Summary
In Horse Creek Conservation District v. Lincoln Land Co., 50 Wyo. 229, 59 P.2d 763, attention was called to the fact that in Lewis' Sutherland on Statutory Construction (2d Ed.) Section 612, it is stated that the cases universally hold that "a statute specifying a time within which a public officer is to perform an official act regarding the rights and duties of others is directory, unless the nature of the act to be performed, or the phraseology of the statute, is such that the designation of time must be considered as a limitation of the power of the officer."
Summary of this case from Public Serv. Comm. v. RussellOpinion
No. 1983
July 21, 1936
STATUTES — CONSTRUCTION — WATER RIGHTS — ABANDONMENT — BOARD OF CONTROL.
1. Affirmative statutory provision relating to time or manner of performing official acts, unlimited or unqualified by negative words, is directory rather than mandatory, although nature of statute is question of intention to be ascertained from consideration of entire statute, its nature and object, and consequences that might result from construing it one way or the other. 2. Statute requiring board of control to file certified copy of declaration of abandonment of water rights in district court within sixty days after making of such declaration held mandatory in requiring board to file copy of order, but failure of board to file copy in time fixed by statute does not result in loss of power of board to file copy or in want of jurisdiction of court to review declaration (Rev. St. 1931, §§ 122-421 to 122-427).
APPEAL from the District Court of Goshen County; SAM M. THOMPSON, Judge.
For the plaintiff and appellant there was a brief and oral argument by J.A. Greenwood of Cheyenne.
The proceeding was commenced under Section 122-422, R.S. 1931, for a declaration of abandonment of the water right for Horse Creek Ditch Company No. 1, Priority No. 52. The hearing was had before the State Board of Control on petition of Horse Creek Conservation District on April 20, 1934, declaring the water right for Horse Creek Ditch No. 1, Priority No. 52 to be abandoned in its entirety. Said order was filed in the office of the district court of Goshen County, Wyoming, and a notice issued to Lincoln Land Company on July 9, 1934. A further notice was issued on November 17, 1934, of the order declaring abandonment of said water right, which notice was served by the sheriff. Thereafter objections to the jurisdiction of the district court of Goshen County, Wyoming, were made by special appearance on behalf of Lincoln Land Company. It sought by petition the removal of the cause to the United States District Court for the District of Wyoming, which petition was granted. Upon hearing in the United States court on March 22, 1935, objections of the Horse Creek Conservation District to jurisdiction were sustained and the cause was remanded to the state court. On January 15, 1936, objections to the jurisdiction were sustained by the district court of Goshen County. From that order the cause was appealed to this court. The omission of the State Board of Control to file a certified copy of its order of April 20, 1934, with the clerk of the district court of Goshen County, Wyoming, within sixty days thereafter did not defeat the jurisdiction of the district court. Fischer v. Davis, et al., (Idaho) 133 P. 910; Lumber Company v. Nelson, (Idaho) 218 P. 367; Mining Co. v. Patrick, (Ida.) 218 P. 367; State v. Ricks, et al., (Idaho) 201 P. 827; Moody v. Crane, (Idaho) 199 P. 652; Durand, et al. v. Gage, (Mich.) 43 N.W. 583; Goetz Company v. Waln, (Nebr.) 139 N.W. 230; Armstrong v. Spokane International Ry. Co., (Wash.) 172 P. 578; Insurance Company v. Phinney, 178 U.S. 327; Hoff v. Shockley, (Iowa) 64 L.R.A. 538; Rawleigh Company v. Laursen, (N.D.) 48 L.R.A. (N.S.) 198; Snuffer v. Spangler, (W.Va.) L.R.A. 1918E, 149; Mining Co. v. Reed, (Idaho) 153 P. 564; Reynolds v. Morton, 22 Wyo. 478; Holliday v. Bundy, 42 Wyo. 61. The decision of the State Board of Control is a final determination of the question before it for consideration in the absence of a review by the district court upon objections filed thereto. Const. Article VIII, Section 2; Secs. 122-426-427, R.S. 1931; Wyoming Hereford Ranch v. Hammond Packing Co., 33 Wyo. 14; Farm Investment Co. v. Carpenter, 9 Wyo. 110; Van Tassell Company v. Cheyenne, (Wyo.) 54 P.2d 906. The filing of a copy of the decision of the State Board of Control enables any person objecting thereto to have the decision reviewed by the district court. The review proceedings are not a condition precedent to the binding effect and finality of the decision of the Board of Control. The district court had jurisdiction. Reynolds v. Morton, supra. Failure of the board to transmit the order within the sixty-day period is not a ground for defeating the jurisdiction of the district court to review the board's order. Such failure does not shorten the period within which objections may be filed. Insurance Company v. Phinney, supra; Holliday v. Bundy, et al., supra. The filing of a decision by the board is not a part of the appellate proceedings. The decision of the State Board of Control is valid and may be reviewed by the district court. Sec. 89-4802, R.S. If no objections are filed, the district judge should enter an order affirming the decision of the board. Section 122-427, R.S. The district court may hear objections under the same statute. The order of the district court should be reversed with directions that the parties proceed to have the decision of the board reviewed, if respondent desires such review, by the filing of objections in accordance with the requirements of Sec. 122-427, R.S. 1931. Failure to file certified copy of order of abandonment of the Board of Control * * * is jurisdictional. Sangren v. Bundy, 42 Wyo. 66; Copper Company v. Board, 42 Wyo. 67; Bolln Company v. Freeman, 42 Wyo. 375; Caldwell v. State, 12 Wyo. 206; Goodrich v. Bank, 26 Wyo. 42; Porter v. Carstensen, 44 Wyo. 49; Samuel v. Christensen, 47 Wyo. 331; Samuelson v. Tribune Company, 41 Wyo. 487; Lion Coal Company v. Contas, 42 Wyo. 94.
For the defendant and respondent, there was a brief by John C. Pickett of Cheyenne, Wyoming, and Mothersead York of Scottsbluff, Nebraska, and oral arguments by Messrs. Pickett and York.
The findings and order of abandonment by the State Board of Control were not filed in the office of the clerk of court of Goshen County, Wyoming, until July 9, 1934, eighty days after the order was made, and summons was not issued therein until November 17, 1934. The respondent filed objections to the jurisdiction of the court; the case was removed to the federal court and was thereafter remanded to the state court and the objections to the jurisdiction of the state court were heard on January 15, 1936, which were sustained, and the plaintiff has prosecuted its appeal to this court. The only question involved is whether Section 122-427, R.S. 1931, requiring the filing of a certified copy of the decision of abandonment, is mandatory and jurisdictional. The proceedings for determination of the abandonment of a water right by the State Board of Control are purely statutory. Sections 122-422-427, R.S. 1931. The proceeding is unknown to the common law * * * and the filing of the order of abandonment in the office of the clerk within the sixty-day period is mandatory in order to obtain jurisdiction. Partee v. Railroad Company, 204 Fed. 970 (8th Cir.); Harrisburg v. Rickards, 119 U.S. 199; Hilty v. Company, 82 F.2d 77 (9th Cir.); Rogulj v. Mining Company, 288 Fed. 549 (9th Circuit). Failure to file the order of the Board of Control within the specified time defeats the jurisdiction. Coffee v. Harris, 27 Wyo. 394; Harvester Company v. Lumber Company, 25 Wyo. 367; Arnold v. Nichols, 25 Wyo. 458; Griffis v. State, 23 Wyo. 303; Foree v. State, 14 Wyo. 296; State v. Blake, 5 Wyo. 107. If the procedure is considered as an involuntary arbitration, the rule as to arbitrations is that unless the award is filed in court within a specified time, the court acquires no jurisdiction and the award is of no avail. 5 C.J. 122; Bent v. Telephone Company, 144 Mass. 165; Abrams v. Brennan, 84 P. 363. Considering the Board of Control as an inferior tribunal, the rule is established that a successful litigant before an inferior tribunal loses the benefit of his judgment if such inferior tribunal fails to act within the time limited by statute. Worrall v. Chase, 144 Iowa 655; Worley v. Shong, (Nebr.) 53 N.W. 72; May v. Grawert, (Minn.) 90 N.W. 383. The order of abandonment made by the Board of Control has no effect without review in court. Van Tassel Company v. Cheyenne, 54 P.2d 906; Re Willow Creek, 144 P. 505; Livestock Company v. Lewis, 241 U.S. 440. Appellant relies on the case of Reynolds v. Morton, 22 Wyo. 478, but the point was not decided in that case. An examination of authorities cited by appellant shows that no jurisdictional question was involved, such as in the present case. The hearing before the board is in the nature of an inquiry had before the commencement of suit. Section 122-427, R.S. The trial in the district court is de novo on the issue as to whether water rights have been abandoned. It takes judicial action to vitalize and give effect to the order of the Board of Control. Van Tassel Company v. Cheyenne, supra. The rule requiring a thing to be done within the time fixed by the statute is applicable to the case at bar. There is no provision authorizing an enlargement or extension of the time and it was the duty of the Goshen County court to dismiss these proceedings, the record showing that the statute had not been followed. There is no provision for extending the sixty-day period required by the statute, within which the declaration of abandonment must be filed in the district court, and said declaration not having been filed as the statute requires until some eighty days had expired, the district court acquired no jurisdiction.
This is a proceeding under sections 122-422 to 122-427, R.S. 1931, to bring about a declaration of abandonment of a water right for lands in Goshen County.
Section 122-421 declares that a water right shall be limited and restricted to so much thereof as may be necessarily used, irrespective of the carrying capacity of the ditch, and that all the balance of the water not so appropriated shall be allowed to run in the stream, and shall not be considered as having been appropriated; and in case the owner of any irrigation works shall fail to use the water therefrom for beneficial purposes during any five successive years, he shall be considered as having abandoned the same, and shall forfeit all water rights, easements and privileges appurtenant thereto, and the water formerly appropriated may be again appropriated the same as if the irrigation works had never been constructed. When, pursuant to section 122-421, any interested water user desires to bring about a legal declaration of abandonment of existing water rights, he shall present his case in writing to the board of control. "The board, after giving the case full consideration, shall, if the facts are sufficient to so justify, refer the matter to the division superintendent of the division where such abandonment is claimed to have occurred." Sec. 122-422. When the case is so referred, the division superintendent, after giving notice to the interested parties, called contestant and contestee, takes evidence which is reduced to writing and transmitted to the board of control together with the superintendent's written report "setting forth the procedure followed by him and the results accomplished thereby." Sections 122-423 to 122-425. When the evidence and the superintendent's report are received by the board of control a day is fixed "when the case shall be finally heard before the board." Notice is given to the parties who may appear and submit further evidence. "After the board has become fully informed, it shall enter an order as to its findings, either declaring the right in question abandoned, or decline so to do, as the facts presented to the board may justify." Sec. 122-426.
The appellant, as contestant, in April, 1933, under the above statutes, began this proceeding to obtain a declaration of abandonment of a water right claimed by respondent. Hearings, at which the respondent, as contestee, was present, were had before the division superintendent and the board of control, and thereafter, on April 30, 1934, the board entered an order declaring the contestee's water right abandoned. The regularity of the proceedings to that point is not questioned.
Section 122-427 provides:
"Whenever the board has declared any water right abandoned, * * * it shall cause within sixty days thereafter a certified copy of such declaration or decision to be filed in the office of the clerk of the district court of the county within which such right is situated, * * *. It shall thereupon cause to be issued out of such court, a notice of summons directed to the owner or owners of such right so declared abandoned, * * * directing that the owner or owners mentioned in said summons shall file any objections he may have in said court within the time in which he would have had to answer in case of summons in civil action. Any person desiring to object in any way to such decision of the board of control shall file, within the time within which he is required to answer, his objections to such decision. Summons or notices herein mentioned shall be served and governed by the rules relating to service of summons in civil actions in said court. If no objections are filed to such decision of the board of control within the time provided for answer or objection, the judge of the district court shall as soon as practicable thereafter, enter a judgment or order affirming in all respects, the decision of the board of control in regard to the abandonment of such water rights and in such case the state board of control shall pay the costs; but if objection be filed the contestants in the action before the state board of control shall become the plaintiffs in such action and the objector or objectors shall become the defendant or defendants, and the issue tried shall be whether or not such water rights have in fact been abandoned, and the court may order such pleadings made up or filed as may be necessary in the case. Any other person interested may be made a party, upon application, in the same manner in which persons may intervene in other actions. The attorney general of the state may appear on behalf of the state board of control in any such litigation, and the case shall be tried and determined in all respects by the rules governing civil actions in such courts, in so far as such rules may be applicable, and appeals may be had as in other civil actions to the supreme court of the state."
Under this section it was the duty of the board of control to cause a certified copy of its declaration of abandonment to be filed with the clerk of the district court within 60 days after April 20, 1934, when the declaration was made. The certified copy was not filed until July 9, 1934, 80 days after the declaration was made. It is not contended that the delay was the fault of either the contestant or contestee, and we assume that it was the fault of some one in the office of the board. In argument it was stated without contradiction that the cause of the delay was a mistake in at first sending the certified copy to the clerk of court of a wrong county.
After the certified copy of the board's declaration of abandonment had been filed in the district court of Goshen County, the contestee, in response to summons or notice, appeared specially and moved to dismiss the proceeding, contending that under section 122-427, supra, the district court had no jurisdiction to review the order unless the certified copy thereof was filed within the statutory 60-day period. The district court granted the motion, and the contestant appeals.
The question for decision is whether the statute (§ 122-427, supra) which requires the board to cause a copy of its declaration of abandonment to be filed in the district court within 60 days is mandatory in that it means that a filing within the stated time is necessary to give the district court jurisdiction to review the board's order.
The statute must be construed in light of the principle stated in Allen v. Lewis, 26 Wyo. 85, 97, 177 P. 433, thus: "An affirmative statutory provision relating to the time or manner of performing official acts unlimited or unqualified by negative words is generally considered as directory rather than mandatory, though it is a question of intention, to be ascertained from a consideration of the entire act, its nature and object, and the consequences that might result from construing it one way or another." In Lewis' Sutherland on Statutory Construction (2d ed.) § 612, it is said that the cases universally hold that "a statute specifying a time within which a public officer is to perform an official act regarding the rights and duties of others is directory, unless the nature of the act to be performed, or the phraseology of the statute, is such that the designation of time must be considered as a limitation of the power of the officer." See, also Goodrich v. Peterson, 12 Wyo. 214, 74 P. 497; State v. Bolln, 10 Wyo. 439, 473-475, 70 P. 1; Bunten v. Rock Springs Grazing Ass'n., 29 Wyo. 461, 495, 215 P. 244; McClintock v. Ayers, 34 Wyo. 476, 488, 491, 245 P. 298; Samuelson v. Tribune Publishing Co., 41 Wyo. 487, 491, 287 P. 83.
Section 122-427 is an amendment (sec. 2, ch. 42, Laws of 1925) of a previous amendment (ch. 114, Laws of 1917) of section 6 of the original act (ch. 106, Laws of 1913) prescribing the procedure for declaring abandonment of a water right. Section 6 of the original act provided for appeals to the district court from decisions of the board of control. The legislatures that amended the section evidently thought that every declaration of abandonment by the board should be brought to the district court, and prescribed a somewhat anomalous proceeding for that purpose. It may be noted in passing that in Wyoming Hereford Ranch v. Hammond Packing Company, 33 Wyo. 14, 27, 236 P. 764, in considering the contention that the act of 1913 provided an exclusive procedure for determining the question of abandonment of a water right, we said that in certain cases the decisions of the board of control would be final, "subject to the right of appeal." This statement was on a point not involved in that case, and we evidently failed to notice that section 6 of the original act of 1913, providing for appeals from the board's orders, had been amended by an act that requires a review of every declaration of abandonment. See Van Tassel etc. Co. v. City of Cheyenne, (Wyo.) 54 P.2d 906, 912.
The legislature in amending the provision which provided for an appeal by the aggrieved party, and establishing a procedure intended to insure a review in the district court of every order of the board declaring an abandonment, required the filing in court of a copy of the order. This act lodges the proceeding in the reviewing tribunal. The duty of performing it is placed on the board, a constitutional and continuing body which has "supervision of the waters of the state and of their appropriation, distribution and diversion," subject to review by the courts. Const., Art. 8, Sec. 2. The contestant and contestee in the proceedings before the division superintendent and the board of control may have important rights depending on the district court's action in its review of the board's order. The State itself, as the owner of the water, may also have an interest that the statute seems to recognize by providing that the attorney general may appear on behalf of the board in the district court. The board is charged with the duty not only of filing a copy of its order in the court, but also of causing the notice or summons to issue. The contestee, the party injuriously affected by the action of the board, is not required to participate in the proceedings for review in the district court until after the copy of the order is filed and he is served with process. The contestant is not required to become an actor in the district court unless objections to the board's order are filed. If no objections are filed, a judgment of affirmance follows apparently as a matter of course.
We have no doubt that Section 122-427 is mandatory in requiring the board to file in court a copy of its order. The legislature did not contemplate that the board would fail to obey the mandate of the statute, and the consequences of a failure were not prescribed. A time for filing the copy was fixed by affirmative language that would naturally be chosen in providing for the orderly and proper dispatch of public business. The duty should be performed in the time specified in the law, but time is not of the essence of the act required to be done. The essential thing is the presentation of the order to the district court for review. This should not be avoided by the mistake or neglect of the board. We cannot hold that when the board fails to file a copy of its order in the time fixed by the statutes, the consequence is a loss of the power of the board to file it and a want of jurisdiction of the court to review it. On the other hand, the board failing to file the copy within the time, ought, if necessary, to be required to do so by mandamus. See Hugg v. Camden, 39 N.J.L. 620, 623.
The contestee cites cases holding that where a statute gives a right of action that did not exist at common law and fixes the time within which the right must be asserted, the time fixed is a limitation or condition attached to the right, and the statute must be strictly complied with. See Martini v. Kemmerer Coal Co., 38 Wyo. 172, 178, 265 P. 707, and cases cited. We do not think these cases are in point. They consider the effect of the failure of a claimant to do something within a limited time fixed by the statute. The proceeding in question in this case was commenced and prosecuted before the board of control in strict accordance with the statute. If we try to apply the rule of such cases to the proceeding now in question, we find that neither the contestant nor the contestee was charged with any duty in continuing the proceeding in the district court. We think the authorities support the view that even in proceedings unknown to the common law, a statute which imposes on a public officer a duty to be performed within a fixed time should be construed as directory as to the time of performance, if that is necessary to carry out the purpose of the statute. Geddes v. Rice, 24 Oh. St. 60; State ex rel. v. Barnell, 109 Oh. St. 246, 142 N.E. 611; Schick v. City of Cincinnati, 116 Oh. St. 16, 155 N.E. 555; Quirk v. Diana Mines Co., 34 Ida. 30, 198 P. 672; Spencer's Appeal, 78 Conn. 301, 61 A. 1010; Matter of Broadway Widening, 63 Barb. 572; Wood v. Chapin, 13 N.Y. 509, 521, 525.
We are cited to cases from other jurisdictions holding that a Justice of the Peace has no power to enter a judgment after the expiration of the time fixed by statutes similar to our section 62-904. The point was referred to, but not decided, in Farmers' State Bank v. Johnson, 36 Wyo. 191, 201, 253 P. 858. The reasons given for holding such statutes mandatory as to time (see Watson v. Davis, 19 Wend. 371; American Type Founders Co. v. Justice Court [dissenting opinion on motion for rehearing], 133 Calif. 319, 65 P. 742, 978, Sluga v. Walker, 9 N.D. 108, 81 N.W. 282) are not persuasive when applied to the statute now in question. See Goodrich v. Peterson, supra, and cases there cited.
It is suggested that the board of control in filing in court the copy of its declaration of abandonment, exercises a power similar to that exercised by arbitrators in returning their award. Bent v. Erie Tel. Tel. Co., 144 Mass. 165, 10 N.E. 778, and Abrams v. Brennan, 2 Calif. App. 237, 84 P. 363, are cited as authorities holding that an award must be made and filed within the time fixed by the agreement of the parties or by the statute which becomes a part of the agreement. There may be some doubt whether the failure of arbitrators to perform the ministerial act of filing their award should deprive the court of jurisdiction (see Boone v. Reynolds, 1 Serg. R. 231; Batten v. Patrick, 123 Mich. 203, 81 N.W. 1081; Bolhuis Lbr. Mfg. Co. v. Brower, 252 Mich. 562, 233 N.W. 415), but if we were sure that the mere failure to file an award in the time fixed therefor would invalidate an award made in time, we should not feel inclined to apply the principle to the case at bar. Arbitrators are not public officers. An arbitration rests on agreement of the parties who have the right to stand on the precise terms of their contract. See Goerke Kirch Co. v. Goerke Kirch Holding Co., 118 N.J. Eq. 1, 176 A. 902; Williston on Contracts, § 1929.
It may be thought that the filing in court of the copy of the board's order is an act similar to the filing of the report of a referee. See Pacific Livestock Co. v. Lewis, 241 U.S. 440, 451. If we accept this analogy, our decision finds support in cases holding that the mere ministerial act of filing a referee's report may be performed after the time fixed by statute. James v. West, 67 Oh. St. 28, 44, 65 N.E. 156; Matter of Empire City Bank, 18 N.Y. 199, 220; Creedon v. Patrick, 3 Nebr. (Unrep.) 459, 91 N.W. 872; Perkins v. Roberts County, 27 S.D. 281, 130 N.W. 443, 34 L.R.A. (N.S.) 581.
The order appealed from will be reversed, and the case remanded for further proceedings.
BLUME and RINER, J.J., concur.