I concur in the opinion of Mr. Justice Sloane, so far as it deals with the question of the appeal from the judgment of the court below denying a writ of mandate, being the appeal S. F. No. 9842. *Page 542
I think, however, that something more may properly be said on the question whether or not the Water Commission, in exercising the power conferred upon it by the sections of the statute particularly considered in the opinion, may, under some circumstances, act in a judicial capacity. It is obvious that if it does so it will be taking property of one person and giving it to another; in other words, that it will be exercising powers which cannot be exercised except by courts authorized by the constitution.
Section 1 of article VI of the constitution declares that "The judicial power of the state shall be vested in the senate, sitting as a court of impeachment, in a supreme court, district courts of appeal, superior courts and such inferior courts as the legislature may establish in any incorporated city or town, township, county, or city and county."
If the Water Commission is acting judicially it is doing so because it is determining the rights and titles of individuals to private real property, and in that capacity it would be acting as a court as fully as a court of general jurisdiction would be acting when it adjudicates the title to real property. (Quinchard v. Board of Trustees, 113 Cal. 669, [45 P. 856];People v. Board, 122 Cal. 424, [55 P. 131]; Rhode Island v.Massachusetts, 37 U.S. (11 Pet.) 718, [9 L.Ed. 697, see, also, Rose's U.S. Notes]; Prentis v. Atlantic etc. Co., 211 U.S. 226, [53 L.Ed. 150, 29 Sup. Ct. Rep. 67]; Marin etc. Co. v. RailroadCom., 171 Cal. 712, [Ann. Cas. 1917C, 114, 154 P. 864].)
[4] The effect of section 1, article VI, aforesaid, is to vest in the courts therein mentioned the entire judicial power of the state. It is not within the power of the legislature to vest in any other body any general judicial power to establish and declare the right and title to private property. The Water Commission is not one of the superior courts of the state and could not be made such court or be given the powers thereof, and it is not an inferior court with jurisdiction limited to incorporated cities, or towns, townships, counties, or cities and counties. On the contrary, its jurisdiction is statewide. Consequently, it is not a court which comes within the purview of said section 1 and it is not within the power of the legislature to give that commission such judicial power. (Western etc. Co. v. Pillsbury, 172 Cal. 413, [Ann. Cas. 1917E, 390, 156 P. 491]; Pacific etc. *Page 543 Co. v. Pillsbury, 171 Cal. 322, [153 P. 24].) There is no other section of the constitution which purports to confer power upon the legislature to invest such commissions with judicial power of this nature. Certain judicial powers may be invested in the Industrial Accident Commission and in the Railroad Commission, but with these exceptions all the general judicial power of the state must be vested in the courts named in the constitution and in such inferior courts of local jurisdiction as may be established under said section 1.
For this reason I am of the opinion that the act confers no judicial power upon the Water Commission, and if it purported to do and so far as it may purport to do so it would be and is without effect. The consequence is that any award it assumed to make in the exercise of such purported judicial power would be absolutely void and that certiorari would not lie to review its action in that regard.