State ex rel. Mau v. Ausherman

72 P. 200 | Wyo. | 1903

Lead Opinion

Potter, Justice.

The relator alleges in his petition that B. M. Ausherman, District Court Commissioner of the District Court for Uinta County, in disregard of his authority and jurisdiction in the premises, has proceeded unlawfully to try and determine certain claims to the use of water flowing through a certain ditch, and has appointed one H. J. Somsen as a distributer of water flowing in said ditch, under the provisions of Sections 908-914, inclusive, of the Revised Statutes, and that said -commissioner will proceed further under. said order unless prohibited by the order of this court to the damage of the relator; and this court is asked to issue a writ of prohibition restraining any further proceedings in such matter.

A rule to show cause was issued directed to said commissioner, the said Somsen, and the parties upon whose application a distributer of water was, appointed. On behalf of said commissioner a demurrer is interposed to the petition on the grounds that this court is without jurisdiction to issue the writ as prayed for; and that the facts set forth in the petition do not show any right or cause for the writ.

John W. Stoner, Victor Forgeon, Aaron Stoner, Cyrus Wheeland and Charles Deloney, as plaintiffs, filed their petition in the District Court of Uinta County against Frank A. Mau, as defendant, and alleged that plaintiffs and defendant were joint owners in a certain described irrigating ditch in said county, which had been for many years and was then used by said parties — plaintiffs and defendant — • for the irrigation of their respective lands lying under the ditch; and that said parties were unable to agree relative to the division and distribution of the water received through said ditch. The prayer of the petition was for an order appointing some suitable person to take charge of the ditch, for the purpose of making a just distribution of the water received through the same to the several owners and parties entitled to the use of such water. The petition was filed May 13,' 1902. Thereupon a summons was issued directed to the sheriff, commanding that officer to notify the defendant, Frank A. Mau, that he had been sued in said District Court by the above named plaintiffs, and requiring him to appear and answer the petition on or before five days “after the date of the return hereof, to-wit, on the 19th day of May, A. D. 1902.”

On May 19, 1902, said Mau, who is the relator herein, and was the defendant in said suit, appeared by his attorney and filed a demurrer therein on the ground that the petition does not state facts sufficient to constitute a cause of action, and on the further ground that the court has no jurisdiction in the premises, the subject matter being res ad judicata by said court. On the same day said relator also filed a motion in said action, stating that he appeared specially for that purpose, to strike the petition from the files and dismiss the action on the ground that the court is without jurisdiction of the defendant or over the property as appears on the face of the record, and by the record of said court in certain cases of Frank A. Mau v. John W. Stoner and Frank A. Mau' v. Victor Forgeon, because the issue is res ad judi-cata by said court.

The petition for prohibition in this court alleges that thereupon, on the following day, to-wit, May 20, 1902, relator’s attorney ascertained that it was intended that said cause should be tried before said District Court Commissioner; and relator filed a motion and affidavit for change of court commissioner. The grounds of the motion were the alleged bias and prejudice of the commissioner and the alleged disqualification of that officer in consequence of his having been the attorney for John W. Stoner, one of the plaintiffs, in the suit of Frank A. Mau v. John W. Stoner, wherein, it was alleged by the motion, it had been decided that said Stoner had no interest in the ditch in question. That motion was-denied. Thereupon the motion to dismiss 'was presented and argued, and it was also denied. The demurrer was then presented and argued, and was overruled. The relator excepted to each of said rulings of the commissioner.

It is alleged in the petition filed in this court that the said commissioner then granted relator leave to file his answer forthwith, meaning on or before three o’clock of the same day, but twelve minutes remaining before the arrival of that hour. Counsel for relator, as alleged, requested that at least one hour be allowed him to prepare the answer, but that the commissioner at the hour of three o’clock proceeded to hear and determine the cause, before the relator had time to file his answer. It is also alleged that the commissioner refused to order the testimony to be taken by a stenographer, although relator tendered the fees therefor. It is alleged that at 5 :3o o’clock in the afternoon of said day the relator filed an answer in the cause reserving his exceptions to the jurisdiction, and denying the allegations of the petition. The answer so filed also set forth the proceedings and judgments in certain causes theretofore tried in said court, wherein Frank A. Mau was plaintiff and John W. Stoner and Victor Forgeon respectively were defendants, and alleged that in said suits the right and title to the ditch and water rights in question was determined and adjudicated; and that it was therein determined that said Stoner and Forgeon respectively had no interest in the ditch, and that the same was the property of the relator. The pleadings in those actions, as well as the judgment entries, are set out in full.

The commissioner, it is alleged, filed with the clerk of court May 21, 1902, his order made the preceding day. The order recited the1 failure of relator to file an answer on leave granted for that purpose, the hearing of the 'cause on the petition and evidence of witnesses and examination of the records of the court; and that it appeared to the satisfaction of the commissioner that the protection of the rights of the applicants to the use of water in said ditch required the issuance of the order prayed for; and that the allegations of the petition were found to be true. It ordered that said H. J. Somsen, a suitable person, not having a personal interest in the ditch, be appointed to divide and distribute the water received through the same in accordance with the rights of the several owners. He was ordered to distribute to the defendant therein, Jlie relator here, the first five cubic feet of water, according to his right as determined by the court in the cases above mentioned, as having been determined in said court.

On May 26, 1902, the relator filed his exceptions to the orders of the commissioner and his objections to the confirmation or approval thereof. Such exceptions were in substance the same as the objections included in the various motions and pleadings previously filed by the relator, except that it was now objected that the answer day did not occur until May 24, 1902, and that the defendant could not have been lawfully required to answer before that day; and that the case was not triable earlier than said answer day.

A motion was also filed by the relator that the court dismiss the cause on the ground of want of jurisdiction. The ground was specifically stated in the motion to be that the title to the ditch is in dispute, and that the statute has no application where either the joint ownership or the extent thereof is in issue; and that the defendant in the action had denied the allegation of joint ownership under oath. A motion upon the same grounds was also filed for judgment on the pleadings. Thereupon said District Judge referred the matter to Hon. Richard H. Scott, the Judge of the First Judicial District. There seems to have been no direct action or ruling of the court approving or disapproving said orders of the commissioner, or determining the exceptions or motion of the relator filed subsequent to the hearing before the commissioner; nor, indeed, does it appear from the petition here that said motions or exceptions, have been presented to the court for consideration since the matters were referred to the Judge of the First District as aforesaid.

But it does appear that on the application and affidavit of the person appointed to distribute the water of the ditch showing that the relator had interfered and' was interfering with such distributer in the discharge of his duties, the said relator Was ordered by the commissioner to be brought before 'him to show cause why he should not be punished for contempt of court. Such proceedings were had therein that the relator was by the commissioner adjudged to be in contempt and fined in the sum of twenty-five dollars and costs, but execution of the sentence was ordered suspended until the proceedings therein could be submitted to the proper judge for confirmation, or until the further order of the court. The relator excepted. The contempt proceedings were thereafter submitted to Judge Scott, and he entered an order approving in all things the proceedings of the commissioner, and his findings in the premises; and also independently finding from the evidence that said relator had wilfully, intentionally and contumaciously interfered with an officer of the court, viz: the said Somsen, who, as the order recites, had been duly appointed by the court to divide and distribute the waters flowing through the ditch in question; and the said judge by said order adjudged that the relator pay a fine of twenty-five dollars and costs, and that execution issue therefor.

The petition here alleges that under the order appointing the distributer of water, and under the statute providing for such appointment he will be and is required to report monthly, or oftener, a statement of his expenses incurred in the discharge of his duties, whereupon judgment will be rendered against relator for such expenses, and such expense may become a lien upon the canal and water right of the relator to his great and irreparable injury unless further proceedings in said cause be restrained. It is also alleged that unless restrained by the writ of prohibition the judgment of the court in the contempt pi-oceedings will be ex.ecuted.

The demurrer to the petition first challenges the jurisdiction of this court to grant the writ of prohibition as an original process. It is contended that the writ can only be issued in aid of the appellate jurisdiction of the court and in a cause pending in the court for review of a judgment or order; and that as the cause brought in the District Court is not here on appeal or error, the court is without jurisdiction to entertain the application for prohibition.

The constitution vests in the Supreme Court general appellate jurisdiction co-extensive with the State, in both civil and criminal causes, and a general superintending control over all inferior courts, under such rules as may be prescribed by law. (Const., Art. 5, Sec. 2.) It is also declared as follows: “The Supreme Court shall have original jurisdiction in quo warranto and mandamus as to all state officers, and in habeas corpus. The Supreme Court shall also have power to issue writs of mandamus, review, prohibition, habeas corpus, certiorari, and ohter writs necessary and proper to the complete exercise of its appellate and revisory jurisdiction.” (Art. 5, Sec. 3.)

It is argued that the jurisdiction of this court in all cases other than in quo warranto and mandamus as to state officers and in habeas corpus is revisory and appellate only; and that the power to issue the writ of prohibition is granted only as an aid to such jurisdiction.

It was intimated in the case of Dobson v. Westheimer, 5 Wyo., 34, that the grant of power to issue the writ contained in Section 3 of Article 5 of the constitution above quoted, was sufficient to authorize the issuance of the writ in an original proceeding brought in this court, although in that case the writ was denied. In the opinion in that case Chief Justice Groesbeck said: “One of the essential attributes of appellate jurisdiction, and one of the inherent powers of an appellate court, is the right to make use of all writs known to the common law, and, if necessary, to invent new writs or proceedings in order to suitably exercise the jurisdiction conferred,” citing Wheeler v. N. C. Irr. Co., 9 Colo., 249; Atty. Gen. v. R. R., 35 Wis., 425; Marbury v. Madison, 1 Cranch, 137, and that, “The constitutional grant construes itself and is broad enough to clothe this court with abundant authority in the exercise of its appellate and re-visory powers without invoking the inherent powers of the court.” In the opinion in that case no special reference was made to the provision of. Section 2 granting to this court a general control over all inferior courts.

There are decisions that question the authority of a court vested with appellate jurisdiction only to issue the writ in a cause not before the court for review.- But the jurisdiction of the Supreme Court in this State is not confined in all caseá to strictly appellate proceedings.' The power to exercise original jurisdiction in certain matters is expressly granted by the constitution; and the same instrument confers a general superintending control over all inferior courts.

It is, however, argued that the authority granted in Section 3 to issue the writ of prohibition is therein expressly limited to cases where the issuance of the writ ma)' become necessary or proper for the exercise of the appellate and revisory jurisdiction of the court. We think it unnecessary to enter upon a consideration of the proper construction of that provision standing alone, or used in connection with any other grants of power than those contained in our constitution. Should it be conceded that 'the provision in Section 3 giving the court “also” the power to issue the certain writs therein specified was not inserted'with reference to the general superintending control granted over all inferior courts by the preceding section, it .would not follow that the power to issue the writs necessary for the purpose of exercising such superintending control did not exist. It was held in Colorado that the superintending control conferred upon the Supreme Court of that State in language similar to that employed in our constitution carried with it, without'any express provision on the subject, authority to issue all writs appropriately connected with the proper performance of the. duties imposed. (Wheeler v. N. Colo. Irr. Co., 9 Colo., 248; 11 Pac., 103.)

In an able opinion discussing the effect of the constitutional grant of “a general superintending control over all inferior courts,” the Supreme Court of Wisconsin said, in substance, that it endowed the court with a separate and independent jurisdiction, which enabled and required it in a proper case to control the course of ordinary litigation in such inferior courts, and also endowed it with all the common law writs applicable to that jurisdiction. And it was held that such writs were those employed by the English court of King’s Bench in the exercise of its superintending jurisdiction over all inferior courts of the realm; the two writs by which that jurisdiction was principally exercised being the writs of mandamus and prohibition. (State ex rel. v. Johnson, 103 Wis., 591.) In an extensive note to the report of that case, in 51 L. R. A., commencing at page 33, the numerous authorities are collated, and the principles governing the question of jurisdiction to issue the writ are discussed. The doctrine of the authorities is there laid down to be that the inherent power of general superintendency that resided in the court of King’s Bench in England has its seat in this country in the highest law court of original jurisdiction. Whether such inherent power resides in this court or not, it is unnecessary to determine, for the reason that the constitution expressly invests the court with such superintending control. And it seems to be well settled, or at least sustained by the great weight of authority, that under such a grant of power the court possessing it is authorized in appropriate cases to issue the writ of prohibition to restrain the action of an inferior court in excess of its jurisdiction. The Wisconsin court in the case above cited say: “It is very apparent that when the makers of the constitution used the words ‘superintending control over all inferior courts’ they definitely referred to that well known superintending jurisdiction of the court of King’s-Bench. In England it was a branch of the King’s power lodged with the King’s court; in this country it is a branch of the sovereign power of the people, committed by them as a sacred charge to this court, not to be exercised upon light occasion, or when other and ordinary remedies are sufficient, but to be wisely used for the benefit of any citizen when an inferior court either refuses to act within its jurisdiction, or acts beyond its jurisdiction to the serious prejudice of the citizen.”

We are of the opinion, therefore, that this court is vested with jurisdiction in proper cases calling for its exercise to issue writs of prohibition to restrain the action of inferior courts in excess of their jurisdiction. It is, however, contended that nothing remains to be done in the lower court that is properly subject to the writ of prohibition. It'is insisted that the court has acted, and the issues attempted to b.e raised in this proceeding have passed to judgment in the lower tribunal. In the view we take of the 'case, it is unnecessary to decide whether the objection of counsel in that respect is well taken or not.

The chief ground upon which the jurisdiction of the District Court and that of the commissioner is assailed is that the statute under which the proceedings were instituted does not‘apply when the joint ownership of the ditch is denied, or the relative rights of the joint owners is in dispute. It is contended by counsel for relator that the court has jurisdiction of the statutory proceedings only when the parties are agreed as to the fact that the ditch is owned jointly by them, and as to their respective interests therein. The argument is, as we understand it, that in the summary proceeding provided for the court is without jurisdiction to hear and adjudicate upon conflicting claims of title to the ditch.

While we are inclined to agree with the argument stated broadly, we do not think the conclusion follows that, in case of a dispute as to the joint ownership, jurisdiction to entertain the statutory proceedings and enter the order provided for ceases. To admit the „ correctness of the proposition would be to place it within the power of any person summoned in such proceedings by his own act to oust the court of jurisdiction.

The statute provides that, “Whenever two or more persons, joint owners in an irrigating ditch, their lessee or lessees, are unable to agree relative to the division or distribution of water received through such ditch, it shall be lawful for any such owner or owners, his or their lessee or lessees, or either of them, to apply to the District Court .... by a verified petition setting forth such fact, asking for an order appointing some suitable person to take charge of such ditch, for the purpose of making a just distribution of the water through the same, to the several owners or parties entitled to the use of the waters received through such ditch.” (R. S., Sec. 908.)

The following section requires that the petition shall be filed with the clerk of the court, whereupon a summons is to be issued as in other cases notifying the owner or owners other than those filing the petition, and requiring them to appear within five days from the date of the issuance of the summons, and to answer the same; and the summons is required to be served at least two days before the date fixed therein for the answer. (Sec. 909.) The matter may be heard before the court, the District Judge in chambers, or the District Court Commissioner, and it is required to be heard on the day fixed for making answer, or as soon thereafter as possible; and the decision of the court, judge or commissioner is declared to be final. (Sec. 910.)

Section 911 provides that, “Upon it being- made to appear to the satisfaction of the court, judge or commissioner that the protection of the rights to the use of the water in said ditch of the applicant or applicants requires the issuance of such order, he shall appoint some suitable person, not having a personal interest in such ditch, to divide and distribute the waters received through such ditch, as in his judgment, justice may require, in accordance to the rights of the several owners, or their lessee or lessees. The person so appointed shall have exclusive control of such ditch for the purposes of dividing and distributing the water received into the same until such time as he may be removed by the order of the proper court, judge or commissioner.”

In the three succeeding sections provision ■ is made for the filing and approval of the accounts of the person so appointed covering his services and expenses, and for judgment by the court against any owner refusing to pay his share thereof, and constituting such accounts when filed in the manner designated by the statute a lien upon the interest in the ditch of the defaulting owner, and fixing the fees of the appointee, clerk, sheriff and commissioner.

An error or mistake in practice affords no ground for the issuance of the writ of prohibition, unless it involves the doing of something contrary to- the law of the land. The object of the writ is the prevention of the exercise by an inferior court of a jurisdiction with which it has not been vested by law; and the writ issues in such case only when the party seeking it is without other adequate means of redress for the Wrong'about to be inflicted. It is granted to prevent action, and not to undo what has already been done. (State ex rel. v. District Court, 5 Wyo., 227.)

The demurrer questions the sufficiency of the petition as showing cause for the issuance of the writ. The primary inquiry, therefore, is whether the facts set out in the petition disclose a want of jurisdiction in the tribunal whose acts are complained of. The answer denying joint ownership was not filed in the proceedings below until after the hearing and presumably subsequent to the order made upon the hearing. It is true that a demurrer and motion were filed anterior to the hearing attacking the jurisdiction; but the objection stated in those papers was that the matter had already been litigated in another suit and adjudicated. They were not supported by affidavits, nor by any other showing than a reference to the records of the court in the suits alluded 'to. It is not understood that former adjudication is a bar to jurisdiction. It may constitute a good defense to the proceeding upon some issue involved and control the decision of some question necessary to be determined. It is doubtful, therefore, if 'such pleadings adequately question the jurisdiction to entertain the proceedings. It is also to be seriously doubted whether the petition in this court embraces a direct denial of the existence of a joint ownership in the ditch, except by the incorporation therein of the answer filed below. But it is insisted that the pleadings and judgments in the former suits, all of which are embodied in the petition, show a previous determination adverse to the claim of joint ownership. While we may consider that matter, what has been said as to its effect in relation to the demurrer and motion to dismiss is equally applicable. If the court or commissioner had authority to enter upon a consideration of the question whether the parties were joint owners or not, the former adjudication, if any, might require a finding in accordance therewith, but it is not perceivéd that it would operate to defeat jurisdiction.

For the purposes of the question, we may treat the answer denying that the plaintiffs in the proceedings had a joint interest in the ditch as before the court at the hearing; or that the commissioner assumed to determine for the purposes of the case that they had such a joint interest. Had the commissioner authority to pass upon that question ?

Independent of any alleged personal disqualification of the commissioner, in the event that the court had acquired jurisdiction, the commissioner was empowered to act. That officer for the time being had all the jurisdiction possessed b)f the court. We are led, to inquire, therefore, into the facts essential to give the court jurisdiction of the subject matter of the proceedings. Stated generally, those facts are that two or more persons are joint owners of an irrigating ditch, and are unable to agree relative to the distribution or division of the water received through the same; and a verified petition, setting forth such facts'is filed by any such owner or owners asking for the appointment of some suitable person to take charge of the ditch and make a just distribution of the water to the parties entitled thereto.

Upon filing the petition alleging the existence of the jurisdictional facts, the court acquires jurisdiction as to subject matter; and upon obtaining jurisdiction of the parties by the statutory procedure it is authorized to proceed to some determination in the cause. It may be found necessary to dismiss the proceedings for want of jurisdiction subsequently appearing, but that matter must be determined by the court or magistrate. The fact that the defendant, by his answer, or any other pleading, denies that the parties are joint owners, or that the plaintiffs have no rights in the ditch, will not ipso facto operate to divest the court of jurisdiction. The statute is not entitled to the construction that jurisdiction vests in the court to entertain the proceedings and enter the order provided for only in case the facts of joint ownership and inability to agree as to the division of the water are admitted. It is clearly not so provided in terms, and such a construction would largely rob the statute of the very.object of its enactment.

In State ex rel. v. Voorhies, Judge, &c, 34 La. Ann., 1142, the Supreme Court of Louisiana was asked to issue a writ of prohibition restraining a City Judge from proceeding in a certain cause. The suit before the inferior court was brought for the expulsion of a tenant, and the 'jurisdiction of the particular court was limited in such suits. Where the lease held by the tenant exceeded one hundred dollars the proceedings were required to be taken in a court of superior jurisdiction. The defendant in the suit answered, 'alleging that he held a lease, the yearly’ rent under which exceeded the said sum of one hundred dollars, and assailed the jurisdiction of the court. It jvas contended that on the mere allegation of the defendant the judge was bound to dismiss the suit for want of jurisdiction, That view was not sustained. 'The court say: “It is an indisputable proposition that where a question of law can be determined only after a question of fact has been investigated and settled, the court which is called upon to solve the former must necessarily pass primarily on the latter.” It was held that the judge was authorized to enquire into the correctness of the allegation of the defendant, and said: “The defendant must allege and prove and the court must decide, maintaining or declining jurisdiction, according to the proof administered.” It was said, practically, that the proposition that the mere averment of a defendant would defeat jurisdiction is an absurdity.

In Dowdy v. Wamble, 110 Mo., 280, the court said: “Where enough facts are alleged to disclose that the case falls within a class of proceedings which the court is lawfully authorized to hear and decide, the question of the sufficiency of the showing made for the purpose of setting the court in motion is one of law for the determination of the court itself to which the showing is addressed, whatsoever its rank.”

The court say in the case of In re Grove Street, 61 Cal., 438: “An inferior board may determine conclusively its own jurisdiction or power by adjudicating the existence of facts, upon the existence of which its jurisdiction depends.” (See also Colo. F. & I. Co. v. Ry. Co., 66 Pac., 902; King v. Poole, 36 Barb., 242; Gormly v. McIntosh, 22 Barb., 271; Evansville, &c, R. R. Co. v. City, 15 Ind., 395; Caton v. Carter, 9 Gill & J., 476; Silver v. County, &c, 32 Pa. St., 356; 12 Ency. Pl. & Pr., 180-181.)

If the existence of the jurisdictional facts are denied it becomes the province and duty of the court to determine whether such facts exist or not, and to act accordingly.

The statutory proceeding in question is not only summary, but the relief it affords is to all intents and purposes temporary. Upon the removal of the person appointed to divide the water, that particular proceeding comes to an end. The order authorized to be made is one appointing some suitable person to distribute the water, and to that end to assume control of the ditch. While the court in that proceeding must consider and determine as a basis for the order whether the parties before it are joint owners of the ditch, and'that the protection of the rights of the applicant requires the issuance of the order applied for, it is necessarily evident, we think, that such determination will not amount to a permanent adjudication and judicial settlement of the respective titles and interests of the parties in the ditch. The proceeding is not instituted under the general jurisdiction of the court. It is not a suit to quiet title, or for the redress of injuries. The issue in the case is the existence of a temporary necessity for a distribution of the water; and the proceeding is manifestly authorized for the purpose of avoiding unseemly conflicts between parties claiming joint interests in the same ditch, without compelling them to resort in the first instance to tedious and expensive litigation in the pursuit of the ordinary legal or equitable remedies to enforce their rights.

The determination of joint Ownership, therefore, is nothing more than the determination of the existence of a fact necessary to jurisdiction. We apprehend that it would hardly be contended that the determination so made in such a proceeding would be conclusive in a subsequent Suit invoking the general jurisdiction of the court to try, determine and finally adjudicate the title of the various alleged owners of the ditch. The power of the court in the special proceeding is limited to the entering of a particular order, if the facts authorizing it are made to'appear.

The evidence upon which the commissioner acted is not before us. His decision upon the evidence, moreover, could not be reviewed by this court in a proceeding of this character. We have examined with some care the pleadings and judgments in the former suits, wherein it is claimed to have been decided that relator was the exclusive owner of the ditch. They do not establish such claim. Those suits were brought for the recovery of damages for the diversion of certain water and for an injunction to restrain further diversions of that water. It may be assumed that the water had been diverted from the same ditch involved in the present controversy. The judgment rendered upon the verdict of a jury awarded the relator damages and an injunction. The latter restrained further interference not with the ditch, but with a certain amount of water flowing therein. There is nothing to show that the' title of the respective parties to the canal was decided or involved as an issue in those actions'. If, as a matter.of fact, either of the defendants in those suits had a right to use the ditch for carrying water appropriated by them over and above the first five cubic feet flowing therein, it is clear that the judgment does not prevent such use of the ditch. It was frequently stated in argument that Stoner and Forgeon were, by the judgments of the court in the cases referred to, enjoined from using or interfering with the ditch. ' We cannot so understand the judgments. Using one judgment as an illustration: The defendant is restrained from “taking or diverting any of the water of the plaintiff flowing in the canal as described in plaintiff's petition, to-wit, the Mau Canal and the firsf five feet of water flowing therein.” Mention of the canal by name was clearly for the purpose of designating the particular canal through which the water appropriation of the plaintiff was carried, and the injunction restrained any interference with or diversion of that water. The court was even more specific and designated the water to which the injunction applied as the first five feet flowing in the ditch, which left the matter of any other water conveyed through the ditch untouched by the judgment.

It is contended that the filing of the affidavit for change of commissioner divested the respondent Ausherman of an}' further jurisdiction to hear and determine the cause. The affidavit alleged bias and prejudice of said commissioner, and also interest in the cause; but it is evident that the allegation of interest was based upon certain facts supposed to render him disqualified. We will consider that question later on. The statute seems to make no provision fot change of commissioner. Any commissioner of the court, at least in the absence of the judge, might have taken cognizance of the matter; but we are unaware of any statute •requiring one commissioner to transfer the cause to another upon the filing of such an affidavit as was filed in these proceedings. The proceedings were in court. They were entitled to be heard before a District Court Commissioner by reason of .an express provision of the statute. We have a statute providing for change of venue in certain cases, and when the objection is to the judge, the latter is required to call in the judge of some other district to try the cause; but it is not perceived that those provisions are applicable to the hearing of a matter by the court commissioner.

If the commissioner is disqualified for any reason, objection to his acting may, of course, be presented ; and he may no doubt be prevented, upon a proper showing in a superior tribunal, from assuming jurisdiction in the cause.

It is, moreover, contended that the respondent commissioner was disqualified on the ground that he had been attorney for one of the plaintiffs, John W. Stoner, in one of the cases already mentioned previously determined in the court; and it was alleged and is here insisted that the two actions involved practically the same issues, viz., the interest of the respective parties in and to the ditch.

Section 3339, Revised Statutes, provides that a District Court Commissioner shall not be authorized to act as such officer in any action, case or proceeding in which, or as to the subject whereof, he shall have been engaged, employed or retained as an attorney, or in reference to which and the subject whereof he shall have given any advice. In the record it is disclosed that the commissioner caused to be entered the following statement: “The court commissioner states that he has acted as attorney for John W. Stoner in the case of Mau v. Stoner, that was tried at the last term of the District Court, and denies that he has given advice or acted in the capacity of attorney in the case wherein the joint owners of Mau-Stoner ditch -have petitioned for the appointment of a distributer, and denies that he has acted in any way as attorney' for Mr. Stoner, or any other party, in the proceedings in which a water distributer was appointed, or in the case at bar.”

Now, there is nothing in the record of the case of Mau v. Stoner set out in the petition for prohibition to indicate that the commissioner has been engaged, employed or retained as an attorney, or given any advice in reference to the proceeding for the appointment of a distributer of water conveyed through the alleged joint ditch'which was heard and determined by him, or in reference to the subject matter thereof. There are no independent specific allegations in the petition to the effect that said commissioner has acted in disregard of the provisions of Section 3339, or that he was in fact disqualified on account of his employment as attorney in the proceeding, or having given advice in reference to its subject matter. The whole of the allegation on the subject of the commissioner’s disqualification rests upon his relation as attorney in the suit of Mau v. Stoner aforesaid, the pleadings and judgment in which\ action are set out in the petition filed in this court.

We are not satisfied that such a showing is made by the petition on this ground as against the demurrer which requires this court to resort to the writ of prohibition to restrain further action of the commissioner. We are the more inclined to that conclusion, in view of the present situation of the case in the court below, and the nature of the proceedings. The whole matter can be brought to the attention of the proper District Judge, and an application made for the removal of the distributer appointed by the commissioner. The proceedings having passed to final order, so far as the commissioner is concerned, practically nothing remains to be done in court but the approval of the accounts of the person appointed to distribute the water. Moreover, other remedies are probably available to the relator which it is unnecessary to mention. At any rate, we are inclined to regard the rather vague showing of the petition in respect to the alleged disqualification of the commissioner as insufficient to warrant the issuance of the writ on that ground.

The refusal of the commissioner to have the testimony taken by a stenographer and to allow further time for filing answer do not present jurisdictional questions; and we are inclined to regard the objection that the cause was prematurely heard in the' same light. But it is doubtful, to say the least, whether that point is well taken. Under the statute, the summons should require the defendants to appear within five days after the issuance thereof. It was issued May 13, 1902, and is to be construed, we think, as requiring appearance May 19. It is true that, through a probable inadvertence, it required the defendant to appear “on or before five days after the date of the return hereof,” and the return day was fixed for May 19. But following the language above quoted appeared these words: “to-wit, on the 19th day of May, A. D. 1902.” The parties evidently construed the summons, at the time, as requiring appearance May 19; and the defendant did appear at that time, and then filed his demurrer and motion to dismiss.

The objections to the proceedings subsequent to the appointment of a distributer of the water are based upon the supposed want of jurisdiction to make the appointment. So far as the contempt proceeding is concerned, if any order therein is to be executed, it will evidently be the order made by the judge, rather than the one made by the commissioner. In addition to approving the order of the commissioner, the judge, by an independent judgment, found the relator guilty of contempt and imposed sentence upon him. No other objection to that judgment is urged than that he was adjudged guilty of interfering with an officer of the court whose appointment was illegal and void.

We are constrained to hold that the petition fails to make a showing sufficient to warrant the issuance of the writ, and that the demurrer should, therefore, be sustained.

The temporary prohibition under the rule to show cause is vacated and the petition dismissed.

Corn, C. J., and Knight, J., concur.

---

Rehearing

on petition eor rehearing.

Potter, Justice.

The relator has filed a petition for rehearing in this cause. No new point is suggested, but the brief on rehearing is practically a reargument of the propositions made by counsel for relator on the original hearing. We deem it unnecessary to again enter upon a discussion of these questions. Such re-examination as has been deemed necessary has but served to confirm in our minds the correctness of the conclusion heretofore reached. A rehearing will be denied.

Rehearing denied.

Corn, C. J., and Knight, J., concur.