dissenting:
Like my brothers Batjer and Zenoff, I reject the rationale espoused by our brothers Mowbray and Thompson. The Nevada Constitution establishes that the doctrine of separation of powers is fundamental to this state’s system of government. City of No. Las Vegas v. Daines, 92 Nev. 292, 550 P.2d 399 (1976); Dunphy v. Sheehan, 92 Nev. 259, 549 P.2d 332 (1976). Thus, I agree that severely circumscribed judicial review, such as here concerned, will violate separation of powers if such limitations are imposed without prior intelligent agreement. However, in my view, the legislative scheme does not, in fact, provide adequate mechanics through which a workman may choose intelligently whether to accept or reject its provisions. Thus, I disagree that constitutional infirmities may *130be ignored by classifying our workman’s compensation law as “contractual.”
Nothing in the record indicates that new employees are consistently advised of the option to elect, the advantages and disadvantages of election, or the rights under both possibilities, in order that they may make a voluntary, knowing, and intelligent election. Upon failure to reject the provisions of the Act for any reason, whether due to ignorance or otherwise, an employee is conclusively presumed to have elected to be covered by the Act, and therefore is precluded from asserting his or her common law rights. NRS 616.305; Quicksilver Co. v. Thiers, 62 Nev. 382, 152 P.2d 432 (1944). Under such circumstances, the right to elect is illusory and negative, and cannot realistically be equated to situations in which parties mutually assent to special proceedings to determine their relative rights.
Having thus respectfully noted the tenuous nature of the implied “contract” upon which Justices Batjer and Zenoff rely to by-pass concern for separation of powers, 1 now wish to review, with equal deference and respect, the views stated by the court’s other minority, Justices Mowbray and Thompson.
From the inception of Nevada’s Industrial Insurance Act, this court has consistently ruled that, in contested cases, an injured workman has the right to an original determination of facts regarding his right to compensation, and that, pursuant to our constitution, this is a judicial function committed to the district courts. Nevada Indus. Comm’n v. Strange, 84 Nev. 153, 437 P.2d 873 (1968); Dahlquist v. Nevada Ind. Com., 46 Nev. 107, 207 P. 1104 (1922); State v. Nevada Ind. Commission, 40 Nev. 220, 161 P. 516 (1916).
In State v. Nevada Ind. Commission, id. at 226, 161 P. at 518, we stated: “Necessarily, the claim of an employee, rejected in whole or in part by the industrial commission upon any question of fact going to the extent of his injuries . . . must be determined in an action at law against the commission.” (Emphasis added.) Further, we held that this was purely a judicial function to be properly performed only by a district court: “A district court is the proper forum to determine the legality of his claim, and, if a legal claim, the amount he is entitled to recover under the statute.” Id. at 227,161 P. at 518. We reaffirmed this position in Dahlquist v. Nevada Ind. Com., cited above, and again in Nevada Indus. Comm’n v. Strange, cited above, wherein we stated at 155, 437 P.2d at 875: “[T]his court [has] clearly established that an aggrieved employee who was dissatisfied with the award of compensation granted by the Commission had the right to bring an original *131action in district court against the Commission and that the enforcement of that right in the district court involved a justiciable controversy over which our district courts have original jurisdiction as provided in the Nevada Constitution.” (Emphasis added.)
The 1973 amendment radically modifies our industrial compensation law not only by shifting from the judicial branch of government to the executive a function we have heretofore deemed purely judicial, but also by eliminating altogether effective judicial intervention in disputed cases. This is clearly improper.
By section 4, the amendment supplants judicial intervention in contested claims between the commission and injured workmen by creating the NIC “appeals officer” to hear and decide such cases. In essence, this officer is nothing more than an unelected adjudicator who is subservient to the executive branch and performs functions previously committed to an independent district court. He is appointed by the governor for a minimum term of four years and remains in office thereafter so long as his disposition of disputed cases pleases the executive branch. NRS 616.542(1). His salary is paid from the state insurance fund, the same fund from which employees receive compensation. NRS 616.542(1). The amendment empowers him to hear and decide contested claims between injured workmen and the commission, itself a part of the executive branch. NRS 616.542. In conducting such hearings, he can issue subpoenas requiring the attendance of witnesses or the production of documents, call and examine witnesses or parties, pass upon all questions arising during the course of a hearing, permit or deny discovery, dispose of procedural requests, and generally guide the course of a proceeding or pending hearing. NRS 616.226. No judicial proceedings may be initiated until this officer renders his supposedly impartial decision, which is the final administrative determination of the matter. NRS 616.-542(4) and 616.543.
The amendment further restricts ultimate judicial action to a narrow review of the officer’s decision pursuant to the Nevada Administrative Procedure Act. NRS 616.543. This review is quite circumscribed and limited. See: Harrison v. Dep’t of Highways, 87 Nev. 183, 484 P.2d 716 (1971). Unless clearly erroneous, the court must accept the appeals officer’s findings and conclusions. NRS 233B.140(5). This necessarily requires the court to defer to the officer’s findings and conclusions, and the court can no longer make de novo factual determinations. Indeed, if the claimant desires new evidence to be considered, *132he must petition the court, demonstrate the evidence is material, and show good reason why it was not presented to the appeals officer. NRS 233B.140. Even if the claimant satisfies the court that new evidence should be considered, the court is not authorized to receive it. Instead, the evidence must first be presented to the appeals officer for his consideration. NRS 233B.140(3).
In my view, to fasten the workman with the legal, equitable, and factual determinations of a subservient member of the executive branch in this fashion, divesting his right to independent determinations by a real judicial tribunal, not only fails to protect the claimant’s rights under the Industrial Insurance Act, but violates our constitution.
Regardless of what may be permitted in other jurisdictions, it is for our court, based on its constitution, to determine what powers must be kept separate between the three branches of government. Article 3, section 1 of our constitution provides: “The powers of the Government of the State of Nevada shall be divided into three separate departments, — the Legislative,— the Executive and the Judicial; and no persons charged with the exercise of powers properly belonging to one of these departments shall exercise any functions, appertaining to either of the others,.. .” (Emphasis added.) Article 6, section 1 vests the judicial power of our state only in a supreme court, district courts, justices of the peace, and courts the legislature establishes for municipal purposes in incorporated cities and towns. Thus, in the face of these provisions and our firmly established case law, I cannot perceive how the legislature may constitutionally confer such broad power on the appeals officer to the exclusion of the judiciary.
I recognize that some jurisdictions do permit executive officers to exercise functions similar to those of the appeals officer. However, this is permitted pursuant to constitutional provisions different from ours, and, for this reason, authority from those jurisdictions is not here persuasive or even germane. For example, while some administrative officers on the federal level exercise such power, it is acknowledged that the United States Constitution has no provision regarding separation of powers as set forth in article 3, section 1 of our constitution. Further, while the exercise of judicial power by federal agencies may arguably be necessitated due to peculiar needs of the federal system, Nevada has different needs. Even now, I note, people are becoming dissatisfied as the federal bureaucracy burgeons, and as their rights to due process become more and more *133blurred. For these reasons, the federal cases are not, to me, persuasive authority for stretching Nevada’s constitution to sustain the office of the NIC appeals officer.
I am aware of no sister state having constitutional provisions like ours which permit the commission or one of its employees to exercise such powers. In those jurisdictions where the commission does exercise such powers, the people have authorized it by specific constitutional provisions. See: Provenzano v. Long, 64 Nev. 412, 183 P.2d 639 (1947); Michigan Mut. Liability Co. v. Baker, 294 N.W. 168 (Mich. 1940). For example, when the people of California adopted their workmen’s compensation law, they also saw fit to amend their constitution to permit the legislature to “provide for the settlement of any disputes ... by arbitration, or by an industrial accident board, by the courts, or by either or any or all of these agencies, anything in this Constitution to the contrary notwithstanding.” Cal. Const, art. 20, § 21 (1911). The manifest purpose of this amendment was to obviate objections, based on constitutional provisions almost identical to ours, to the determination of compensation by a body other than a judicial tribunal. See: Western Metal Supply Co. v. Pillsbury, 156 P. 491, 497 (Cal. 1916) (Angellotti, C. L, concurring). Indeed, the California Supreme Court has noted that their commission, in awarding compensation, is exercising judicial power and acting as a court, and, but for the special constitutional amendment, this would be improper due to constitutional provisions like ours. See: Carstens v. Pillsbury, 158 P. 218 (Cal. 1916); Western Metal Supply Co. v. Pillsbury, cited above; Pacific Coast Casualty Co. v. Pillsbury, 153 P. 24 (Cal. 1915).
The people of Nevada have not so liberalized our constitution as to sanctify the legislative establishment of a judicial tribunal within the executive department. On the contrary, Nevada’s constitutional mandates, regarding separation of powers and the vesting of judicial power only in specifically enumerated courts, closely parallel those of New Mexico and Maryland. Each of these jurisdictions has faced similar attempts by its legislature to permit the commission to determine one’s right to compensation and make such determination final, subject only to a very limited judicial review.
In State v. Mechem, 316 P.2d 1069 (N.M. 1957), the New Mexico Supreme Court denounced their legislature’s attempt to preclude de novo judicial determination of a workman’s right to compensation in disputed cases. That court astutely perceived that it was improper to permit the commission to determine one’s right to compensation because the commission *134would then be determining rights and liabilities between individuals. The court stated: “ ‘The rights and liabilities of a private individual are fixed by law and are to be determined by judicial inquiry. . . . The fact that an appeal is provided for from the decision of the board ... to the district court does not alter the character of the proceedings.’ * * * Here, the legislature has attempted to create an executive agency, clothe it with judicial power, on a parity with district courts, and invest it with statewide jurisdiction. This cannot be done.” Id. at 1070-71.
Maryland also has constitutional provisions like ours which forbid persons performing executive functions from exercising judicial functions and vest all judicial power only in specifically enumerated courts. Maryland’s workmen’s compensation statute permits the commission to make compensation determinations which are final and conclusive if supported by substantial evidence. However, Maryland’s law also provides for a de novo trial on appeal. See: Md. Code Ann. art. 101, § 56 (Supp. 1976); Abell v. Albert F. Goetze, Inc., 226 A.2d 253 (Md. 1967). “[I]t is rather clear that, but for this aspect of the Workmen’s Compensation Law, [Maryland’s] Act would have surely been declared unconstitutional if it had not provided for the right to a jury trial by a de novo appeal.” County Coun., Montgomery Cty. v. Investors F. Corp., 312 A.2d 225, 256 (Md. 1973) (Barnes, J., concurring in part and dissenting in part).
In reaching the conclusion that the 1973 amendment does not violate the separation of powers, Justices Thompson and Mowbray rely heavily on Ormsby County v. Kearney, 37 Nev. 314, 142 P. 803 (1914). However, a careful analysis of Kearney clearly manifests it is not persuasive authority for upholding the constitutionality of the office of the NIC appeals officer, and, in fact, mandates an opposite conclusion.
Kearney involved the constitutionality of Nevada’s water law of 1913 which authorized the state engineer to determine relative rights and empowered him to administer and regulate the use of water in accordance with his determinations. The majority of the court upheld the state engineer’s power to determine relative water rights for administrative purposes only. However, by scrutinizing the majority position set forth by Justices Norcross and Talbot and the dissenting position by Justice McCarran, it is plain that their opinions do not support the constitutionality of the office of the NIC appeals officer.
Justice Norcross set the tone for the majority by first *135explaining that the Act before the court concerned the economic use and distribution of water, a scarce commodity in the arid west. He noted that, due to the public interest in distributing water for the best economic use, not only could the state regulate water, but such regulation was the only effective manner to control this scarce natural resource. Ormsby County v. Kearney, cited above at 336—38, 142 P. at 805-806. Justice Norcross concluded that the engineer could, in his administration of the water law, make administrative determinations regarding relative water rights. Id. at 339, 142 P. at 806. However, in reaching this conclusion, Norcross stressed two important points. First, “[t]he right ... to have the matter finally adjudicated by the courts is not attempted to be taken away,” id. at 339, 142 P. at 806, and, in the event of disputes as to water rights, the “parties contesting must initiate an adjudication by the courts. . . .” (Emphasis added.) Id. at 350, 142 P. at 810. Secondly, Norcross, quoting from other jurisdictions, elucidated the true nature of the engineer’s proceeding to determine relative water rights and explained: (1) “‘Affirmative relief in favor of one party as against another is not its object,’ ” id. at 346, 142 P. at 808, (2) in the proceeding, a party “ ‘does not obtain redress for an injury, but secures evidence of title to a valuable right id. at 344, 142 P. at 808, and (3) the proceeding does not result “ ‘in a judgment for damages to a party for injuries sustained but only the “ ‘adjustment of the priorities of appropriation of the public waters of the state ...,’” id. at 343, 142 P. at 807. Thus Norcross found the Act constitutionally valid because it in no way affected a party’s right to de novo judicial determinations and did not involve either affirmative relief or redress for injuries.
In his concurring opinion, Justice Talbot also concluded that the engineer could constitutionally determine relative water rights for administrative purposes. Id. at 354, 142 P. at 811. Talbot found this permissible because the state, pursuant to its police power, could regulate such an important commodity as water just as it regulates certain other business and property. Id. at 354, 142 P. at 811. However, Justice Talbot, like Nor-cross, emphasized that such determinations could not be conclusive against adjudication by the courts. He noted that, if the Act provided for no appeal from the engineer’s determinations, our constitution would be violated. Id. at 356,142 P. at 811-12. Further, he stated that “[t]he fact that the statute provides for an appeal cannot make the determination of the state engineer binding as a final adjudication of water rights or endow him with judicial power to make a final determination of rights, *136when the constitution directly limits that power to the courts specified.” Id. at 356-57, 142 P. at 812.
Finally, Justice McCarran, dissenting, found that Nevada’s constitution would not permit such a method of determining water rights, even for administrative purposes. McCarran argued that article 6, section 6 of Nevada’s constitution limited the district court’s final appellate jurisdiction to cases from justice courts and inferior tribunals established pursuant to article 6, section 1. Since the state engineer was neither a justice court nor an inferior tribunal, the district court had no appellate jurisdiction over the engineer’s decision. Thus, McCarran concluded the Act was unconstitutional and stated: “As has already been stated, the constitution limits the appellate jurisdiction of the district court to those cases appealed from justices’ courts and such other inferior tribunals as may be established by law, and hence it follows that unless we read into this provision of the constitution either that the state engineer is an inferior tribunal, established by the water law of 1913, or that the district court will take appellate jurisdiction in cases other than those conferred upon it by the organic law, it necessarily follows that the provision of the water law of 1913, as to appeals from the orders and determinative decrees of the state engineer, are unconstitutional, and the district court would be without power to assume such jurisdiction. If we view the contemplated final orders or decrees of the state engineer and his determinations in the light of these conclusions, it unanswerably follows that, there being no appeal from the determinations of the state engineer, they are therefore final determinations, and these final determinations are in matters in which the right of possession to property is involved, and the party aggrieved is cut off from access to the civil courts, and the constitutional guaranty is nullified.” Id. at 379, 142 P. at 819.
Thus, reviewing the reasoning of each justice in Kearney, it is clear none of them would uphold the office of the appeals officer in the instant case. Since the proceeding before the appeals officer seeks affirmative relief in favor of one party and results in an award of damages for injuries sustained, Norcross would distinguish this proceeding from that before the engineer in which no affirmative relief is sought. In addition, Norcross would find the 1973 amendment constitutionally invalid for precluding a claimant’s right to a de novo judicial determination in disputed cases. Similarly, Justice Talbot would also find the amendment unconstitutional because, even though a workman can obtain a limited appeal pursuant to the Administrative *137Procedure Act, the determination of the appeals officer, for all practical purposes, is the final determination, conclusive against de novo adjudication by the courts. Finally, McCarran would denounce not only the office of the NIC appeals officer but any system which deprived the district court of the jurisdiction vested in it by our constitution. In summary, it is patent that Kearney is not persuasive authority for upholding the office of the NIC appeals officer.
Thus, as my brothers Batjer and Zenoff evidently see, the statutory scheme is insupportable, unless “consent” or “contract” may be invoked to save it. Since only those two justices, a minority of this court, express the view that the illusory “consent” raised by the statute results in a valid contract, the validity of that rationale remains in serious doubt even in this court. Moreover, since the presumption relied upon to raise a “contract” lacks a rational basis, I suggest that to avoid application of the Nevada Constitution my brothers Batjer and Zenoff may have raised equally serious federal concerns. See, for example, Western & Atl. R. Co. v. Henderson, 279 U.S. 639 (1929); cf. Edwards v. Sheriff, 93 Nev. 13, 558 P.2d 1144 (1977).