Acts 1891, p. 335. Further legislation was had upon the subject at the last session. By an act approved April 8, 1893, the sum of $40,000 was appropriated out of the general fund for the purpose of continuing the construction of said canal, and by an act approved nine days thereafter, to wit, on April 17, 1893, a state board of control was created for the purpose of completing the construction of the canal and reservoirs connected therewith, etc. This act requires the state engineer to prepare plans and specifications for the construction and completion of said canal and reservoirs connected therewith. In this act it is provided that public advertisement for bids shall be made. The board of control is authorized to enter into contracts for the completion of said canal and reservoirs, the contracts to be prepared by the attorney general. This act provides that payment for the material and labor furnished and performed in and about the construction and completion of the canal shall be made by means of certificates of indebtedness to be issued by the auditor of state. These certificates are made to bear 5 per cent. interest, and to be issued in lieu of immediate money compensation for materials and labor furnished. It is provided that such certificates of indebtedness shall be countersigned by the treasurer, and approved by the governor, and that the same, when so issued, "may be accepted by the state in payment for the carriage of water or in payment for lands, and the same shall not in any event become a claim against the state, except as to said fund so to be received." The act further provides: "The state board of land commissioners in order to facilitate the construction of said canal and reservoirs may, in conjunction with the board of control, advertise and offer for sale at not less than minimum price, every alternate quarter section of the state and school lands lying under the said canal." It is also provided that the certificates, when issued, may be received in lieu of money for the lawful and reasonable charges for the carriage of water by said canal, or for perpetual water rights thereunder. In accordance with this latter act the board of control advertised for bids for the construction of said State Canal No. 1, but has not yet let the contract for the same. The estimated additional cost of such canal is about $1,000,000. Eugene Engley, Atty. Gen., and Harvey Riddell, amici curiae. HAYT, C. J., (after stating the facts.) The questions submitted for our consideration are so general in character as to leave the court in doubt as to the particular provision or provisions of the constitution in the light of which Acting Governor Nichols wishes an investigation to be conducted. While this department will be found ready and willing at all times to co-operate with, and furnish to, the executive, such assist Both By ance as it may be able, to facilitate the.discharge of the public business, yet the court again takes the liberty of calling attention to the necessity of directing consideration to the specific provisions of the constitution upon which a construction is desired, when the inquiry concerns the constitutionality of a bill or an act of the legislature. In re Irrigation, 9 Colo. 620, 21 Pac. Rep. 470; In re House Bill No. 165, 15 Colo. 593, 26 Pac. Rep. 141; In re Loan of School Fund, 18 Colo. 32 Pac. Rep. 273. We have been aided in the present instance by brief arguments from the attorney general and H. Riddell, Esq., of the Denver bar. We shall limit our reply to the constitutional provisions called to our attention in such arguments. The expenses of construction of the canal in question are to be met in part by certificates of indebtedness. principal and interest of these certificates are only to be paid out of funds received for the carriage of water or in payment for lands. The act expressly provides against any indebtedness being incurred on the part of the state, and therefore is not in conflict with the constitutional provisions heretofore considered by this court, fixing a limitation upon state indebtedness. See In re Appropriations of General Assembly, 13 Colo. 316, 22 Pac. Rep. 464. the terms of the act the certificates authorized may, when issued, be "accepted by the state in payment for the carriage of water or in payment for lands." As the state has not undertaken the construction or management of any ditch other than the one mentioned in the act, the carriage of water for which the certificates are to be receivable must necessarily be confined to water carried by this ditch, at least for the present. The same limitation does not, however, apply to the payment for lands. No restriction as to the location of such lands is to be found in the act. Only a small portion of the large bodies of land owned by the state are situate in proximity to the route of the proposed ditch. This fact was well known to the legislature, and, in the absence of any express limitation, we conIclude that it was the intention to make the certificates receivable in payment for lands purchased from the state, without regard to the location of such lands. Is the legislature empowered to authorize the acceptance of such certificates in payment for lands of the state? Outside of a few small tracts of land used for specific purposes, the only lands owned by the state were received as donations from the general government for specific purposes, such as schools, public buildings, etc. See sections 7-10, Enabling Act. The framers of our constitution, with conscientious regard for the terms of the gift, inserted the following provision in that instrument: "The general assembly shall, at the earliest practicable period, provide by law that the several grants of lands made by congress to the state shall be judiciously|jection to this portion of the act. The state board of land commissioners, in order to facilitate the construction of said canal and reservoirs, may in conjunction with the board of control, advertise and offer for sale at not less than minimum price, every alternate quarter section of the state and school lands lying under the said canal." Inasmuch as the foregoing directly embraces the school lands in its provisions, attention is called to the following section of the state constitution, in addition to the one previously cited: "The public school fund of the state shall forever remain inviolate and intact; the interest thereon only shall be expended in the maintenance of the schools of the state, and shall be distributed amongst the several counties and school districts of the state, in such manner as may be prescribed by law. No part of this fund, principal or interest, shall ever be transferred to any other fund, or used or appropriated except as herein provided. The state treasurer shall be the custodian of this fund, and the same shall be securely and profitably invested as may be by law directed. The state shall supply all losses thereof that may in any manner occur." Section 3, art. 9, State Const. This section was recently considered by the court in answering a question submitted by the state senate. As the views of the court were quite fully expressed at that time, we refer to the opinion then rendered without further comment. In re Loan of School Fund, supra. But this is not the only constituuonal ob By its terms the board of control is authorized to Although parts of the act are unquestionably in conflict with the constitution, the entire statute does not necessarily fail for this reason. The act is to expedite the completion of a canal, the construction of which had theretofore received the sanction of three successive legislatures, including the one passing the measure under review. A legislative intent to complete the work inaugurated could not well be more manifest. This intent in no measure rests upon the objectionable provisions. The act provides for the issuance of certificates in lieu of cash, and, although the certificates cannot be accepted in payment for the public lands sold by the state, they may be accepted in lieu of money for charges for the carriage of water in said canal, or for perpetual water rights thereunder, as provided by section 14 of the act. Tripp v. Overocker, 7 Colo. 72, 1 Pac. Rep. 695. As at present advised, we are aware of no constitutional objection to the issuance of certificates limited as aforesaid. In re PRIORITY OF LEGISLATIVE APPROPRIATIONS. (Supreme Court of Colorado. Oct. 16, 1893.) QUESTIONS BY GOVERNOR - OPINION OF SUPREME COURT-PRIVATE RIGHTS-DUE PROCESS. Under the constitutional provision requiring the supreme court to answer questions propounded by the legislature and governor, a question as to the priority of appropriations where their aggregate exceeds the constitutional limitation, involving claims of private parties against the state, should not be answered, as this would be a mere ex parte adjudication, in violation of Const. art. 2, § 25, providing that no one shall be deprived of property without due process of law. The opinion was rendered in response to the following communication from the gov ernor: Executive Department, State of Colorado. Sept. 19, 1893. To the Honorable Supreme Court of the State of Colorado: Whereas, difference of opinion exists in the executive department as to the matters hereinafter stated; and whereas, great doubt exists as to the proper duties of the governor, auditor, and other officers of said department in the premises; and whereas, by reason of such doubt and differences of opinion suits have been and are constantly being brought against the auditor on special acts of the legislature, but such special proceedings do not enable the auditor to properly decide as to his proper course of proceeding generally; and whereas, said suits involve the state and its officers, as well as private persons, in long litigation and much expense and trouble, whereby the state is injured in its name, credit, and resources; and whereas, the laws relating to such matters are much confused, and a correct rule of proceeding of great public importance: Now, therefore, I, Davis H. Waite, governor of the state of Colorado, do certify that the questions submitted are important, and arise upon a solemn occasion. I request, therefore, the opinion of the honorable court in answer to the following questions, viz.: Whereas, the ninth general assembly of the state of Colorado passed the following bills without emergency clause, creating new offices, and making appropriations for the same: House bill No. 120. An act to regulate the manufacture and sale of oleomargarine, etc., page 351, Sess. Laws Colo. 1893. Senate bill No. 173. An act to create a state board of health, and define its powers, duties, etc., page 397, Sess. Laws Colo. 1893. Before the bills became a law, owing to the absence of the emergency clause, the total amount appropriated by the legislature for the fiscal years 1893 and 1894, for the necessary expenses of the executive, legislative, and judicial departments, state institutions, and relief of sundry parties exceeded the estimated revenue for the fiscal years 1893 and 1894. 1. Should the bills above mentioned take precedence over other appropriations of prior date other than appropriations for legislative, executive, and judicial departments? 2. Do the offices created by said bills belong to the executive department of the state, within the meaning of the constitution, and In re Appropriations by General Assembly, 13 Colo. 316, 22 Pac. Rep. 464? 3. On the failure of the legislature to make any appropriation for the salary of any state official, can the auditor of state issue to said officer a certificate of indebtedness or warrant for salary due, and especially when such issue would be in excess of the revenue or the constitutional limit, and if the sum of all its salaries exceeds the revenue for a particular year, in what order and on what basis shall warrants or certificates of indebtedness be issued for such salaries; and in this connection, is there any distinction between offices established by the constitution and those established by statute? 4. Can the auditor of state draw warrants or certificates of indebtedness for salaries created in said bills, notwithstanding the fact that such issue would exceed the revenues of the fiscal year wherein such warrant or certificates of indebtedness were 18sued? Respectfully submitted, DAVIS H. WAITE, Governor of Colorado. Eugene Engley, Atty. Gen., and Harvey Riddell, amici curiae. HAYT, C. J. The preamble to the questions submitted by his excellency, the governor, advises us, among other things, that suits involving the matters embraced in the foregoing interrogatories "have been and are constantly being brought against the auditor," etc. Although we are not informed by the communication by whom such suits have been instituted, or what has created in the mind of the executive an apprehension that other suits may be brought, it is manifest from the communication that private rights are involved. Moreover, it was admitted by counsel at the oral argument, with which we were favored, that upwards of a half million dollars in claims against the state, held by private parties, may be affected, should answers be returned to the questions submitted, and we cannot ignore the fact that a test case is now pending in the district court of Arapahoe county, where cisions of this court that all such excess appropriations are absolutely void. In fact, the constitution contains such plain and explicit inhibitions against the state being burdened with debts thus created as to leave no room for construction. If, however, the appropriations do in fact exceed the estimated revenues for the years 1893 and 1894, as all cannot be paid, a question of preference between claimants is involved that cannot be determined in this proceeding. In re Appropriations by General Assembly, 13 Colo. 316, 22 Pac. Rep. 464; In re District Attorneys, supra. Should the auditor illegally decline to issue warrants for the salary of the state dairy commission, or refuse to audit and allow claims arising under the act entitled "An act to create a state board of health, and define its powers, duties,” etc., the courts are open to the aggrieved parties to have such action reviewed in a proper proceeding. And, if the public interests require it, the cause may be advanced, and a speedy determination had, both in the trial court and upon appeal, should an appeal be taken. But for us to undertake to determine such conflicting claims in answer to an executive question would be to overrule prior decisions of this court, and ignore a constitutional guaranty now universally recognized. in the holders of a part at least of such | tution. It is well settled by previous de claims are seeking to have the same adjudicated. Under these circumstances, the impropriety of formulating in this proceeding a general rule to govern the auditor in the future is manifest. All the reasons that can be marshaled in support of such a general rule for the guidance of the present auditor of state and his successors in office were equally as applicable at the time his predecessors in office acted, either favorably or unfavorably, upon like claims. The announcement of any rule in this ex parte proceeding at variance with the prior practice would be quite certain to invite, rather than discourage, litigation. It is a fundamental right of all parties having claims against the state to have such claims, if contested, determined in the ordinary course of judicial proceedings. In obedience to this universally acknowledged principle, our state constitution declares: "No party shall be deprived of life, liberty, or property, without due process of law." Article 2, § 25. Speaking of this provision in connection with the one requiring the court to give its opinion in answer to executive and legislative questions upon solemn occasions, this court has said: "But there cannot be due process of law unless the party to be affected has his day in court. Yet a careless construction and application of this constitutional provision might lead to the ex parte adjudication of private rights by means of a legislative or executive question, without giving the party interested a day or voice in court." In re District Attorneys, 12 Colo. 466, 21 Pac. Rep. 478. And again in the same case, page 470, 12 Colo., and page 479, 21 Pac. Rep.: "This consideration greatly reinforces the proposition that it could not have been the purpose of those who framed the amendment to permit such ex parte adjudications by means of executive or legislative questions." In another case it is said: "It could not have been the intention to authorize an ex parte adjudication of individual or corporate rights by means of a legislative or executive question; parties must still adjudicate their rights in the ordinary and regular course of judicial proceeding." In re Irrigation, 9 Colo. 621, 21 Pac. Rep. 470. Only a few states of the entire Union have at present provisions analogous to the one under which these questions have been propounded, and Colorado has gone further than any other state, inasmuch as by our constitution questions are to be propounded to, and answers returned by, the court, instead of the justices, as elsewhere, and published in connection with other decisions, thus giving such answers to some extent, the force and effect of judicial precedents. In re District Attorneys, supra. The questions submitted assume that the aggregate of appropriations made by the ninth general assembly exceed the limits prescribed by section 6, art. 10, of the consti It has been suggested that the embarrassment under which the auditor is now laboring grows out of the improper recognition of an appropriation prior in point of time to any of those referred to in the communication. As to whether this suggestion attributes the trouble to the proper source, we are not prepared to say. The matter is alluded to for the sole purpose of showing the futility of undertaking to solve the difficulty in this proceeding. In view of the foregoing, we cannot with propriety further answer the questions propounded. NICHOLS v. MCINTOSH et al. TIES. 1. The same irrigating ditch may have two or more priorities belonging to the same or different parties, and two or more persons may divert water through the same head gate for the irrigation of their several farms, without any surrender, joinder, or merger of their respective priorities. 2. An adjudication of priorities under the irrigation acts of 1879 and 1881 will not, without due process of law, deprive a person of his constitutional or vested rights, such as prior rights to the use of water; nor will such rights be affected by the lapse of time, so long as they are not actually denied, abridged, or interfered with by the enforcement of the de cree entered in such proceedings. 3. A person may abandon an irrigating ditch without abandoning his water rights. Such rights may be abandoned by nonuser, but so long as the appropriator continues the use of such rights without any unreasonable volun tary cessation, an abandonment will not be presumed against him. 4. Any person whose rights may be affected by an adjudication of priorities is entitled to be made a party. 5. No one is entitled to have a priority adjudged for more water than he has actually appropriated, nor for more than he actually needs. Priority of right is limited by each of these considerations. (Syllabus by the Court.) Appeal from district court, Boulder county. Action by George W. Nichols against Lemuel McIntosh and others for an adjudication of priority of right to the use of water for irrigation, and to restrain the water commissioner from the diversion of water in certain irrigating ditches. From a judgment dissolving the preliminary injunction and dismissing the action, plaintiff appeals. versed. Re B. L. Carr and Alpheus Wright, for appellant. R. H. Whiteley, for appellees. ELLIOTT, J. Appellant, George W. Nichols, was plaintiff below. Appellee McIntosh was water commissioner of irrigation district No. 6, and one of the defendants below. The evidence shows that at the commencement of this action plaintiff was the owner and in possession of a certain quarter section of land located in Boulder county, Colo. Nichols first settled upon the land in 1859, before the same was surveyed by the United States government, and before the territory of Colorado was organized. He remained in possession, by himself and his tenants, continuously thereafter for about 30 years, and until the trial of this cause, in September, 1889. It was undisputed at the trial that he had received and still held a patent for the premises from the United States. North Boulder creek, a natural stream of water, enters plaintiff's land from the west, and, running in an easterly course, divides the land, leaving about 50 acres to the north, and about 110 acres to the south, of said stream. Plaintiff claims that in 1859 he constructed an irrigating ditch, by which he diverted water from said stream to irrigate his land upon the north side of Boulder creek, and that in 1861 he constructed another irrigating ditch to irrigate his land upon the south side of said stream. There was evidence that the head gates of these ditches were changed several times in order to better secure the diversion of water, and that in 1878 Nichols and others constructed a ditch on the south side of Boulder creek, having its head gate farther up the stream than the former south-side Nichols ditch; and that thereafter Nichols received his supply of water through the new ditch for the irrigation of his south-side lands, his share of the water being turned from the new ditch into his old south-side ditch some distance from the natural stream. 1. Upon this phase of the case the trial court held, inter alia: "That two independent ditches claiming priority of water rights as against each other as ditches cannot have the same identical head gate or starting point." This was error. The law is well settled in this state that a person who has lawfully appropriated water to beneficial use may change the point of diversion without losing his right of priority. A change of water way does not necessarily involve a change of water rights. In acquiring a priority of right to the use of water for purposes of irrigation, the mode of diversion is unimportant; and such rights are entitled to be protected, irrespective of the mode of diversion. The same irrigating ditch may have two or more priorities belonging to the same party or to different parties. Thomas V. Guiraud, 6 Colo. 530; Rominger v. Squires, 9 Colo. 328, 12 Pac. Rep. 213; Fuller v. Mining Co., 12 Colo. 12, 19 Pac. Rep. 836; Reservoir Co. v. Southworth, 13 Colo. 111, 21 Pac. Rep. 1028; Mills' Ann. St. § 2408. The statute of this state provides for the conveyance of water by two or more parties through the same irrigating ditch, under certain circumstances. Sess. Laws 1881, p. 164. This statute indicates the general policy of our irrigation laws. Even without such a statute, persons voluntarily uniting their irrigating ditches would not necessarily forfeit any priorities which they might have theretofore respectively acquired. It was doubtless a matter of mutual convenience for Nichols and his associates to convey the water for the use of their respective farms for a certain distance through the same irrigating ditch, and in so doing they were entitled to have their respective rights protected the same as if the water had been conveyed through separate ditches or through ditches having separate and independent head gates. Tripp v. Overocker, 7 Colo. 72, 1 Pac. Rep. 695; Downing v. More, 12 Colo. 316, 20 Pac. Rep. 766; Irrigation Co. v. Davis, 17 Colo. 326, 29 Pac. Rep. 742; Rominger v. Squires, supra. It appears that in 1882 an adjudication was had of appropriations of water for irrigation in district No. 6, which district includes Boulder creek and its tributaries. This adjudication was under the acts of 1879 and 1881. By decree of the court it was adjudged that the new ditch, called the "Wellman Ditch," constructed by plaintiff and others, was entitled to a priority as of May 1, 1878. Plaintiff testifies that, being absent from the state for many years before and after 1882, he was not personally served with process, and that he did not have any notice of the proceedings to adjudicate priorities under said act. So far as this record discloses, plaintiff did not appear in the proceeding, nor did any one appear for him to procure an adjudication of the priorities of right to the water appropriated through either of his original ditches, nor was any separate priority adjudged of the water re ceived by him through the Wellman ditch. |