Humboldt Land & Cattle Co. v. Sixth Judicial District Court

By the Court,

Sanders, J.:

This is an original proceeding in prohibition. The proceeding involves purely legal questions, and a statement of the undisputed facts may be omitted.

The petitioners insist that the procedure adopted in section 35 of the water law (chapter 140, Statutes of 1913; chapter 253, Statutes of 1915; chapter 106, Statutes of 1921) for the final hearing and adjudication of the order of determination of the state engineer, which defines the relative rights of the various claimants and appropriators to the waters of a stream or stream-system, in this instance the waters of the Humboldt River stream-system and its tributaries, is unconstitutional, in that it denies to the parties in interest due process of law; which is that no person shall be deprived of his property without notice and a reasonable opportunity to be heard in his own behalf. Garson v. Steamboat Canal Co., 43 Nev. 298, 185 Pac. 801, 1119.

It must be conceded that it is the province of the legislature to establish within constitutional limits the rules, not only of procedure, but for the determination of rights, by which the courts shall be governed. Greenwood v. Butler, 52 Kan. 424, 34 Pac. 967, 22 L. R. A. 466. It must also be conceded that in determining whether due process of law has been denied regard must always be had to the character of the proceeding involved, and the respect given to the cause and object of the taking. Crane v. Hahlo, 258 U. S. 142, 42 Sup. Ct. 214, 66 L. Ed. 514; Davidson v. New Orleans, 96 U. S. 97, 24 L. Ed. 616. Crane v. Hahlo decides that no one has a vested right in any given mode of procedure, and, so long as a substantial and efficient remedy remains or is provided, due process of law is not denied by a legislative change.

Applying these principles to the section under consideration, it is clear that the procedure satisfies the constitutional requirement. In fact, the section was undoubtedly inserted in view of the due-process-of-law clause of the organic law, and the best answer to the objection that the section fails to provide for due process of law is the statute itself.

Section 35 reads as follows:

“At least five days prior to the day set for hearing, all parties in interest who are aggrieved or dissatisfied with the order of determination of the state engineer shall file with the clerk of said court notice of exceptions to the order of determination of the state engineer, which notice shall state briefly the exceptions taken, and the prayer for relief, and a copy thereof shall be served upon or transmitted to the state engineer by registered mail. The order of determination by the state engineer and the statements or claims of claimants and exceptions made to the order of determination shall constitute the pleadings, and there shall be no other pleadings in the cause. If no exceptions shall have been filed with the clerk of the court as aforesaid, then on the day set for the hearing the court may take further testimony if deemed proper, and shall then enter its findings of facts and judgment and decree. On the day set for hearing, all parties in interest who have filed notices of exceptions as aforesaid shall appear in person or by counsel, and it shall be the duty of the court to hear the same or set the time for hearing, until such exceptions are disposed of, and all proceedings thereunder, including the taking of testimony, shall be as nearly as may be in accordance with the rules governing civil actions.”

This legislative interpretation of the statute removes doubt as to its meaning, if any existed. It is' contended, however, that to constitute due process of law with respect to the trial of exceptions taken and filed to the order of determination of the state engineer it is essential that the section should require copies of the exceptions to be served upon each claimant personally. In support of this position it is contended that the omission from the section of a provision for the service of copies of exceptions renders any judgment pronounced upon the trial of the issues raised by exceptions absolutely void.

To demonstrate the fallacy of this contention we shall state in brief the argument advanced in its support.

It is argued that when exceptions are filed with the clerk of the court a judicial contest immediately arises, in which contest the exceptor is the plaintiff and all other water users defendants, with the state or state engineer as neutral bystander. This construction involves a fallacy made apparent by the mere statement of the proposition; for the power of the state to enforce its own law is essentially inherent in the conception of law. If the taking of exceptions to the order of determination of the engineer has the effect of forcing the state or its representative out of the case as made by its own pleading it would not only defeat the purpose, but would make the whole proceeding farcical. It would be marvelous, indeed, if the legislature intended to abandon the law and leave its vindication and enforcement to the water users of the stream or stream-system when the preliminary proceeding • committed to the state engineer has advanced to the point where it reaches the district court for final hearing and adjudication.

The confusion of thought which seems to permeate the entire argument of the learned counsel is based upon the false premise that when the proceeding reaches the district court it becomes a separable controversy betweeen different claimants. There is nothing in the context or in the subject-matter to require such construction, but the entire scope of the legislation is persuasively to the contrary. As said in one of the cases quoted from in Re Chewaucan River, 89 Or. 659, 175 Pac. 427:

“It is a case where divers and sundry parties are entitled to use so much of the waters of a stream as they have put to beneficial use and the purpose is to ascertain their respective rights by a simple, economical; effective, and comprehensive proceeding, and is not a separable controversy between different claimants.” In Re Silvies River (D. C.), 199 Fed. 495.

This holding accords with the opinion in Vineyard L. & S. Co. v. District Court, 42 Nev. 1, 171 Pac. 166, and also the opinion of Judge Farrington in Bergman v. Kearney (D. C.), 241 Fed. 884.

The section discloses a fixed purpose to secure timely notice to all claimants of the hearing, and of the time and place for the hearing of all parties in interest dissatisfied or aggrieved with the order of determination of the engineer. It requires all those aggrieved or dissatisfied to file notice of their exceptions with the clerk setting forth the grounds and prayer for relief, thus affording all parties in interest who are satisfied with the order of determination an opportunity to appear before the court and oppose any alteration or modification of the order as proposed by those excepting. The statute is always presumed to be known, and, in view of the character of the proceeding, hedged about, as it is, with notices of every material step taken in the one comprehensive proceeding, the law presumes that each-water claimant will keep in touch with his water right defined by the order of determination of the engineer and straightway inform himself if any peril threatens it by those excepting. No further notice is required, and, since each claimant is a party to the proceeding, and has notice, and a reasonable opportunity is afforded him to defend his claim, the procedure satisfies the requirement of due process of law.

We do not accept the proposition that to constitute due process of law the procedure must be measured by the standard essential to notice in ordinary judicial proceedings. The proceeding is a special proceeding applicable to the specified subject-matter and suitable to the end which the state seeks to accomplish, namely, to protect all the collective users of water, secure a just distribution, and perpetuate water rights in a public' record under such safeguards for the protection of individual rights as the settled maxims of the law permit and sanction.

The procedure is further criticized because it nominates and limits the pleadings. It is essential to the due enforcement of a law which provides a system of state control of the waters within its boundaries that it be accomplished in a comparatively summary way. The limitation of the pleadings deprives the claimant of no substantial right; it does nothing more than take away from him the opportunity to urge technical or formal objections which do not affect the merits of the proceeding. The declaration that the order of determination, the statements or claims of claimants, and exceptions made to the order of determination shall constitute the only pleadings in the cause demonstrates that the procedure is not to be measured by the standard of ordinary judicial proceedings.

The disposition on the part of petitioners to ignore the character of the proceeding and to compare it to a judicial controversy between different claimants upon filing of exceptions lends force to the suggestion that the argument is advanced to persuade this court to force a construction on a statute in order to declare it unconstitutional, which is never permissible.

We are urged to issue the writ upon the ground that sections 35, 36, 36a, 38, and 75 of the statute invade the constitutional limits of the courts. The disposition of this contention in the earlier case, where the constitutionality of our water law is upheld, is a sufficient answer to the proposition. Vineyard L. & S. Co. v. District Court, supra; In Re Waters of Barber Creek, 43 Nev. 407, 187 Pac. 1004; Bergman v. Kearney, supra.

It is charged that judicial power taken from the court remains vested in the engineer no less than when Pitt v. Scrugham, 44 Nev. 418, 195 Pac. 1101, so decided. In support of this proposition it is insisted that sections 29-32 of the water law, condemned in Pitt v. Scrugham, as amended by the Statutes of 1921, are still vulnerable, in that they confer judicial power upon the state engineer, a ministerial officer. In this we are unable to agree. The sections as amended provide that, when “objections” are taken to the findings, or any part or portion of the preliminary order of determination, the engineer is required to inquire into the existence of all the facts and to apply the law thereto in order to determine what his official conduct shall be. As amended the sections do not constitute an exercise of judicial power as the phrase “judicial power” is used in the organic law. Under the sections as amended the engineer’s duties more nearly resemble those exercised by members of the executive department, administration boards, commissions, etc.

Other questions are discussed in the able and elaborate briefs which do not go to the question of jurisdiction and have no place in this proceeding.

Our conclusion is that the alternative writ was improvidently issued, and that the water law of Nevada is in all respects constitutional.

The proceeding is dismissed.