State v. Adair

• Decision Date: 25 April 1930
• Docket Number: 5511
• Citation: 287 P. 950,49 Idaho 271
• Parties: STATE OF IDAHO and WOOD LIVESTOCK COMPANY, a Corporation, Plaintiffs, v. RALPH W. ADAIR, District Judge of the Sixth Judicial District of the State of Idaho, Defendant
• Court: Idaho Supreme Court

287 P. 950

49 Idaho 271

STATE OF IDAHO and WOOD LIVESTOCK COMPANY, a Corporation, Plaintiffs, v. RALPH W. ADAIR, District Judge of the Sixth Judicial District of the State of Idaho, Defendant

No. 5511

Supreme Court of Idaho

April 25, 1930

WRIT OF REVIEW-APPEAL FROM RECLAMATION COMMISSIONER TO DISTRICT COURT.

Hearing on appeal to district court from reclamation commissioner is "original proceeding," which must be reviewed by supreme court on appeal and not by writ of review (C. S sec. 5582, as amended by Laws 1921, chap. 146).

APPLICATION for Writ of Review. Writ denied.

Writ denied. Costs awarded to defendant.

W. D Gillis, Attorney General, A. C. Cordon and S.E. Blaine Assistant Attorneys General, and Peterson, Baum & Clark, for Plaintiff, cite no authorities on point decided.

John W. Jones and Guy Stevens, for Defendant.

Under Const., art. II, sec. 1, the commissioner of reclamation of Idaho cannot exercise any judicial power. Consequently, the transfer of the cause to the district court, while called an appeal, is but a proceeding in the district court de novo, and has nothing appellate in the transfer and should be considered as a special proceeding commenced in said court. To hold that the transfer proceedings to the district court is by way of appeal would be to hold the law invalid as attempting to confer judicial power upon the commissioner; to hold that such transfer is merely a special proceeding in the district court is to sustain the law. (United States v. Ritchie, 17 How. (U.S.) 525, 15 L.Ed. 236; Ricks v. Reed, 19 Cal. 551, 574; In re Initiative Petition No. 23, 35 Okla. 49, 127 P. 862.)

Upon such a construction, an appeal lies to this court and is plain, speedy and adequate. (C. S., sec. 7152.)

This court has heretofore considered such an appeal. (Twin Falls Canal Co. v. Shippen, 46 Idaho 787, 271 P. 578.)

GIVENS, C. J. Budge, Lee, Varian and McNaughton, JJ., concur.

OPINION

GIVENS, C. J.

Plaintiffs applied for a writ of review directed to defendant to review a judgment rendered by defendant on an appeal from a decision of the commissioner of reclamation, denying an application for a transfer of the place of use of water under C. S., sec. 5582, amended 1921 Sess Laws, chap. 146, p. 334.

The determinative point herein is whether a writ of review or appeal is the proper procedure.

Plaintiffs contend the only remedy is by writ of review because an appeal is not authorized by C. S., sec. 7152, in this, that such appeal would not fall under either the second or third phrases of subdivision one of said section, nor subd. 2 thereof, and that it is not an action or special proceeding "commenced" in the district court coming under the first phrase of the first subdivision.

Though the point was not raised or discussed, an appeal was entertained by this court in such a proceeding as herein involved. (Twin Falls Canal Co. v. Shippen, 46 Idaho 787, 271 P. 578.)

C. S., sec. 5582, as amended in 1921 Sess. Laws, chap. 146, p. 334, provides for a hearing de novo in the district court and not upon the testimony or evidence previously adduced before the commissioner. The word "appeal" as used in the statute was not used in the sense of an "appeal" from an inferior court, since the commissioner of reclamation does not exercise judicial functions in the strict sense of the term. The word "appeal" then merely provides for a hearing on the decision of the commissioner of reclamation, in a court. So far as the district court, therefore, is concerned, the hearing on the so-called "appeal" from the commissioner is an original proceeding "commenced" in said court.

C. S., sec. 3512, provides that on appeal to the district court from an order of the board of county commissioners such appeal shall be "heard anew." This phrase is similar in effect to the language in the last sentence in C. S., sec. 5582, under consideration herein. This court construed the words "heard anew" thus:

"What is meant by 'heard anew,' as used in this statute, is that the district court shall try the case as though originally brought in said court. . . . " (Gardner v. Blaine County, 15 Idaho 698, at 702, 99 P. 826, 827.)

As said by the United States supreme court in United States v. Ritchie, 58 U.S. 525, 17 HOW 525, 534, 15 L.Ed. 236:

"But the answer to the objection is, that the suit in the district court is to be regarded as an original proceeding, the removal of the transcript, papers, and evidence into it from the board of commissioners being but a...