lawfully embraced in the adjudication, subject, however, to the provisions of law for appeals, rehearings and for the reopening of the orders or decrees therein."

If the proceedings were reopened, the rehearings could be had only before the state engineer. The only appeal granted was to the district court; but as that court, under the Constitution, had and could exercise no such appellate jurisdiction, the act had the effect of making the determination of an administrative officer a final adjudication of property rights, from which there could be no appeal. The court very properly held the act unconstitutional in this respect. Ormsby County v. Kearney, supra, 37 Nev. 356, 379, 384, 385, 142 Pac. 803.

In the act as amended, section 44 was repealed. Sections 40, 41, 42, and 43, relating to the practice, undertakings, and costs on appeal from the decrees of the district court made on appeal to that court from the final order of the state engineer, were also repealed. The last clause of section 33, giving the determination of the state engineer full force and effect from and after the date of its entry in the records of the state engineer, was omitted. In the amended act, the determination is permitted to have no efficiency until it is filed in the district court; thereafter the division of water must be made in accordance therewith, but this division "may be stayed in whole or in part by any party upon filing a bond in the court wherein such determination is pending." After the stay bond, the order of determination seems to be shorn of all efficiency, except that it operates as a pleading, and may be affirmed by the court, without trial, if no exceptions are filed.

The provisions imposing fines and imprisonment on those who fail to appear and make proof of their claims, and for postponing their priorities to the later priorities of claimants whose proofs are filed in accordance with the provisions of the act, do not appear in the statute as amended. For those whose default is willful or negligent, the only detriment prescribed is that their rights must be determined by the state engineer from such evidence as he may obtain or have in his possession; and those who have no actual knowledge or notice of the pendency of the proceedings may, at any time within six months after entry of the determination, file a petition in intervention.

Sections 34, 35, 36, 37, 38, and 39 of the original act allowed any party aggrieved by the order of determination six months within which to perfect an appeal to the district court. He was required to file an undertaking, conditioned to prosecute his appeal without unnecessary delay, and also to pay all costs and damages which might be suffered by the party to whom the undertaking was given. He was also required to file in the district court a certified copy of the order appealed from, and all testimony and records offered before the state engineer, including maps and measurements, together with a petition setting out his cause of complaint.

In the amended act the aggrieved party is only expected to file his exceptions. There is no appeal from the determination of the engineer to the district court, but rather a continuation in that court of proceedings commenced by and before the state engineer. When he has made his determination, he must file it, together with the original

evidence and transcripts, in the district court; he must then apply to the court to have the matter set for hearing; he must notify each interested party, and file proof of service. The order of determination, the statements or claims of claimants, and the exceptions to the order will constitute the only permissible pleadings, and all the proceedings thereunder are had as nearly as may be in accordance with the rules governing civil actions. If necessary, the court may employ experts to investigate and report, or it may refer the case, or any part of it, to the state engineer for further evidence or determination. The proceedings culminate in a decree affirming or modifying the determination. The only appeal involving the order of determination provided for in the amended act is from the decree of the district court to the Supreme Court. There is no provision in the act of 1915 which declares that the determination of the state engineer shall at any time be in force and effect, save that, pending proceedings in court, the water may be distributed in accordance therewith, unless such distribution is prevented by a stay bond.

The insistence that the proceedings provided in the statute as amended, are tantamount to an appeal to the district court, as authorized in the act of 1913, is not well founded. At no stage does the determina tion possess any of the characteristics of finality; it cannot be regarded as terminating between the parties litigation on the merits of the case. It contemplates and provides for further information and testimony in the district court, before a final decree can be entered. It operates, not as a judgment, but as a pleading, or the findings of a referee. True, it may be affirmed without additional testimony, if no exceptions are filed. This is equivalent to the taking of a decree pro confesso when the allegations of the bill are sufficient to support the decree asked. Simkins, Federal Equity Suit, p. 388. A similar proceeding occurs when judgment by default is taken against a defendant who fails to answer in an action upon contract for the recovery of money or damages only. Rev. Laws Nev. § 5236.

It is insisted that the amendments of 1915 have failed to accomplish their purpose, and that the act as amended is still bad, in that it vests judicial power in a nonjudicial officer. It must be admitted that the amended act imposes duties on the state engineer which in their nature are judicial, but whether they come within the constitutional inhibition is the question.

Section 1, art. 3, of the Nevada Constitution, reads thus:

"The powers of the government of the state of Nevada. shall be divided into three separate departments-the legislative, the executive and the judicial; and no persons charged with the exercise of powers properly belonging to one of these departments shall exercise any functions appertaining to either of the others, except in the cases herein expressly directed or permitted."

Section 1, art 6, is as follows:

"The judicial power of this state shall be vested in a Supreme Court, district courts, and in justices of the peace. The Legislature may also establish courts, for municipal purposes only, in incorporated cities and towns."

It is argued that the judicial power of the state is thus completely distributed to the courts mentioned, and consequently the Legislature is

powerless to create new courts, except for municipal purposes in incorporated cities and towns, and has no reserve of judicial power to confer on an executive officer.

It will be noted that a complete and perfect separation of powers is not made by the Constitution itself. The veto power gives the Governor a qualified negative on all laws proposed by the Legislature. The Lieutenant Governor presides over the Senate, and has a casting vote. Each house of the Legislature is the judge of the qualifications, election, and returns of its own members; and the Senate is a high court for the trial of impeachments. Thus the Governor and Lieutenant Governor exercise legislative power, and the Legislature exercises judicial power.

Again, it is only those functions appertaining either to the judicial or legislative departments, which an executive officer is prohibited from exercising. Apparently it is not the exercise of all judicial authority, but the exercise of that portion of the judicial authority pertaining or belonging to the judicial department, which is forbidden. Apt and appropriate language certainly could have been employed to express complete and absolute segregation, if such had been the design of the men who framed and adopted the Constitution. It was this thought which led our Supreme Court to say in Sawyer v. Dooley, 21 Nev. 390, 396, 32 Pac. 437, 439:

"It is the state government as created by the Constitution which is divided into departments. These departments are each charged by other parts of the Constitution with certain duties and functions, and it is to these that the prohibition just quoted refers. It would be impossible to administer the state government, were the officers not permitted and required, in many instances, to discharge duties in their nature judicial."

Hence it was held that executive officers might be charged with the duty of assessing property, and required to act as a board of equalization; for, notwithstanding the fact that such a board may act in a judicial capacity, the Constitution nowhere contemplates that the judicial department, as organized by article 6, shall discharge that duty.

It is impossible to say that all acts judicial in their nature are within the exclusive province of the judicial department of the government. Numerous instances may be cited in which nonjudicial officers have been required to exercise functions which in a sense are judicial, and yet statutes imposing such duties have been held to be constitutional. For instance, we have a railroad commission, an industrial commission, a public service commission, a tax commission, boards of equalization, and boards of county commissioners. Not one of these bodies is a court, and yet under certain circumstances each is authorized to require the presence of witnesses, to listen to evidence, to hear argument, to ascertain facts, to apply existing law thereto, and to enter decisions seriously affecting the rights of individuals. Such judicial power exercised by nonjudicial officers is termed quasi judicial, to distinguish it from the judicial power which devolves upon, and may be exercised only by, the courts.

The ultimate purpose for which the adversary proceedings are had is a most important factor in determining their character. At the close

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of the chapter on Separation of Powers, section 753, in his work on the Constitution, Willoughby says:

"There is no constitutional objection to vesting the performance of acts essentially judicial in character in the hands of the executive or administrative agents, provided the performance of these functions is properly incidental to the execution by the department in question of functions peculiarly its

own."

In Landowners v. People, 113 Ill. 296, 309, it is said:

"Judicial power has never been held to apply to those cases where judgment is exercised as incident to the execution of a ministerial power, nor has it ever been held the exercise of ministerial power by the courts, within the meaning of this article, where they have been compelled to exercise a ministerial act as an incident to the exercise of judicial power."

If a judicial hearing is had before a legislative body to ascertain facts upon which to base legislation, the hearing will be quasi judicial, even though it may have been conducted in strict accordance with the practice in civil cases; it is merely preliminary and incidental to the legislative act. It is in no sense a function properly appertaining to the judicial department of the state government.

Again, an aggrieved shipper lodges with the Railroad Commission a complaint, alleging that certain charges are extortionate, unjust, and discriminatory; interested parties are notified; they appear; witnesses are summoned, examined, and cross-examined; there are arguments by the adverse parties; but the Commission-and this is significantmust determine that the allegations are true, that the prevailing rates are extortionate, unjust, or discriminatory, before it may by order establish and fix, in lieu thereof, rates which shall thereafter prevail. In all this there is no encroaching on the judicial power. The authority to determine what is a reasonable rate to be charged by a common carrier, or a public utility, is legislative, and not judicial, in the constitutional sense. The Constitution nowhere imposes on the courts the duty of making such investigations and determinations preparatory to and in aid of legislative acts. Hence they cannot be regarded as functions appertaining to the judicial department. Southern Pacific Co. v. Bartine (C. C.) 170 Fed. 725, 773; Idaho Power, etc., Co., v. Blomquist, 26 Idaho, 222, 141 Pac. 1083, Ann. Cas. 1916E, 282.

Similarly, the Industrial Commission has been invested with authority, and charged with the duty of hearing evidence and determining the facts which must be found to exist before any claim for compensation of injured workmen may be allowed. It is held that such a commission is not a court, but an administrative body, which in the course of its duties may decide questions of law and fact. In so doing, it acts quasi judicially, but is not vested with judicial power in the constitutional sense. Borgnis v. Falk Co., 147 Wis. 327, 358, 133 N. W. 209, 37 L. R. A. (N. S.) 489.

Judicial power, in the constitutional sense, is something more than authority to hear and determine; it includes the power to decide finally and conclusively, and also power to carry its determination into effect. Judicial power is defined by Mr. Justice Miller as the

"power of a court to decide and pronounce a judgment and carry it into effect between persons who bring a case before it for decision."

See Western Metal Supply Co. v. Pillsbury, 172 Cal. 407, 412, 156 Pac. 491, 493; Muskrat v. United States, 219 U. S. 346, 356, 31 Sup. Ct. 250, 55 L. Ed. 246; District of Columbia v. Eslin, 183 U. S. 62, 65, 22 Sup. Ct. 17, 46 L. Ed. 85; Gordon v. United States, 117 U. S. 697; Interstate Commerce Com. v. Brimson, 154 U. S. 447, 481, 14 Sup. Ct. 1125, 38 L. Ed. 1047.

In Underwood v. McDuffee, 15 Mich. 361, 368, 93 Am. Dec. 194, 196, the court said:

"No action which is merely preparatory to an order or judgment to be rendered by some different body can be properly termed judicial. A master in chancery often has occasion to consider questions of law and of fact, but no one ever supposed him to possess judicial power. A jury in a court of record determines all the facts in a case, but the judicial power is in the court which enforces the verdict by judgment. This view is very clearly explained by Kent, C. J., in Tillotson v. Cheetham, 2 Johns. [N. Y.] 63 (3 Am. Dec. 459), where it was held that the sheriff himself, when presiding over a jury of inquest, acted ministerially, because he had no power to give judgment. It is the inherent authority, not only to decide, but to make binding orders or judgments, which constitutes judicial power; and the instrumentalities used to inform the tribunal, whether left to its own choice or fixed by law, are merely auxiliary to that power, and operate on persons or things only through its action, and by virtue of it."

In McKnight v. Grant, 13 Idaho, 629, 637, 92 Pac. 989, 990, 121 Am. St. Rep. 287, 290, the Supreme Court of Idaho says:

"On the other hand, section 13 of article 5 of the Constitution was never intended to prohibit other departments of the state government than the judicial from exercising some judicial or quasi judicial functions. We think by this provision it was rather intended to preserve to the judicial department of the state government the right and power to finally determine controversies between parties involving their rights and upon whose claims some decision or judgment must be rendered or determination made."

It was held, in People ex rel. Morgan v. Hayne, 83 Cal. 111, 23 Pac. 1, 7 L. R. A. 348, 17 Am. St. Rep. 211, that the Supreme Court Commissioners of that state in reporting facts and conclusions of law, are not exercising judicial power.

In 1792 Congress passed an act requiring the Circuit Courts of the United States to examine into the pension claims of disabled veterans of the Revolutionary War, to determine what amount of pay would be equivalent to the disability incurred, and to certify the same to the Secretary of War, who was to place the names on the pension list in conformity thereto, unless he had cause to suspect imposition or mistake, in which event he might withhold the pension and report the case to Congress. The judges were of the opinion that, inasmuch as their determination would not be final, but could be suspended by an executive officer, the duties imposed could not be deemed judicial. Hayburn's Case, 2 Dall. (Pa.) 409, 1 L. Ed. 436.

In United States v. Ferreira, 13 How. 40, 14 L. Ed. 42, the District Judge of Florida was authorized by an Act of Congress to receive and adjudicate certain claims against the United States. His decisions allowing claims, together with the evidence on which he acted, were to be transmitted to the Secretary of War, and, if he was satisfied that the same were legal and just, he was authorized to pay them. The Supreme Court declared: