OCR Text |
Show METHODS OF APPROPRIATING WATER OF WATERCOURSES 319 valuable right. "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."470 Considering the facts that the determination of the Wyoming Board of Control was made final unless appealed to the courts, and that the decision was rendered in the youth of administrative law and practice in the United States, this was indeed an advanced position for a State supreme court to take. A few years after this Wyoming decision, the Supreme Court of Nebraska passed on the sections of the Nebraska statute of 1895 conferring upon the State administrative agency authority to ascertain and determine the amount of past appropriations and to allow further appropriations. This legislation, the court held, was not unconsitutional as conferring upon such agency the exercise of judicial functions. As a matter of fact, said the court, these powers were of a quasi-judicial character and were a valid exercise of the legislative power.471 By contrast with the Wyoming and Nebraska courts, the Texas Supreme Court, in Board of Water Engineers v. McKnight, held unconstitutional a legislative attempt to incorporate in the water law of that State a procedure for statutory determination of water rights based on those of Wyoming and Nebraska.472 The Texas court's objection was that the legislature had attempted to confer on persons belonging to the executive branch of the State government powers that properly attach to another branch, without express permission of the constitution. Hence the statute was held void.473 Years later, in an oil and gas case, the Texas Supreme Court decided a parallel question of public policy as to which the McKnight decision was held to be not controlling. This holding resulted from a State constitutional amendment474 adopted after the effective date of the statutes found objectionable in the McKnight decision.475 The original water administration law of Nevada contained a provision based on those of Wyoming and Nebraska purporting to make the State Engineer's determination of water rights conclusive, subject to the right of appeal. This was believed by a majority of the Nevada Supreme Court to be unconstitu- tional.476 The law was promptly changed by the legislature to conform to the Oregon system in which judicial as well as administrative process is requisite to 470Farm Investment Co. v. Carpenter, 9 Wyo. 110, 132-135, 61 Pac. 258 (1900). 471 Crawford Co. v. Hathaway, 67 Nebr. 325, 365-368, 93 N. W. 781 (1903), overruled on different matters by Wasserburger v. Coffee, 180 Nebr. 147, 141 N. W. (2d) 738 (1966). 472Tex. Gen. Laws 1917, ch. 88. In 1967, Texas enacted integrated administrative-judicial procedures for the determination of water rights. Tex. Rev. Civ. Stat. Ann. art. 7542a (Supp. 1970). 473 Board ofWater Engineers v. McKnight, 111 Tex. 82, 299 S. W. 301 (1921). 474Tex. Const., art. XVI, § 59(a), adopted August 21, 1917. 47SCorzelius v.Harrell, 143 Tex. 509, 186 S. W. (2d) 961 (1945). ™Ormsby County v. Kearney, 37 Nev. 314, 355-392, 142 Pac. 803 (1914). |