Petition for rehearing granted July 2; former opinion adhered to December 17, 1940 ON PETITION FOR REHEARING (108 P.2d 276) A rehearing was granted in this case at the instance of Central Oregon Irrigation District, respondent, in order that the court might have the benefit of further briefing and oral argument on certain matters stressed in the petition for rehearing. *Page 453
The principal question involved is that of the correctness of the order of the state engineer granting to the estates of Clara L. Broughton, deceased, and George Broughton, deceased, an additional two years' extension of time in which to perfect the inchoate water rights decreed to Odin Falls Land Company, the predecessor in interest of those estates. The circuit court on May 2, 1931, entered a decree pursuant to mandate of the supreme court awarding to Odin Falls Land Company 176.17 second feet of water for the irrigation of 1,057 acres of land, as an inchoate right, with date of relative priority of 1909. Of this amount, the decree specified that 26.17 second feet should be used for irrigation and 150 second feet as power for pumping. Odin Falls Land Company was granted until October 31, 1935, in which to complete or perfect its inchoate right, and such further time as might be allowed by the state engineer.
Paragraph 65 of the decree hereinabove mentioned is quoted in full in our former opinion. Only the first part of that paragraph has bearing upon the present discussion, which part reads as follows:
"Certain claimants herein initiated rights of appropriation as described in preceding paragraphs, but have not perfected such rights. Such parties are entitled to a reasonable time in which to completely apply the water to a beneficial use. Such rights shall be perfected within the time which has been herein fixed in each case, or within an extension of such time which shall be allowed by the state engineer for good cause shown. Provided, however, at the time an application for extension is made to the state engineer, the party applying for such extension shall notify all interested parties."
Upon application of Clara L. Broughton and the estate of George Broughton, deceased, successors in *Page 454 interest of Odin Falls Land Company, the state engineer granted to them a further extension of time until October 1, 1938. We are here concerned with the application filed by the estate named and the estate of Clara L. Broughton, deceased, for a further extension of time to October 1, 1940.
Attached to such application is the affidavit of their attorney, in which it is stated that certain irrigation districts and corporations have been served by mail with a copy of the notice of application for extension of time. The state engineer granted the extension of time, in an order reciting, among other things, that "the applicants gave notice to interested parties pursuant to paragraph 65 of said decree," and that Central Oregon Irrigation District had filed objections to the allowance of any additional time.
It is urged in the petition for rehearing that the statement made in our former opinion herein that all the interested parties were served with notice of the application was incorrect, in that the affidavit of the attorney for the applicants did not name as having been served all the individuals and corporations who had been granted either perfected or inchoate rights to the use of waters of the Deschutes river and its tributaries, and especially that some who had rights subsequent in time to those of Odin Falls Land Company and who would be affected by the granting of an extension of time had not been notified. The statement in our former opinion to which the respondent takes exception was based on the findings of the state engineer. It does not appear that the sufficiency of service of notice of the application for an extension of time was questioned at the hearing before the state engineer or in the circuit court. *Page 455
In determining the effect to be given the state engineer's findings in acting upon an extension of time we shall consider in what capacity the state engineer performs the duties imposed upon him in that connection. That such action is administrative only is the contention of the respondent. In support of its position that additional testimony may be introduced in the circuit court on appeal from the order of the state engineer, the respondent, since the oral argument on rehearing, has submitted two additional briefs, in which it is urged that the state engineer is merely an administrative officer, without power to issue subpoenas or compel the attendance of witnesses; that it is his practice to consider matters that are not introduced in evidence before him; and that an appeal from his order "is equivalent to the starting of a suit in equity in the circuit court to test the justice and regularity of the order appealed from."
It is further stated in the brief that, "There is no opportunity for any party to make a record before the state engineer, except by the grace of that officer alone. As a matter of fact, the first place that an objector to an order of the state engineer has a chance to make a record is on appeal, when the cause first enters a court of record."
In passing upon an application for an extension of time the state engineer acts pursuant to the authority conferred upon him by subdivision 6 of § 47-403, Oregon Code 1930. By the provisions of that subdivision, any appropriator desiring an extension of time is required to file his application with the state engineer. Nowhere in the statute is there any provision setting forth definitely what the application shall contain. The law itself does not specify that the application shall be served upon any one, although paragraph 65, supra, requires *Page 456 that notice of filing the application be served upon all parties who would be affected by the granting of an extension of time. Section 47-403, supra, contains no provision, nor has any been called to our attention, which requires the engineer, when passing upon an application, to take and preserve evidence, as is required of him in the adjudication of water rights. In determining whether an extension of time should be granted the state engineer is not limited to evidence which may be presented on a hearing before him. He may make his own investigation of the premises and the circumstances involved in any request for such extension.
The Oregon water code (Title XLVII, Oregon Code 1930) does not specify the procedure to be followed by the state engineer in determining whether an extension of time shall be granted. In proceedings before him the parties are not designated as plaintiffs and defendants or othewise as litigants. There may not, in fact, be any one opposing the application for an extension of time, yet it is the state engineer's duty to go into the facts and grant or deny the application. If he denies it, the appropriator seeking an extension of time is given the right to appeal to the circuit court. When the matter is there presented it must be in the form of a justiciable controversy between adverse parties.
This court, in the case of In re Willow Creek, 74 Or. 592,610, 144 P. 505, 146 P. 475, in discussing the question whether the water code, in conferring certain powers upon the water board and its members, violated Article III, § 1, of the Oregon constitution, relating to the division of government into three separate departments, stated:
"The statute prescribing the duties to be performed by the water board and its members in their respective *Page 457 official capacities in a determination of water rights does not confer judicial powers or duties upon the board or such officers in any sense as indicated by the constitution. Their duties are executive or administrative in their nature. In proceedings under the statute the board is not authorized to make determinations which are final in character. Their findings and orders areprima facie final and binding until changed in some proper proceeding. * * * It might be said that the duties of the water board are quasi-judicial in their character. Such duties may be devolved by law on boards whose principal duties are administrative. * * *
"Many executive officers, even those commonly known as purely administrative officers, act judicially in the performance of their official duties, and in so doing do not exercise judicial powers as the words are commonly used and as they are used in the organic act in conferring judicial powers upon specified tribunals: [Authorities.]"
The opinion then pointed out that in Washington it had been held that the public utilities act of that state did not confer judicial or legislative power upon administrative officers, and that similar rulings had been made in Oregon and other states.
The supreme court of Idaho, in Speer v. Stephenson, 16 Idaho 707, 102 P. 365, a case involving the cancelation of a water permit by the state engineer, observed:
"The inquiry, then, is: Does the act of March 11, 1909, give to the state engineer judicial power? If, under the constitution, the legislature may regulate the manner and means of appropriating the public waters of the state, and give to the state engineer the power and authority to grant permits upon applications being made in proper form, we can see no reason why the legislature may not also vest the state engineer with power to cancel such permit when it is shown to him and he ascertains from personal examination that the permit has not been complied with. The granting as well as the *Page 458 cancelation and voiding of permits are acts of administration and clearly within the power which may be given to the state engineer in supervising and administering the law regulating the appropriation of the public waters.
"While it is true the state engineer is called upon to exercise his judgment and decide whether the holder of the permit has complied with the law, this fact alone would not make his acts judicial. All administrative officers are called upon at times to exercise judgment and to decide questions, but, when the judgment is exercised as a means of administering the law, the act is administrative rather than judicial."
In Crawford Co. v. Hathaway, 67 Neb. 325, 93 N.W. 781, 60 L.R.A. 889, 108 Am. St. Rep. 647, it was held that the duties of the state board of irrigation "are supervisory and administrative in character, and not judicial. While it may be true that they are given powers of a quasi-judicial character, this of itself does not constitute them a judicial body, nor does it have the power of conferring upon administrative bodies the exercise of judicial functions in contravention of constitutional provisions. * * * Powers of the same general nature and character are conferred upon almost every administrative body known to the statute, and regarding which it has frequently been decided they are of a quasi-judicial nature; and yet such bodies are invariably held to be administrative, and to in no way conflict with the constitutional provisions regarding officers and bodies upon whom judicial power may be conferred."
See also, in this connection: Farmers' Irrigation District v.Frank, 72 Neb. 136, 100 N.W. 286; Farm Investment Company v.Carpenter, 9 Wyo. 110, 61 P. 258, 50 L.R.A. 747, 87 Am. St. Rep. 918; Evanhoff v. State Industrial Accident Commission, 78 Or. 503,515, *Page 459 154 P. 106; Wiel, Water Rights in the Western States, 3d Ed., § 1192.
Section 47-307, Oregon Code 1930, provides that any person, association or corporation aggrieved by any order or regulation of the state engineer "shall have a right to appeal from the same to the circuit court . . . which appeal may be carried from the circuit court to the supreme court, and which shall be governed by the practice in suits in equity."
That section is an amendment of § 5, chapter 216, General Laws of Oregon 1909, which chapter is known as the water code of the state of Oregon. Section 5 as originally enacted gave to any person, association or corporation aggrieved "by any such order or regulation of such division superintendent" the right to appeal from the same to the board of control, which board was composed of the state engineer and the superintendents of water divisions Nos. 1 and 2, by filing with that board "a copy of the order or regulation complained of and a statement of the manner in which the same injuriously affects the petitioner's interest". Section 5 further specified that the board should, after due notice, hear whatever testimony might be "adduced by the petitioner, either orally or by affidavit," and should have "power to suspend, amend or confirm the order complained of."
In 1919 the legislature provided that the superintendent of water division No. 2 should thereafter be known as the state water superintendent, and abolished the office of superintendent of water division No. 1: Chapter 94, General Laws of Oregon 1919. This act also changed the name of the board of control above mentioned to "state water board" and provided that the state engineer and the state water superintendent should constitute such board. *Page 460
Section 5 of chapter 94, supra, amended § 5 of the 1909 act and granted the right to appeal from the order or regulation of the state engineer or state water board to the circuit court and thence to the supreme court.
In 1923 the legislature abolished the state water board and the office of state water superintendent, by chapter 283, General Laws of Oregon 1923. That act conferred upon the state engineer all the duties of the state water board and the state water superintendent, and in addition further amended § 5 of the original act of 1909 (then codified as § 5701, O.L.) so as to read as now appearing in § 47-307, supra.
From this recital of the history of the act it is manifest that the legislature intended that there should be, under the law as it now stands, a right of review in the courts "of any order or regulation of the state engineer by any person, association or corporation aggrieved". The statute, however, does not set forth the procedure to be followed on any such appeal, except to state that the appeal "shall be governed by the practice in suits in equity."
In granting the right to any one aggrieved to appeal to the circuit court, the legislature did not, in our opinion, intend by the use of the word "appeal" to indicate that judicial power had been conferred upon the state engineer or that such appeal should be as from one judicial tribunal to another. The word "appeal" has "no absolutely fixed and definite meaning," but may be used to denote the review by a court of the action of some board or administrative officer: Nash v. City of Glen Elder,74 Kans. 756, 88 P. 62.
In Moynihan's Appeal, 75 Conn. 358, 53 A. 903, it was contended that the act there involved gave a right of appeal from the commissioners' rejection of an application *Page 461 for a license and was void, in that it imposed upon the superior court the purely administrative powers and duties of an administrative board. In considering that question the court stated:
"It is a sufficient answer to this claim, that the construction thus given to the provision for an appeal can not be maintained. It is well settled that the legislature can not give the superior court appellate jurisdiction of this kind in matters committed to executive officers. In certain instances, where appropriate process is provided, the court may set aside acts of administrative officers for unlawful conduct in excess of their power. Such process for controlling the unlawful conduct of county commissioners, in granting or refusing licenses, has been provided by the legislature under the name of `appeal.' * * * The word `appeal,' as thus used, has been construed as providing for original application to the superior court to exercise its appropriate judicial power in respect to acts done by the county commissioners in excess of their power, or in the abuse of that power. `Such appeal is a process by which the superior court is enabled to determine the legality of certain specified actions of the county commissioners.'"
In United States v. Ritchie, 58 U.S. 525, 15 L.Ed. 236, the contention was made that an act of congress prescribing that an appeal to the district court of the United States from the decision of the board of commissioners to settle private land claims in California was unconstitutional, in that the board as organized was not a court under the constitution and could not, therefore, be invested with any of the judicial powers conferred upon the general government. In disposing of this argument, the court said:
"But the answer to the objection is, that the suit in the district court is to be regarded as an original proceeding, the removal of the transcript, papers, and evidence into it from the board of commissioners being *Page 462 but a mode of providing for the institution of the suit in that court. The transfer, it is true, is called an appeal; we must not, however, be misled by a name, but look to the substance and intent of the proceeding. The district court is not confined to a mere re-examination of the case as heard and decided by the board of commissioners, but hears the case de novo, upon the papers and testimony which had been used before the board, they being made evidence in the district court; and also upon such further evidence as either party may see fit to produce."
See also, in this connection, United Fuel Gas Co. v. PublicService Commission, 73 W. Va. 571, 80 S.E. 931.
The workmen's compensation law, § 49-1843, Oregon Code 1930, grants a right of appeal from the final order of the industrial accident commission to the circuit court. In all instances of such resort to the circuit court it has been the practice to treat the "appeal" as the institution of a new proceeding, in which there are parties plaintiff and defendant and issues are presented.
In our opinion, the legislature intended, in granting an aggrieved party the right to appeal, to give such party the right to a review by the courts of the order of the state engineer. The "appeal" contemplated by the statute should be regarded as an original proceeding in the circuit court. In providing that such appeal "shall be governed by the practice in suits in equity", the legislature must have intended that the matter should be tried in the same manner as a suit in equity originally instituted in the circuit court.
The function of the circuit court in reviewing an order of the state engineer is limited to determining whether the acts of that officer are within the authority conferred upon him and whether such acts are arbitrary *Page 463 or not justified by the facts. The court is not granted the power to substitute its judgment for that of the engineer. In other words, the statute does not confer upon the court administrative duties that are imposed by law upon the state engineer. It is doubtful that a contrary construction of the statute would be in consonance with Article III of the Oregon constitution, which provides that the powers of the government shall be divided into three separate departments. See Keller v. Potomac ElectricCompany, 261 U.S. 428, 67 L.E. 731, 43 S.Ct. 445.
The findings of the state engineer are entitled to the presumption of correctness, but they do not take from the court the power to grant relief to a party whose rights may have been infringed by the state engineer: In re Waters of Barber Creek,46 Nev. 254, 205 P. 518; Laramie Irrigation Power Co. v.Grant, 44 Wyo. 392, 13 P.2d 235; 22 R.C.L. 472. Much of the work imposed upon the state engineer is of a technical nature and demands special skill and experience of that officer. The state engineer is, in the language of the late Mr. Justice Holmes, "the expert on the spot": Moyer v. Peabody, 212 U.S. 78,53 L.E. 410, 29 S.Ct. 235.
The state engineer found that all the interested parties had been given notice of the filing of the application by the Broughtons for an extension of time. The affidavit of the attorney for the applicants setting forth the names of the parties served does not show the names of all those to whom water rights were awarded by the decree of the circuit court entered on our mandate. To determine who are the interested parties, however, the state engineer is not limited to the showing made by the affidavit. He is entitled to make his own *Page 464 independent investigation. It may possibly be that some of the appropriators who were granted inchoate rights have lost such rights, and other rights may have been transferred prior to the filing of the application here involved. Those are matters peculiarly within the knowledge of the state engineer or easily ascertainable by him.
It has hereinabove been pointed out that the sufficiency of the service of notice was not questioned in the circuit court or even, so far as the record discloses, in the original hearing before the state engineer. Without any showing to the contrary in the record before us, we must treat as primafacie correct the finding of the state engineer that the interested parties had been served with notice of the application. And it is a fair construction of such finding to interpret "interested parties" as meaning all parties who might be affected by the granting of the application for an extension of time. The objection to the sufficiency of service, made for the first time on appeal to this court, comes too late, in view of the prima facie correctness of the engineer's finding in that respect.
Section 47-403, subdivision 6, supra, provides that the state engineer shall have authority, "for good cause, shown upon the application of any appropriator" of water when actual construction work has been commenced within the time required by law, to prescribe the time within which the full amount of water appropriated shall be applied to a beneficial use, and that in determining such time he "shall grant a reasonable time after the construction of the works or canal or ditch, used for the diversion of the water, and in so doing shall take into consideration the cost of the appropriation and application of such water to a beneficial *Page 465 purpose, the good faith of the appropriator, the market for water or power to be supplied, the present demands therefor, and the income or use that may be required to provide fair and reasonable returns upon the investment." He is further granted authority to extend such time on good cause shown.
From the photographs introduced as exhibits and the testimony in the case it is apparent that Odin Falls Land Company and its successors in interest have expended large sums of money in constructing flumes, ditches, a dam and a pumping plant. Some of the flumes, at the time of the hearing, were not in good repair. The dam was leaking and the pumping plant was not working at full capacity.
It is conceded by the respondent that the Broughton estates now have a perfected right to water for the irrigation of 145.5 acres of land. It is apparent, however, that during the last few years very little has been done by those estates to clear additional land and put it under irrigation, although some attention has been given to the repairing of the pumping plant and flumes.
The state engineer extended the time from that allowed by the decree of the circuit court (expiring October 31, 1935) to October 1, 1938, to which extension no objection appears to have been raised. Before this extension expired and in September, 1937, a proceeding was brought by Central Oregon Irrigation District for condemnation of the lands and water rights of the Broughton estates, which proceeding is yet pending. That district is the only objector to the extension of time last applied for by the Broughton estates.
In determining the extension of time to be granted for applying water to a beneficial use, the state engineer should, and in this instance undoubtedly did, *Page 466 take into consideration the investment theretofore made in the construction of diversion and distribution works and in preparing land for irrigation, also the good faith of the appropriator as demonstrated by the investment already made and that made after the granting of the last preceding extension of time, and other matters set forth in § 47-403, hereinbefore quoted.
In view of the large investment of the Broughton estates and their predecessor in interest, the litigation involved in the determination of their right to the use of water, as evidenced by the adjudication proceedings (In re Water Rights of DeschutesRiver, 134 Or. 623, 286 P. 563, 294 P. 1049), the litigation instituted by the Broughton interests against the respondent herein and others to prevent detrimental diversion of waters (Broughton v. Stricklin, 146 Or. 259, 28 P.2d 219,30 P.2d 332), which was not terminated in this court until March 13, 1934, the improvements made by the Broughton and their predecessor in interest, the pendency of the condemnation proceeding instituted by Central Oregon Irrigation District, the only objector to the application for an extension of time, and the report issued by the United States reclamation service in 1936, it cannot be said that the state engineer acted arbitrarily or without justification in allowing the last two years' extension of time requested by the Broughton estates.
In our original opinion we stated that it was known as early as July, 1936, from a report of the United States reclamation service, that acquisition of the water rights of Odin Falls Land Company by others was under contemplation. The respondent, in its brief on rehearing, asserts that it does not believe that the state engineer or the court had any right to consider reports *Page 467 not placed in evidence. The statement by this court above mentioned was based on the findings of the state engineer, and, as we have already pointed out, that officer is not limited, in determining whether an extension of time should be granted, to the evidence introduced before him. Moreover, no evidence was offered in the circuit court contradicting that finding of the state engineer.
Exception is taken to our original opinion in numerous other respects, and in order that there may be no misunderstanding and that certain statements therein made may not be considered as binding upon the parties to this litigation we make the following explanation: The statement that the inchoate rights granted to the predecessor in interest of the Broughton estates were subsequent in date to all other rights included in the former adjudication of the relative rights to waters of the Deschutes river does not seem to be borne out by the decree entered in the circuit court on the mandate of this court. That decree was not before us at the time of the former hearing, and the statement in our opinion was made in accord with what we then understood to be the facts. The further statement that the granting of an extension of time to the Broughton estates within which to complete the application of water to a beneficial use could not in any way affect the adjudicated rights of other claimants, it now appears, may possibly have been incorrect, if the amount of water in the Deschutes river is insufficient to supply such latter rights in the amounts specified by the decree.
Application has been made by the city of Redmond for permission to intervene in this appeal. In its petition it asserts that it was not served with notice of *Page 468 the filing of the application by the Broughtons for an extension of time and apparently desires this court to determine whether or not it was served, by considering evidence other than that presented before the state engineer or the circuit court. This is an appellate court and not a court of original jurisdiction except in specific instances, of which this is not one. Therefore, the petition to intervene must be denied.
The state engineer extended to October 1, 1940, the time within which the Broughton estates should perfect their water rights by applying the water to a beneficial use. That time is now past. On the oral argument on rehearing it was stated by attorneys for Central Oregon Irrigation District that an application for a further extension of time might be granted, even though not filed until after expiration of the last preceding extension. This seems to be the view also of attorneys for the appellant, and in it this court likewise concurs. Any such application for an extension of time beyond October 1, 1940, must be presented to the state engineer and be passed upon by him in the first instance, rather than by this or the circuit court.
We adhere to our former opinion reversing the decree of the circuit court. The cause is remanded to that court, where further proceedings may be had in accordance with this and the former opinion in this case. The appellant will recover costs in this court.
RAND, C.J., and KELLY and LUSK, JJ., concur.
BEAN, J., not participating.