Broughton's Estate v. Central Oregon Irrigation District

I concur in the conclusion reached by the majority, but not in its reasoning. The majority hold that when the state engineer passes upon an application for an extension of *Page 469

time, he acts in a purely administrative capacity, but that, nevertheless, an appeal may be taken from his order to the circuit court. It further holds that, although our statute (§ 47-307, Oregon Code 1930) provides that the appeal "shall be governed by the practice in suits in equity," nevertheless, the court "is limited to determining whether the acts of that officer are within the authority conferred upon him and whether such acts are arbitrary or not justified by the facts." Although the majority make the statement just mentioned, they seem to accept the respondent's assertion: "There is no opportunity for any party to make a record before the state engineer, except by the grace of that officer alone. As a matter of fact, the first place that any objector to an order of the state engineer has a chance to make a record is on appeal, when the cause first enters a court of record." That being the situation, it is impossible to conceive how the circuit court can determine whether the state engineer acted arbitrarily or otherwise. The majority say it must be presumed that the state engineer acted correctly. Before going on, it is pertinent to observe that when equity practice is followed the court is not limited to a finding whether the tribunal from which the appeal was taken acted arbitrarily; the cause is tried de novo.

From 3 C.J., Appeal and Error, § 129, at page 373, the following is quoted: "It has repeatedly been held that an appeal cannot constitutionally be allowed to the courts from the purely ministerial or administrative action of such a board." The reference was to administrative agencies. Many authorities are cited in the section's footnote in support of the statement just quoted. In 4 C.J.S., Appeal and Error, § 47, at page *Page 470

132, the same statement is made and in its support several recent decisions are cited. The doctrine of the separation of powers, whereby the functions of governmental authority are deemed segregated into their legislative, judicial and executive component parts, renders it impossible for courts to entertain appeals from any action of a department of the government which was not exercising judicial powers at the time when the challenged decree was entered. It is not essential that the body from which the appeal was taken had the word "court" or the word "judicial" in its name. Nor is it essential that that body never exercised anything but judicial functions. Mr. Justice BEAN, in In Re Willow Creek , 74 Or. 592 , 144 P. 505 , 146 P. 475 , from which the majority quote, pointed out that even courts at times exercise legislative and executive powers. The intermingling in the administrative bodies of executive, legislative and judicial powers is dwelt upon extensively in the two following treatises: Report of the Subcommittee on Administrative Law to the American Bar Association (61 Reports of American Bar Association (1936) 720) and Report of Committee on Administrative Agencies and Tribunals of the Section of Judicial Administration (63 Reports of American Bar Association (1938) 522, at 623). Thus, it is not essential that the tribunal from which the appeal is taken is purely judicial; but it is essential that when the tribunal acted it was exercising judicial powers.

I am satisfied that when the state engineer exercised the authority conferred upon him by paragraph 6 of § 47-403, Oregon Code 1930, he exercised judicial power. That section of our laws follows:

"The state engineer shall have authority, and shall for good cause, shown upon the application of any appropriator *Page 471

or user of water under an appropriation of water made prior to the passage of this act, or in the cases mentioned in subdivisions 3 and 5 of this section, where actual construction work has been commenced prior to said time or within the time provided in law existing at the time of filing this act in the office of the secretary of state, to prescribe the time within which the full amount of the water appropriated shall be applied to a beneficial use, and in determining said time shall grant a reasonable time after the construction of the works or canal or ditch, used for the diversion of the water, and in doing so shall take into consideration the cost of the appropriation and application of such water to a beneficial purpose, the good faith of the appropriator, the market for water or power to be supplied, the present demands therefor, and the income or use that may be required to provide fair and reasonable returns upon the investment. For good cause shown the state engineer may extend such time."

It is unnecessary in this opinion to review that section, phrase by phrase, in order to indicate that a compliance with its requirements demands the exercise of judicial powers. It is sufficient to point out that when the state engineer exercises the power conferred upon him by that section, he is dealing with valuable property rights, and that the legislature intended that before reaching a conclusion he should ascertain the attendant facts and then exercise what the layman would call sound judgment, but which we must term judicial judgment; that is, be governed by the facts and refrain from arbitrary action. The legislature even went so far as to render the exercise of his judgment subject to review, not only in the circuit court, but also in this court. It added that the process for obtaining a review was not by the institution of a suit, but by the process of appeal. These circumstances persuade *Page 472

me that the act clearly vests in the state engineer judicial powers.

Legislative functions consist of prescribing rules for the government of action which the legislature anticipates will be pursued in the future. The making of railroad rates is a good example. Judicial action is based upon the opposite. The conduct has already taken place and now someone claims that what was done created a liability in his favor. The judicial function consists of ascertaining the facts and applying the law to them. Administrative functions generally deal purely with the present; that is, someone applies for a license, an appointment to an office or seeks delivery to him of a warrant. In those instances no discretion is involved. The applicable statutes have pointed out the course to be pursued by the official. This brief description of the nature of the three functions renders it clear that when the state engineer passed upon the application for the extension of time he was performing judicial duties. He could not grant the extension of time in the manner contemplated by the statute without having first ascertained what the parties had done in the past. It was his duty under the statute to retrace the steps pursued in the past by the applicant, and, having acquainted himself in that manner with what the applicant had done or had omitted to do, determine whether an extension of time was warranted. It appears to me clear that the state engineer, when he granted the extension of time, was not exercising an administrative function, but a judicial one. When the majority say that the state engineer performed only an administrative function, but that, nevertheless, an appeal was permissible, it appears to me that they are needlessly distorting a well-established *Page 473

principle of law. It is true that the majority claim that when the legislature employed the term "appeal" it really meant something else. Neither United States v. Ritchie , 58 U.S. 524 , nor Moynihan's Appeal , 75 Conn. 358 , support the majority. In the former, the appeal was taken from a board of land commissioners upon which Congress had conferred power to settle some private land claims in California. The board was, in fact, a judicial tribunal, and the decision so regarded it in sustaining the act which authorized appeals from its findings. Moynihan's Appeal expressly mentioned two Connecticut statutes (Public Acts of 1893, Chap. 175, and Public Acts of 1899, Chap. 223) which defined the word "appeal" as employed in authorizing appeals from administrative bodies of the kind mentioned in the decision in Moynihan's case. Next, the majority's holding that appeals taken from the decisions of the state engineer, although governed by equity rules as the statute provides, are nevertheless, limited to a determination whether the engineer acted arbitrarily, places upon the procedure pursued in courts entertaining appeals from administrative bodies a limitation which is not mentioned in the statute and which is bound to be embarrassing.

I concur in the result, but dissent from the reasoning. *Page 474