McCormick v. Sixth Judicial Dist. Court in and for Humboldt County

• Decision Date: 27 June 1952
• Docket Number: No. 3692,3692
• Citation: 69 Nev. 214,246 P.2d 805
• Parties: . Supreme Court of Nevada
• Court: Nevada Supreme Court

Page 805

246 P.2d 805

69 Nev. 214

McCORMICK et al. v. SIXTH JUDICIAL DISTRICT COURT IN AND FOR HUMBOLDT COUNTY et al.

No. 3692.

Supreme Court of Nevada.

June 27, 1952.

John C. Bartlett, Reno, Jas. A. Callahan, Winnemucca, John S. Halley, Sidney W. Robinson, Kearney & Adams, Reno, for petitioners.

Sanford A. Bunce, Lovelock, J. D. Skeen, Salt Lake City, Utah, for respondents.

W. T. Mathews, Atty. Gen., of Nevada, amicus curiae.

BADT, Chief Justice.

This proceeding attacks the constitutionality of an act of the state legislature making the services of the state engineer available to the district courts of the state for the purpose of administering the distribution of the waters of a stream or stream system under a prior final decree in an equity suit adjudicating the rights of the respective water users. The situation is separate and distinct from the administration of the waters of a stream or stream system under the provisions of sections 18 to 51 of the water law of 1913, c. 140, p. 192, as amended. That part of the water law has been before this court on numerous occasions, both as originally passed and as amended by succeeding legislatures. It has been analyzed and passed upon section by section. ¹

The waters of the Quinn River and its tributaries were not adjudicated under the 1913 water law as amended. On the contrary, the adjudication of that stream was made in an equity suit by a judgment entered in 1919. Pacific Live Stock Co. v. Ellison Ranching Co., 52 Nev. 279, 286 P. 120. For a brief history of the litigation, see McCormick v. Sixth Judicial District Court, 67 Nev. 318, 218 P.2d 939.

The act of the legislature in question in this proceeding is contained in Stats.1951, p. 158, chap. 121, and is entitled:

'An Act to amend an act 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 compensation; providing for a fee system, for the certification of records, and an official seal for the state engineer's office; providing that the district court may appoint the state engineer and his assistants officers of the court to administer final water decrees in certain cases; providing for an appropriation to carry out the provisions of this act; and other matters properly connected therewith, and to repeal all acts and parts of acts and certain acts in conflict with this act,' approved March 22, 1913, as amended.'

Under section 1 of this act, section 46 1/2 of the water law first provides as follows:

'(a) On any stream in this state on which the water rights have been adjudicated and determined and the final decree therefor entered, as between all persons who claimed the right to the use of the waters of such stream, in a suit brought in the district court having jurisdiction of said stream and in which said suit the said adjudication and determination was not had in the manner provided in sections 18 to 51, inclusive of this act, and thereafter one or more of the parties as users of such adjudicated and determined rights and/or their successors in interest desire that the state engineer take charge of the diversions and distribution of such rights and administer them in conformity with the said final decree of the court, they may petition said district court which entered such decree requesting such administration.'

It then provides for notice of the filing of such petition, the issuance of an order to show cause, the fixing of a date for the hearing, matters of service, etc. It provides for the filing of objections whereupon the petition, deemed in the nature of a complaint, and the objections constitute the pleadings. The state engineer is required to be notified and to attend the hearing. The practice in civil cases is made to apply insofar as consistent with the summary character of the proceedings. Prior to final determination the court may direct the state engineer to make a hydrographic survey and render a written report, with such maps and other data as will enable the court to determine whether or not administration of such water rights by the state engineer would be for the best interests of the water users. If the court so determine, it shall direct the state engineer to distribute such waters in strict accordance with the said decree and thereafter the distribution of the water is under the supervision and control of the district court. In such distribution and administration the state engineer, his deputies, assistants and water commissioners are deemed officers of the court only and subject only to its supervision and control. Appeals may be taken to this court. Subdivisions (b) and (c) of section 46 1/2 as amended have to do with the assessment and collection of the costs of such administration.

The 1951 amendment is first asserted to be unconstitutional and void because it purports to amend an act of 1949, which in turn purported to amend an act of 1947. The amendment of 1947, Stats.1947, c. 159, p. 518, amended the 1913 water law by adding the said section 46 1/2 in its original form. Petitioners undertake to establish that such section 46 1/2 in its original form was unconstitutional in that it did not provide for notice to the other parties to the equity decree and that the title of the act did not satisfy constitutional requirements. Premised upon the conclusion that the 1947 act was thus void and of no effect, as not constituting due process and as bearing a defective title, petitioners then contend that as the 1947 act was a nullity, there was nothing to amend, and that accordingly the 1949 amendment, Stats.1949, c. 83, p. 104, was likewise a nullity, and that for the same reason the 1951 amendment was also void.

The only act in question here is the act of 1951. In the 1951 enactment of section 46 1/2 it must be said that the legislature, to quote the language used by this court in Worthington v. District Court, 37 Nev. 212, 142 P. 230, 234, L.R.A.1916A, 696, 'expressed its purpose intelligently and provided fully upon the subject'. Recognizing that there was a conflict of authority upon the subject, this court adopted what it considered the weight of authority and the better opinion, namely, that an amendatory statute is not invalid, although it purports to amend a statute which had previously been amended or for any reason had been held invalid. To meet the attack on the 1949 amendment that the same violated the due process clause by reason of its failure to provide for notice (we are only advised by counsel that such attack was made in the district court in an abortive proceeding under the 1949 act), a natural and unobjectionable method of curing this defect was by an amendment rewriting the section so as to include a requirement for notice, thus obviating the defect, if any. State v. Silver Bow Refining Co., 78 Mont. 1, 252 P. 301. We conclude that the attack on the 1947 amendment of the water law creating section 46 1/2 cannot be used in attacking the 1951 statute if the last named is otherwise valid. Worthington v. District Court, supra.

It is next insisted that the 1951 amendment violates the constitutional requirements of section 17, Article IV, reading as follows:

'Sec. 17. Each law enacted by the legislature shall embrace but one subject, and matter properly connected therewith, which subject shall be briefly expressed in the title; and no law shall be revised or amended by reference to its title only; but, in such case, the act as revised, or section as amended, shall be reenacted and published at length.'

We have above quoted in full the title of the 1951 act which in turn quotes the title of the 1913 water law for the purpose, among other things, of 'providing a system of state control' and further' prescribing the duties and powers of the state engineer' and further 'providing that the district court may appoint the state engineer and his assistants officers of the court to administer final water decrees in certain cases'. The last provision was enacted as an amendment to the title of the 1947 act by the 1949 legislature. The 1951 legislature adopted the title as amended in 1949. With our rejection of the first attack on the 1951 statute, based upon the alleged invalidity of the 1947 and 1949 amendments, the second ground of attack must likewise fail. Worthington v. District Court, supra; State v. Payne, 53 Nev. 193, 295 P. 770; Tonopah & Goldfield R. R. Co. v. Nevada-California Transportation Co., 58 Nev. 234, 75 P.2d 727.

It is next insisted that the 1951 act is invalid because the legislature could add section 46 1/2 in no other way than by rewriting the entire act; that as section 46 1/2 is an amendment of the entire water law and not of any specific section, it was necessary, for a valid adoption of section 46 1/2, 'to reingross the entire 1913 water law.' Four Nevada cases are cited to support this contention. They do not so hold, although some early Louisiana and Indiana cases adopted this view. Consistent legislative practice in almost all of the states, including Nevada, has been to amend the original act, or the original act as amended, by rewriting one or more of its sections, and this practice has had the overwhelming approval of the courts. State v. Lawson, 40 Wash. 455, 82 P. 750; 1 Sutherland, Statutory Construction (3rd Ed. Horack) 406, § 1928, n. 6.

Petitioner's main contention however is that the Quinn River decree became final upon its entry by the district court in 1919, that it contained no clauses reserving jurisdiction, that the court has long since lost...