STATE ENGINEER. Division engineer has authority to act as water commissioner. State Engineer has general control of public waters of the State, and general charge over division engineers and water commissioners. Denver, Colo., October 17, 1903. L. G. CARPENTER, ESQ., State Engineer, State Capitol. Dear Sir-I have your letter inquiring: First. Whether, under section 2454, M. A. S., the superintendent of irrigation, by himself, or through a deputy, has the authority to act as a water commissioner in any district where there is a water commissioner actually in service in that district. Second. Whether, under the statutes, the State Engineer would have authority in person, or by deputy, to adjust, open or close such gates. Would such authority be implied by section 2386, M. A. S., or other provisions of the statutes? In reply I would say that I assume that you use the expression "superintendent of irrigation" for that of "irrigation division engineer" as the former office no longer exists, having been abolished by the act approved April 4, 1903, and found in Session Laws 1903, at pages 281-288, by section 9 of which act, the irrigation division engineer is governed by all acts heretofore enacted, relative to superintendents of irrigation. In reply to your first question above quoted, I would say that section 2454 of M. A. S., provides that superintendent of irrigation (now irrigation division engineer), "shall have power to perform the regular duties of water commissioner in all districts within his division." By section 2386, M. A. S., it is provided "that the orders of the superintendents of irrigation in their respective divisions, and the orders of the State Engineer, shall be held, at all times, superior to the orders of water commissioners, and shall relieve any person acting in accordance with such superior order, from the penalties, herein provided; and provided also, that, in like manner, the orders issued by the State Engineer shall be held superior to any order issued by any superintendent of irrigation," so that my answer to your first question is, that the superintendent of irrigation, or irrigation division engineer as he is now called, has authority to act as water commissioner in any district where there is a water commissioner actually in service in that district; but, as a matter of practical policy, the irrigation divi sion engineer would, naturally, act through the water commissioner. In reply to your second question I would say that, inasmuch as section 2386, M. A. S., above quoted, especially provides that the orders issued by the State Engineer shall be held superior to any order issued by a superintendent of irrigation, as well as other provisions of the statutes relating to the powers and duties of the State Engineer, I am of the opinion that the State Engineer has the authority to adjust, open or close such gates whenever, in his opinion, it is necessary for him so to act, and that an act he can do himself, he can order done by his deputy, as he is given power to appoint a deputy either generally or to do a particular service. See section 2454, M. A. S. Moreover, the State Engineer is given. general supervision and control over the public waters of the State. See section 2459, M. A. S.; and is also given general charge over the work of division water superintendents and district water commissioners. See section 2461, M. A. S.; also section 9, Session Laws 1903, page 284; and section 5, Session Laws 1901, page 195. Yours truly, N. C. MILLER, By HENRY J. HERSEY, STATE ENGINEER-IRRIGATION. Opinion of October 17, 1903, as to authority of State Engineer to open or close headgates, etc., affirmed. This office can not pass upon effect of injunctions against State Engineer in advance of a concrete case. L. G. CARPENTER, ESQ., State Engineer, State Capitol. Denver, Colo., March 11, 1904. Dear Sir-I have your letter requesting my advice as to the authority of the State Engineer, in cases where the superintendent of irrigation or water commissioners are unable to act for any reason, and as to whether in the case an injunction has been served upon the superintendent of irrigation or water commis sioner, or both, and not upon the State Engineer, the State Engineer or his deputy could take charge of and close the head gates, etc. In regard to the general authority of the State Engineer to adjust, open or close head gates, I would refer you to my previous opinion to you upon this point, dated October 17, 1903, which, I think, sufficiently covers the subject. As to what would be your authority or duty in case of an injunction to restrain the closing or interference with head gates, you will appreciate, upon further reflection, that I could not advise you in advance of knowing just what the particular injunction covered, for no general rule would be safe for you to act upon. I am, Yours respectfully, N. C. MILLER, By HENRY J. HERSEY, CHARGES AGAINST WATER COMMISSIONER. In preferring charges against a water commissioner, complainant should be required to furnish a bond in a reasonable sum, fixed by ⚫division engineer, conditioned upon reasonable expenses being paid to the commissioner in case charges are false. Next commissioner should be furnished copy of charges and notified of day of hearing. At the trial he can be represented by counsel and have testimony reduced to writing. Depositions may be taken in any part of the State, and the decision must be rendered within five days after the trial. Within ten days thereafter all papers should be filed with State Engineer, that he may review the same, if commissioner is suspended. If suspension made permanent, Governor fills by appointment. L. G. CARPENTER, ESQ., State Engineer, State Capitol. Denver, Colo., August 31, 1903. Dear Sir-I have your letter informing me that charges have been made against a water commissioner to the division engineer having jurisdiction over Irrigation Division No. 1, under section 10 of an act approved April 4, 1903, found in Session Laws of 1903, pages 281-288, and requesting that, as this is the first com plaint, I give you my advice as to the proper mode of procedure in such cases. It will be seen by said section 10 that the first thing required of the complainant is to make and file with the division engineer of the proper irrigation division such charges as he desires to make against the water commissioner, which charges must be specifically set forth in writing. The complainant is required to furnish a good and responsible bond in such reasonable sum as may be fixed by the division engineer, conditioned on the payment of the reasonably necessary expenses incurred by the water commissioner in case the charges preferred against him are not sustained by the division engineer. It is not stated to whom the bond shall be given, but, as it is for the benefit of the water commissioner against whom the charges are filed, the bond should be made to the water commissioner. As it is impossible in advance to estimate the possible expenses of the hearing and trial, the division engineer should fix the bond in a sum sufficiently large to cover the reasonably necessary expenses incurred by the water commissioner, in case the charges are not sustained; and ordinarily a bond for from $500 to $1,000 would be amply sufficient. This bond should be required at the time the charges are filed, in order that the hearing may not be undertaken if the complainant is unable to comply with this statutory requirement. I advise that the division engineer endorse upon the bond when approved the fact and date of its approval by him; also the date on which it was filed. The next step is the notification of the accused water commissioner that charges have been made against him, which notification should be accompanied by a written copy of the charges, and should notify the accused of the time of the trial, which should be set for not less than five days after the service of such notice. No manner of service is provided by the statute, and in order to definitely fix the date of service the only safe course to pursue is to have some person personally serve the notice, with a copy of the charges, and to make affidavit as to the time and manner of such service after the manner of serving a summons in an ordinary civil action. The copy of the charges should, of course, be furnished by the complainant at the time of filing the original with the division engineer. At the time of trial, being not less than five days after the service of notice and copy of charges upon the accused, the division engineer hears and tries the case after the manner, as near as may be, of ordinary trials in courts. The statute expressly provides that the water commissioner shall be permitted to appear in person and by counsel, and introduce evidence. At the trial, the statute expressly requires that all oral testimony shall be reduced to writing. It is also provided that either party may take depositions anywhere in the State, and may have them read at said trial by giving the opposite party twenty-four hours' "notice of the time, place and names of the parties whose depositions are thus to be taken." Notice of the taking of depositions should, of course, be filed with the division engineer, so that before the depositions are read in evidence before him he may be advised whether they were taken upon proper notice. The reducing to writing of the oral testimony, of course, necessitates the employment of a stenographer competent for that purpose. Within five days after the date set for trial, the case must be tried and decided by the irrigation division engineer, so that in no event should the trial and decision consume more than five days. If, after hearing the evidence and argument of counsel, the division engineer finds the water commissioner guilty of any of the offenses charged, then, and in that event only, is the irrigation division engineer empowered to suspend him. Within ten days after the decision of the division engineer suspending the water commissioner, the division engineer is required to file all pleadings, papers and testimony with the State Engineer, that he may review the case. Upon the filing of the pleadings, etc., with the State Engineer, the State Engineer is required to appoint a competent deputy to at once assume control of the district of the water commissioner so suspended, which deputy retains control until the disability of the commissioner is removed, or a new commissioner is appointed and qualified, and he is paid from the State Engineer's Assistants' Fund. The State Engineer is required to review the action of the division engineer as expeditiously as possible, and within thirty days from the time of receiving such papers, must submit his findings to the Governor for his action. If the State Engineer recommends to the Governor in his findings that the suspension should be made permanent, the Governor is required to forthwith appoint, upon the recommendation of the proper board of county commissioners, as provided by law, some suitable and competent person to fill the vacancy. No manner of procedure for review by the State Engineer is laid down by the statute, so that the State Engineer is at liberty to consider the case with or without argument of counsel upon the pleadings, papers and testimony filed with him by the division engineer, but the language of the statute, "for review," does not contemplate the taking of any additional testimony by the State Engineer, but simply a review of the record as submitted to him by the division engineer. This power of review, of course, permits the State Engineer either to sustain, modify or reverse the decision of division engineer, and, while |