Dissenting. — I. concur with my associates in the conclusion that the district court in the exercise of its discretion may appoint a referee to take the evidence and report findings and conclusions to that court. When such an order is made this court will not disturb it unless it distinctly shows an abuse of such discretion. The fact that the wisdom *63of such proceeding might be doubted or questioned is not sufficient cause for a reversal. We find by the admitted facts in this case that by the provisions of sections 33 and 37 of the laws of 3903, this case reaches the referee loaded down with about $11,000 costs, all of which have accrued in the office of the state engineer. Following this will come the cost of the referee and the trial before him; then anyone who feels aggrieved by his findings and conclusions must follow his case into the district court with the additional cost of a further hearing there.
We are told that great benefits will flow from the record to be made in the office of the state engineer, in that it will there be shown just how much water is appropriated and used from the Boise river. This may be information of value to the future appropriator, but of what interest is it to the appropriator who has spent years of his time, labor and money acquiring a home all dependent upon the energy he has put forth in securing his prior right to the use of such water? It certainly must be conceded that the provisions of this law providing for making a record in the office of the state engineer for use on the trial and for future reference, as well as the maps provided for, adds enormously to the cost of this trial. Can it be said it is for the benefit of the present appropriators ? We think not. They should be permitted to try their case on such evidence as suits their convenience and ability to pay for. If the parties to this litigation desire to use maps, why should they not be permitted to employ a civil engineer of their own choice to prepare such maps as they need? It is urged that one party to this litigation has a complete map showing all necessary things to establish its right to the use of the waters of this stream; that this map was prepared at large expense. Should it be required to pay its share of the expense of a map prepared by the state engineer for which it has no use? We think not. The theory of the law is that all parties to litigation may proceed in such way as seems best to them, and provide the court with the kind or character of evidence as will best serve their purposes, and hence they are not chargeable with a class of evidence they have not asked for and which the legislature has attempted to force upon them and malee it a proper and necessary charge against them. *64It is not within the constitutional power of the legislature to prescribe any particular method by which a citizen of this state must establish his right to the use of the waters of the streams of the state that he has appropriated and used long years prior to the enactment of such laws. It is urged that no one is bound by the report and maps of the state engineer; that anyone may produce other evidence or witnesses on the trial of the cause. This is true, but, nevertheless, each and all parties to the litigation are required to pay their proportionate share of the $11,000 expenses of the state engineer’s office. In other words, the litigant is not consulted as to whether or not he is willing to accept the maps and report of the state engineer as evidence in the case, but he must pay his proportion of such costs, and if he is dissatisfied, counsel for defendants are charitable enough to suggest that he may procure such other evidence as suits him to impeach the record of the state engineer — so long of course, as he is willing to pay for the evidence furnished— not at his request, or even his consent, but by legislative enactment. I do not think the legislature has the power to-thus burden the people of the state who are so unfortunate as to have homes dependent upon the waters of an unlitigated stream. The settlers should be permitted to determine their rights as between themselves by such evidence as seems satisfactory to them, and if it is a matter of state interest, it is the duty of the state to provide such maps and records at the expense of the state, or if in the interest of the future applicants for the waters of such streams, then the burden should be borne by them, or the state for them, and not by those who have been diligent and industrious in procuring what they had a right to believe was a home and sufficient water to irrigate it without molestation and expense' imposed upon them by the state. It is clear to me that they have this right, and any act of the legislature attempting to provide evidence at their expense in the settlement of their rights as between themselves or future appropriators is a violation of section 19, subdivision 3, article 3 of the state constitution, which says: “The legislature shall not pass local or special laws in the following cases, that is to say, regulating the practice of courts of justice.”
*65In the case of Bear Lake County v. Budge, 9 Idaho, 703, 75 Pac. 614, in passing upon the constitutionality of sections 34, 35 and 36 of the act in question, this court said: “We have a general law providing how the summons must be served in •cases to quiet title or determine adverse interests to private property, and the provisions therefor in the act under consideration provide a different method brought by a water commissioner for that purpose. Said act is also in violation of our statute which requires suits to be brought in the name of the real party in interest.” I concurred in that opinion, and for the reason therein enunciated and the authorities therein cited I cannot concur in this. If sections 34, 35 and 36 were special legislation for the reasons therein stated, then section 37 is special legislation for the reason that it attempts to provide evidence •and charge it to all the litigants of the case, irrespective of whether they need dr desire it or not. Again, it does not even leave it to the discretion of the court to determine who should pay for this special class of evidence. If it did, there would be more justification in the law, as the court could, in the interest •of justice, charge the costs of his class of evidence to such claim.ants as should rightfully pay for it.
Another serious and important question is raised and urged by the plaintiff in this action, and that is the manner in which the law attempts to enforce the collection of the costs of the .•state engineer’s office. It provides that a judgment shall be rendered against each party, let him be plaintiff or defendant, but does not say in whose favor the judgment shall run, hence •the question arises, How shall this judgment be entered? Not in the name of the state engineer, for the reason that he is not a party to the action; not in the name of the state or county, for the same reason. I think the legislature had the same difficulty in settling this question that confronts me. The majority bpinion says: “It has been the custom oí courts in this state to .apportion the costs of such litigation to the respective parties, and we think properly so. The court in the suit in question had jurisdiction and power to so apportion such costs.” That is true so far as all costs in an action of this kind may be concerned aside from the cost of the state engineer’s office. Here' *66is a special provision of the law providing that each party shall pay his proportion of this cost and that a judgment shall be entered for it. Again, we ask, in whose favor? If the law had provided that anyone refusing to pay his proportion of this cost, the state, or the plaintiff in the action should pay it, and a judgment entered against the party refusing to pay, in favor of the party paying it, then the court could enter a proper judgment
I apprehend the trial court will find difficulty in rendering a judgment that will have validity or can be enforced.
For the foregoing reasons, I think the writ should issue.