Opinion
Hearing Granted by Supreme Court June 27, 1927.
Original prohibition by the Mojave River Irrigation District against the Superior Court of the State of California within and for the County of San Bernardino and others. Writ granted.
COUNSEL
Meserve, Mumper, Hughes & Robertson, of Los Angeles (Timon E. Owens, of Los Angeles, of counsel), for petitioner.
Byron Waters and Grant Holcomb, both of San Bernardino, for respondents.
Spencer Burroughs, of Sacramento, T. P. Wittschen, of Oakland, and Hadsell, Sweet & Ingalls, of San Francisco, amici curiæ .
OPINION
CRAIG, J.
The purpose of this proceeding is to prevent the respondent court from taking further steps in a certain suit instituted therein and entitled Van Dyke et al. v. Department of Public Works of the State of California et al. That action is one under section 1b of the Water Commission Act, enacted in 1923 (Stats. 1923, p. 162). It was brought to secure a review of an order of the division of water rights of the department of public works (herein referred to as the division of water rights), granting the Mojave River irrigation district a permit to appropriate water of the Mojave river.
The petitioner relies principally upon the claim that section 1b of the Water Commission Act is unconstitutional. The section reads as follows:
"Any person, firm, association, or corporation interested in any application for a permit to appropriate water or any party protestant before the state water commission may within thirty days after issuance of a permit or an order refusing to issue a permit and rejecting an application bring an action in the superior court in and for the county wherein the proposed point of diversion or a proposed point of diversion lies. Said action shall be for a review of the order of the state water commission. Said court shall review all correspondence, maps, data and other records on file with the state water commission which pertain to said application and all evidence taken before said commission and take such additional evidence as it may require or as may be submitted by the parties in interest or the state water commission and shall then render judgment affirming, reversing, or modifying the action of the state water commission. The priority of right of an applicant shall continue until final judgment is rendered."
One of the provisions of the Constitution with which this section is said to conflict is the third paragraph of section 25, article 4, by which the Legislature is prohibited from passing local or special laws regulating the practice of the courts of justice. That this criticism is good cannot be disputed unless the procedure provided is justified as within the practice of the common-law or equity actions or proceedings as administered by courts of law or equity as such at the time of the adoption of our Constitution, or as belonging to the class of special cases or special proceedings allowed by the Constitution to be created by the Legislature. It is expedient first to determine the nature of the proceeding in the superior court, and to do this our principal task is to construe the provision under which it was instituted, and which for purposes of brevity will be referred to herein merely as section 1b. With slight variations in the phraseology of this section it might be interpreted as intended to provide for a proceeding in the superior court in the nature of certiorari, an appeal, or for special cases or special proceedings such as those to which reference is made in section 5, article 6, of the Constitution.
A preliminary objection is interposed to the maintenance of this proceeding by the petitioner on the ground that it is estopped to question the constitutionality of the Water Commission Act by reason of the fact that it has taken advantage of the provisions thereof by applying for and receiving an order from the division of water rights permitting the appropriation of water of the Mojave river, which order is the one sought to be reviewed in the action involved in this proceeding. We think the principle of estoppel cannot be extended this far. If, having applied to the division of water rights for permission to appropriate water, petitioners had disputed the constitutionality of the act giving it the right to grant such permission, an estoppel would exist against the assertion of such a claim. The authorities cited, Gregory v. Hecke, 73 Cal.App. 268, 238 P. 787; Cofman v. Ousterhous, 40 N.D. 390, 168 N.W. 826, 18 A. L. R. 219, as well as Stuart v. Norviel, 26 Ariz. 493, 226 P. 908, justify this conclusion, but they do not hold or suggest that one who has sought and secured a benefit from a single provision of an act is estopped to assert that another and a severable provision is unconstitutional. It is obvious that section 1b is severable from other sections of the act, and especially that under which the division of water rights is authorized to allow permission to appropriate water. Section 1b not only has no necessary connection with the latter provision, but in the sense that it permits of the annulment of any order made thereunder it is inconsistent therewith. Hence, an applicant for such a permit does not waive the right to object to the legality of section 1b.
Section 5, article 6, of the Constitution, reads as follows:
"Sec. 5. The superior court shall have original jurisdiction *** of all such special cases and proceedings as are not otherwise provided for."
The inquiry logically narrows to the ascertainment of the scope and definition of the term "special cases and proceedings" as it is here used. This is particularly essential because of the constitutional inhibition heretofore mentioned, declaring that the Legislature shall not pass "local or special laws regulating the practice of courts of justice," and among the subjects within the constitutional inhibition are cases where a general law can be made applicable. Article 4, § § 25, subd. 33. Special cases give new rights and afford new remedies. Saunders v. Haynes, 13 Cal. 145; Appeal of Houghton, 42 Cal. 35. Concerning the phrase "special cases and proceedings," used in section 5, article 6, of the Constitution of 1879, it is said in Bixler’s Appeal, 59 Cal. 550, 555:
"Nearly thirty years prior to the adoption of the Constitution of 1879, they had been defined by the Supreme Court of the state as something entirely different-‘new cases, the creation of statutes, and the proceedings under which are unknown to the general framework of courts of law and equity’-as not including any class of cases for which courts of general jurisdiction had always supplied a remedy."
And the opinion approves this definition. A similar expression is to be found in Re Central Irrigation District, 117 Cal. 382, 49 P. 354.
It must be presumed that the language found in the present Constitution was intended to have the same meaning as when used in the same sense and context as that of 1879, and hence the definition above quoted is applicable to the present provision of section 5, article 6, of the Constitution.
The determination of this proceeding then hinges upon whether or not a party having rights which may be affected by the order of the division of water rights on application for permit to appropriate water has a remedy through the institution of a suit within the general jurisdiction always possessed by courts of law or equity. What may be the rights of others than the applicant which may be infringed by the granting of such a permit by the division of water rights? What may be the rights to be acquired by the applicant for such a permit? What effect has an appropriation upon the rights of others? The last question may be answered first, that "its effect is merely to give a preference over a subsequent appropriator or diverter who takes under no other right or title, and to fix the date of the posting of the notice as the inception of the claim under it." Herminghaus v. Southern California Edison Co. (Cal. Sup.) 252 P. 607.
The proceeding is not an ordinary one in certiorari, since the remedy afforded is the affirmance, reversal, or modification of the order of the division of water rights and not the setting aside of a decision of that body. Again, if section 1b contemplated a writ of review the tribunal making the order would be the respondent, and the only one. Here the successful party in the proceeding before the division of water rights is such a party. Also the hearing before the superior court is one at which evidence not presented to the division of water rights is authorized to be considered, whereas only the record before the inferior tribunal is before the reviewing court on certiorari.
The review of the order here involved cannot be intended as an appeal to the superior court, because such an appeal can only be taken from the decision or judgment of an inferior court (Const. art. 6, § 5; Chinn v. Superior Court, 156 Cal. 478, 105 P. 580), and this principle is also applicable to a writ of review (Dept. of Public Works v. Superior Court, 197 Cal. 215, 239 P. 1076). But the division of water rights of the water commission is in no sense judicial, the Legislature is without power to vest it with judicial authority, and it cannot exercise judicial functions. Dept. of Public Works v. Superior Court, supra.
We might state the proposition in another way, and say that if section 1b should be construed as an attempt to provide for appeal to the superior court from an order of the division of water rights it would be unconstitutional, for the reason just stated. Also, if it should be decided that by section 1b provision was meant to be made for a different or extended form of writ of review beyond the common-law scope as it existed when the present Constitution was adopted, this would be unconstitutional. People v. Barbera (Cal.App.) 248 P. 304; Great Western Power Co. v. Pillsbury, 170 Cal. 180, 149 P. 35; Maurer v. Mitchell, 53 Cal. 289; State v. Durand, 36 Utah, 93, 104 P. 760.
In view of another phase of the argument which will require consideration later, it may be appropriate to state at this point that were it to be held that by section 1b provision has been made for an appeal from the order of the division of water rights, it would necessarily follow that this would constitute an unconstitutional attempt to vest judicial power and the performance of a judicial function in that body.
We proceed, then, to consider whether or not the legislative intent was to authorize a special case or special proceeding, and if so to determine its legality. That this was the purpose is urged by those seeking to uphold the law and who oppose the granting of this petition, and we think at this point it may be assumed that section 1b was meant to provide for an original proceeding in the superior court, for if an appeal or enlarged form of certiorari were intended such legislation would be unconstitutional, and courts always favor a construction which will uphold rather than render void a legislative act.
The rights of others than the applicant may have originated by purchase, prescription, condemnation, or otherwise. They may be possessed by individuals or by corporations, public or private. They may be for purposes of irrigation, power production, domestic uses, or what not. The right to exercise them may be continual or occasional, or at certain times only. They may be independent of others, or dependent and secondary to them. They may be vested or merely inchoate, but capable of becoming vested, and through the doctrine of relation finally attach from the date of their initiation. But concerning all of these rights ample provision has always existed for their protection. Remedies by way of injunction, mandamus, suit to quiet title, prohibition, damages, and certiorari have afforded adequate protection to every interest in water heretofore or now known to the law. As to such rights no new interests are conferred in any instance by the Water Commission Act, and cases provided by section 1b are not those for which courts of general jurisdiction have lacked a remedy.
In appraising the rights to be acquired by the applicant for a permit to appropriate water, it must first be observed that the extent of the right is merely permission to make claim to a water right, and to subsequently acquire title thereto. Title is not conferred or even confirmed by the order of the division of water rights. The effect of such an order may be nullified by the decision of the court in a proper proceeding. If the division of water rights improperly refuses a permit, mandamus will issue to require that it be granted. If permission be wrongfully granted, those having rights which are prejudiced thereby have ample protection through the well established remedies above mentioned, and even if, as argued by some of those who uphold the constitutionality of the section, it were to be held that since the amendment of 1923 the division of water rights acts in a quasi judicial capacity in passing upon applications for permits its decision might be reviewed upon certiorari.
Up to 1913 the same right to appropriate water existed which is recognized by the Water Commission Act. The latter has created no new right in water, but only a different procedure for the acquisition thereof, and the title of one who has taken the first step toward making an appropriation is an interest in realty, and as such may be protected through a suit to quiet title. Inyo Cons. Water Co. v. Jess, 161 Cal. 516, 119 P. 934.
It is suggested that proceedings before the division of water rights are highly complicated; that many parties and numerous issues may be involved in a single hearing, and these considerations are apparently advanced to show that without section 1b no remedy exists or existed before its enactment for an adjudication of water rights which may be the subject of dispute. We have read the long list of issues and subissues which are set forth in the briefs of an amicus curiæ in this behalf, but have found none which may not be determined and the rights of the parties therein adjudicated in some one of the ordinary actions or proceedings at law or in equity.
It is said that where a ministerial officer exercising quasi judicial powers acts upon conflicting evidence his decision is discretionary, and not merely ministerial. However, it must be conceded that this rule is not peculiar to its application to the acts of the division of water rights, but applies to them only because it is a principle general in its scope and application affecting all officers charged with the discharge of regulatory duties involving quasi judicial decisions of preliminary questions of fact. Many instances where the decisions of such officers have been held to be discretionary are found throughout the decisions. The latest of that type is Bank of Italy v. Johnson (Cal. Sup.) 251 P. 784, where it is determined that the banking business is an appropriate subject for police regulation, and the powers of the bank commissioner in withholding his approval of the establishment of branch banks is held to be discretionary; and further that while the writ of mandamus may be used to compel a public official possessing discretionary power to act, the court may not substitute its discretion for that vested in the officer. If the rule operates to subserve public justice as governing the conduct of other officers of a similar class exercising like authority, there is nothing to indicate that it is not producing the same beneficent result when applied to the orders of the division of water rights in issuing permits to appropriate water. It must be remembered that in such cases jurisdictional matters may always be ascertained in a proceeding in certiorari, and that in that behalf the court may inquire into the existence of the facts necessary to give the executive officer authority to act. Great Western Power Co. v. Pillsbury, 170 Cal. 180, 149 P. 35.
Difficulties often arise in the application of even the most clearly established principles of law to deeply involved conditions in extreme cases. That such a result might follow from the judicial recognition of the doctrine of correlative rights as apply to percolating waters was admitted by the court in its decision in Katz v. Walkinshaw, 141 Cal. 116, 70 P. 663, 74 P. 766, 64 L. R. A. 236, 99 Am. St. Rep. 35, but it was nevertheless held that such difficulties in the performance of judicial duty, even though it might be seriously argued that they were so great as to present the impossibility of the performance thereof, would present no bar to the maintenance of property rights. Our courts have never admitted the impossibility of performance of judicial functions because of the difficulty of the task imposed upon them by reason of the great number of parties, or of issues.
We conclude that, although the action provided by section 1b may be a special proceeding, it is not "a special case or special proceeding" as that phrase is used in section 5, article 6, of the Constitution of California. On the other hand, it requires but a cursory examination to disclose that the section is a special law regulating the practice of courts of justice. A single observation is sufficient to establish that this is true. The only remedial action authorized by section 1b to be taken by the superior court in the exercise of jurisdiction conferred is that of affirming, reversing, or modifying the order of the division of water rights. The division of water rights is not a court or judicial body, and its orders are regulatory and ministerial. Department of Public Works v. Superior Court, supra. It requires no citation of authorities to point out that in ascribing to a trial court such duties, as part of its judicial procedure in the exercise of original jurisdiction in the trial of a case, the Legislature has provided a special procedure in courts of justice. Although the division of water rights is not strictly a court or judicial tribunal, it nevertheless performs quasi judicial functions, exercising discretionary powers, but this would not under general laws regulating the procedure in courts permit the superior court to affirm, reverse, or modify the order of the quasi judicial body. The regular and ordinary procedure in such a case is a review of such order by certiorari. Suckow v. Alderson, 182 Cal. 247, 187 P. 965; Imperial Water Co. No. 1 v. Supervisors, 162 Cal. 14, 120 P. 780.
Section 1b is also repugnant to article 4, section 325, subdivision 33, against special laws where a general law can be made applicable, for, as we have shown, the general laws now available are adequately remedial (which section 1b would not be, even if upheld) for the protection of all interests which can possibly exist in water rights. We say that even if section 1b were held to be constitutional it would not furnish an adequate remedy in the matter of the improper issuance of permits to appropriate water. A single instance will make this plain, although others might be stated. Suppose that after a hearing in the superior court upon an order of the division of water rights it were determined that a permit was improperly refused to one applicant and granted to another. The only action which the court is authorized to take would be to reverse the order. It has no authority to issue a permit nor even to direct the division of water rights to issue one. The reversal of the order being accomplished, there is no legal hindrance to the division granting a permit to another applicant who has perhaps appeared while the appeal to the superior court was in progress and again refusing the appealing applicant his permit. He might appeal again, and so on, ad infinitum, without ever securing an effective order from the division of water rights for himself. If the superior court under its authority to modify such an order should attempt to exercise the right in such a case to issue a permit to the appealing applicant, this would surely involve the exercise of an administrative function, and be without its jurisdiction.
An examination of the cases cited in the brief of the state division of water rights to support the constitutionality of section 1b against the claim that it is a special law regulating the practice of courts of justice shows that the acts construed were upheld upon the ground that the law in question was general and not special, or that an entirely new right was created which, of course, placed the statute in question within the class of "special cases and special proceedings not otherwise provided for." For example, in Title, etc., Restoration Co. v. Kerrigan, 150 Cal. 289, 88 P. 356, 8 L. R. A. (N. S.) 682, 119 Am. St. Rep. 199, it is said:
"‘A statute which affects all the individuals of a class is a general law, while one which relates to particular persons or things of a class is special.’ McDonald v. Conniff, 99 Cal. 386, 391, 34 P. 71. ***
"Under these rules we think the proceeding created by the act in question is sufficiently distinct and different from ordinary civil actions covered by the general rules of the code to justify the creation of a class which shall be characterized by the special rules of procedure here provided. ***"
Elberta Oil Co. et al. v. Superior Court (Cal.App.) 239 P. 415, illustrates the other type of cases. The statute there construed created a new right, in that it gave a stockholder the right to institute a proceeding to set aside an election of directors of a corporation. The opinion states:
"Prior to the enactment of these sections of the Code, or of legislation similar thereto, the only method of setting aside an election of directors at a stockholders’ meeting was by quo warranto proceedings, instituted in the name of the people of the state. Whitehead v. Sweet, 126 Cal. 67, 58 P. 376."
The confirmation act involved in Re Central Irrigation District, 117 Cal. 382, 49 P. 354, also clearly falls within this classification. There the entire subject concerning the organization of irrigation districts and other matters designated in the act is statutory, and concerns rights and remedies unknown to the common law. The same is true of the act construed in Roche v. Superior Court, 30 Cal.App. 255, 157 P. 830. In such cases the Legislature may provide procedure unknown to the common law so long as property rights are not divested without due process of law.
The acts construed in Gridley v. Fellows, 166 Cal. 765, 138 P. 355, and Cohen v. City of Alameda, 168 Cal. 265, 142 P. 885, are clearly distinguishable from section 1b of the Water Commission Act. Both cases involved mere questions of the classification of causes of action. Neither has to do with the creation of new rights or new and different actions. In Department of Public Works v. Superior Court, 197 Cal. 215, 239 P. 1076, it was held that all acts of the division of water rights are ministerial and regulatory, but the decision relates to section 12.
Much reliance is placed upon U. S. v. Ritchie, 17 How. 525, 21 Curt. 656, 15 L.Ed. 236, holding that an act which provided that after a board of commissioners had rendered final decision an appeal might be taken to the United States district court was in fact intended to provide for an original proceeding in that court. No consideration was given to the possible conflict of that enactment with such an organic inhibition as that contained in section 25, article 4, of our Constitution, for there was no such limitation upon the power of Congress to pass a special act.
We also agree with the petitioner that since all acts of the division of water rights relative to applicants for permits to appropriate water are regulatory and ministerial, and not judicial, and since the jurisdiction of the superior court is limited by section 1b to merely the right to affirm, reverse, or modify orders of the division of water rights, the function thus required to be performed by the superior court would be regulatory and ministerial only and in no sense judicial. Of course, this would not follow if the superior court were reviewing the record of the division of water rights upon certiorari, but the conclusion above stated must result since the action authorized in the superior court cannot for the reasons we have heretofore stated be upheld as such a proceeding and only, if at all, upon the theory that it is meant to provide an original action in the superior court. Hence, the provision is unconstitutional, for duties of a nonjudicial nature cannot be conferred upon courts. Section 1, art. 6, Const; People v. Sanderson, 30 Cal. 168; Phelan v. City and County of San Francisco, 20 Cal. 40; Tyson v. Washington County, 78 Neb. 211, 110 N.W. 634, 12 L. R. A. (N. S.) 350. The same principle is recognized in Smith v. Strother, 68 Cal. 194, 8 P. 852.
In considering this issue the Water Commission Act must not be confused with that class of statutes which place quasi judicial powers in the hands of administrative officers charged with the enforcement of police regulations. In County of Los Angeles v. Spencer, 126 Cal. 670, 59 P. 202, 77 Am. St. Rep. 217, an act giving horticultural commissioners authority to determine whether a particular place was a nuisance because of infection with scale, insects etc., was upheld as not violative of the Constitution. The opinion reviews many other similar ordinances, all involving the exercise of police power, and which place a certain degree of discretion in the hands of such officials as fire commissioners, viticultural commissioners, health officers, park commissioners, and quarantine officers. To this list might be added members of boards of medical examiners and dental examiners, and many others. The opinion last mentioned points out that although these ordinances allow and require the exercise of some discretion, which in a strict sense is judicial in its nature, still it is not judicial within the meaning of the inhibition of article 6, of the Constitution. Further, that such acts constitute a proper exercise of the police power within the meaning of section 1, article 19, of the Constitution. It is said that the efficiency of many police regulations depends upon their prompt and summary execution, which makes it necessary to place a certain discretion in the hands of officers who are making the regulations effective. The discretion authorized by section 1b of the Water Commission Act to be exercised by the division of water rights in similar to that conferred upon the register of titles by an act involved in People ex rel. Deneen v. Simon, 176 Ill. 165, 52 N.E. 910, 44 L. R. A. 801, 68 Am. St. Rep. 175. It was there held that the act did not conflict with a provision of the Constitution similar to that contained in our own, which forbade the conferring of judicial powers upon nonjudicial officers. The court held that the registrar was required to determine certain facts quasi-judicially, but that this did not constitute an exercise of judicial power, strictly speaking, and as contemplated by the Constitution. It is said:
"The primary purpose is the issuing of the certificate, and the exercise of the judgment of the registrar is incidental. The prohibition in question ‘has never been held to apply to those cases where judgment is exercised as incident to the execution of a ministerial power.’ Owners of Lands v. People, supra." (113 Ill. 296.)
In the instant case the primary purpose of issuing the permit, and the exercise of the judgment of the division of water rights is incidental. Its judgment is exercised only as an incident to the execution of its ministerial powers. To review its acts in that behalf before a judicial tribunal whose only purpose and power is to affirm, modify, or reverse the order of the division of water rights, cannot be regarded as the exercise of a judicial function by the court. The sole object of the proceeding in the superior court is to determine the correctness of the act of the division of water rights.
The act construed in People ex rel. Deneen v. Simon, supra, provided that any person feeling himself aggrieved by the act of the registrar in any matter pertaining to the duties required of him might file a petition in equity in the proper court, making the registrar and other persons interested parties defendant, and that "the court may proceed therein as in other cases in equity." The statute involved in Ricks v. Reed, 19 Cal. 551, also provided for a proceeding before the county court under general rules of procedure and without special regulations as to the character of the decree to be rendered by the court. In this regard the difficulty with section 1b is that instead of authorizing an action by any one aggrieved by the order of the division of water rights, in conducting which the superior court would have jurisdiction to proceed as in other cases, the procedure provided allows the introduction and use of hearsay evidence; it requires the consideration of all of the records used by a ministerial officer, whether such evidence is admissible or not under the ordinary rules governing the production of evidence, the subject-matter of the action is merely the order of the division of water rights, and finally it limits the court to affirming, reversing, or modifying the order of the board having ministerial and regulatory authority only.
Authorities from other states referred to in the briefs of those maintaining the constitutionality of the laws under construction are of little assistance, for various reasons. No judicial interpretation of a similar statute has been called to our attention rendered in a jurisdiction having the same constitutional provisions and the same doctrines concerning water rights as our own. It appears that in a number of the western states provisions quite similar to that before us exist and have been acted upon without question, apparently on the assumption of their validity. However, this furnishes but slight authority.
Section 1b is clearly severable from other provisions of the Water Commission Act, therefore no expressions of opinion upon the validity of any other sections of the act are here announced. Whatever may be the reasons for doubting their validity, it is expressly provided by section 46 of the act that
"If any section, subsection, sentence, clause or phrase of this act is for any reason held to be unconstitutional, such decision shall not affect the validity of the remaining portions of this act. The Legislature hereby declares that it would have passed this act, and each section, subsection, sentence, clause and phrase thereof, irrespective of the fact that any one or more other sections, subsections, sentences, clauses or phrases be declared unconstitutional." Stats. 1913, p. 1012.
We think that well-recognized principles entitle the petitioner to the relief sought, notwithstanding the right of appeal would provide a remedy should the superior court proceed with the trial, for such right of appeal would not in this instance be adequate. The situation is similar in principle to that presented in Davis v. Superior Court, 184 Cal. 691, 195 P. 390, in which it was said:
"While the existence of the right of appeal at that time might have been a sufficient reason for that court to have then refused to entertain the petition (Glougie v. Superior Court, 169 Cal. 675 [147 P. 972]), yet, in view of the fact that the superior court was then, and ever since has been, without power or jurisdiction to proceed further in the action, as we have shown, but nevertheless proposes to do so, and that further proceedings of any kind, except to again dismiss the action, would be void, we are disposed to grant the writ, rather than put the parties to further vexation and useless expense by further attempts to prosecute it. The question is largely one of discretion, and we deem it the better policy to terminate the proceedings forthwith."
The petitioner herein would otherwise be put to the expense of a voluminous record, and of attending a protracted hearing in the superior court, as well as of making extensive preparations for the hearing.
Entertaining these views, which necessitate the granting of the petition, it is unnecessary and unprofitable to consider the other ground urged by the petitioner, namely, the alleged insufficiency of the complaint filed in the superior court to state a cause of action, or to determine whether that ground is open in a proceeding like the present.
The peremptory writ of prohibition is granted.
THOMPSON, J. I concur.
WORKS P. J.
I concur in the judgment, but not upon all the grounds stated in the foregoing opinion. I am in thorough accord with what is said upon the question of estoppel. I also assent to the views that section 1b of the Water Commission Act was not intended to confer jurisdiction to issue the writ of review, nor to confer a right of appeal, and I concur in the reasoning which is advanced in the opinion in support of those views. I agree, also, in the conclusion that section 1b is unconstitutional, but upon one only of the grounds advanced in the foregoing opinion in support of it. I think the section is a special law regulating the practice of courts of justice, for the reason that it attempts to empower-in truth, it directs-the superior court to consider evidence which would not be admissible in the ordinary civil action. Section 1a of the Water Commission Act (Stats. 1923, p. 161; Deering’s Gen. Laws 1923, Act 9091) provides that in hearings before the commission upon applications for such permits as the one which is in question here, "technical rules of evidence need not be applied." It may be difficult to determine exactly what is meant by this very general language, but some effect must be given to it. Doubtless, at least, if the commission in some hearing should consider hearsay evidence or so-called evidence in the form of affidavits, it would not be held that it had acted improperly. Section 1b of the act provides that the superior court, in the proceeding sought to be authorized by the section, "shall review"-and this must mean shall consider-"all correspondence, maps, data and other records on file with the state water commission which pertain to said application and all evidence taken before said commission. ***" As already observed, I think this language renders section 1b unconstitutional. I express no opinion upon the other grounds stated in the foregoing opinion as affecting the constitutionality of the enactment. Particularly, I am not prepared to say, and I find it unnecessary to say, whether the words found in the section to the effect that the superior court "shall then render judgment affirming reversing or modifying the action of the state water commission" are operative in such manner as to prevent the rendition of a final judgment like the "action" of the commission or either partially or wholly different from it.
I am in accord with everything in the foregoing opinion which is not referred to or mentioned in this concurring opinion as beyond my desire now to decide.
Court