(dissenting).
I dissent.
The decision of the Board as it concerns “waste” is based on SDCL 46-5-46. The above statute states as follows:
The unauthorized use of water to which another person is entitled, or the willful waste of water to the detriment of another or the public, is a violation of this chapter.
This statute * was amended in 1983, but the prohibition against “waste” remained the same without that term ever having been defined. This statute is unconstitutionally vague since nowhere in this statute, nor any other pertinent thereto, is the term “waste” defined.
The Board’s decision contains some sixteen (16) specific Findings of Fact or Conclusions of Law concerning “waste”, and refers specifically to “waste” and inefficiency over a dozen times.
The standard established by the Supreme Court under which a statute may be rendered void for vagueness and uncertainty has been expressed in Kelley v. Duling Enterprises, Inc., 84 S.D. 427, 437, 172 N.W.2d 727, 732 (1969) as follows:
A statute that either forbids or requires the doing of an act in terms so vague that men of common intelligence must guess as to its meaning and differ as to its application lacks the first essential of due process of law. (citations omitted)
While the Board could have adopted regulations defining the term “waste”, it never did so, Thus, users are then simply left in a position where they must guess as to what the statute means when it uses the term “waste”.
It is noteworthy that the term “waste” is specifically defined in great detail by the legislature in connection with oil and gas conservation. SDCL 45-9-2(1) sets out six *423separate definitions and examples of what the term “waste” means in connection with oil and gas exploration.
In Kelley, supra, we also held that vagueness can be tested by determining whether a statute can be construed to include conduct that would otherwise be harmless. We there held that a statute which can be construed to include “harmless action” is void for vagueness and uncertainty. 84 S.D. at 437, 172 N.W.2d at 732.
In this case, the Board prohibited even one on-channel stock watering dam from being constructed by Landers, which, by itself, certainly could not harm Romey’s vested water rights. The Board’s decision in effect holds that the construction of a single on-channel dam for stock watering purposes constitutes “waste”.
This clearly demonstrates the vagueness of the statutory language. It seems clear that the statute as written constitutes an unconstitutional delegation of power by the legislature to the administrative agency. The power of the legislature to delegate certain of its functions to administrative bodies only exists if that power is given with sufficient guidelines and standards to guide and restrict the agency’s actions. This principle was stated in Boe v. Foss, 76 S.D. 295, 77 N.W.2d 1 (1956) as follows:
Inherent in the division of our state government into three distinct departments ... is the principle that the Legislature cannot abdicate its essential power to enact basic policies into law, or delegate such power to any other department or body. Equally as fundamental and settled is the principle that having written broad policy into law the Legislature, in the execution of that policy, can delegate quasi-legislative power or functions to executive or administrative officers or agencies, provided it adopts understandable standards to guide its delegate in the exercise of such powers.
Id. 76 S.D. at 313, 77 N.W.2d at 11. (cita-tioms omitted).
Absent such “understandable standards”, the Board in this case was free to impose its own definition of “waste” without regard to applicable law. Here, the Board determined that “waste” encompassed the construction of any and all stock dams on-channel, yet, there is not a single statute, nor duly adopted regulation, that authorizes such a determination.
In Sarasota County v. Barg, 302 So.2d 737, 742 (Fla.1974), it is stated that:
“When a statute is couched in vague and uncertain terms or is so broad in scope that no one can say with certainty, from the terms of the law itself, what would be deemed an infringement of the law, it must be held unconstitutional as attempting to grant to the administrative body the power to say what the law shall be ...” [emphasis in original]
The determination of what conduct falls within the proscription of these ambiguous provisions is left to the unbridled discretion of those responsible for applying and enforcing the act. This amounts to an unrestricted delegation of legislative authority.
Quoting in part from Conner v. Joe Hatton, Inc., 216 So.2d 209, 211 (Fla.1968).
It seems clear that SDCL 46-5-46 is unconstitutionally vague since it does not provide any guide to landowners to determine whether his particular stock watering dams are or are not in violation of its terms. There exists no limitation on the power of the Board as to what “waste” is or is not and it is therefore an unconstitutional delegation of power by the legislature to an administrative agency. I further dissent with the holding of the majority in this case for the reason that in my opinion the Board was without jurisdiction to order the wholesale removal of 35 stock dams based on its “declaratory ruling” pursuant to SDCL 1-26-15.
The fact that appellee Romey knew appellant Landers would not comply with a mere declaratory ruling, and therefore requested the coercive relief which followed, does not confer jurisdiction to the Board to order such coercive relief. Indeed, the trial court conceded that the Board was without jurisdiction to order such coercive and *424large-scale relief, but upheld the decision of the Board and concluded that where the facts of the case support the declaratory ruling, the circuit court could order the coercive action. Yet the appellees, much less the majority, have failed to cite a single case or statute where declaratory judgment relief is jurisdictionally appropriate and within the powers of an administrative agency. The fact that Landers consented to have the matter heard before the Board certainly does not confer jurisdiction. It is settled law that one cannot consent to jurisdiction where none existed in the first instance.
It is interesting to note that in this case if Landers had not taken an appeal from the Board’s decision, the circuit court could never have invoked its claimed power to coerce the Board’s judgment that the 35 dams be removed. Furthermore, it seems to me that aside from the constitutional vagueness issue, a less coercive measure could have been ordered in order to satisfy the claim of Romey that the dams infringed upon his right of irrigation.
Accordingly, I would reverse the decision of the trial court and the Board for the reasons above stated.
I am hereby authorized to state that MORGAN, J., joins in this dissent.
SDCL 46-5-46 as amended provides:
No person may engage in unauthorized use of water, may waste water or may violate the terms or conditions of a permit or license to appropriate water.
Source: 1983 S.D.Sess.Laws, Ch. 314, § 79.