Kearney, 37 Nev. 314, 142 Pac. 803, where the statute of 1913 (before amendments) was considered, and we will not undertake to restate them at length, contenting ourselves by saying generally that the moving cause therefor was to provide a method whereby unappropriated water might be appropriated, and whereby the relative rights of existing appropriators of the waters of the public streams of the state might be determined without great delay and expense to such appropriators, and to enable the state to supervise and administer the distribution of such waters so that the greatest good might be attained therefrom for the development of our agricultural resources.

weeks notices of such order and the date | purposes of the water law were fully set when examination of the rights of water users forth by Norcross, J., in Ormsby County v. will begin, and notify all claimants of rights in the water of the stream to make proof of their claims. Sections 20 and 21 provide for an independent investigation by the state engineer and the making of surveys and maps. Section 22 provides that after such investigation is made, and maps, etc., are filed, the state engineer shall give notice by publication and by registered mail, of the commencement of the taking of proofs by him and of the date prior to which the same must be filed. Section 33 of the amendatory act provides for the making by the state engineer of an order determining the relative rights to the waters of the stream, a certified copy of which, together with the original evidence, shall be filed with the clerk of the district court, whereupon the court shall make an order, fixing a time for a hearing upon such order of determination, which the state engineer shall cause to be published for four consecutive weeks in one or more newspapers, and a copy of which he shall send, by registered mail, to each party in interest. Interested parties may, pursuant to the act, five days prior to the day set for hearing by the court, file with the clerk of the court exceptions to the order of determination made by the state engineer. Section 35 of the amendatory act also provides:

"The order of determination by the state engineer and the statements or claims of claimants and exceptions made to the order of determination shall constitute the pleadings and there shall be no other pleadings in the cause. If no exceptions shall have been filed with the clerk of the court as aforesaid, then on the day set for the hearing, on motion of the state engineer, or his attorney, the court shall enter a decree affirming said order of determination. On the day set for hearing all parties in interest who have filed notices of exceptions as aforesaid shall appear in person or by counsel, and it shall be the duty of the court to hear the same or set the time for hearing, until such exceptions are disposed of, and all proceedings thereunder shall be as nearly as may be in accordance with the rules governing civil actions."

In approaching the consideration of this case, we wish to say that the main questions upon which this decision must turn were considered and determined in the interpretation of similar laws, from which ours was chiefly taken, in the following cases: In re Willow Creek, 74 Or. 592, 144 Pac. 507, 146

Pac. 475; Pacific Live Stock Co. v. Lewis (D.

C.) 217 Fed. 95; Id., 241 U. S. 440, 36 Sup. Ct. 637, 60 L. Ed. 1084; Farm. Inv. Co. v. Carpenter, 9 Wyo. 110, 61 Pac. 258, 50 L. R. A. 747, 87 Am. St. Rep. 918; Enterprise Irr. N. W. 171. And the statutes now under conDist. v. Tri-State Land Co., 92 Neb. 121, 138 sideration were ably and exhaustively analyzed in the case of Bergman v. Kearney (D. C.) 241 Fed. 884. Just here we may well say, as did the learned judge in Pacific Live Stock Co. v. Lewis (D. C.) 217 Fed. 95, but with added force because of the decision of the Supreme Court of the United States in the same case, supra, and the decision in the Bergman Case, supra, "it would be mere reiteration to attempt to add anything to what has already been said on this subject."

threshold of this inquiry to call attention [1, 2] Nor would it be out of place at the to the well-known canons of construction when a statute is being assailed as being unconstitutional, namely, that every presumption is in favor of the validity of the act, that all doubts must be resolved in its fa

Section 38 of the amendatory act reads: "From and after the filing of the order of determination, evidence, and transcript with the county clerk as aforesaid, and during the time the hearing of said order is pending in the dis-or, and that unless it is clearly in derogatrict court, the division of water from the stream tion of some constitutional provision, it must involved in such determination shall be made be sustained. It is also a well-known rule by the state engineer in accordance with said order of determination."

The operation of said order of determination may be stayed, in whole or in part, by the giving of a bond in an amount to be fixed by the judge of the district court.

The foregoing statement of the water law, together with such other provisions as we may call attention to in this opinion, are, we think, sufficient for a full understanding of the questions involved in this case.

that the courts have nothing to do with the general policy of the law.

As

[3] We will first consider the contention that the water law of 1913, as amended in 1915, is unconstitutional in that it is in violation of the Fourteenth Amendment to the federal Constitution, prohibiting the taking of property without due process of law. stated, Norcross, J., set forth at length, in the case of Ormsby County v. Kearney, su pra, the purpose of the 1913 statute, and The questions presented in this matter are held that in so far as the same was adminisnot new; in fact, we think it may be said trative it was valid, and in this view Talbot, that the law involved is well settled adverse- C. J., concurred; but it was also held in that

the determination of the state engineer conclusive, subject to the right of appeal, and since no appeal could be taken because of constitutional limitations, that portion of the act providing for an appeal was unconstitutional; hence the amendment of 1915, which provided for a course of procedure in the district court, by the state engineer, almost identical with the procedure which is provided for by the Oregon statute.

As we understand the contention of counsel, it is that that portion of the act which provides for the procedure by the state engineer from the time of the filing by him of a copy of his order of determination with the clerk of the district court is void as not being due process of law. It certainly cannot be said that this law is in violation of the constitutional provision mentioned because of failure to provide for the giving of ample notice to all interested parties, for we doubt if in the history of legislation an act was ever passed in which so many safeguards were provided that a man might not be deprived of his property in a proceeding without knowledge of such proceeding being brought to his attention. The first notice of the proceedings under the water law is the publication for four weeks of an order granting a petition for the determination of the relative rights of the users to the waters of a public stream, and of a time when the state engineer will begin to make examinations. This is followed by proceedings under section 22 of the act, which provides for the publication of notice of the taking of testimony before the state engineer, and in addition thereto requires him to serve upon each interested party personally a copy of such notice, or else to send it by registered mail; and after the taking of testimony before the state engineer is completed, and an order of determination of the water rights has been made by him, and a copy thereof filed with the clerk of the district court, that court must make an order fixing the time for the hearing upon such order of determination. The order fixing the time of the hearing before the court must be published in one or more newspapers once a week for four consecutive weeks, and a copy thereof must also be sent by registered mail to each of the parties whose interests can be affected by such proceedings.

any time within six months from the entry of the decree of the court, petition the court for relief. Thus it would seem that the Legislature took every precaution conceivable to prevent a final decree being entered, affecting detrimentally the rights of an interested party, without first giving him actual notice; for, as provided by the statute, the water is distributed in accordance with the order of determination of the state engineer as soon as a copy thereof is filed in the office of the clerk of the district court, unless a bond is given to stay such distribution, in which event the stay is probably effective as to the party giving the bond only. Surely if the order of determination and the distribution of the water in accordance therewith is a violation of the rights of any person, it will not take him long to learn that he is being deprived of his water, especially if it be during the irrigating season; and, if any contest whatever is made in the district court, it is more than likely that no decree could be entered in less than six months from the time of the filing by the state engineer of his order of determination, in which event, and with six months therefrom in which to petition for relief, it will be seen that at least one irrigating season will have passed before the time will have expired for those who had no actual know edge of the pendency of such proceeding to petition for relief. If no contest is made, such person will have about seven months from the time when the right of distribution accrued. Hence we see the remote possibility of the passing of the six-month period after the entry of the decree of distribution without actual notice thereof being brought to the knowledge of an interested party.

We have already mentioned certain decisions which we think are controlling upon the questions involved in the case at bar. To our mind, we might well base our conclusion upon the decisions cited growing out of the Oregon statute and the Bergman Case, supra, without giving further attention to the points urged. As we understand the contention of the learned counsel who have appeared to assail the constitutionality of the water law of Nevada, it is not claimed that the decisions construing the Oregon statute are not sound, but that they are not controlling because, as urged, the Oregon Thus far it will be seen that before a final Constitution empowers the Legislature of decree can be entered by the court in the that state to create a tribunal to take jurismatter, an interested party, who is known, diction over just such proceedings as progets five different notices of the proceedings vided for in the Oregon Water Code, and before a decree is entered, whereas in an that it is by virtue of such a constitutional ordinary action to quiet title to real estate a provision that the water board in Oregon acdefendant receives only one notice of the quired jurisdiction to act, while in Nevada pendency of the suit. But, so that by no the Constitution (article 6, § 1) limits the possible chance may a final decree affecting judicial authority to certain designated a person's water right to his detriment be courts, whereas the water law undertakes to entered, it is further provided by section 13 confer judicial authority upon the state enthat any person who has not been served, gineer. Conceding that there is such a conand who has had no actual knowledge of stitutional provision in Oregon as contended, the pendency of the proceedings, may, at certainly petitioner ought not to be able to

But it is urged that that decision was of no weight in determining the question before the court, for the reason that the Wyoming Constitution authorized the creation of a tribunal with power to adjudicate water rights. The Wyoming Constitution (article 8, § 2) on that point reads:

find comfort in that fact, for the reason that, are not persuaded that the act is void as conno contention was made in the Oregon case ferring judicial power upon the board in violathat the statute in question was valid be- tion of the Constitution." cause of such provision. On the other hand, the law was assailed upon the identical ground here urged, as pointed out in the opinion of the court, where it was said that it was contended that the Oregon statute "undertakes to vest judicial power in a tribunal and officers not recognized by the Constitution (italics ours)." In re Willow Creek, supra. We think this should suffice to show the utter lack of force of the contention. The opinion in that case turned upon the point that the duties imposed upon the water board were not judicial in character, but at most were only quasi judicial; the court saying:

"The statute prescribing the duties to be performed by the water board and its members in their respective official capacities in a determination of water rights does not confer judicial powers or duties upon the board or such officers in any sense as indicated by the Constitution. Their duties are executive or administrative in their nature. In proceedings under the statute the board is not authorized to make determinations which are final in character. Their findings and orders are prima facie final and binding until changed in some proper proceeding. The findings of the board are advisory rather than authoritative. It is only when the courts of the state have obtained jurisdiction of the subject-matter and of the persons interested, and rendered a decree in the matter determining such rights, that, strictly speaking, an adjudication or final determination is made. It might be said that the duties of the water board are quasi judicial in their character. Such duties may be devolved by law on boards whose principal

duties are administrative."

Not only the cases growing out of the Oregon law, but all other cases growing out of similar statutes, have held that the powers conferred upon the official designated under the statute to supervise and administer the laws were, at most, quasi judicial. Such was the holding in Farmers' Inv. Co. v. Carpenter, supra, where it is said:

"There shall be constituted a board of control, to be composed of the state engineer, and superintendents of the water divisions; which shall, under such regulations as may be prescribed by law, have the supervision of the waters of the state and of their appropriation, distribution and diversion, and of the various officers connected therewith. Its decisions to be subject to review by the courts of the state."

So far as we are able to see, there is nothing in that section of the Wyoming Constitution conferring judicial power upon the board of control. To us it seems clear that the power of the board is limited to the determination of questions of a quasi judicial nature, such as may arise in the investigation and granting of permits to appropriate unappropriated water in a public stream, and in the supervision and administration of the distribution of the waters of the public streams. There is a wide difference between having authority to supervise and administer and having authority to determine questions involving vested rights. The former may, we think, with propriety, be left to an administrative officer, while the latter is properly a question for the courts.

Furthermore, from another standpoint we see no way of escaping the conclusion stated that no judicial power was vested by the Wyoming Constitution in the board of control, for the reason that the Constitution itself states just where the judicial power of the state is vested. It reads:

"The judicial power of the state shall be vested in the senate, sitting as a court of impeachment, in a supreme court, district courts, "The determination required to be made by the justices of the peace, courts of arbitration, and board is, in our opinion, primarily administra- such courts as the Legislature may, by general tive rather than judicial in character. The pro-law, establish for incorporated cities or incorceeding is one in which a claimant does not ob-porated towns." Article 5, § 1, Const. Wyo. tain redress for an injury, but secures evidence

tinction sought to be made between the Wyoming statute and our statute because of the fact that we have no provision in our Constitution such as article 8, § 2, of the Wyoming Constitution is without support. Bergman v Kearney, supra. On this point the Supreme Court of Nebraska, in considering a statute similar to ours prior to the amendment of 1915, says

See

of title to a valuable right, a right to use a This provision limits the exercise of judipeculiar public commodity. That evidence of cial power to the courts mentioned therein, title comes properly from an administrative so we think it must be clear that the disboard, which, for the state in its sovereign capacity, represents the public, and is charged with the duty of conserving public as well as private interests. The board, it is true, acts judicially, but the power exercised is quasi judicial only, and such as, under proper circumstances may appropriately be conferred upon executive officers or boards. The jurisdiction bears some resemblance to that of the land department of the government concerning the disposal of the public lands. That department is not regarded as a court, or as a branch of the judicial department; nor is its jurisdiction upheld upon the basis of any authority residing in Congress to establish courts. It is considered as an administrative department, and its powers are held to be quasi judicial only. Orchard v. Alexander, 157 U. S. 372, 15 Sup. Ct. 635, 39 L. Ed. 737. There exists the same partial resemblance to the state board of land commissioners of our own state. State v. State Board

"In the face of these decisions, it hardly seems necessary to again consider the question, but we have done so, and have examined further authorities. It is a matter of common knowledge that both in the administration of the laws of the United States and of the several status, boards of individuals, for the purpose of exer cising executive or administrative functions, are often compelled to inquire into and deter

Nebraska it was left for the Legislature to pass an irrigation act.

judicial in their nature. Some of such determinations are often, by virtue of the statutes defining the functions and power of the tribunal, final and decisive, and others are made reviewThe only difference between the Constituable by appeal to the courts. * * Whether tions of Wyoming and Nebraska and that of reviewable by the courts or not, the exercise Nevada, so far as to warrant a different conof such powers by tribunals of this nature has clusion as to the Nevada statute of 1913, is seldom been held to be a violation of the Constitution in this respect. McGehee, Due Process that there is nothing in the Constitutions of of Law, 162, 368; Reetz v. Michigan, 188 U. the first two states prohibiting an appeal S. 505, 23 Sup. Ct. 390, 47 L. Ed. 563; Gard- from the order of distribution made pursuner v. Bonestell, 180 U. S. 362, 21 Sup. Ct.ant to the water laws of those states, while 399, 45 L. Ed. 574; Bates & Guild Co. v. Payne, 194 U. S. 106, 24 Sup. Ct. 595, 48 L. in Nevada the Constitution prohibits such a Ed. 894; People ex rel. Deneen v. Simon, 176 proceeding; hence, since the amendment of Ill. 165, 52 N. E. 910, 44 L. R. A. 801, 62 Am. 1915, the reasoning and logic of the WyoSt. Rep. 175; Farm Investment Co. v. Carpenter, 9 Wyo. 110, 61 Pac. 258, 50 L. R. Aming and Nebraska cases apply with full 747, 87 Am. St. Rep. 918; State v. Thorne, 112 Wis. 81, 87 N. W. 797, 55 L. R. A. 956; Gee Wo v. State, 36 Neb. 241, 54 N. W. 513; Lincoln Medical College v. Poynter, 60 Neb. 228, 82 N. W. 855. We are satisfied with the conclusion reached by this court in the cases cited, which were followed in Farmers' Canal Co. v. Frank, 72 Neb. 136, 100 N. W. 286, and see no reason to change our conclusion in this respect." Enterprise Irr. Dist. v. Tri-State Land Co., 92 Neb. 121, 138 N. W. 179.

But it is contended that since nothing is said in the Constitution of Nebraska about irrigation, and since the doctrine of riparian rights existed in Nebraska, the case just quoted from should not be considered as an authority by this court. We fail to see the force of this contention. As we understand the law, unless the state or federal Constitution prohibits legislation upon a subject, the power of the Legislature is plenary; and the Legislature of Nebraska, evidently being of this view, passed an irrigation act. This act was first brought to the attention of the Supreme Court of that state in the case of Crawford v. Hathaway, 60 Neb. 754, 84 N. W. 271, where the court gave it scant consideration. On an application for a rehearing, the statute was more fully considered. 61 Neb. 317, 85 N. W. 303. Another rehearing was had in the case, where the full scope of the act was set out. Upon this rehearing the former opinions were reversed, and it was held that the irrigation act was constitutional, but that no vested riparian rights could be

force to the situation now presented to us.
It is also contended, if we correctly under-
stand counsel, that there can be no due pro-
cess of law except in a proceeding in court,
where summons is regularly issued and serv-
ed in accordance with the usual practice in
actions pending in such tribunals. While we
do not deem it necessary to determine this
question, for the reason that we think, as
will be shown later, that the real proceeding
wherein an adjudication is made is after the
proceedings are instituted in the district
court, however, as pointed out by Norcross,
J., in his opinion in the Ormsby County
Case, supra, the Supreme Court of the United
States, to which we must look for a final
took the contrary view. In that case Mr.
interpretation of the federal Constitution,
Justice Norcross quoted from Balch v. Glenn,
85 Kan. 735, 119 Pac. 67, 43 L. R. A. (N. S.)
1080, Ann. Cas. 1913A, 406, as follows:
the United States that the phrase 'due process
"It has been held by the Supreme Court of
of law' does not necessarily mean a judicial
proceeding. McMillan v. Anderson, 95 U. S.
37, 24 L. Ed. 335. On the other hand, it does
for the express purpose of hearing the merits
not necessarily mean a special tribunal created
of the particular controversy. Where ample
notice is provided which gives to the property
owner an opportunity to have a hearing in any
court of competent jurisdiction before his prop-
erty is affected, he is afforded due process of
law."

23 Sup. Ct. 391, 47 L. Ed. 563; 8 Cyc. 1084;
See, also, Reetz v. Michigan, 188 U. S. 507,

6 R. C. L. p. 459.

[4] Counsel seem to labor under the im

violated. 67 Neb. 325, 93 N. W. 781, 60 L. R. A. 889, 108 Am. St. Rep. 647. In that opinion it was also held that as to unappropriated water pression that there can be no due process of the act in question controlled, and that vest-law unless the methods, means, and instrued riparian rights might be condemned under the right of eminent domain. Following the case just mentioned was the case of Enterprise Irr. Dist. v. Tri-State Land Co., from which we have quoted supra.

mentalities which were in existence at the time of the adoption of our Constitution are adhered to. Such was never the rule in Nevada, as shown by the opinion in the case of State v. Millain, 3 Nev. 466, where it is said:

"Counsel further insists that a constitutional right of defendant's is violated, because the indictment does not conform to the requirement at common law, and founds his objections on a part of section 8, article 1, of the state Constitution, which provides that no person shall be de

We are unable to see the force of the distinction sought to be made between the Nebraska statute and the Nevada statute. The fact is that the Constitution of neither of these states has a word to say about irrigation, but in Nevada the courts "took the bull by the horns," and in effect repealed the doc-prived of life, liberty, or property, without due trine of riparian rights without awaiting the action of the Legislature (Reno Smelting Works v. Stevenson, 20 Nev. 269, 21 Pac. 317, 4 L. R. A. 60 19 Am. St. Rep. 364), while in

process of law. The same rights are preserved tion of the United States, which is held to be a in article 5 of Amendments to the Constiturestriction of the government of the United States and the proceedings of the federal courts,

and does not apply to the state governments. I that office it operates as and has the force But this is of no moment, as we observe the and effect of a complaint, and from the time same provision obtains in the state Constitution. It has been universally held, under a like constitutional restriction, that it does not mean 'the process, or otherwise expressed, 'the proceeding' shall be the same as pursued at common law, but that the mode and manner of their procedure may be regulated and prescribed by statute."

See, also, 8 Cyc. 1090, and cases cited in may proceed, up to the point of the making note 2.

[5] But it is said that a water right is real estate, and hence the provisions in the water law of 1913, as amended in 1915, authorizing the proceedings here sought to be pro-plated by the water law, would any one insist hibited, are in violation of section 6, article 6, of our Constitution, wherein it is provided: "The district courts in the several judicial districts of this state shall have original jurisdiction in all cases in equity; also in all cases at law which involve the title or the right of possession to, or the possession of, real property.

We do not accept radical changes without protest. If a statute radically different from Conceding for the purposes of this case anything to which we have been accustomed that a water right is real property, we are is enacted, the average lawyer becomes unable to see wherein the law in question is alarmed and at once brands it as unconstituin any way in violation of the provision of tional. Lawyers generally were very much the Constitution which we have quoted. The excited and alarmed when the statutes of fact of the matter is that the entire proceed- the various states creating railroad commisings amount to nothing until a copy of the sions, corporation commissions, industrial inorder of determination of the state engineer surance commissions, and the like, were enis filed in the office of the clerk of the dis- acted. They considered them not only uncon