DISSENTING.
I am unable to agree with the result reached in the opinion of the court. Under the authorities cited and quoted from in that opinion, I feel that the conclusion is inescapable that the state should not, by implication, be deemed to be bound by the provisions of § 116-437, OCLA.
The court in its opinion directs attention to two decisions of this court: State ex rel. v. Peoples West Coast Hydro-Electric Corp., 129 Or 475, 479, 278 P 583, and State ex rel. v. Hawk, 105 Or 319, 334, 208 P 709. As to those decisions, the court says:
“In two respects these decisions have a bearing on the present question. They afford, first, an illus-traction of a statute drawn in general terms which did not mention the state, but which was held nevertheless to bind the state. The rule of state immunity from general legislation was not discussed either in the briefs or in the opinion of the court in the Hawk case. Nevertheless, the decision that the legislative prohibition against the condemnation and appropriation of the waters of Herman Creek applied to the state, necessarily must be regarded as a holding that the statute fell within some exception to the general rule. Second, these decisions further indicate that, when a state agency exercising a power granted to it by the legislature, undertakes to appropriate any of the waters of the state, it must do so pursuant to the provisions of the water code, and that in a controversy with a private owner of water the state is subject to the same *564rules of law that govern the rights of the private litigant. (Italics added.)
An examination of those decisions in the light of other legislation dealing with the use of water in this state convinces me that they do not support the conclusions reached by the court. It is true that some state agencies, in appropriating water, are required to follow the same procedure and, in general, are bound by the same regulations as are applied to individuals and private corporations. But this is by force of the specific words of the statute, and not by implication, nor because of court interpretation.
At the time the Hawk case was commenced (1919), what is now §12-302, OCLA (§7089, Oregon Laws), in part provided:
“Whenever it is necessary that the state of Oregon shall require any real property, water, watercourses, and water and riparian rights, or any right or interest therein, for any public use, * * * he [the attorney general] shall * * * commence and prosecute in any court of competent jurisdiction, in the name of the state of Oregon, any necessary or appropriate suit, action or proceeding for the condemnation of said *-* * water, watercourses, water and riparian rights so required for said purposes * * *"
This section is now a part of ch. 3, title 12, OCLA, relating to the exercise of the right of eminent domain by the state, counties, and municipalities. It was first adopted in 1905: ch 45, Oregon Laws 1905. Section 12-304, OCLA (§7091, Oregon Laws), relates to counties and municipalities.
Section 12-302, OCLA, authorizing condemnation of water rights by the state, contains no provision for *565the appropriation of waters under the appropriation laws.
As pointed out in the court’s opinion, in 1915 the legislative assembly adopted ch 36, Oregon Laws 1915, the first section of which act became § 7113, Oregon Laws (now §116-469, OCLA), and the second section of which became § 7114, Oregon Laws (now § 116-470, OCLA). For the purpose of emphasis, I again quote that statute in part:
“The following streams and waters thereof forming waterfalls in view of, or near, the Columbia River Highway, from Sandy River to Hood River, are hereby withdrawn from appropriation or condemnation, and shall not be diverted or interrupted for any purpose whatsover, except as hereinafter mentioned, to-wit: * * * Herman Creek. * * * All in Hood River County.” (Italics added.)
All of the creeks mentioned in said act flowed in the vicinity of the Columbia river highway, one of the most scenic highways in the world. This highway is a mecca for tourists, as well as for our own citizens. Preservation of its scenic beauty is a matter of high importance to the state. That was the purpose of the act in question.
It will be observed that this statute expressly prohibited the exercise of the right of eminent domain insofar as the waters of Herman creek were concerned, no matter who was attempting to condemn. It was an express limitation upon the power vested in the state, counties, and municipalities by the provisions of §§ 7089 and 7091, Oregon Laws, and in other public and quasi-public corporations by similar statutes. It was just as unnecessary to specifically name the state in this prohibitory statute as it was to name counties, municipalities, or quasi-public corporations. It was unneces*566sary because the words of the statute are all-inclusive. The waters of Herman creek were “withdrawn from appropriation or condemnation * * * for any purpose whatsoever.” (Italics added.) Those words, when considered in the light of the high purpose of the act, certainly are broad enough to not only include the state, but also all other public and quasi-public corporations enjoying the right of eminent domain, and to prohibit appropriation as well as condemnation.
As pointed out in the Hawk decision, though “the power of eminent domain is inherent in the state, yet it lies dormant until called into existence by express legislative authority.” Section 7089, Oregon Laws, was the legislative authority granted for the exercise of the right by the state, and § 7113, Oregon Laws, was the legislative limitation placed upon such right.
In this connection, it is pertinent to note the provisions of § 7114, Oregon Laws, as they read at the time of the Hawk case decision:
“This act shall not prevent the condemnation for public park purposes of any lands through which any of said streams flow, nor affect vested rights or the rights of riparian proprietors of such lands in, or to the waters of said creeks or streams.”
Outside of incorporated cities and towns, the establishment of public parks is largely, if not wholly, a state function. To enhance the beauty of, and interest in, the Columbia river highway, the state established public parks along the same, with running waters highly important appurtenances thereto. The exception written into this act of 1915 was an exception to § 7113, Oregon Laws, and its blanket prohibition. Its *567sole purpose was to retain the right of the state and its agencies to appropriate and condemn for park purposes, thus indicating clearly that it was intended that § 7113, Oregon Laws, should apply to the state as well as to all others. Otherwise, the exception would not have been necessary.
The gist of the court’s opinion in the Hawk case is to be found at page 334, as follows:
“It seems to us that the act of 1915 [§ 7113, Oregon Laws], is a plain revocation of authority for the condemnation of land in connection with, or bordering upon the streams mentioned in the act. * * * The statute [§7089, Oregon Laws] did not authorize this condemnation proceeding.”
In 1921 the legislature amended § 7114, Oregon Laws, to read as it now appears in § 116-470, OCLA, to~ wit.
“This act shall not prevent the condemnation for public park purposes of any lands through which any of said streams flow, nor effect [affect] vested rights or the rights of riparian proprietors of such lands in or to the waters of said creeks or streams, nor shall it prevent the condemnation of any lands through which any of said streams flow, for the purpose of establishing, maintaining and operating thereon salmon fish culture work, nor shall this act prevent the fish commission of the state of Oregon from appropriating any of said waters for fish culture work; provided, however, that no waters shall be taken from above the falls in the streams mentioned in section 7113 of Oregon Laws.” Chapter 373, Oregon Laws 1921. (Italics added.)
It is perfectly obvious that this amendment was adopted to meet the objections sustained in the Hawk case. Manifestly, its purpose was to restore to the *568state of Oregon through, its fish commission the right of eminent domain in the respects particularly mentioned, such right to be exercised under and pursuant to the provisions of what was then § 7089, Oregon Laws. Furthermore, the exception contained in this 1921 act respecting waters above the falls in the streams mentioned in § 7113, Oregon Laws, shows conclusively that the purpose of the 1915 act was that as stated above.
Moreover, the language used respecting the right of the fish commission to appropriate waters for fish culture work clearly indicates an intent on the part of the legislature to subject the fish commission to the provisions of the water code regarding appropriations of water. Condemnation as respects water rights is one thing; appropriation, as a rule, is another. By this act, vested rights are protected. Under its power of eminent domain, the state, through its fish commission, might take over vested water rights, but it is clear that it could not destroy them by mere appropriation.
This court recognized that in the case of State ex rel. v. Peoples West Coast Hydro-Electric Corp., supra, when, at page 479 of the opinion, it said:
“ * * * This bar of the statute against the State Fish Commission [ch. 36, Oregon Laws 1915] was withdrawn by Chapter 373, Laws of 1921, but no application was made by the State Fish Commission for a permit to appropriate such waters until November 14, 1922, when a permit was granted to the State Fish Commission by the State Engineer to make such appropriation. Because of these facts, it was admitted upon the argument that the state had acquired no legal right by appropriation to the waters of Herman Creek until November 15, 1922.”
*569Following the adoption of the 1921 amendment, another condemnation proceeding came before this court, involving the waters of Herman creek: State v. Mohler et al., 115 Or 562, 237 P 690, 239 P 193. This action was instituted by the state of Oregon on the relation of its fish commission. The court commented upon the prior decision in the Hawk case and the subsequent enactment of the 1921 law. At page 571, we said:
“It will be observed that prior to the amendatory act, land through which said streams flowed could be appropriated for public park purposes only. The legislature, in its session of 1921, undertook to vest power in the fish commission to appropriate such land for ‘salmon fish culture work.’ ”
In the Mohler case the right of the state to condemn was upheld.
In State ex rel. v. Peoples West Coast Hydro-Electric Corp. supra, the use of the Avaters of Herman creek was again in dispute, but the question involved Avas entirely foreign to the legal problem presented in the other two decisions just commented upon. In this latter case, a question of priority of use Avas in issue. The suit was instituted by the state of Oregon on relation of the fish commission to restrain the diversion of waters of Herman creek by defendant. The record disclosed that defendant had appropriated, through its predecessor in interest, the use of a certain quantity of the waters of Herman creek for power purposes before the fish commission had acquired any legal rights in and to such waters, or any part thereof. The rights of defendant had become vested, subject to being defeated only by non-user. The only way the state could acquire or prevent the use of such vested rights was by condemnation proceedings under its power of eminent domain.
*570However, in its decision the court did, at page 479, make the following statement:
“* * * Although the state made use of the waters of Herman Creek in the operation of its hatchery for the first time in 1915 and has continuously used the same since said time, it acquired no right to the water by appropriation because by an act of the legislative assembly, Chapter 36, Laws of 1915, now Sections 7113 and 7114, Or. L., the waters of certain streams flowing into the Columbia River, including Herman Creek, were withdrawn from appropriation and this prohibition was held to be applicable to. the State Fish Commission in State ex rel. v. Hawk, 105 Or. 319 (208 Pac. 709, 209 Pac. 607).”
This statement must be read and considered only in the light of the issue then before the court. When we bear in mind the history and purposes of the legislation respecting these matters, and the all-inclusive words used, it certainly cannot be properly maintained that “the decision that the legislative prohibition against the condemnation and appropriation of the waters of Herman Creek applied to the state, necessarily must be regarded as a holding that the statute fell within some exception to the general rule.” (Italics added.) Clearly, the state was not included within the prohibition by implication only; no more so than all other persons and corporations, public or private.
There is no just comparison between the direct and all-inclusive prohibition contained in § 7113, Oregon Laws, and the provision of § 116-437, OCLA, reading as follows: “Beneficial use shall be the basis, the measure and limit of all rights to the use of water in this state”, when this latter provision is considered in the light of the legislation of which it is a part, and, in particular, in the light of its purpose. It must be *571borne in mind that § 116-437, OCLA, is a part of the general law which largely relates to the appropriation of waters by private persons and corporations. It is those appropriators to whom the act refers and applies. Its purpose is to see that these appropriators make beneficial and continual use of the waters, at the risk of forfeiting their right to others for non-user. The state, in its sovereign capacity, and as distinguished from agencies which it has created, neither appropriates nor uses waters of the state for any purpose. The importance of this observation will later be developed.
An examination of our statutes discloses quite clearly that, in every instance where the state has been interested in the use or control of water, the legislature has adopted specific laws in relation thereto. Different agencies have been created, and necessary powers of condemnation and appropriation have been vested in them. Legislation respecting the Fish and Game Commission is only one illustration of this. Other examples relate to (1) Drainage and Flood Control, title 117, OCLA; (2) Water Projects, title 118, OCLA; (3) Power Projects, title 119, OCLA; (4) Irrigation Projects, title 120, OCLA; (5) Drainage and Diking Districts, title 123, OCLA; (6) Flood Control Districts, title 124, OCLA; and (7) Irrigation Districts, title 125, OCLA. In other words, insofar as the state’s connection with water matters is concerned, the legislature left nothing to imagination or implication; it was specific.
On the other hand, it is to be observed that, in the laws relating to loans to war veterans, no authority is vested in the state agencies authorized to administer the provisions thereof, to acquire by condemnation or appropriation any waters or Avatercourses of the state *572for irrigation purposes, or otherwise. Art. XI-C, Oregon Const.; ch 1, art 1 to 5, inch, title 104, OCLA; in general, title 106, OCLA, relating to the State Land Board, and, in particular, § 106-201, OCLA, relating to specific powers of the State Land Board.
In making loans to veterans, no discretion is vested in the state except as to determination of the appraised value of the property offered as security and a few other matters not material to this discussion. The state acted strictly in its governmental capacity pursuant to constitutional mandate. Upon default in repayment of the loan, it was forced by the law to foreclose the mortgage or accept a deed to the land. In such circumstances it is not to be implied that the legislature intended the state should lose a water right appurtenant to land it was compelled to accept as security for a loan, the water right perhaps forming the principal value of the land, and without which the land would be practically valueless. What is said respecting veterans’ loans applies with equal, if not greater, force to loans by the State Land Board of school funds. Is the irreducible school fund to suffer loss for non-user by the State Land Board of a water right appurtenant to land it has been forced to acquire title to on foreclosure proceedings?
I think it here appropriate to again invite attention to a case cited and quoted from in the opinion of the court: State Land Board v. Lee, 84 Or 431, 434, 165 P 372. At page 434, this court said:
“Stated in broad terms, it is a rule of universal recognition that the government is not included in a general statute of limitation unless it is expressly or by necessary implication included. This rule is said to be founded upon the legal fiction expressed in the maxim nullum, tempus occurrit regi. How*573ever, it is not necessary to predicate this salutary precept upon any fiction, since sound reason for the rule is found in the fact that as a matter of public policy it is necessary to preserve public rights, revenues and property from injury and loss by the negligence of public officers * * (Last italics ours.)
We must not overlook the pertinent fact that the act of 1915 is a prohibitory act; whereas, § 116-437, OCLA, provides for a forfeiture.
We made note above that § 116-437, OCLA, was a part of the general law relating to appropriators of water. Some basis for this contention is to be found in another section of the water code: § 116-426, OCLA. This section of the law requires the state engineer to issue a certificate to the applicant for a water right when the appropriation has been perfected in accordance with the law. ít then provides:
“* * * Eights to the use of water acquired under the provisions of this act, as set forth in any such certificate, shall continue in the owner thereof so long as such water shall be applied to a beneficial use under and in accordance with the terms of said certificate, subject only to loss by nonuse as specified and provided in Section 116-437 * *
Further observation is made of the fact that the 1915 law (§ 7113, Oregon Laws) is only one of many laws of that type, in none of which the state is specifically mentioned, but in all of which the words of prohibition are all-inclusive. §§ 116-461, 116-462, 116-464, 116-466, 116-468, OCLA. For example, § 116-464, OCLA, reads as follows:
“It hereby is provided that the waters of Haekett creek, a tributary of the Sandy river and which is located in Clackamas county, Oregon, together *574with the tributaries of said Hackett creek, shall be withdrawn from appropriation or condemnation and shall not be diverted or interrupted for any purpose whatsoever, except for the purpose of protecting fish life therein by the Oregon state game commission.” (Italics added.)
Section 116-465, OCLA, makes an exception to the prohibition contained in § 116-464, as to vested rights and condemnation for park purposes.
The prohibition contained in § 116-462, OCLA, relating to the waters of Silver creek, in Marion county, and Brushes creek, in Curry county, is in much the same words, and no exception is made in favor of the fish commission, though there is an exception as to vested rights and condemnation for park purposes.
Just as there is no real foundation for the court’s first conclusion respecting the effect of the decisions in the Hawk and Hydro-Electrie Corp. cases, neither is there any sound basis for the implications contained in its second conclusion, viz.; that “these decisions further indicate that, when a state agency exercising a power granted to it by the legislature, undertakes to appropriate any of the waters of the state, it must do so pursuant to the provisions of the water code.” An examination of the statutes will conclusively show that state agencies are subject to the appropriation laws, not by virtue of those decisions, but because of the specific laws relating to their creation and powers. Every state agency, in appropriating water, is subject to the general appropriation laws as to the method of appropriating and as to priorities. This applies to cities, towns, irrigation districts, and other special agencies created, or authorized to be created, by legislative act.
However, the water code contains many provisions *575limiting the time in which certain operations must commence as a condition for continuing a permit for the appropriation of waters. Cancellation of the permit is the penalty for failure to comply. But irrigation districts and municipal corporations are excepted from these provisions. § 116-430, OCLA. But these provisions refer to permits, and not to final certificates of appropriation.
The court in its opinion seems to deem it significant that cities and towns are expressly excepted from the provisions of §116-437, OCLA; whereas, the state is not mentioned. When the reason for specifically mentioning cities and towns in this exception is recognized, the exception has no significance whatever in the respects as claimed.
We have before observed that cities and towns are vested with the power of appropriation of waters and watercourses by the express provisions of § 12-304, OCLA. Because their authority to appropriate waters stands on the same foundation as that of private individuals and corporations, it was necessary to except them from the provisions of § 116-437, OCLA, if their rights were to be protected as regards reserves of water not presently being used, but important to meet the necessary demands of the future.
Furthermore, cities and towns are of lesser conseojuence than the state itself. By mentioning cities and towns, the legislature showed that it was thinking of necessary exemptions for the public good. The state, however, under the rule of nullum tempus occurrit regi, would be exempt. Hence, there was no need of mentioning it. That accounts for the act’s omission to include it alongside the phrase “cities and towns”. In other words, the lawmakers naturally assumed that, under the rule of nullum tempus occurrit regi, the state *576would be held exempt without being specifically mentioned.
It is further to be observed that, though, in a technical sense, cities and towns are still referred to as arms of the state, nonetheless, by virtue of the provisions of § 2, art. XI, Oregon Const, (commonly referred to as the Home Buie Amendment), they are, in fact, more or less independent sovereignties and, in their operations, are subject only to the constitution and general laws of the state. They occupy an entirely different status in their relation to the state than do counties, irrigation districts, port districts, and other state agencies, such as the Fish and Game Commission, the Highway Commission, the State Tax Commission, and the numerous other boards and commissions created to carry out purely state functions. Cities and towns derive their principal powers from the constitution; the other state agencies and their powers stem from legislative act.
If the court is correct in its conclusions in this case, then it necessarily follows that irrigation districts, which are arms of the state, might lose their water rights for non-user, despite the importance attached to the operations of such districts by the provisions of § 125-303, OCLA, and other applicable statutes. It is to be observed that irrigation districts are not mentioned in the exceptions contained in § 116-437, OCLA.
As indicated, the operations of irrigation districts are deemed of highest importance. I quote a part of § 125-303, OCLA:
“The use of all water required for the irrigation of the lands of any district formed under the provisions of this act, together with all water rights and rights to appropriate water, rights of way for canals and ditches, sites for reservoirs, and all other *577property required in fully carrying out the provisions of this act, hereby is declared to be a public use more necessary and more beneficial than any other use, either public or private, to which said water, water rights, rights to appropriate water, lands or other property, have been or may be appropriated within said district.”
Irrigation districts, as well as the Fish and Game Commission, have the express power of acquiring water rights by condemnation, purchase, or appropriation. "When they condemn or purchase, they acquire the water right from one Avho has already perfected it under the appropriation laws of the state. They have a choice as between condemnation, purchase, or appropriation. Obviously, there are times when appropriation of available waters would be much less expensive than condemnation or purchase, and just as satisfactory. It is manifest that both these state agencies might well acquire water rights for the sole purpose of providing reserves for use in cases of emergency, or for expanded operations, and not make use of the same unitl the necessity arose. As to these reserves, their needs are just as great as those of cities and towns. Is it the intention of the legislature that they shall lose those rights at the end of five years for non-user because they are not mentioned in the exceptions to § 116-437, OCLA? I think not.
It is unnecessary for me to discuss the several authorities in which the rules applicable to this case are set forth. They are cited and commented upon in the opinion of the court, including those which suggest an exception to the general rule. I adopt most of the discussion of the court respecting the several decisions to which attention has been directed, but I disagree with its final conclusions. The same discussion and *578most of the argument presented completely justify a conclusion precisely opposite to that reached by the court. I do not believe that this case comes within the exception to the general rule.
I concede that § 116-437, OCLA, was adopted in the interests of public good. Every statute is presumably adopted with that in mind. But I maintain that protection of the state’s revenues is also for the public good. This apparently presents a conflict of public interests to be weighed in the balance.
Although I deny that the state may be deemed bound by the forfeiture provision contained in the section of the water code now under discussion, inasmuch as it has not been specifically named therein; nevertheless, if the question of including it in, or excluding it from the provisions of the act depends upon a decision as to which of the two mentioned public interests should be the determining factor, I subscribe to the proposition that the principle of conserving the state’s revenues is more important to the public as a whole than is the assumed loss of the beneficial use of some water. By this I do not wish to be understood as discounting in the slightest degree the vital importance of water. However, aside from its use for industrial and municipal purposes, water is primarily used by individuals for irrigation needs. Its use is of particular importance to the arid and semi-arid sections of the state, most of which lie east of the Cascade mountains, though it is conceded that in recent years irrigation has become more and more important in some parts of the Willamette valley in western Oregon. As to the state’s revenues, there is not a taxpayer who is immune to the injuries incident to a loss or dissipation thereof. Protecting the revenues is of statewide interest and importance. I do not think we are justified *579in writing into this law, or into any other law, by implication, a provision that may seriously affect the state’s revenues, particularly when, to do so, we must turn our backs upon a long and well established rule that the state is not to be deemed included in an act providing a limitation or forfeiture such as we have here, unless specifically named therein. In my opinion, such inclusion is exclusively a matter for legislative determination. It should not be accomplished by judicial legislation, which, I believe, is the effect of the proposed decision in this case.
In the opinion of the court the importance of preventing wastage of water is stressed, but it seems to me this is beside the issue, because I do not think the forfeiture for non-user clause was adopted for that purpose. The Avater code itself contains express provisions designed to prevent waste. For example §§ 116-303, 116-409, OCLA. Further, non-user by an appropriator of a water right does not necessarily mean that there is or avíII be a waste or loss of beneficial use of the water. The court in its opinion seems to assume that it does.
It is unimportant that insofar as this particular case is concerned no serious, if any, loss of revenue is threatened, no matter how we decide the matter before us. But the principle to be established is of high importance. What we say here will form the precedent for future action. Whatever we do must be done Avith an eye to that future.
I am of the opinion that the question of determining the legislative intent, as suggested in the court’s opinion, is not at all involved. The statute is unambiguous. Recourse to rules of statutory construction is not necessary. The act should be interpreted according to its plain terms. It is presumed that, in adopting *580this statute, the legislature did so with full knowledge of the general rule of law that the state would not be deemed as included in the limitations therein contained unless expressly named. It is manifest that no presumption should be indulged in that the legislature intended that the state’s revenues should be jeopardized. Had it intended that the state be included, the legislature would have expressly said so.
It is admitted that in construing a statute, where construction is necessary, the intention of the legislature is to be pursued, if possible. § 2-217, OCLA. But this rule of statutory construction is no more important than the rule provided in § 2-216, OCLA, which in part reads as follows:
“In the construction of a statute * * *, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted * * (Italics added.)
For the reasons stated, I dissent.
ROSSMAN, J., concurs in this opinion.