Twin Falls Canal Company v. Huff

• Decision Date: 12 February 1938
• Docket Number: 6510
• Citation: 58 Idaho 587,76 P.2d 923
• Parties: TWIN FALLS CANAL COMPANY, a Corporation, Appellant, v. RAYMOND J. HUFF and R. W. FARIS, Commissioner of Reclamation of the State of Idaho, Respondents
• Court: Idaho Supreme Court

76 P.2d 923

58 Idaho 587

TWIN FALLS CANAL COMPANY, a Corporation, Appellant, v. RAYMOND J. HUFF and R. W. FARIS, Commissioner of Reclamation of the State of Idaho, Respondents

No. 6510

Supreme Court of Idaho

February 12, 1938

WATER AND WATER COURSES - APPROPRIATION - PROCEEDINGS BEFORE COMMISSIONER OF RECLAMATION-CONSTITUTIONAL LAW-STATUTES-UNCONSTITUTIONAL AMENDMENTS, EFFECT OF - CONSTITUTIONAL QUESTIONS, WHO MAY RAISE-REVIEW.

1. An unconstitutional amendment does not affect a previous statute.

2. One who is not injured nor in immediate danger of injury because of enforcement of statute cannot question constitutionality of statute.

3. An amended statute authorizing protesting parties to contest granting of water permits is not unconstitutional as conferring judicial power on reclamation commissioner, an administrative officer, though it authorizes commissioner to determine whether there is any unappropriated water available. (I. C. A., secs. 41-202 to 41-204, as amended by Sess. Laws 1935, chap. 145.)

4. The statute authorizing suits to quiet title and appeals in district court to review action of reclamation commissioner were not directly or impliedly amended by statutes governing proceedings before the commissioner to obtain permit but remained in force. (Code 1932, secs. 41-202 to 41-204, as amended by Laws 1935, chap. 145; secs. 41-210, 41-217, 41-306, 41-308.)

5. Upon appeal to district court from granting of water permit by reclamation commissioner, applicant who obtained permit could not urge unconstitutionality of amendments to statutes governing contests of permit, in absence of showing that he was injured thereby.

6. The district court should not dismiss appeal to it from granting of water permit by reclamation commissioner on ground of unconstitutionality of amendments to statute under which granting of permit was contested, but should proceed under prior valid statute and such portion of the amendments as could be held valid. (I. C. A., secs. 41-202 to 41-204, as amended by Sess. Laws 1935, chap. 145.)

7. The reviewing court will not pass upon questions of unconstitutionality until such questions are presented in a cause demanding rulings thereon.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. T. Bailey Lee, Judge.

Appeal from order sustaining motion to dismiss appeal from Commissioner of Reclamation to the District Court and from judgment of dismissal entered thereon by the District Court. Reversed and remanded.

Reversed and remanded with directions. Costs to appellant. Petition for rehearing denied.

James R. Bothwell and Harry Povey, for Appellant.

A presumption in favor of constitutionality is raised by the mere fact of the enactment of a statute by the legislature and the burden of showing that it is unconstitutional is on the party asserting it. (12 C. J. 791, sec. 221; Bannock County v. Citizens B. & T. Co., 53 Idaho 159, 176, 22 P.2d 674; Noble v. Bragaw, 12 Idaho 265, 85 P. 903; Sanderson v. Salmon River Canal Co., Ltd., 45 Idaho 244, 263 P. 32.)

The power and duties of the commissioner of reclamation under chap. 450, 1935 Sess. Laws, and similar statutes, are administrative and not judicial. (Speer v Stephenson, 16 Idaho 707, 717, 102 P. 365.)

The appeal to the district court provided for by chap. 450, 1935 Sess. Laws, and similar statutes contemplates a trial de novo in the district court. (State v. Adair, 49 Idaho 271, 272, 287 P. 950; In re Rice, 50 Idaho 660, 666, 290 P. 664.)

Unless a party is injuriously affected thereby, he cannot question the constitutionality of a statute. (In re Brainard, 55 Idaho 153, 157, 39 P.2d 769; and cases cited.)

A party availing himself of a statute and accepting benefits thereunder is estopped to question its constitutionality. (12 C. J. 773; Brady v. Place, 41 Idaho 747, 242 P. 314, 243 P. 654; and authorities cited; Taylor v. Girard, 54 Idaho 787, 36 P.2d 773; McGinness v. Davis, 7 Idaho 665, 65 P. 364; Grand Rapids & I. Ry. Co. v. Osborn, 193 U.S. 17, 24 S.Ct. 310, 48 L.Ed. 598.)

Richards & Haga and S. T. Hamilton, for Respondent, Raymond J. Huff.

Respondent Raymond J. Huff made his application in the form required by the statute before the unconstitutional provisions, which he now questions, were added thereto by amendment. He has not sought or obtained, and does not claim any benefit or advantage under the provisions of the statute which he assails as unconstitutional, and he is not barred under any rule of law from challenging its constitutionality. (Mojave River Irr. Dist. v. Superior Court, 202 Cal. 717, 262 P. 724, 729; Collier & Wallis v. Astor, 9 Cal. (2d) 202, 70 P.2d 171.)

Where one does not assert a right under the statute which he assails and has not taken and is not obliged to take any affirmative step thereunder to obtain whatever benefit may accrue to him because of the statute, he is not estopped from assailing the constitutionality of the statute. (Thompson v. Consolidated Gas Utilities Corp., 300 U.S. 55, 57 S.Ct. 364, 81 L.Ed. 510.)

The provisions as to appeal and trial in district court attempt to regulate the practice of the courts of justice, and, therefore, violate section 19 of article 3 of the state constitution.

The provisions of section 2 of chapter 145, Session Laws 1935 (sec. 41-203, I. C. A., as amended) relative to the taking of appeals from the commissioner of reclamation to the district court, and the trial in the district court, violate section 19 of article 3 of the Idaho constitution because such provisions attempt to regulate by special law the practice of courts of justice. (Mojave River Irr. Dist. v. Superior Court, supra; Bear Lake County v. Budge, 9 Idaho 703, 75 P. 614, 108 Am. St. 179.)

Section 2, chapter 145, Session Laws of 1935 (sec. 41-203, I. C. A., as amended) attempts to vest in the commissioner of reclamation judicial power to determine from the evidence and the law: The amount of water that has theretofore been appropriated and that is held under valid appropriations. The amount that can be beneficially applied by such prior appropriators. The surplus, if any, still available for appropriation, and whether the applicant is entitled to appropriate the water so found to be available, and many other questions which the courts have heretofore determined and adjudicated in water controversies and priority suits, and the statute is, therefore, in conflict with section 2 of article 5 of the Idaho constitution. (Tulare Water Co. v. State Water Com., 187 Cal. 533, 202 P. 874; Yuba River Power Co. v. Nevada Irr. Dist., 207 Cal. 521, 279 P. 128; Little Cottonwood Water Co. v. Kimball, 76 Utah 243, 289 P. 116.)

GIVENS, J. Holden, C. J., and Morgan and Ailshie, JJ., concur.

OPINION

GIVENS, J.

Respondent applied to the commissioner of reclamation of the state to appropriate 200 cubic feet per second of the public waters from Rock Creek, in Twin Falls county for power-pumping purposes. Notice of the application was duly published, and appellant filed a protest thereto and a hearing was had before the commissioner, who overruled the protest and approved the permit whereupon appellant appealed to the district court, whereupon respondent moved to dismiss the appeal on the grounds that chapter 145, Sess. Laws 1935, page 353, amending sections 41-202, 41-203 and 41-204, I. C. A., is unconstitutional in that: (1) It makes arbitrary and illegal classification of applications for the appropriation of water on which appeals will be permitted, in that only those applying for 25 second-feet of water or more must set forth their financial status. (2) Vests judicial power in the commissioner of reclamation. (3) Unduly restricts the introduction of evidence on appeal in the district court, thereby depriving parties of due process of law in violation of the state and federal constitutions. (4) Is ambiguous and attempts to regulate by special law the action of the courts of justice in violation of article 3, section 19, of the constitution of Idaho.

The court granted the motion and entered a judgment of dismissal, whence followed the appeal herein.

The 1935 amendments were substantially as follows: Only those (not all applicants as before) asking for more than twenty-five second-feet of water or the development of more than five hundred theoretical horse-power to have to "state their financial resources," and "the means by which the fund necessary to construct the proposed works are to be provided and the estimated cost of construction." (2) Any party desiring to produce evidence before the commissioner to pay in advance the costs of taking such testimony and printing transcript thereof. (3) Discretion in the commissioner to appoint someone to investigate for him. (4) The time for filing protest shortened from 60 to 40 days and for hearing by applicant shortened to 60 days from issuance of notice of application, notice to be published within 10 instead of 21 days from date of service on him by the commissioner. (5) It eliminated from section 41-203 the words "for power purposes," and "be detrimental to domestic or irrigation uses," and added as grounds for the commissioner's refusing a permit; "that the water supply itself is insufficient for the purpose for which it is sought to be appropriated, or where it appears to the satisfaction of the department that such application is not made in good faith, is made for delay or speculative purposes, that the applicant has not sufficient financial resources with which to complete the work involved therein, or if a renewal permit, that such applicant has not proceeded diligently in applying the waters involved therein to any beneficial use or purpose. . . ."

Respondent attacks only the last amendment and...