This is an original proceeding on an alternative writ of[1] supervisory control wherein the relators seek to have annulled *Page 242 and set aside a writ of prohibition issued by the district court of Lewis and Clark county, which prohibited the Public Service Commission from assuming jurisdiction in a controversy between certain resident farmers in Gallatin county and the Montana Power Company, which owns and operates two dams on the Madison River for the purpose of generating electricity for public use.
In the complaint filed with the commission, the farmers alleged that they owned lands irrigable from the waters of the Madison River; that the Montana Power Company unreasonably and unlawfully stored water during the irrigation seasons, thereby depriving the farmers of the natural flow of the river, and that this was done although some of the farmers were water right holders prior to the Montana Power Company; but it is not alleged that the water rights have been adjudicated by decree of a court.
Counsel for the respective parties made able arguments to the court and submitted extensive briefs in the case, but there can be but one question for our determination, and that is as to the jurisdiction of the matter, which is purely and simply judicial.
The relief sought has nothing to do with the regulation of public utilities as contemplated by the statutes. The statutes were enacted for the benefit of the consumers of the utilities' products, and not to arbitrate controversies between the utilities and private persons.
That the legislature, acting through the Public Service[2] Commission or otherwise, cannot exercise judicial powers is definitely set out in section 1, Article IV of the Constitution of Montana, wherein it is said: "The powers of the government of this state are divided into three distinct departments: The legislative, executive, and judicial, and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted." *Page 243
The legislature has unequivocally precluded the commission from exercising any judicial powers in section 3882, Revised Codes: "In addition to the modes of procedure hereinafter prescribed in particular cases and classes of cases, said commission shall have power to prescribe rules of procedure, and to do all things necessary and convenient in the exercise of the powers by this Act conferred upon the commission; provided, that nothing in this Act shall be contrued as vesting judicial powers on said commission, or as denying to any person, firm, association, corporation, municipality, county, town, or village the right to test, in a court of competent jurisdiction, the legality or reasonableness of any fixed order made by the commission in the exercise of its duties or powers."
The commission in this case would have to adjudicate water rights in order to determine whether the Montana Power Company was entitled to store the water, and this is an exercise of a power the commission could not and does not have. The remedy of the farmers is clearly a matter for the courts, — the proper place to adjudicate water priorities and to enjoin the unlawful or unreasonable use of such waters.
There being no merit in the other contentions of relators, the petition for a permanent writ of supervisory control is denied and the proceeding is dismissed.
ASSOCIATE JUSTICES ANDERSON and MORRIS concur.
MR. JUSTICE STEWART, deeming himself disqualified, takes no part in the above decision.