"While the writ of certiorari is not a writ of error, *Page 345 `it is nevertheless,' as suggested in Schwarz v. Superior Court,111 Cal. 112, 43 P. 582, `a means by which the power of the court in the premises can be inquired into; and for this purpose the review extends, not only to the whole of the record of the court below, but even to the evidence itself, when necessary to determine the jurisdictional fact.' If, then, by looking at the evidence, we can see that the court exceeded its power, we have a right to examine the evidence for that purpose." McClatchy v. Superior Court (Cal.), 51 P. 696.
Hinckley appeared in court and said: "I offer to prove that certain orders were made by this district court and by Hon. George A. Bartlett, presiding judge thereof, in the exercise of the supervision and control of the distribution of the waters, vested in him by statute, and that the very act of the state engineer, which I am accused of interfering with, was contrary to those orders."
The court, in refusing to permit such showing, acted identically as did the lower court in the McClatchy case, wherein the refusal to permit the testimony was held to be more than mere error and an absolute violation of the defendant's right to be heard, and the judgment based on such record was held to be void. See, also, Van Hoosear v. Railroad Commission (Cal.), 207 P. 903,907; Ex Parte Lake (Cal.), 224 P. 126; Hotaling v. Superior Court (Cal.), 217 P. 73, 74.
Nowhere in the water law of the State of Nevada is authority given to the state engineer to regulate water by manipulating spillways. As far as the legislature has gone, it has not given to the state engineer the right to break open a man's ditch and take the water out of that ditch without even alleging that the water was unlawfully in that ditch. That control, under all of the sections of the water law, is to be exercised at the headgate. In a proceeding criminal in its nature, such as this proceeding in contempt, there can be no additional implied powers to the state engineer not given him by statute.
As appears from the petition, the plaintiff, over defendant's objection, introduced evidence to show not only that *Page 346 the defendant had replaced boards in the spillway of his ditch, that had been removed by the state engineer, but also that the defendant had opened up and admitted water from the Humboldt river into the headgate of his ditch, over one and one-half miles from said spillway and not mentioned or referred to or charged as a contempt in the complaint or order to show cause, and that thereafter the court, in its opinion, decision and judgment, although holding specifically that the state engineer had not the right to open up the spillway, found the defendant guilty of contempt in permitting the water to flow out of the river into his headgate. Hence, we say that the one act for which the defendant was held guilty of contempt by the court was in no manner charged against him in the affidavit or order to show cause.
Errors in admitting evidence against defendant in support of matters not charged in the affidavit, and errors in refusing the defendant's offer to introduce evidence to sustain his innocence are certainly errors at law, but are much more than that; they go to the jurisdiction of the court itself to adjudge him guilty of contempt. State v. New Mexican Printing Co. (N.M.), 177 P. 751; Lindsley v. Superior Court (Cal.), 245 P. 212, 214.
The court finds that half of the water in the ditch was there lawfully and that the other half was there unlawfully, and we are confronted with the fact that the state engineer, in opening up the spillway, took out of the defendant's ditch not only the water that was unlawfully in the ditch at that point, but also the water that was there lawfully. The state engineer's act in so doing was without authority in law, and he was as much a trespasser as any private individual who took water from a ditch under circumstances under which the court itself holds that it was lawfully there.
It is evident from the language of the lower court that it was mislead as to the purport and intent of the ruling of this court in State ex rel. Malone v. District Court, 52 Nev. 270. Assuming for the moment *Page 347 that it was not necessary to allege in the complaint that the distribution of the waters of the Humboldt river stream system was under the supervision and control of the court, the defendant was most certainly deprived of his opportunity to be heard when he was denied the right to show that the court had exercised its right of supervision and control contrary to the orders and actions which the state engineer was attempting to enforce. State ex rel. Olson v. Allen (Wash.), 45 P. 644.
The rule with regard to punishments for contempt and the review of judgments of contempt by certiorari has been laid down by this court in the case of Lutz v. District Court, 29 Nev. 152; Maxwell v. Rives, 11 Nev. 213, 221.
The court had no jurisdiction to impose a fine in excess of $500, or imprisonment not exceeding twenty-five days in jail, pursuant to N.C.L. sec. 8950. The complaint for criminal contempt herein is sufficient. The charges against the defendants therein named were stated with clearness and amply charged contempt. Philips v. Welch, 12 Nev. 158. So that, if evidence was adduced before the lower court sufficient to satisfy the court that the contempt charged in the complaint had been committed, the court could enter its judgment of conviction.
The evidence is clear that by regulating the ditch by means of the spillway that a complete stoppage of water would be had and that it would be returned to the river. The water commissioner was regulating the flow of water in this ditch and was lawfully denying the use of water to the relator, and by taking out the boards in the spillway and thereby returning the water to the river had fastened the ditch within the meaning of the statute, just as much so as though a dam had been constructed in the ditch, turning the water back into the main stream, as was done in State ex rel. Malone v. District *Page 348 Court, 52 Nev. 270; and, in so doing, such commissioner was an officer of the court, and an unlawful interference with such officer constitutes a contempt. Malone v. District Court, supra.
We respectfully submit that nowhere in the court's decision does it appear that relator was held guilty of opening the headgate, but, on the contrary, the court expressly said: "Legally, I must find that he has been guilty of contempt in interfering with an officer of this Court." And, while the court discussed some of the evidence in his decision, nowhere is it said that he relied solely or at all on the evidence of acts in contempt at the headgate.
The court below had complete jurisdiction of the contempt matter before it, and, having such jurisdiction, it had the jurisdiction to enter the judgment and order it did enter, and, if it did commit any error therein (which is not conceded), still such error will not be considered by this court. Kapp v. District Court, 31 Nev. at p. 446; State v. District Court, 32 Nev. 189.
The matter before the court was that of criminal contempt alleged to have been committed by relator, not a matter of passing upon the right in water or the adjudicating of that right. Whether or not the state engineer may have denied the right in respondent to use the water, and whether such denial was correct, had no bearing in the case then at bar. The state engineer was charged with the duty to divide or cause to be divided the waters of the Humboldt river, and, under the law, he had the right to shut or fasten the headgates or ditches and regulate the flow of water therein. Any interference with such acts, when lawfully performed by him, by reason of section 36 1/2 of the water law, becomes a contempt.
The intent of the law is clear — it is to provide a reasonable means of regulating and dividing the waters of natural streams among the users thereof and to place someone in control thereof to so far as possible administer the law. To fasten a ditch can only mean one thing in this law, that is to prevent water continuing *Page 349 to flow through it. If the language of the statute is somewhat uncertain, it should be so construed as to give it effect, rather than to nullify it. Malone v. District Court, supra.
The court's decision does not sustain relator's contention that the court affirmatively finds that one-half of the water in the ditch was lawfully there by reason of a natural overflow from the Humboldt river and the other half unlawfully admitted through the headgate. But, if the finding is as contended for by relator, then all the more reason for regulating the ditch at the spillway, for if the water of the stream got into the ditch at a point between the headgate and the spillway and this condition was not remedied by relator and the water of the river continued to flow down the ditch, surely, to get that water back into the river, the water commissioner was within his rights in using the spillway. The relator cannot do indirectly what he could not do directly under the law, and, at a time that law was being administered by the proper officer and an officer of the court, divert the waters of the stream through and past a point on the ditch that had been regulated and was in the control of the officer.
From the early days of this state this honorable court has consistently held that certiorari extends only to the question of whether the board or court acted within its jurisdictional powers. Such was the holding in Maynard v. Railey, 2 Nev. 313, and such was the holding in the recent case of Mack v. District Court, 50 Nev. 318. During this time many cases on certiorari have been passed upon by this court, and we have found none that has departed from the holdings just stated.
OPINION This is an original proceeding in certiorari to review an order adjudging relator guilty of contempt of court for violating an order of determination in the matter *Page 350 of the determination of the relative rights of the appropriators of the waters of the Humboldt river stream system, made pursuant to the water law of the state. Stats. 1913, p. 192, as amended. See N.C.L. sec. 7890 et seq.
On June 27, 1930, contempt proceedings were instituted in the sixth judicial district court of Nevada, in and for Humboldt County, upon the complaint of one J.A. Millar, wherein it is alleged that on January 17, 1923, there was filed with the clerk of said court by the then state engineer a final order of determination in the matter of the determination of the relative rights of the claimants and appropriators of the waters of the Humboldt river stream system and its tributaries; that W.V. Hollan was at all times mentioned in the complaint a duly appointed, qualified, and acting water commissioner, and as such an officer of the court in distributing the waters of the Humboldt river stream system and its tributaries; that prior to June 15, 1930, there had been constructed a ditch known as the Highline ditch, which diverted water from the Humboldt river, in which had been constructed a spillway and floodgate; that on the 15th day of June, 1930, W.V. Hollan, acting as water commissioner as aforesaid, removed the boards from said spillway and floodgate and thereby prevented the waters of said river from passing down and through said ditch and past said spillway and floodgate, and simultaneously posted a notice at said point, as such water commissioner, of his action, and warning all persons not to interfere with said spillway; that thereafter on said 15th day of June, 1930, James McDermott and John Doe Welch did unlawfully, knowingly, willfully and contemptuously replace and caused to be replaced the boards in said spillway and floodgate, and did thereby cause the waters of said Humboldt river to flow through said ditch and below the point in said ditch where said spillway and floodgate were constructed and down to and upon the lands of the Humboldt Land Cattle Company, a corporation; that Grayson Hinckley did *Page 351 on said day knowingly, unlawfully, willfully, and contemptuously encourage and order said defendants McDermott and Welch to do said contemptuous act; that the acts of said defendants, and each of them, prevented said Hollan, as such water commissioner and officer of the court, from distributing the waters of the Humboldt river pursuant to the said final order of determination.
Upon the filing of the complaint aforesaid, an order directing the defendants to show cause why they should not be punished for contempt of court was entered.
In due time the defendants appeared and demurred to the complaint. The demurrer having been overruled, the defendants filed a joint answer to the complaint, in which they denied that they had committed any act constituting contempt and affirmatively alleged matters which will be hereinafter referred to.
The ditch in which is the spillway mentioned has its headgate something over one and one-half miles above the spillway, and it is contended by relator, among other things, that between the headgate and the spillway a portion of the water which was in the ditch found its way therein at a point about one-third of the distance between the headgate and the spillway, because of the fact that the river is higher at that point than is the ditch. It is also a fact that the relator removed or caused to be removed a portion of the obstruction placed in the headgate to enable a portion of the water of the stream to flow into the ditch, after the officer had undertaken to close such headgate and posted a notice thereon to that effect, though the complaint in the contempt proceedings does not so charge. In this connection it is said that the water which thus got into the ditch is captured water, and hence the water commissioner had no control over it and no right to remove the boards from the spillway. In support of this contention it is urged that the authority of the officer was limited to the provisions of section 7939, N.C.L. The section mentioned, so far as it is material, reads:
"It shall be the duty of the state engineer to divide *Page 352 or cause to be divided the waters of the natural streams * * * among the several ditches and reservoirs taking water therefrom, according to the rights of each * * * and to shut or fasten, or to cause to be shut or fastened, the head gates or ditches. * * *"
The statute does not expressly authorize the officer to open a spillway so as to permit water improperly or illegally in a ditch to return to the stream system.
1-3. In determining this question, we must look to the intention of the legislature in enacting the water law. In Vineyard Land Stock Co. v. District Court, 42 Nev. 1,171 P. 166, we held that the proceeding under the water law is a quasi public proceeding, wherein all claimants to the use of water of a stream system may have their claims adjudicated, to the end that the waters of the stream may be distributed under public supervision without needless waste or controversy. In other words, it was the intention of the legislature that the people who are entitled to the use of the waters of a stream system actually get it without needless waste or controversy. The statute must be interpreted in the light of that intention. This court, in State v. Ross, 20 Nev. 61, 14 P. 827, and other cases, has held that the intent of a statute will prevail over the literal sense. Such is the well-recognized rule. 2 Lewis' Sutherland, Stat. Const. p. 694. Interpreting the statute according to its obvious intent, we must hold that the officer had the right to open the spillway.
4. It is a well-known rule of statutory construction that, whenever a power is given by statute, everything lawful and necessary to the effectual execution of the power is given by implication of law. State v. Great Northern Ry. Co., 68 Wash. 257,123 P. 8.
5. The water thus flowing into the ditch was a portion of the water of the stream system. Under a long line of decisions in this and other western states no title can be acquired to the public waters of the state by capture or otherwise, but only a usufructuary right can be obtained therein. If there were any foundation for *Page 353 the contention as to "captured" water, all that a man has to do in certain situations, to get more water than he is legally entitled to use, is to blast down a side of the mountain at a precipitous point into the river bed, which might require weeks to remove, and thus "capture" the entire flow of the river for the irrigating season. The statute makes it the duty of the state engineer, and the water commissioner working in pursuance of his order, to distribute the waters of the stream system, and it makes no exceptions in favor of any one or of any condition which may exist or be produced to defeat the purpose of the law.
It was the evident contention of the state in the lower court, in which the respondent court apparently acquiesced, that any interference on the part of relator with the water commissioner in the distribution of the water of the Humboldt river constituted a contempt of court, even though the water commissioner was not distributing the water in accordance with the order of determination. And such is the contention of the present attorney-general. We do not approve of this theory of the law.
Section 38 of the water law as amended (Stats. 1915, p. 381, 382, sec. 8; section 7928, N.C.L.) provides that from and after the filing of the order of determination and during the time the hearing of said order is pending, as in the instant matter, the water of the stream system shall be distributed in accordance with the terms of said order of determination; and section 36 1/2 of the water law as amended (Stats. 1927, p. 337; section 7926, N.C.L.) provides that from and after the filing of such order of determination the distribution of the water of such stream system by the state engineer, his assistants, the water commissioners or their assistants, shall be under the supervision and control of the court, and they shall be deemed officers of the court in distributing water under and pursuant to the order of determination or pursuant to a decree of the court.
6, 7. From a reading of the two amendments referred *Page 354 to, it is seen that the water of the Humboldt river could be properly and legally distributed by the officers mentioned only when done in accordance with the terms of the order of determination. If this was not being done by the officer, it was no contempt to replace the boards in the spillway. There is nothing in State v. District Court, 52 Nev. 270, 286 P. 418, intimating the contrary.
Upon the hearing in the contempt matter, the defendants sought to introduce evidence tending to show that their principal was entitled to the use of the amount of water which was flowing in the ditch, and hence was not guilty of any contempt.
8, 9. The court sustained an objection to this line of testimony, and it is now contended that the court in so ruling not only committed error, but denied to the defendants the right to be heard in presenting their defense, and hence exceeded its jurisdiction, and that therefore the judgment is null and void.
In support of the contention put forth, relator relies upon the opinion in McClatchy v. Superior Court, 119 Cal. 413,51 P. 696, 39 L.R.A. 691, and other California cases based upon it.
It was certainly error for the court to refuse to hear the evidence, for, if relator were taking water he had a right to take, there could be no contempt, and the only way for the court to determine that question was by the taking of testimony; however, we are not prepared to say that the court by its ruling divested itself of jurisdiction, or thereby so exceeded its jurisdiction as to render its order null and void.
The opinion in the McClatchy Case, supra, is not convincing. Three of the seven justices dissented from the main opinion. One of the justices merely concurred in the judgment annulling the order under review, and observed that the case was a very close one, whereas Beatty, C.J., concurred in the judgment annulling the order for a reason not given in the main opinion; hence it will be seen that the opinion laying down the rule relied upon here is of but little weight, in fact of none, *Page 355 except in so far as the reasoning thereof appeals to us.
It is true that the supreme court of California subsequently seemed to have accepted the opinion in that case as controlling, but with us there is a long line of decisions laying down the rule which should guide this court in determining the extent of its inquiry on certiorari. This question is settled by our civil practice act, which provides that our authority upon writ of certiorari shall not be extended further than to determine whether the inferior tribunal regularly pursued its authority. (Section 9237, N.C.L.)
The question before us seems to be a simple one. Did the lower court proceed regularly? The complaint charging contempt was filed, citation issued, and the defendants appeared. The court had jurisdiction of the subject matter and of the defendants; hence it had authority to proceed. The court heard testimony in support of the contempt charge, after which testimony in behalf of the defendants was offered, amounting to many thousand words. During the taking of the testimony, both for and against the defendants, numerous objections were made and ruled upon, as was the objection to the testimony in question.
It is not contended that the court did not have jurisdiction to rule upon objections to tendered evidence as a general proposition, but that the court ruled incorrectly in the matter in question and by so doing divested itself of jurisdiction. This court has often taken the contrary view. In Phillips v. Welch,12 Nev. 158, 170, it was said, in speaking of a determination by the district court in a contempt proceeding: "It may have erred. Whether it did or did not, it is not our province, in this proceeding, to inquire. We are prohibited by the statute from investigating this question. Even admitting that the court erred in the conclusions it reached, yet all the authorities above cited hold that error in judgment, in respect to a question which the court is authorized to investigate and determine, does not, by any means, constitute an excess of jurisdiction. If it did, then every error *Page 356 committed by any inferior tribunal, in the course of judicial investigations, would be in excess of jurisdiction, and the writ of certiorari would be converted into a writ of error instead of remaining, where the statute has placed it, a writ of review. * * *"
These views are sustained by many decisions of this court, as shown in State v. District Court, 32 Nev. 189, 105 P. 1022. See, also, State v. McFadden, 43 Nev. 140, 182 P. 745.
We do not think the court exceeded its jurisdiction in rejecting the tendered evidence.
10. It is also contended that the court exceeded its jurisdiction in finding the relator guilty of a contempt not charged, in that he was found guilty of opening the headgate to the ditch, with which he was not charged. This contention seems to be well founded, but we think it appears that he was also found guilty of the act charged. This being true, the judgment is not absolutely void.
It is further urged that the court found that half of the water in the ditch was legally there; hence the court could not adjudge relator in contempt. We do not so interpret the finding of the court. It is true that the court stated that, if a certain contention is true, half the water was illegally in the ditch. But the court went no further. We think there is no merit in this contention.
11. The court, after finding relator guilty of contempt, ordered that he pay a fine, and for failure to do so that he be incarcerated in the county jail until the fine be paid. It is insisted that the court was without jurisdiction to render such a judgment. Section 8950, N.C.L., provides that, where one is adjudged guilty of contempt, a fine may be imposed not to exceed $500, or that he may be imprisoned not exceeding twenty-five days, or both. Section 8951 provides for imprisonment until the act ordered to be performed is complied with, but that does not apply in the instant case.
The judgment assessing the fine is valid, but that *Page 357 portion of it directing that the relator be incarcerated until the fine is paid is void. So much of the judgment as imposes a jail sentence is hereby annulled.
It is ordered that the proceeding as to the fine be and remain in full force and effect.