State v. Taylor

• Decision Date: 12 July 1909
• Citation: 102 P. 1029,54 Wash. 150
• Parties: STATE ex rel. BENNETT et al. v. TAYLOR et al.
• Court: Washington Supreme Court

102 P. 1029

54 Wash. 150

STATE ex rel. BENNETT et al. v. TAYLOR et al.

Supreme Court of Washington

July 12, 1909

Department 1. Prohibition by the State, on relation of W. S. Bennett and others, against Edward W. Taylor and others. Writ denied.

Ralph B. Williamson, for respondents.

GOSE J.

On the 5th day of June, 1909, one Ferd Bonstedt, as manager in charge of the Okanogan Irrigation Project of the United States, filed a notice in the superior court of Okanogan county, stating that his principal, the United States, had constructed a reservoir for the storage of the water of Salmon creek in Okanogan county for the purpose of irrigating a large body of land, and that it desired to use the bed of Salmon creek for the purpose of carrying the water from the reservoir to the place where it would be used. The notice further stated that on June 7 following he would, on behalf of his principal, apply to the court for the appointment of a commissioner to control, regulate, distribute, and measure the water. The relators, taxpayers and owners of a part of the natural flow of the water of Salmon creek, have applied to this court for an alternative writ of prohibition against the respondents as judge of the superior court and court commissioner, respective, and have alleged that the respondents would appoint a commissioner as prayed for unless prohibited by this court. The hearing on the notice for the appointment of a commissioner was continued until July 16th. The respondent Woodbeck stipulated that the facts alleged in the petition for the writ are true, and that he consented to this court limiting its inquiry to the single question of the constitutionality of the act under which the appointment of the water commissioner is sought. Respondent Taylor demurred to the petition for the writ, on two grounds, (1) that the court has no jurisdiction over the subject-matter of the cause as the act sought to be prohibited is ministerial and administrative and not judicial; (2) that the petition does not state facts sufficient to warrant the issuance of any extraordinary writ. Notwithstanding the stipulation of one of the respondents, our first duty is to inquire as to our power to grant the writ. The only office of the writ of prohibition under article 4, § 4, Const., and the Code (Ballinger's Ann. Codes & St. § 5769 [Pierce's Code, § 1422]), is to restrain the exercise of an unauthorized judicial or quasi judicial act. Winsor v Bridges, 24 Wash. 540, 64 P. 780; State ex rel Pelton v. Ross, 39 Wash. 399, 81 P. 865.

It therefore becomes pertinent to inquire whether the power conferred upon the superior court is a judicial one. The questions involved necessitate a consideration of the act under the terms of which the appointment of a water commissioner was requested. It is urged by the respondents that the power to make the appointment is contained in Laws 1907, pp. 285, 286, c. 144. Section 1 of the act is as follows: 'That whenever the owner, manager or lessee of a reservoir, constructed for the storage of water to be used for beneficial purposes shall desire to use the bed of any stream, or other natural water course, for the purpose of carrying stored, or impounded water, from the reservoir to the user thereof, he shall, in writing, notify the superior court of any county within which said water is stored, carried or used, giving the date when it is proposed to discharge water from such reservoir, and the names of all persons and ditches entitled to its use. The court may then, upon a proper showing as to the necessity therefor, appoint a commissioner with qualifications as hereinafter stated, whose duty it shall be to so close, regulate or adjust the headgates of the several ditches taking water from such stream or natural water course, that no more water will flow into said ditch than it is entitled to receive from the water stored in the reservoir or from the unregulated flow of the stream or from both, as determined by decrees of court or as shown by evidences of right properly recorded or by agreement between the parties in interest made with due regard to the legal rights of all and all persons who may be injured by the action of said commissioner, or by his failure to act as herein provided, may resort to any court of competent jurisdiction for such relief as he may be entitled to.' Section 4 provides: 'Said commissioner may, with the consent of the superior court appointing him, have power to employ and appoint assistants to aid him in the discharge of his duties whenever necessary. * * *' The relators assert that the act is violative of section 5, art. 11, and sections 3 and 16, art. 1, of our Constitution, and of the fourteenth amendment of the federal Constitution. The act under consideration does not require that any notice shall be given preceding the appointment of a commissioner. The only conditions precedent to the appointment are: (1) That the court shall be notified in writing that the owner, manager, or lessee of a reservoir constructed for the storage of water to be applied to a beneficial use desires to use the bed of a stream for the purpose of carrying impounded water from the reservoir to the place of use. (2) The court may upon the proper showing of necessity appoint a commissioner...