Johnston v. Little Horse Creek Irrigating Co.

Citation33 P. 22,4 Wyo. 164
PartiesJOHNSTON ET AL v. LITTLE HORSE CREEK IRRIGATING CO. ET AL
Decision Date19 May 1893
CourtWyoming Supreme Court

Decision of board of control, May 7, 1891. Appeal dismissed by district court March 16, 1892.

ERROR to District Court for Laramie County. RICHARD H. SCOTT Judge.

Prior to statehood, proceedings for the adjudication of water appropriations from Little Horse Creek had been commenced and were pending in the district court for Laramie County. At the November, 1890, term the court ordered the cause to be transferred to the State board of control pursuant to the provisions of Section 47 of the act of December 22, 1890 regulating the supervision of water. From the decision rendered by said board of control, James R. Johnston, George D. Johnston, Henry Homer Johnston and Lizzie Dane, owners of the "Johnston Ditch," appealed.

The notice of appeal was as follows: "Notice is hereby given to the Springvale Ditch Company, and the Little Horse Creek Irrigating Company, appellees, that the owners of the Johnston Ditch have appealed from the findings determinations, orders and decrees of the board of control in the above entitled matter, to the above named court. W. R Stoll, attorney for the owners of the Johnston Ditch." The amount of the undertaking to be given having been fixed by the court at $ 500, an undertaking signed by James R. Johnston as principal, with sureties, was filed June 5, 1891. On November 12, 1891, appellants filed in the district court a petition, setting forth the errors claimed to have occurred in the determination of the board of control, which petition was signed by attorney for appellants. Therewith there was filed a transcript of all the evidence in the case and of the order of determination of the board. These appellants had objected and excepted to the order of the court in the first instance transferring the cause to the board, and a motion was presented to the board to transfer the case back to the court, which was overruled and that ruling excepted to. The determination of the board was made May 7, 1891, and on May 12 a notice of appeal similar to the one filed in the court, except that it gave notice to the board and to all the parties interested, was filed with the board, attached to which was a statement of exceptions to the findings. A motion to dismiss the appeal was filed on behalf of the Springvale Ditch Company, one of the parties interested, on the grounds that no sufficient notice of appeal, or undertaking, had been filed. The Little Horse Creek Irrigating Company filed a similar motion. The appellants made application to file an amended notice of appeal, and a new undertaking, which was denied, the journal entry showing the determination of the court, on such application stating that appellants excepted thereto. The motions for dismissal coming on for hearing, they were sustained and the appeal dismissed, it appearing by recital in the order sustaining the motions "to the sustaining of which motion the above named appellants by their counsel now and here except," and to the order of dismissal "to the making of which order the said James R. Johnston, Lizzie D. Johnston, George D. Johnston, Harry Homer Johnston, and Lizzie Dane, by their attorney, now and here except." Time was granted appellants to reduce to writing and present for allowance their bill of exceptions. There was no bill of exceptions in the transcript filed in the supreme court; but the motions to dismiss, and to amend, appeared in a transcript certified to by the clerk of the district court, as containing correct copies of all the journal entries, transcript of records and order of the board of control as filed in said court, and of all the original papers on file in said court in said matter so far as the same are material. Said appellants with the exception of Lizzie Dane prosecuted error to the supreme court. Lizzie Dane was not made a party. The decision of the court being based upon a defect of parties in error and insufficient preservation of exceptions the other facts in the case are not material.

Judgment affirmed.

W. R. Stoll, for plaintiffs in error.

The authority of the district court to transfer the case to the board of control is assailed, on two grounds: First, because the board of control has no judicial power, and the statute in so far as it attempts to confer such power is unconstitutional.

Second, because the transfer could be made only upon the application of the parties interested; and some of the parties objected to the transfer. The constitution neither confers judicial power upon the board, nor authorizes the legislature to do so. (Art. II; Art. V, Sec. 1; Chandler v. Nash, 5 Mich. 409; State ex rel. v. Maynard, 14 Ill. 419; State v. Noble, 21 N. E., 244 (Ind.); Smith v. Strother (Cal.), 8 Pac., 852; Greenough v. Greenough, 11 Pa. 489; Gough v. Dorsey, 27 Wis. 119; Van Slyke v. Ins. Co., 39 Wis. 390; Alexander v. Bennett, 60 N.Y. 204; Hawkins v. State, 125 Ind. 570; Hall v. Marks, 34 Ill. 358; Kilbourn v. Thompson, 103 U.S. 168; Harris v. Van Derveer, 21 N.J. Eq. 424; Mo. River Co. v. Natl. Bank, 74 Ill. 217; Perkins v. Corbin, 45 Ala. 103; Coleman v. Newby, 7 Kan. 58.) The provision of the constitution, Sec. 2, Art. VIII, "its decisions to be subject to review by the courts of the State," does not confer judicial power. (Auditor v. The Atchison Co., 6 Kan. 301; Elliott App. Pro., Secs. 17, 20, 78; Langenberg v. Decker (Ind.), 31 N. E., 191; Elmore v. Overton (Ind.), 4 N. E., 199; State v. Johnson (Ind.), 5 N. E., 555; High on Injunctions, Sec. 493; Mecham on Pub. Of., Secs. 636-637; State v. Wood (Ind.), 10 N. E., 639; Wilkins v. State (Ind.), 16 N. E., 194; Eastman v. State (Ind.), 10 N. E., 98; People v. Board of Ed., 54 Cal. 377.) The power to decide controversies is strictly judicial, and can only be exercised by a court. (Elliott App. Pro., Sec. 8; Shoulty v. McPheeters, 79 Ind. 373; Gregory v. State, 94 Ind. 384; Columbus v. Board, 65 Ind. 427; Speight v. People, 87 Ill. 595; Campbell v. Board, 118 Ind. 119; 2 Brock., 447; Vandercook v. Williams, 106 Ind. 345; Wright v. Wallbaum, 39 Ill. 555; Daniels v. People, 6 Mich. 380; Rhode Island v. Mass. 12 Pet., 657; In re Cooper, 22 N.Y. 67; Sinking Fund cases, 99 U.S. 700; Maby v. Baxter, 11 Heisk., 682; Tindal v. Drake, 60 Ala. 177; In re Saline Co., 45 Mo. 52; Cincinnati R. R. Co. v. Commissioners, 1 O. St., 77; King v. Dedham Bank, 15 Mass. 454; People v. Supervisors, 16 N.Y. 424; Taylor v. Place, 4 R.I. 324; People v. Board, 54 Cal. 375; Cooley Const. Lim., p. 91; Pressly v. Lamb, 105 Ind. 185; Abbott v. Matthews, 26 Mich. 178; Flourney v. Jeffersonville, 17 Ind. 173.) The same persons cannot under the constitution exercise both executive and judicial powers. (State v. Hyde (Ind.), 22 N. E., 644.) The district court should have permitted an amendment of the appeal proceedings. (Elliott App. Pro., Secs. 377, 635; Murphy v. Consolidated Tank L. Co., 32 Ill.App. 612; James v. Woods (Miss.), 5 S., 106; Travers v. Travers, 1 N.Y.S. 357; People's Brewing Co. v. Barbinger, 4 S., 82; McIlhaney v. Holland, 111 Pa. 634; New Orleans Ins. Co. v. Albro Co., 112 U.S. 506; Hummer v. Eprata School Dist., 10 Phil., 494; Carroll v. Jacksonville, 2 Ill. App., 491; Cunningham v. Hopkins, 8 Cal. 34; Robeson v. Lewis, 64 N.C. 734; Territory v. Milroy, 8 Mont. 361; Seward v. Corneau, 102 U.S. 86; Grant v. Conn. Ins. Co., 28 Wis. 387; George v. Lutz, 35 Tex. 694; Berger v. Buttrick, 30 Wis. 153; Wilson v. Allen, 3 How. Prac., 368; Geddis v. Palmer, 60 Miss. 458; Iron Works v. Brooklyn, 85 N.Y. 652.) Appellants' original notice of appeal was sufficient. (Lancaster v. McDonald (Or.), 14 Or. 264; Elliott, 171, 172; Neppach v. Jordan, 13 Or. 246; Weyle v. Sonoma Valley R. R. Co., 69 Cal. 202; Banknight v. Sloan, 17 Fla. 281; Parker v. Denny, 2 Wash., 176; Moorehouse v. Donica, 13 Or. 435; McAllop v. The Latoria, 3 Wash. Ter., 332; Larson v. Utah N. R. R. Co. (Utah), 19 P. 196; Swasey v. Adair, 83 Cal. 136; Gruell v. Spooner, 71 Cal. 493; Copehart v. Biggs, 9 N.C. 373; Winter v. McMillan, 87 Cal. 256; Wilson v. Allen, 3 How. Pr., 369; People v. Farbell, 17 How. Pr., 120.) The provision for transfer to board found in Sec. 47, Laws 1890-1, cannot be extended to authorize the transfer over the objection of any one of the parties. (Terpening v. Holton, 9 Colo., 306; Stacey v. M. R. R. Co., 72 Wis. 331; Kinkaid v. Hiatt, 24 Neb. 562; Trenholm v. Morgan, 28 S.C. 268; Kimberly v. Arms, 129 U.S. 512, 523; Patrick v. Richmond D. R. Co., 101 N.C. 602; Smith v. Hicks, 108 N.C. 248; Crocker v. Carrier, 65 Wis. 662; Caruth v. Walter, 91 Mo. 484.) The power to transfer a cause is a special statutory power and cannot be enlarged by construction.

Lacey & Van Devanter, for the Springvale Ditch Company.

If the appeal was not properly dismissed, then it is immaterial whether the cause was erroneously transferred, or the board had jurisdiction or not. If the appeal was properly dismissed, it is not material in these proceedings on error that errors were committed prior to such dismissal. There is a defect of parties in this court. The appeal from the board was joint. The order of dismissal was against all appellants jointly. Lizzie Dane is a necessary party. (Shulteis v Keiser, 95 Ind. 159; Handerlock v. Dundee, 88 Ind. 139; Elliott's App. Pro., 138-140.) The motions to dismiss the appeal, and for leave to file amended notice of appeal, and a new undertaking must be brought into the record by bill of exceptions, or else they are not a part of the record; the action of the clerk in putting into the transcript certain alleged motions cannot affect the question, as he can only certify the record as made by the court. (Kohn v. Lucas, 17 Mo. App., 29; Wash. Ice Co. v. Lay, 103 Ind. 48; State...

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