Vineyard Land & Stock Co. v. District Court of Fourth Judicial Dist. of Nevada in and for Elko County

• Decision Date: 05 March 1918
• Docket Number: 2264.
• Citation: 171 P. 166,42 Nev. 1
• Parties: VINEYARD LAND & STOCK CO. v. DISTRICT COURT OF FOURTH JUDICIAL DIST. OF NEVADA IN AND FOR ELKO COUNTY et al.
• Court: Nevada Supreme Court

171 P. 166

42 Nev. 1

VINEYARD LAND & STOCK CO. v. DISTRICT COURT OF FOURTH JUDICIAL DIST. OF NEVADA IN AND FOR ELKO COUNTY et al.

No. 2264.

Supreme Court of Nevada

March 5, 1918

Petition for prohibition, on the relation of the Vineyard Land & Stock Company, a corporation, against the District Court of the Fourth Judicial District of the State of Nevada in and for the County of Elko, E. J. L. Taber, District Judge of said District Court, and W. M. Kearney, as State Engineer of the state of Nevada. Alternative writ vacated, and permanent writ denied.

McCarran C.J., dissenting.

Not only the cases growing out of the Oregon law, but all other cases growing out of similar statutes, have held that the powers conferred upon the official designated under the statute to supervise and administer the laws were, at most quasi judicial. Such was the holding in Farmers' Inv. Co v. Carpenter, supra, where it is said:

"The determination required to be made by the board is in our opinion, primarily administrative rather than judicial in character. The proceeding is one in which a claimant does not obtain redress for an injury, but secures evidence of title to a valuable right, a right to use a peculiar public commodity. That evidence of title comes properly from an administrative board, which, for the state in its sovereign capacity, represents the public, and is charged with the duty of conserving public as well as private interests. The board it is true, acts judicially, but the power exercised is quasi judicial only, and such as, under proper circumstances may appropriately be conferred upon executive officers or boards. The jurisdiction bears some resemblance to that of the land department of the government concerning the disposal of the public lands. That department is not regarded as a court, or as a branch of the judicial department; nor is its jurisdiction upheld upon the basis of any authority residing in Congress to establish courts. It is considered as an administrative department, and its powers are held to be quasi judicial only. Orchard v. Alexander, 157 U.S. 372, 15 S.Ct. 635, 39 L.Ed. 737. There exists the same partial resemblance to the state board of land commissioners of our own state. State v. State Board of Land Com'rs, 53 P. 292, 7 Wyo. 478. We are not persuaded that the act is void as conferring judicial power upon the board in violation of the Constitution."

But it is urged that that decision was of no weight in determining the question before the court, for the reason that the Wyoming Constitution authorized the creation of a tribunal with power to adjudicate water rights. The Wyoming Constitution (article 8, § 2) on that point reads:

"There shall be constituted a board of control, to be composed of the state engineer, and superintendents of the water divisions; which shall, under such regulations as may be prescribed by law, have the supervision of the waters of the state and of their appropriation, distribution and diversion, and of the various officers connected therewith. Its decisions to be subject to review by the courts of the state."

So far as we are able to see, there is nothing in that section of the Wyoming Constitution conferring judicial power upon the board of control. To us it seems clear that the power of the board is limited to the determination of questions of a quasi judicial nature, such as may arise in the investigation and granting of permits to appropriate unappropriated water in a public stream, and in the supervision and administration of the distribution of the waters of the public streams. There is a wide difference between having authority to supervise and administer and having authority to determine questions involving vested rights. The former may, we think, with propriety, be left to an administrative officer, while the latter is properly a question for the courts.

Furthermore, from another standpoint we see no way of escaping the conclusion stated that no judicial power was vested by the Wyoming Constitution in the board of control, for the reason that the Constitution itself states just where the judicial power of the state is vested. It reads:

"The judicial power of the state shall be vested in the senate, sitting as a court of impeachment, in a supreme court, district courts, justices of the peace, courts of arbitration, and such courts as the Legislature may, be general law, establish for incorporated cities or incorporated towns." Article 5, § 1, Const. Wyo.

This provision limits the exercise of judicial power to the courts mentioned therein, so we think it must be clear that the distinction sought to be made between the Wyoming statute and our statute because of the fact that we have no provision in our Constitution such as article 8, § 2, of the Wyoming Constitution is without support. See Bergman v. Kearney, supra. On this point the Supreme Court of Nebraska, in considering a statute similar to ours prior to the amendment of 1915, says.

"In the face of these decisions, it hardly seems necessary to again consider the question, but we have done so, and have examined further authorities. It is a matter of common knowledge that both in the administration of the laws of the United States and of the several states, boards of individuals, for the purpose of exercising executive or administrative functions, are often compelled to inquire into and determine questions requiring the exercise of powers judicial in their nature. Some of such determinations are often, by virtue of the statutes defining the functions and power of the tribunal, final and decisive, and others are made reviewable by appeal to the courts. *** Whether reviewable by the courts or not, the exercise of such powers by tribunals of this nature has seldom been held to be a violation of the Constitution in this respect. McGehee, Due Process of Law, 162, 368; Reetz v. Michigan, 188 U.S. 505, 23 S.Ct. 390, 47 L.Ed. 563; Gardner v. Bonestell, 180 U.S. 362, 21 S.Ct. 399, 45 L.Ed. 574; Bates & Guild Co. v. Payne, 194 U.S. 106, 24 S.Ct. 595, 48 L.Ed. 894; People ex rel. Deneen v. Simon, 176 Ill. 165, 52 N.E. 910, 44 L. R. A. 801, 62 Am. St. Rep. 175; Farm Investment Co. v. Carpenter, 9 Wyo. 110, 61 P. 258, 50 L. R. A. 747, 87 Am. St. Rep. 918; State v. Thorne, 112 Wis. 81, 87 N.W. 797, 55 L. R. A. 956; Gee Wo v. State, 36 Neb. 241, 54 N.W. 513; Lincoln Medical College v. Poynter, 60 Neb. 228, 82 N.W. 855. We are satisfied with the conclusion reached by this court in the cases cited, which were followed in Farmers' Canal Co. v. Frank, 72 Neb. 136, 100 N.W. 286, and see no reason to change our conclusion in this respect." Enterprise Irr. Dist. v. Tri-State Land Co., 92 Neb. 121, 138 N.W. 179.

But it is contended that since nothing is said in the Constitution of Nebraska about irrigation, and since the doctrine of riparian rights existed in Nebraska, the case just quoted from should not be considered as an authority by this court. We fail to see the force of this contention. As we understand the law, unless the state or federal Constitution prohibits legislation upon a subject, the power of the Legislature is plenary; and the Legislature of Nebraska, evidently being of this view, passed an irrigation act. This act was first brought to the attention of the Supreme Court of that state in the case of Crawford v. Hathaway, 60 Neb. 754, 84 N.W. 271, where the court gave it scant consideration. On an application for a rehearing, the statute was more fully considered. 61 Neb. 317, 85 N.W. 303. Another rehearing was had in the case, where the full scope of the act was set out. Upon this rehearing the former opinions were reversed, and it was held that the irrigation act was constitutional, but that no vested riparian rights could be violated. 67 Neb. 325, 93 N.W. 781, 60 L. R. A. 889, 108 Am. St. Rep. 647. In that opinion it was also held that as to unappropriated water the act in question controlled, and that vested riparian rights might be condemned under the right of eminent domain. Following the case just mentioned was the case of Enterprise Irr. Dist. v. Tri-State Land Co., from which we have quoted supra.

We are unable to see the force of the distinction sought to be made between the Nebraska statute and the Nevada statute. The fact is that the Constitution of neither of these states has a word to say about irrigation, but in Nevada the courts "took the bull by the horns," and in effect repealed the doctrine of riparian rights without awaiting the action of the Legislature (Reno Smelting Works v. Stevenson, 20 Nev. 269, 21 P. 317, 4 L. R. A. 60, 19 Am. St. Rep. 364), while in Nebraska it was left for the Legislature to pass an irrigation act.

The only difference between the Constitutions of Wyoming and Nebraska and that of Nevada, so far as to warrant a different conclusion as to the Nevada statute of 1913, is that there is nothing in the Constitutions of the first two states prohibiting an appeal from the order of distribution made pursuant to the water laws of those states, while in Nevada the Constitution prohibits such a proceeding; hence, since the amendment of 1915, the reasoning and logic of the Wyoming and Nebraska cases apply with full force to the situation now presented to us.

It is also contended, if we correctly understand counsel, that there can be no due process of law except in a proceeding in court, where summons is regularly issued and served in accordance with the usual practice in actions pending in such tribunals. While we do not deem it necessary to determine this question, for the reason that we think, as will be shown later, that the real proceeding wherein an adjudication is made is after the proceedings are instituted in the district court, however, as pointed out by Norcross, J., in his opinion...