly declares that, after the passage of the act, all the waters of the state are to be controlled and administered in the manner therein provided. The act is unconstitutional because sections 4 and 5 thereof, and upon which the entire act rests, contravene section 2 of article 5 of the constitution, in that it vests in the state engineer power which is judicial in its character. (17 Am. & Eng. Ency. of Law, 586, 587, and notes; State v. Gerry, 68 N.H. 495, 38 A. 272, 38 L. R. A. 228; Thorp v. Freed, 1 Mont. 657.) The act is unconstitutional for the reason that it is antagonistic to subdivision 3 of section 19 of article 3, and of section 2 of article 5 of the constitution of Idaho.

Rice & Thompson, Richards & Haga, Frank Smith and Wyman & Wyman, for Defendant.

The ultimate questions to be determined are: 1. Did the district court exceed its jurisdiction in making the order set forth in the affidavit requesting the state engineer to make an examination and report thereon? 2. Did the district court exceed its jurisdiction in making the order set forth in the affidavit, appointing N. M. Ruick referee and master? The writ is always refused where it appears that the court has jurisdiction over the matter complained of. (16 Ency. of Pl & Pr. 1125.) The writ will not be granted where a greater injustice will be done by its issuance than would be prevented by its operation. (23 Am. & Eng. Ency. of Law, 213.) Writ will be refused where parties cannot be placed in statu quo. (Whatley v. Franklin County, 1 Met. (Mass.) 336.) Remedial statutes may apply to past transactions and pending cases. No person can claim a vested right in any particular mode or procedure for the enforcement or defense of his rights. Where a new statute...