*1 1325 no Irrigation adju- In the Glenwood case court stated follow City10this Murray sought rights dication of was ever or ing: to simply attempted obtained. Protestant engineer was not of state rights existing be- adjudicate prior right vested cause a forfeiture created to administer and su- long but to parties, (five years) tween non-user but took too to of the waters pervise appropriation case, it. As often the the court was do Terry, Eardley v. the state. [citation] not to allow a forfeiture. disposed rights and this court considered the As in we do not to Yardley,14 presume engineer approving state duties of the suggest rights or what the . and application . denying to waters in parties are the use duties, his fulfilling that in we there held question but remand for only capacity in an administrative he acts rights of those and a decree determination rights to no determine and has title thereto. quieting reasoning applies parties. plaintiff. Costs awarded to engineer’s the state authori- the extent of deny ty grant determines diversion, J.,C. MAU- change application WILKINS, JJ., GHAN, and place. [Emphasis
use or added.] of our sister states have faced Several result,11 reached a like
same issue and also v.
the issue was addressed U.S. concluded,
Cappaert12 wherein the facts,
nearly that the decision identical res engineer of Nevada was not
the state
judicata. substantially upon rely Defendants Glen DAM, Paul VAN Myers.13 v. There the Irrigation wood Co. Attorney, Appellant, Plaintiff of time an extension engineer granted
state protestant of water and to resume use v. right re failed to exercise MORRIS, Jones, D. Melvin H. Maurice meantime, rely the applicant, view. In the Gibson, Gowans, Floyd H. Robert C. decision, completed the work ing Grant, Raymond S. and Kim Paul C. Uno It was not until necessary resume use. McHenry, Respondents. Defendants protestant later chal years some five right, to sus lenged attempting the water No. 15059. held that
tain forfeiture. Since Court of Utah. to assert forfei protestant estopped ture, on its facts distinguishable the case is 3, Nov. case no makes inroads way and the bearing prior decisions upon the numerous of the state
upon the administrative nature lack
engineer’s duties and his rights. water
adjudicate
(1964); Speer
Stephenson,
v.
(1944).
16 Ida
154
748
P.2d 1018
10. 107 Utah
P.2d
(1909);
Water Co.
Temescal
P.
ho
102
365
Works,
Dept.
of Public
44
280
v.
Cal.2d
Reynolds, 68
Service Co. Public
N.M.
P.2d 1
(1960); City
Albuquerque v.
621
358 P.2d
Reynolds,
(1962);
73
71 N.M.
379 P.2d
1974).
(9th
Cir.
12.
Robert Van Lake City, respondents. defendants and MAUGHAN, Justice: Kim McHenry charged was with the crime of against an assault a peace officer in Sec. 76-5-102.4. Such crime is classified as a Class A misdemean- A preliminary hearing or. was held in the city court. At the close of the presentation evidence, of the State’s defense counsel made a motion to dismiss. The motion was granted. proceeded State to file another com-
plaint. inception At the of the preliminary hearing, defense counsel made a motion to dismiss based on the provisions of 77-51-6. That motion granted. then sought State an extraordinary
writ in the district court to mandate the judge of court to set the matter for a preliminary hearing. The district court denied the petition, and the appeals. State We reverse and remand. All statutory ref- erences are to U.C.A.1953. juris court does not have misdemeanor,
diction over a Class A 78-4- 16; 78-5-4(3); 76-3-204(1).1 In this case committing magist acted as a power rate.2 The of a committing magis 78-5-4(3), appears Nickolopolous Emery, here in Vol. 59 Utah 206 P. U.C.A.1953, 9A, Replacement Hale, not in Vol. U.C. State v. 71 Utah 263 P. A.1953. magistrates and not those pertain examination is trate respective judicial in ac their the accused offices.4 binding with Sec. cordance purely 77-15-19. in accordance him over statutory. magis- who sits as a in Chap- provisions cite the parties Both carry trate his court or his *3 1, 2, A review of Sections ter Title him, except attributes with to the extent of the court to 4, reveal the powers the office they magistrate.5 inhere in action, or indict- information dismiss mag- The a statutory power conferred on the action city court dismissed ment. conducting preliminary hearing istrate a is 77-51-6, provides: which based on Sec. (77- the defendant the of an action for An order dismissal 15-17) in the holding proceedings him for be chapter in this shall a bar provided as (77-15-19). powers district court the prosecution other for any Chapter dismiss criminal proceedings misdemeanor; offense, it is a but if shall in the Title are conferred on courts bar, a felony. if is not be a the offense jurisdic- of their proper respective exercise a city judge, acting judge not as tions. offense, but as a jurisdiction with over the remanded district This matter is to the not have the (77-10-5(3)), did magistrate for not proceedings court inconsistent accusatory pleading power to dismiss the opinion. this pre- him brought before for liminary examination. JJ., HALL, WILKINS and is a dis magistrate office separate statutory tinct and even (concurring): Justice Chief is conferred though magistrate the office designated individuals upon those to add reason I concur but desire another powers. who A exercise city judge we do. holding as trial, hearing a a preliminary is not a was dis- thought once misdemeanor that hearing presiding at does missed, the end of prosecution that was judge a of a court and exercises sit as crime, judge apparent- that and the district judge a in a court powers none of They him. did not read ly agreed with except they as inhere in the proceeding; careful- (U.C.A.1953, 77-51-6) very statute magistrate. judge When a acts office for the says: That “An order ly. statute a magistrate, not do as in this an action dismissal of who so but rather as one derives as chapter . . .” How does this chapter from Sections 77-10^4 and 77- powers provide for dismissals? 10-5.3 every chap- in the In instance mentioned ter, by the district preliminary examination does not the dismissal hearing by the court. after a jurisdiction invoke the bindover found is not or after indictment proceeding, judge such a the action action court, grand Any that other dismissal of by by jury. but of a prose- a bar a distinct office. misdemeanor is not to further magistrate, Jus rule of district cution unless it falls within the judges, tices of the limitations, peace, the statute of judges, justices jeopardy, double be law would also magistrates having jur some rule of sitting other felony law trials. powers isdiction conferred James, County, Cal.App.3d Burris Court Tulare Koski 120 Cal. Cal.Rptr. Cal.App.3d Rptr. 758-759 Court of Judicial Dis- Weils Justice Merced trict, Cal.App.2d Cal.Rptr. 204 Ibid.