State v. True

• Decision Date: 06 October 1919
• Docket Number: 977
• Citation: 26 Wyo. 314,184 P. 229
• Parties: STATE v. TRUE
• Court: Wyoming Supreme Court

184 P. 229

26 Wyo. 314

STATE v. TRUE

No. 977

Supreme Court of Wyoming

October 6, 1919

ORIGINAL PROCEEDINGS in prohibition by the State of Wyoming on the relation of John W. Leazenby against James B. True State Engineer, to prevent defendant from conducting a hearing upon petition filed with him, to cancel a reservoir permit. Heard upon demurrer to the petition.

Writ denied and petition dismissed.

W. L Walls, Attorney General, in support of the demurrer.

This is an original proceeding for the writ of prohibition to prevent action by the State Engineer in conducting a hearing upon an application for the cancellation of a reservoir permit. The State Engineer set the matter for hearing, but prior to the date assigned for hearing, the plaintiff applied to this court for a writ of prohibition to prevent action on the ground that the Engineer is without jurisdiction to conduct such a hearing; the State Board of Control acts in an administrative and quasi-judicial capacity (Inv. Co. v Carpenter, 9 Wyo. 110); the State Engineer has general supervision of the waters of the state (Const. Art. VIII, Sec. 5); the State Engineer has authority to approve, disapprove or cancel water permits, his action being subject to review by the courts (Sec. 728-737 C. S.); his authority with reference to reservoir permits is defined by Secs. 743-748, and certain other sections mentioned and referred to therein; he has authority to cancel permits (Sec. 748 C. S.); he has authority to make all necessary orders to enforce an observance of the statutes as to applications for reservoir permits, or a compliance with the law thereafter; the courts cannot control the discretion of the State Engineer, as an administrative officer acting within his proper jurisdiction (Inv. Co. v. Carpenter, supra); the relator has an adequate remedy at law by appeal to the courts (Sec. 733-748). The inconvenience and expense of an appeal will not justify the issuance of a writ of prohibition to prevent official action by the engineer.

W. E. Mullen, in support of the demurrer.

The Constitution, Art. V, Sec. 3, confers original jurisdiction upon this court for the issuance of writs of prohibition in aid of its appellate and revisory jurisdiction; in Dobson v. Westheimer, 5 Wyo. 34, it was held that the supervisory powers of the court over inferior tribunals authorized the issuance of writ of prohibition in any proper case where the remedy had been recognized by common law, if the act sought to be prohibited is of a judicial nature; in State v. District Court, 5 Wyo. 227, it was also held that the writ would lie only when the inferior court or tribunal exceeded its jurisdiction; in State v. Ausherman, 11 Wyo. 420, it was held that the writ might issue in any proper case. The State Engineer has general supervision of the waters of the state (Const., Art. VIII, Sec. 5). His powers comprehend administrative action (Inv. Co. v. Carpenter, 9 Wyo. 110); the Engineer is not an inferior court; he acts in a quasi-judicial capacity only; he may cancel, grant or refuse reservoir permits in proper cases (748 C. S.); he may do this without a hearing, and in doing so acts in his administrative capacity; his discretion may not be controlled by the writ of prohibition; the writ should be denied.

Corthell, McCollough and Corthell, opposing the demurrer.

This court has jurisdiction to restrain by prohibition the action of inferior courts in excess of their jurisdiction (State v. Ausherman, 11 Wyo. 410); the appropriate function of the remedy is to restrain the exercise of unauthorized judicial or quasi-judicial power (High Extraordinary Legal Remedies, 764 A. 32 Cyc. 601, 602, and cases cited; State v. Clendenning, ___ Ohio St. ___, 112 N.E. 1029; State v. Young, 29 Minn. 474, 523; Osage & Okla. Co. v. Millard, ___ Okla. ___, 145 P. 797, 799; State v. Stevens, ___ Nev. ___, 116 P. 605; Baker v. Gooding County, ___ Ida. ___, 138 P. 342, 345; State v. Toomey, 27 S.D. 37, 129 N.W. 563; State v. Selectmen of Norwood, 223 Mass. 222, 111 N.E. 851, 852); the controversy before the State Engineer involves a substantial property right; successive appeals do not afford an adequate remedy; the State Engineer acts in a quasi-judicial capacity (Spear v. Stephenson, 102 P. 365); the nature of this power is exhaustively discussed in Sugar Co. v. Goodrich, 27 Ida. 26, 147 P. 1073; the powers of the Engineer are statutory and do not include the power to cancel water applications; his powers should be strictly construed (Sutherland St. Con. 390); he cannot impose a condition unauthorized by statute (Laughlin v. Board, 21 Wyo. 99; the power of supervision of public waters is administrative (Inv. Co. v. Carpenter, 9 Wyo. 110), and are statutory (Willey v. Decker, 11 Wyo. 496); no power is delegated to determine questions of forfeiture or abandonment (Parshall v. Cowper, 22 Wyo. 385; Prairie Oil Co. v. Cruce, 147 P. 152, 36 Cyc. 1179); there can be no forfeiture unless judicially determined (19 Cyc. 1559); the proceedings are adversary and involve a judicial question (State v. Carr, 28 N.E. 88).

BLYDENBURGH, JUSTICE. BEARD, C. J., and POTTER, J., concur.

OPINION

BLYDENBURGH, JUSTICE.

This is a proceeding invoking the original jurisdiction of this court to issue a writ of prohibition against the State Engineer to restrain him from holding a threatened hearing seeking to cancel a permit theretofore issued to construct a reservoir to conserve and impound the waters of Harney Creek in Albany County, Wyoming.

The relator alleges in his petition that on August 10, 1914, one D. C. Buntin made and filed in the office of the State Engineer an application for a permit to construct the Harney Creek Reservoir in due form, under the provisions of Chapter 59 (Sections 743-752), Wyoming Compiled Statutes, 1910, and the application is set out in full in the petition. That the State Engineer then in office on the 25th day of September, 1914, approved said application and endorsed thereon,

"The State of Wyoming, State Engineer's Office.

"THIS IS TO CERTIFY THAT I have examined the foregoing application and do hereby grant the same subject to the following limitations and conditions:

"Primary Permit. Application for secondary permit describing lands to be irrigated to be filed prior to August 1st, 1915.

"Construction of proposed works shall begin within one year from date of approval.

"The time for completing the work shall terminate on December 31, 1919.

"WITNESS my hand this 25 day of September, A. D. 1914.

"A. J. PARSHALL,

"State Engineer."

And that on July 31st, 1915, the State Engineer made the following endorsement on said application:

"NOTICE of Commencement of Work recorded July 31, 1915. Time for filing secondary application extended to January 31, 1916. (See letter from D. C. Buntin, July 30, 1915.)

"JAMES B. TRUE, State Engineer, July 31, 1915."

That said Buntin on the 28th day of February, 1917, sold, assigned and transferred to the relator all his rights under said permit. That W. C. Thomas and John H. Davis, copartners as Davis & Thomas, on April 24, 1918, filed an application in the office of the State Engineer for the cancellation of the relator's permit for the reasons that Buntin had failed to file his secondary application; had failed to begin the construction of the proposed work within one year from the date of approval of the application; that Davis & Thomas hold interest in the waters of Harney Creek which is greatly injured by having the Buntin application stand of record; had expended large sums of money in constructing the Columbus Reservoir; and accompanied said application for cancellation by affidavits supporting the statements contained therein, all being set out in full in the petition. That on June 18, 1919, the State Engineer notified relator that a hearing would be had before the State Engineer for the purpose of hearing and determining the allegations contained in the application of Davis & Thomas to cancel his permit; that on June 24, 1919, Davis & Thomas, by their attorney, and the relator, by his attorney, appeared before the State Engineer and thereupon the relator objected and protested against the State Engineer holding said hearing on the ground that the State Engineer was without jurisdiction and authority to hold said hearing and had no power conferred upon him to hear and determine the cancellation of relator's permit, whereupon the State Engineer announced his decision and determination that he had jurisdiction to hear and determine the said matter and to cancel said permit and thereupon adjourned the said hearing until June 28, 1919. That relator's project is not of the character mentioned in sections 746 and 747 of the Wyoming Compiled Statutes, and was not in the opinion of the State Engineer such as to require the appointment of an assistant engineer or the supervision of said work, but was supervised and constructed by the relator himself and was completed by the relator prior to December 31, 1918, without supervision on the part of or under the authority of the State Engineer. Then follows the allegation that the State Engineer has no jurisdiction or authority to hold the hearing or cancel the permit and that he is usurping judicial or quasi-judicial power and that he intends and threatens to proceed further with said hearing and to take evidence concerning the compliance of the relator with the conditions of said permit, and to decide the question of the cancellation of the permit.

It is further alleged that the relator has no adequate remedy other than the writ of prohibition prayed for and that he has expended $ 3,600; that he needs all the water that can be stored in said reservoir for use in irrigating his lands underlying the same, and...