Kelley v. Carlsbad Irr. Dist.
Decision Date | 15 March 1963 |
Docket Number | No. 7064,7064 |
Parties | C. M. KELLEY, Appellant-Appellee, v. CARLSBAD IRRIGATION DISTRICT, Protestant-Appellant, S. E. Reynolds, State Engineer, Appellant. |
Court | New Mexico Supreme Court |
Hervey, Dow & Hinkle, Paul W. Eaton, Jr., Roswell, for appellee.
Earl E. Hartley, Atty. Gen., Santa Fe, Charles D. Harris, Spec. Asst. Atty. Gen., Roswell, for State Engineer.
Stagner, Sage, Walker & Estill, Carlsbad, for Carlsbad Irr. Dist.
Charles R. Brice, Roswell, amici curiae.
Motion for rehearing is denied but we take this opportunity to clarify one question and, therefore, withdraw the opinion heretofore filed and substitute the following:
The state engineer has appealed from a judgment of the district court reversing his decision denying appellee, Kelley, a permit to change the point of diversion of a water right.
The determination of this appeal turns on the scope of review by the district court. The statute, Sec. 75-6-1, N.M.S.A.1953, providing for review of a decision of the state engineer, reads in part:
The question of the proper scope of review is immediately presented upon the taking of an appeal from any decision of the state engineer. Even though the review by the district court, in this case, was prior to the decision of this court in Heine v. Reynolds, 69 N.M. 398, 367 P.2d 708 and Continental Oil Co. v. Oil Conservation Commission, 70 N.M. 310, 373 P.2d 809, we had clearly indicated in Spencer v. Bliss, 60 N.M. 16, 287 P.2d 221, 228; Application of Brown, 65 N.M. 74, 332 P.2d 475, 479; and Clodfelter v. Reynolds, 68 N.M. 61, 358 P.2d 626, that when called upon to specifically determine the question, the scope of review would be limited. Our prior decisions were reviewed and extensively quoted from in Heine. It would serve no useful purpose to repeat that review here.
We consider Continental Oil Co. v. Oil Conservation Commission, supra, controlling on the question of scope of review. That decision discussed the constitutional division of powers and after pointing out that grave constitutional problems would be presented if the administrative agency performed a judicial function, it was said:
. * * *'
We have noted State ex rel. Hovey Concrete Products Co. v. Mechem, 63 N.M. 250, 316 P.2d 1069. Even though the state engineer is required, under legislative mandate, to determine facts to which the law, as set forth by the legislature, is to be applied, no so doing he is nevertheless acting in an administrative capacity and such findings are not judicial determinations.
On authority of Continental Oil Co. v. Oil Conservation Commission, supra, we conclude that Sec. 75-6-1, supra, does not permit the district court, in reviewing a decision of the state engineer, to hear new or additional evidence. The review by the court is limited to questions of law and...
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...Continental Oil Company v. Oil Conservation Commission, 70 N.M. 310, 373 P.2d 809; and most recently restated in Kelley v. Carlsbad Irrigation Dist., 71 N.M. 464, 379 P.2d 763. I see nothing in Sec. 21-1-1(81)(c), N.M.S.A.1953, requiring a different review from that approved for other admin......
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...202 P. 524, 530, 21 A.L.R. 156 (1921). The State Engineer has been held to have administrative powers. In Kelley v. Carlsbad Irrigation District, 71 N.M. 464, 379 P.2d 763 (1963), the court determined that a review on appeal from a decision of the State Engineer was controlled by the rules ......
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