Speer v. Stephenson
Decision Date | 10 June 1909 |
Citation | 102 P. 365,16 Idaho 707 |
Parties | GEORGE S. SPEER, Plaintiff, v. JAMES STEPHENSON, Jr., State Engineer, Defendant |
Court | Idaho Supreme Court |
CONSTITUTION-APPROPRIATION OF WATER-LEGISLATIVE CONTROL-STATE ENGINEER-JUDICIAL POWER-CONTEST OF PERMIT-NOTICE OF HEARING-DUE PROCESS OF LAW.
1. The constitution of this state reserves to the state the right to regulate and control the manner and means of appropriating the unappropriated waters of the state.
2. Under the constitution, the legislature may prescribe the means and methods by which water may be diverted appropriated and applied to a beneficial use, and where it is sought to appropriate the public waters of the state in accordance with the provisions of the statute, the appropriator is required to comply with the terms and provisions of the statute in order to perfect such appropriation.
3. Under the provisions of the act of March 11, 1903, the permit, when granted as therein provided for, gives the applicant an inchoate right, which will ripen into a legal and complete appropriation only upon the completion of the works and the application of the water to a beneficial use.
4. The right given by such permit may ripen into a complete appropriation or may be defeated by the failure of the holder to comply with the requirements of the statute.
5. The permit, therefore, is not an appropriation of the public waters of the state, but is the consent of the state given in the manner provided by law to construct and acquire real property.
6. The act of March 11, 1909, which provides for a contest of a permit issued, and vesting power in the state engineer to cancel such permit, does not vest in the state engineer judicial power.
7. The granting, as well as the cancellation and voiding of permits under the statute, are acts of administration, and are clearly within the power which may be given to the state engineer in supervising and administering the law regulating the appropriation of the public waters of the state.
8. The action of the state engineer, in deciding to cancel or in refusing to cancel a permit, is not conclusive upon the parties, and may be reviewed in the district court upon appeal or may be questioned in a direct proceeding in the district court, and the court in considering such matter is in no way controlled or concluded by the action of the state engineer.
9. The only effect given by the statute to the action of the state engineer in canceling or refusing to cancel a permit is, that such action is thereby fixed as a time from which the statute of limitations begins to run within which an action may be brought in the district court, or an appeal taken from the action of the state engineer, involving the questions involved in the contest before the state engineer.
10. In the proceeding to contest a permit, no affirmative relief can be demanded or granted; the action is informal. The ordinary rules of evidence do not apply. The state engineer is authorized to make personal examination and in deciding may be governed thereby; no injury to the petitioner or his property is required to be alleged or proven. The action does not result in the issuance of any writ or process known to the law. The procedure is entirely different and distinct from that prescribed for actions brought in the courts; the proceeding is purely administrative to aid in carrying out and administering the law regulating and governing the appropriation and application of water to a beneficial use and is not judicial in character or effect.
11. The statute, providing for the recording in the state engineer's office of a permit and that a contest may be brought against the same, and requiring notice to be given to all persons shown to have an interest in said permit as shown by the records of the state engineer's office, provides for due process, as the records may be relied upon as showing the persons who claim or have an interest in said permit.
12. Where the statute provides that an applicant for a water permit must state in the application the last known postoffice address, notice sent to such postoffice address is sufficient in the absence of a showing that the same has been changed.
13. Notice of contest sent by registered mail to the last known postoffice address of the persons or corporation, to whom a water permit has been issued, of the time of hearing such contest before the state engineer, is sufficient notice and due process.
14. Where the statute provides for an appeal from the decision of the state engineer, in a contest of a water permit, and provides that the appellant shall deliver personally or by registered mail a copy of the notice of appeal in the manner prescribed for the personal service or service by publication of a summons, it is sufficient notice to protect the rights of all parties concerned, and to give such persons full opportunity for a proper hearing in the courts established by the constitution of the state, and is due process of law.
15. The fact that in a statute the word "contestant" is used where it clearly appears that the word "contestee" was intended, is an error which will not render such statute so indefinite or uncertain as to be void or unconstitutional.
(Syllabus by the court.)
Original proceedings in this court for writ of prohibition. Demurrer and motion filed to the petition. Sustained.
Demurrer Sustained. Costs awarded to defendant.
N. M. Ruick, for Petitioner.
Said act assumes to confer judicial functions upon an administrative officer in violation of sec. 2, art. 5, of the constitution, in that the state engineer is empowered to hear, try and determine a question involving the right of private property and to enter an order depriving the owner or claimant thereof.
Said proceeding is in violation of those provisions of the constitution and of the statutes requiring uniformity in judicial proceedings, and in conflict with the usual course of judicial procedure which requires an action to be maintained by and against the real parties in interest.
The act provides that a water permit may be voided at the instance of any person holding a "junior permit." This limits the right of action to a class; it also usurps the functions of the state, which alone can maintain an action for cancellation or forfeiture.
This act is unconstitutional, in that the state engineer is authorized to procure jurisdiction of the person and to settle by his order and decision valuable property rights; not by service of summons or notice as provided by the general law of the state, which operates alike upon all citizens of the state and others desiring to have their titles quieted, but by a special, limited and constructive service which is not permitted by the general laws.
Each individual diverting and appropriating water from a natural stream acquires a property right. These rights may be of different grade and value, but they are property just the same. Of this property they cannot be deprived. Neither can they deprive another thereof, but by due process of law. In determining the rights and interests of two or more individuals to the same property, due process of law requires that the usual course of judicial procedure in the nature of actions to quiet title and to settle adverse claims shall be pursued.
A majority, if not all, of the points made by petitioner against the validity of the proceeding in question before the state engineer are upheld and sustained by the decision of the court in the case of Bear Lake County v. Budge, 9 Idaho 703, 108 Am. St. 179, 75 P. 614, and the cases cited in the opinion, particularly State v. Guilbert, 56 Ohio St. 575, 60 Am. St. 756, 47 N.E. 551, 38 L. R. A. 519.
D. C. McDougall, Attorney General, John F. MacLane, and J. H. Peterson, Assistants, for Defendant.
The act does not vest judicial power in the state engineer. (Farm Investment Co. v. Carpenter, 9 Wyo. 110, 87 Am. St. 918, 61 P. 258, 50 L. R. A. 747; People v. Simon, 176 Ill. 165, 68 Am. St. 175, 52 N.E. 910, 44 L. R. A. 801; Tyler v. Court of Reg., 175 Mass. 71, 55 N.E. 812, 51 L. R. A. 433; Boise Irr. etc. Co. v. Stewart, 10 Idaho 38, 77 P. 25, 321.)
The notice by registered mail in the proceeding before the state engineer is sufficient as a compliance with the constitutional guaranty, and if it is not in itself enough, the act is saved by the requirement of personal service of notice prior to the taking of appeal. (Tyler v. Court of Reg., supra; Farm Investment Co. v. Carpenter, supra.)
"The notice and hearing requisite are present generally when the person whose life, liberty or property is to be taken has, upon reasonable notice, at some stage of the proceedings, an opportunity to present objections to the proposed action, before a tribunal authorized to give effect to the objections, if it regards them as valid." (McGehee, Due Process of Law, 76; Louisville R. Co. v. Schmidt, 177 U.S. 230, 20 S.Ct. 620, 44 L.Ed. 747; Wilson v. Standefer, 184 U.S. 399, 22 S.Ct. 384, 46 L.Ed. 612; Atlantic & P. R. Co. v. Mingus, 165 U.S. 413, 17 S.Ct. 348, 41 L.Ed. 770.)
What is obviously intended in sec. 6 in place of the word "contestee" is "contestant." This plainly appears, not only from the language of this section itself, but from the whole act. "Legislative enactments are not any more than any other rights to be defeated on account of mistakes, errors or commissions, provided the intention of the legislature can be collected from the whole statute." (2 Sutherland Stat. Const., sec. 410; In re Frey, 128 Pa. 593, 18 A. 478; Palms v. Shawano Co., 61 Wis. 211, 21 N.W. 77; Territory v. Ashenfelter, 4 N.M. 85 (93), 12 P. 879; Chapman v. State, 16 Tex.App. 76; Brinsfield v. Carter, 2 Ga. 143; Hutchings v. Bank, 91 Va. 68, 20 S.E. 950.)
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