State v. Finch

• Decision Date: 10 September 1957
• Docket Number: No. 8505,8505
• Citation: 315 P.2d 529,79 Idaho 275
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Vernon B. FINCH, Defendant-Appellant. Matter of the Permit of Vernon B. Finch, DBA Clearwater Dredging Company, to Conduct a Dredge Mining Operation on the Crooked River in Idaho County, Idaho.
• Court: Idaho Supreme Court

Page 529

315 P.2d 529

79 Idaho 275

STATE of Idaho, Plaintiff-Respondent, v. Vernon B. FINCH, Defendant-Appellant Matter of the Permit of Vernon B. Finch, DBA Clearwater Dredging Company, to Conduct a Dredge Mining Operation on the Crooked River in Idaho County, Idaho.

No. 8505.

Supreme Court of Idaho.

Sept. 10, 1957.

Rehearing Denied Sept. 30, 1957.

Anderson, Kaufman & Anderson, Boise, for appellant.

Graydon W. Smith, Atty. Gen., Edward J. Aschenbrener, Elbert E. Gass, Asst. Attys. Gen., for respondent.

McQUADE, Justice.

On January 14, 1956, one Frank Roberts, a citizen of Idaho, filed with the Board of Land Commissioners of the State of Idaho an application and petition charging the violation of the Idaho Dredge Mining Protection Act, I.C. § 47-1315, by one Vernon B. Finch, doing business as Clearwater Dredging Company, and praying that the Board revoke the dredge mining permit previously issued to the said Vernon B. Finch.

Pursuant to such petition, the Land Board noticed this matter for hearing before Arthur Wilson, State Land Commissioner of the State of Idaho, whom the Board had designated as hearing officer. In due time, and pursuant to the notice of hearing, the hearing was held. The hearing officer made findings of fact and conclusions of law, and an order, on August 6, 1956, which instruments were approved by the Board on the same day, and filed the following day.

The order terminated and revoked the dredge mining permit No. 3, which authorized Vernon B. Finch, doing business as Clearwater Dredging Company, to conduct a dredge mining operation on and near Crooked River in Idaho County, Idaho. An appeal was taken to this Court from the order pursuant to the provisions of I.C. § 47-1320, which provides for a direct appeal from any order of the Board terminating a permit or forfeiting bond, by the person adversely affected, to the Supreme Court of the State of Idaho.

In appellant's brief there are 19 specifications of error. The specifications of error which will be treated here are:

'The Act violates Article 2 of the Constitution of Idaho in that it vests judicial functions in the executive department of government.

'The Act violates Article 5, section 9, of the Idaho Constitution in that it provides original jurisdiction in such court on appeal from the State Board of Land Commissioners in violation of such constitutional provision.

'The Act violates Article 5, section 13, of the Idaho Constitution in that it deprives the judicial department of power and jurisdiction which rightly pertain to it as a coordinate department of government.

'The Act violates the provisions of Article 5, section 2, of the Idaho Constitution in that it attempts to make a court of the State Board of Land Commissioners.

'The Act violates the due process clause of Article 1, section 13, of the Idaho Constitution in that it attempts to deprive the plaintiff of the use and enjoyment of his property without due process of law.'

The Idaho Dredge Mining Protection Act was an initiative proposal, approved by the people of the State of Idaho by majority vote at the 1954 general election. Initiative legislation is of the same force and effect as that enacted by both houses of the legislature and approved by the governor, and must not violate any constitutional provision of the United States or of the State of Idaho. Luker v. Curtis, 64 Idaho 703, 136 P.2d 978.

Under Article 2, section 1, of the Constitution of the State of Idaho, the powers of the government are divided into three distinct departments, with a specific provision that no person or collection of persons charged with the exercise of powers belonging to one of these departments should exercise any of the powers belonging to any other department except as is provided in the constitution. In the Idaho Dredge Mining Protection Act, there are provisions for a hearing of any violation of its terms by the Board of Land Commissioners or the hearing officer, and that the Board of Land Commissioners or the hearing officer may make findings of fact, rulings of law, and orders on issues involving violations of the Act. The Act then provides for a direct appeal to the Supreme Court of the State of Idaho, which was done in this case.

There can be the creation of a board by legislation with authority to issue licenses, the issuing of such licenses to come under the police power of the state, which is properly a legislative function to determine if a pursuit or occupation should be regulated, and if so, under what rules.

Pursuant to the issuing of a permit, the legislature may also vest in some executive board or agency the power to investigate and determine if the permittee is violating any rule or statutory provision pertaining to the regulation of such business or industry for which the permit was issued. Hankins v. Spaulding, 78 Idaho 533, 307 P.2d 222; 11 Cal.Jur.2d, Constitutional Law, sec. 168, p. 561.

It is also within the power of the legislature to authorize the board or agent to revoke a permit for violations of statutes or regulations. Electors of Big Butte Area v. State Board of Education, 78 Idaho 602, 308 P.2d 225, 229. However, these actions must be reviewable by courts of law, inasmuch as they affect property rights. Electors of Big Butte v. State Board of Education, supra.

Appellant herein is the owner of a placer mining claim, which is defined by statute as real property. In addition to the appellant's having a property right by way of the placer claim, he also had acquired a property right in the water of Crooked River by appropriation. I.C. § 55-101 provides:

'Real property or real estate consists of:

'1. Lands, possessory rights to land, ditch and water rights, and mining claims, both lode and placer. * * *.'

In Electors of Big Butte v. State Board of Education, supra, this Court quoted in approval from Drummey v. State Board of Funeral Directors, 13 Cal.2d 75, 87 P.2d 848:

'* * * 'If it should be held that the board's action in cancelling or suspending an existing license is binding on the courts, if such action is predicated on conflicting evidence, we would be necessarily holding that such board is exercising at least quasi-judicial powers. It is the essence of judicial action that finality is given to findings based on conflicting evidence. If the statute be so construed it would violate the state Constitution. * * *''

The authority of the district courts is found in Article 5, section 20, of the Idaho Constitution, which is as follows:

'The district court shall have original jurisdiction in all cases, both at law and in equity, and such appellate jurisdiction as may be conferred by law.'

Under Article 5, section 2, of the constitution, the judicial power is settled in specially designated courts. Judicial power cannot be conferred upon any agency of the executive department, in the absence of constitutional authority, where the constitution has specifically provided for the creation of a judicial system. Electors of Big Butte Area v. State Board of Education, 78 Idaho 602, 308 P.2d 225, 230. This Court in the Big Butte case quoted Laisne v. State Board of Optometry, 19 Cal.2d 831, 123 P.2d 457, as follows '* * * 'Therefore, is a body other than one of the enumerated courts makes findings of fact, on those findings determines that the provisions of a certain statute have been violated, and issues an order or renders a judgment which has the effect of depriving a person of a valuable property right, such action denies the aggrieved party the due process of law guaranteed to him by the state and federal Constitutions, unless such action by such body may be questioned in a court of law. It should always be kept in mind that the evil of administrative action which must be guarded against is not the fact-finding power, but the conclusiveness of the fact-finding power coupled with the order based on the findings made which would deprive a person of a property right. Such is the full exercise of judicial power, and such power in this state can be exercised only by one of the enumerated courts. * * *''

In discussing similar constitutional provisions pertaining to the courts and the vesting of judicial power in administrative agencies, and in disposing of the right of due process, the Supreme Court of the United States, in St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, at page 52, 56 S.Ct. 720, at page 726, 80 L.Ed. 1033, at pages 1041-1042, stated:

'* * * Legislative agencies, with varying qualifications, work in a field peculiarly exposed to political demands. Some may be expert and...