217 F. 95 | D. Or. | 1914
This is an application for a preliminary injunction in a suit brought by the complainant, a California corporation, against the Oregon state water board and others, to enjoin and restrain further proceedings before the water board in the matter of determining the relative rights of more than 200 users of the waters of Silvies river in this state.
The proceedings were regularly initiated before and by the water board in November, 1911, under the legislative act of 1909 (Laws of Oregon, page 319) providing for the control, disposition, and use, and the determination of existing rights to the use, of the waters within the state. Notices were regularly served upon the various claimants, including the complainant, as required by law, and within the time fixed therein the complainant filed with the water board a petition and bond for removal of the proceedings to this court on the ground of diversity of citizenship; but the court declined to assume jurisdiction, and the matter was remanded to the state tribunal. In re Silvies River (D. C.) 199 Fed. 495. The complainant thereafter filed its claim to the use of the waters of the stream with the water board, paying the fees therefor required by law, and thereafter the board gave notice to the various claimants that it would at a certain time proceed to the talcing of testimony in support of such claims and the contests arising thereon.
The complainant thereupon commenced this suit to enjoin the proceedings on the grounds: (1) That the matter' had been duly and regularly removed to it by this court, and therefore the state tribunal had. no right to proceed further in the matter. (2)' That prior to the in
Thp state statute provides for notice to the various claimants of every step in the proceedings before the water board, and gives them an opportunity to be heard, to produce testimony in support of their claims and such contest as they may initiate. It also requires the determination of the board and the original testimony taken by it to be filed with the state court for its consideration, and gives the parties 30 days thereafter in which to file exceptions to the determination of the board, provides that they may be heard by counsel upon the consideration of such exceptions, that the court may, if necessary, remand the case to the board for further evidence, and after a final hearing the court shall enter a decree affirming or modifying tire orders of the board, from which decree an appeal may be taken to the Supreme Court in like manner and effect as in other cases in equity. It thus furnishes interested parties not only adequate opportunity to be heard before the water board, but provides for a judicial review by the' courts before the determination becomes final, and therefore is not a denial of due process of law or the equal protection of the laws. O. R. R. & N. Co. v. Fairchild, 224 U. S. 510, 32 Sup. Ct. 535, 56 L. Ed. 863.
Raws governing the regulation and distribution of water and providing for the determination of the rights of the respective claimants thereto, similar in many respects to the Oregon statute, are in force in several of the arid states, and as far as we are advised the universal holding of the courts where the question has been judicially determined is that the water board or officer charged with the duty of executing such laws is an administrative body or officer clothed with certain quasi judicial powers necessary to enable it or him to discharge such administrative ’ duties, and the proceedings before the board or officer are not judicial, and do' not deprive the claimant of his property or water right without due process of law, since provision is made for’ resort to the courts by a dissatisfied claimant. The question is ably and satisfactorily discussed in Farm In. v. Carpenter, 9 Wyo. 110, 61 Pac. 258, 50 L. R. A. 747, 87 Am. St. Rep. 918, Crawford Co. v. Hathaway, 67 Neb. 325, 93 N. W. 781, 60 L. R. A. 889, 108 Am. St. Rep. 647, McCook Ingales Co. v. Cross, 70 Neb. 115, 102 N. W. 249, and Ormsby v. Kearney, 142 Pac. 803, recently decided by the Supreme Court of Nevada, and it would be mere reiteration to attempt to add anything to what has already been said on the subject in the opinion oh the motion to remand.
It is claimed that, since the statute provides that any party who fails to appear after notice and submit to the water board proof of his claim
It follows that the injunction should be denied; and it is so ordered.