Petition for rehearing denied June 23, 1942 ON PETITION FOR REHEARING 126 P.2d 1094 In our former opinion we referred to §§ 116-420 and 116-421, O.C.L.A., in relation to the filing of applications for permits to appropriate water for power purposes and to the duty of the state engineer in passing upon such applications. In regard to § 116-421, supra, we noted the fact that if, in the judgment of the state engineer, the proposed use of water "may prejudicially affect the public interest," the state engineer is required to refer the application to the state reclamation commission for consideration. The appellant, state game commission, in its petition for rehearing has called our attention to the fact that the provision in § 116-421, supra, for referring applications to the state reclamation commission was not included in the statute at the time the applications to appropriate the waters here involved were filed or at the time the permits were granted, and that it was only after the granting of such permits that the state reclamation commission became authorized to pass upon the question of whether proposed uses of water would impair or be detrimental to the public interest.
Sections 116-420 and 116-421, O.C.L.A., were enacted as §§ 46 and 47, respectively, of chapter 216, General Laws of Oregon 1909. Section 46 of that act embraced the same requirement as to what the application to appropriate water for power purposes should contain that is stated in our former opinion to be included in § 116-420, O.C.L.A.
Section 47 of the 1909 enactment required the state engineer to examine all applications for appropriating *Page 22 water filed with him and to "approve all applications made in proper form which contemplate the application of water to a beneficial use, but when the proposed use conflicts with determined rights, or is a menace to the safety and welfare of the public, the application shall be referred to the board of control for consideration." In the event that an application was referred to the board of control, that board was required, "after full hearing," to enter an order "directing the refusal of such application" if "the public interest demands." Section 47, then codified as § 5723, O.L., was amended in 1923 by § 7 of chapter 283, General Laws of Oregon 1923, by eliminating any reference to the board of control and imposing upon the state engineer the duty of refusing to grant the application if, after full hearing, "the public interest demands".
The provision for referring applications to the state reclamation commission was not incorporated in the law until § 5723, O.L., as amended by § 7, chapter 283, General Laws of Oregon 1923, was further amended by § 1, chapter 245, Oregon Laws 1929. The applications for and permits granted for the appropriation of the waters now claimed by the defendant for power purposes were filed and granted prior to the 1929 amendment and before the state reclamation commission came into existence.
At the time the various applications for appropriating the waters of Rogue river to a beneficial use were made by the predecessors in interest of the defendant corporation, it was the duty of the state engineer to ascertain whether such applications were in proper form, whether they contemplated the appropriation of water to a beneficial use, whether the proposed use of the water conflicted with determined water *Page 23 rights, and whether the proposed use of such water was a menace to the safety and welfare of the public. Apparently, the law did not at that time impose upon the state engineer the duty of approving or rejecting plans and specifications for the construction of dams.
The revised plans submitted by the defendant corporation for the reconstruction of its power project did not constitute an original application for the appropriation of water. The rights for the entire appropriation had theretofore been granted by the state engineer. Upon the submission of new plans to him, the state engineer undertook to determine whether the proposed reconstruction would change in any way the application of the water to a use different from that set forth in the original applications, whether it would conflict with determined water rights and whether a menace to the safety and welfare of the public would result from the use of water as indicated by the change in plans for construction. A further investigation leads us to the conclusion that the approval by the state engineer of the plans for the proposed reconstruction was limited to those matters and was not a determination by him that such reconstruction would or would not in any way affect "commercial and game fishing".
With this clarification made in regard to the state engineer's approval of the plans, we see no reason for otherwise altering or explaining our former opinion. The other questions raised by the appellant in its petition for rehearing have been given serious consideration both prior to rendering our decision and again on this occasion. As to such questions we are not impelled to depart from our former opinion. The petition for rehearing is therefore denied. *Page 24