I dissent from the foregoing opinion.
The act under which the appellant was organized (sec. 12, subd. 6), in so far as it purports to authorize the organization of a district with power "to commence, maintain, intervene in and compromise, in the name of the district, and to assume the costs of any action or proceeding involving or affecting the ownership or use of waters or water rights within the district, used or useful for any purpose of the district or a benefit to any land situated therein," is unconstitutional for the reason that the title of the act does not mention this grant of power. Subdivision 6 of section 12 of the act purporting to invest the district with this power was amended in 1923, and by said amendment it was sought to enlarge the powers of the district, given by the original act, to sue on behalf of the land owners and water users in the district. But in the amendatory act no mention or reference is made in its title to such power or to the enlarged powers which it was sought by said amendment to confer upon said district. The titles to both the original and amendatory acts are set forth in the majority opinion, and I submit that no one reading them would have any notice or intimation that a water district of the character, which the appellant claims to be, and with the broad and unusual powers with which the enactments attempt to invest said district, was contemplated or provided for in the enactments themselves.
Furthermore, from a reading of the act and the amendment thereto, as a whole, conceding the legislation to be constitutional, it seems clear that its only purpose was to enable persons residing within a compact territory, who were the owners of water rights used therein, and who desired to act in unison in protecting them, to form themselves into a district for such purpose, but it was not the intention of the act as originally passed or as subsequently amended to set up a legal entity with power to settle, compromise and litigate the several rights of said owners between themselves. This is what is being attempted in the present action. The lower owners are complaining of those residing in the upper part of the district, and owning land therein, that the latter are taking or attempting to take water belonging to the former. I agree with the views of Mr. Justice Plummer, *Page 413 expressed by him in an opinion in this same action, when the same was before the district court of appeal, in which he said: "It certainly cannot be held that it was the intent of the legislature to create a legal entity which might play the part of a super-plaintiff or a super-defendant in settlement of mere private rights, or that such a super-plaintiff or super-defendant should exercise the prerogative of settling, compromising or adjusting mere private disputes. The different provisions of the subdivision of the section referred to must all go back and relate to the purposes for which water districts may be created, and when we go back to the title of the act and read therefrom the purpose or purposes, we find that it is for the acquisition of water rights, for the construction of water works, and for the distribution and sale of water by said districts, which includes, of course, the management of the machinery of the corporation. There is not a single intimation in the title that the legislature had in view the creation of a legal entity which might appear either as plaintiff or defendant in disputes over private water rights between private individuals, concerning water which might be used within the territorial limits of a water district in which the district, as a district, had neither ownership nor right of possession nor any legal right to the control thereof. If the contention of the appellant is correct, that the district is a legal entity authorized to appear in actions involving only private rights, the question is immediately presented, on which side should the district appear; should it appear as plaintiff or should it appear as defendant. If it has a right to advance the costs of such an action, should it finance the plaintiff's side of the case, or should it finance the defendant's? In any of these situations, if the district has a right to create itself a party, either as plaintiff or defendant, in the settlement of mere private rights, then the legislature has created a corporation with power within itself to determine the extent of the private rights of individuals in and to property in which the corporation known as the district has absolutely no ownership or pecuniary interest whatever."
Rehearing denied.
Curtis, J., dissented. *Page 414