Opinion
No. 2957
October 2, 1931.
J.D. Skeen and E.J. Skeen, for Relator:
Gray Mashburn, Attorney-General, and M.A. Diskin, Special Deputy Attorney-General, for Respondent:
Morley Griswold and Milton J. Reinhart, for John E. Marble and T.S. Cattle Co.:
Badt Dysart, for numerous parties.
E.J.L. Taber, for Filippini Ranching Company.
Cooke Stoddard, John A. Jurgenson and Prince A. Hawkins, Amici Curiae.
The act of February 20, 1931, Stats. of Nevada, 1931, p. 28, and the act of March 30, 1931, Stats. of Nevada, 1931, p. 413, are violative of art. 6, secs. 1 and 6 of the constitution of the State of Nevada, in that they attempt to vest judicial power in an individual who is not a judge defacto or dejure. Meagher v. County of Storey, 5 Nev. 244; State v. Hallock, 14 Nev. 202; Williamson v. Morton, 50 Nev. 145; Wallcott v. Wells, 21 Nev. 47; Norton v. Shelby County, 118 U.S. 425; Hallam v. Tillinghast (Wash.), 52 P. 329; Cooley's Constitutional Limitations (8th ed.), p. 139; Van Slyke v. Trempealeau County, etc. Co., (Wis.), 20 Am. Rep. 50; Bank of the State v. Cooper (Tenn.), 24 Am. Dec. 517; Case of Supervisors of Election, 114 Mass. 247.
The making of findings, drawing conclusions and the entry of a final decree in the Humboldt river adjudication litigation are all essentially judicial acts.
The so-called decision is in no sense an adjudication of the water rights. It is not even an indication of what the court proposes to do; for vital matters involved in the litigation are left unnoticed or are referred to the attorney-general to be decided and incorporated in proposed findings.
The acts in so far as they provide for compensation are in violation of art. 6, secs. 10, 15 and 16, and art. 15, secs. 9 and 11, of the constitution of Nevada. Tumey v. Ohio, 273 U.S. 510, 71 Law Ed. 749.
The statutes cited and quoted are unconstitutional and void under the 14th amendment of the Constitution of the United States, in that by the procedure authorized petitioner would be deprived of its property without due process of law, and is denied the equal protection of the laws. Cooley's Constitutional Limitations (7th ed.), p. 589; Winchester v. Ayres, 4 Greene (Ia.), 104; Chandler v. Nash, 5 Mich. 409; Hall v. Marks, 34 Ill. 358; Durkee v. City of Janesville, 28 Wis. 464.
The statutes involved are not retroactive by their terms and cannot be made applicable to pending litigation. Cooley's Constitutional Limitations (7th ed.), p. 134; Coleman v. Moore, 49 Nev. 139.
Any instrument signed and filed in the said Humboldt river litigation by the respondent would be wholly without authority of law and void, would encumber the titles to petitioner's real estate and water rights, and would seriously interfere with the equitable division of the waters of the Humboldt river stream system, by reason of which petitioner would suffer great and irreparable damages.
No appeal would lie from such a void judgment, and even if attempted would entail expenses unreasonable in amount and greatly disproportionate to the value of individual rights.
Petitioner has no plain, speedy and adequate remedy at law, and prohibition by this court is the proper remedy. Esmeralda County v. Third Judicial District Court, 18 Nev. 438; Hoagland v. Creed, 81 Ill. 506.
It is rather difficult to understand how the petitioner can, with sincerity, urge the contention that Judge Bartlett in his decision and opinion has not decided all the matters submitted for decision in the litigation, when petitioner has failed absolutely to present to the court as a basis for his request for the writ a sufficient record from the proceedings to enable this court to determine just what the issues were before Judge Bartlett. Section 35 of the water code, sec. 7922 N.C.L., states that "the order of determination by the state engineer and the statements of 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." Admittedly, no such documents are before this court, and the application for the writ is not bottomed upon the use of any of these documents by the court.
It is not urged by petitioner that any exception presented by it or any other claimant has remained undetermined by Judge Bartlett.
It appears that prohibition is not the proper remedy. The law affords to the petitioner a remedy for each complaint he urges, and that remedy is either a motion to retax costs or a motion for a new trial.
Prohibition is an extraordinary remedy to be issued with greatest caution and only when the way is quite clear. State v. Richards, 102 Ohio St. 455, 132 N.E. 23; Stafler v. State, 112 Tex. 61, 244 S.W. 1064; State v. District Court, 31 Wyo. 413, 227 P. 378.
It may be denied in certain cases where the proceeding has not terminated in a final order or judgment, and also in such cases even though the proceedings are challenged on constitutional grounds. Union Portland Cement Company v. Public Utilities, 56 Utah 175, 189 P. 593, 598.
It must be clearly shown that petitioner is without other remedy. Hammond Lumber Co. v. United States District Court of Oregon, 240 Fed. 924. And the case must be urgent. Arascada v. District Court, 44 Nev. 37.
Prohibition may issue only to restrain the performance of acts judicial or quasi judicial in their character. It will not lie to prevent acts of a ministerial nature. In Re Cowles, 52 Nev. 171.
The following-named attorneys also participated in the oral argument, but did not file briefs:
OPINION
This is an original proceeding in prohibition to arrest proceedings before the respondent.
It grows out of the proceedings instituted many years ago to have adjudicated the relative rights of the water users of the Humboldt river stream system.
Pursuant to preliminary steps theretofore taken, the state engineer, on January 17, 1923, filed in said matter his order of determination with the clerk of the district court of the sixth judicial district of Nevada, in and for Humboldt County. Thereafter certain water users along said stream system filed their objections and exceptions to said order of determination; among them was this petitioner. In due time the matter came on for hearing upon said objections and exceptions before the Honorable George A. Bartlett, then a duly elected, qualified, and acting district judge in the State of Nevada. Final hearing having been had in said matter, said Bartlett, as district judge, on December 31, 1930, filed with the said clerk his opinion and decision in said matter, wherein, among other things, he ordered:
"Except where specifically in this decision otherwise ordered, the order of determination made, filed and caused to be entered of record in the office of the State Engineer on the 29th day of September, 1922, by James G. Scrugham, State Engineer, and thereafter filed on the 17th day of January, 1923, in the Sixth Judicial District Court of the State of Nevada, in and for the County of Humboldt, is affirmed.
"Findings will be prepared in accordance with this decision.
"Let Judgment be entered herein accordingly."
The term of office of respondent, as district judge, terminated on January 5, 1931.
At the late session of our legislature, section 9036, Compiled Laws of Nevada, was so amended as to authorize a retiring district judge to make and enter findings of fact and decree in a case in which he had, while in office, rendered a decision, within twelve months after the termination of his term of office, instead of within sixty days as theretofore provided.
The relator contends that the decision rendered by Judge Bartlett on December 31, 1930, is so indefinite that findings and decree cannot be based upon it, and that to enable the respondent to enter such findings and decree it will be necessary that he exercise judicial powers, which he cannot now do.
It is also contended that the act is prospective and not retrospective, and hence does not empower the respondent to act.
Other contentions are also based upon the allegations of the petition.
The respondent and some of the interested water users answered and also moved to quash.
We think the motion to quash should be sustained.
In determining this matter it is not our intention to pass upon the legal points urged by petitioner and the other party who has appeared in support of the petition.
1. The relator does not allege that the decision is indefinite and uncertain in determining its rights, nor does it show that the petitioner will in any way be damaged except as to the question of the allowance to Judge Bartlett of $100 per day for not to exceed fifteen days in disposing of objections to the proposed findings and decree.
So far as can be known there may be no objections or exceptions to the proposed findings and decree, and if there are Judge Bartlett may not take over a day to dispose of them. But if he takes fifteen days, the entire sum of $1,500 will be equally levied upon and collected from approximately 300,000 acres subject to irrigation, or one-half a cent per acre, making the amount for which relator would be liable so infinitesimal as not to justify this writ upon any theory as to that point.
Relator and other counsel seem to concede that if the decision is definite and certain enough to enable the preparation of findings and decree therefrom that the act of passing upon the objections thereto and signing the same would not be judicial, and while such seems to be the view sustained by the great weight of authority, we do not find it necessary to determine the point.
2, 3. We may observe that in view of the fact that the order of determination of the state engineer and the statements of claims of claimants and exceptions made to the order of determination, which constitute the pleadings in the district court (section 7922, Nev. Comp. Laws; Vineyard L. S. Co. v. District Court, 42 Nev. 1, 171 P. 166), are not incorporated in the petition, we will not undertake to say that the contention as to the indefiniteness of the decision is well founded. We held in Norcross v. Cole, 44 Nev. 88, 189 P. 877, that that is certain which is capable of being made certain. Such is recognized as the law in the following cases: Walsh v. Wallace, 26 Nev. 299-330, 67 P. 914, 99 Am. St. 692; In Re Senate File 31, 25 Neb. 864, 41 N.W. 981-988; Starling v. Blair, 4 Bibb (Ky.), 288; Armstrong v. Mudd, 10 B. Mon. (Ky.) 144, 50 Am. Dec. 545. Such being the law, all that is necessary to do, in the noncontested cases at least, is to look to the order of determination.
If we were to determine the question as to whether the amendment authorizing the passing upon objections to proposed findings and decree is retrospective, we would necessarily have to determine if it pertain to a matter of procedure, a question not discussed by counsel. The law seems to be that an act pertaining to procedure is viewed in a different light from statutes pertaining to antecedent rights. Boucofski v. Jacobsen, 36 Utah, 165, 104 P. 117, 26 L.R.A. (N.S.) 898; 2 Lewis' Sutherland Stat. Const. (2d ed.), sec. 674; Dickson v. Alabama Machinery Supply Co., 18 Ala. App. 164, 89 So. 843; Nash v. Robinson, 226 Mich. 146, 197 N.W. 522; Dakota Cent. Tel. Co. v. Mitchell Power Co., 45 S.D. 462, 188 N.W. 750.
It does not appear to what extent, if at all, any of the complaining parties can be injured.
4. The rule which should control this court upon an application for this writ was clearly and strongly stated in Walcott v. Wells, 21 Nev. 47, 24 P. 367, 9 L.R.A. 59, 37 Am. St. Rep. 478, and adhered to in Bell v. District Court, 28 Nev. 280, 81 P. 875, 1 L.R.A. (N.S.) 843, 113 Am. St. Rep. 854, 6 Ann. Cas. 982; Turner v. Langan, 29 Nev. 281, 88 P. 1088; Silver Peak Mines v. District Court, 33 Nev. 97, 110 P. 503, Ann. Cas. 1913d 587; State ex rel. Hatch v. District Court, 50 Nev. 282, 257 P. 831; and in Metcalfe v. District Court, 51 Nev. 253, 274 P. 5, where it was said, among other things, that the writ issues only in the exercise of sound judicial discretion and for the furtherance of justice.
Waiving aside other objections that are made to the issuance of the writ, we are convinced that sound judicial discretion and the furtherance of justice demands that these proceedings be dismissed and that the complaining parties be left to pursue their legal remedy.
It is so ordered.
[REPORTER'S NOTE: The Supreme Court of the United States on January 25, 1932, entered the following per curiam opinion in the case of Ellison Ranching Co. v. Bartlett, No. 522, October term, 1931:
"The appeal herein is dismissed for the reason that the judgment of the State court is based upon a non-Federal ground adequate to support it. Doyle v. Atwell, 261 U.S. 590, 592; McCoy v. Shaw, 277 U.S. 302, 303."]