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Section 47 makes it a misdemeanor for any person to interfere with, injure, or destroy any dam, headgate, weir, bench mark, or other appliance for the diversion, carriage, storage, apportionment, or measurement of water. If this section only applies to new rights, then an old appropriator would have no protection under the statute in this respect. Section 48 makes the unauthorized use of water, to which another person is entitled, a misdemeanor. Does it mean a person only entitled to the use of water under the act?

device. Now, there is as much reason to re- | old rights. An examination of the proviso quire an old appropriator to maintain a sub- will show that this argument is faulty, bestantial headgate as a new appropriator. cause, if it be admitted to be sound, then we Such requirement was evidently intended to have only regulation for such reservoirs, caprotect the public against damage by reason nals, pipe lines, or other works of those owners of a ditch taking too much water and break- "who may have commenced the construction ing through banks, and also to conserve the of reservoirs, canals, pipe lines or other works, waters. or who have filed affidavits, applications or notices thereof for the purpose of appropriating for beneficial use, any waters as defined in section 1 of this act, in accordance with the laws of the territory of New Mexico, prior to the passage of this act," and have no regulations whatever for rights perfected at that time, or those acquired under the act of 1907. Such, of course, was never the intention of the lawmakers; for there is no reason whatever for the regulation of such rights to the exclusion of all others. The Legislature, in my judgment, by the terms of the act in question had provided clearly for the regulation of all rights; but in section 59, it had said that the act should not impair existing vested rights, or the rights of any person who had commenced the construction of their works, etc., and not desiring to remove such unperfected rights from the regulations provided for all other rights, as a matter of precaution inserted the proviso, so as to remove all doubts, and to bring such rights again within the operation of the statute, if perchance they had been taken out by the wording of the first part of the section.

Section 50 reads as follows: "Whenever any appropriator of water has the right of way for the storage, diversion, or carriage of water, it shall be unlawful to place or maintain any obstruction that shall interfere with the use of the works, or prevent convenient access thereto. Any violations of this section shall be a misdemeanor." Section 57 provides for the adoption of rules and regulations by water users, and clearly applies to old as well as new works; and likewise I think sections 63, 71, and 72 clearly were intended to apply to all water users.

It is contended, however, that by the pe- It is also suggested that the works referculiar wording of section 59 it is evident the red to in the section 59 are those which, unact in question was only intended to apply to der the act of 1905, application must be made certain water rights and irrigation works. to the territorial engineer for a permit to The section is as follows: "Nothing contain- construct, and that it does not refer to small ed in this act shall be construed to impair community acequias. I would ask what eviexisting vested rights or the rights and prior- dence there is in the record in this case to ities of any person, firm, corporation or asso- show that the ditch in question, and the ciation, who may have commenced the con- works connected with it, cost less than $2,000. struction of reservoirs, canals, pipe lines or As I read it, I have not been able to find a other works, or who have filed affidavits, ap-word or syllable tending to make any such plications or notices thereof for the purpose showing. Nor is there any proof showing the of appropriating for beneficial use, any wa- character of the proposed ditch, or the fact ters as defined in section 1 of this act, in ac- that it will involve no danger to life or propcordance with the laws of the territory of erty. Such claimed construction must be erNew Mexico, prior to the passage of this act: roneous, for section 59 refers to applications, Provided, however, that all such reservoirs, initiated by affidavit, thus clearly bringing canals, pipe lines or other works and the rights initiated under both chapters of the rights of the owners thereof shall be subject Session Laws of 1905 within the purview of to regulation, adjudication and forfeiture for the section. abandonment, as provided in this act." As I read the section, it does not justify such a construction. It specifically says that the act in question shall not impair existing vested rights. Without this declaration, the act could not have done so; but this was inserted, in my judgment, by the Legislature because of the fact that it had provided for the regulation of such rights, and disclaimed any intention, in so doing, of impairing any existing vested rights.

But it is argued that the proviso shows that it was not the intention to regulate such

It is further suggested that the question involved in this case is no longer of practical importance, except to the immediate parties, in so far as it relates to community acequias established and in operation prior to March 19, 1907, because by chapter 26 of the Session Laws of 1912 it is provided that no application to or permit from the state engineer is necessary to change the point of diversion of such an acequia. The act of 1912 reads as follows:

"Section 1. That it shall not be necessary for the officers of public community acequias

established and in operation prior to March, | struction placed upon the irrigation act by 19, 1907, to make any application to, or obtain any permit from, the territorial engineer or the board of water commissioners in order to change the place of diversion: Provided that by such change no increase in the amount of water appropriated shall be made beyond the amount to which the acequia was formerly entitled.

"Sec. 2. That it is necessary for the preservation of the public peace and safety of the inhabitants of the state of New Mexico that the provisions of this act shall become effective at the earliest possible time, and therefore an emergency is hereby declared to exist, and this act shall take effect and be in full force and effect from and after its passage."

To the casual observer it would appear that the act of 1912 was passed because of the issues involved in this very case, for such act is applicable only to community ditches, and that the authors of the act realized that under the act of 1907 all appropriators of water were placed upon an equal footing in the matter of regulations therein provided for. If the act has any effect or influence on the present case, it must be only to clearly demonstrate that the construction for which I contend is sound, and was so recognized by the legislative branch of the government, else why the necessity for the act. Under well-established rules of construction, the act of 1912 amounts to a legislative construction of the former act, and such legislative declaration of the meaning of the former act should govern the construction thereof. "If it can be gathered from a subsequent statute in pari materia what meaning the Legislature attached to the words of a former statute, they will amount to a legislative declaration of its meaning, and will govern the construction of the first statute. Morris v. Mellin, 6 Barn. & Cress. 454, 7 Barn. & Cress. 99; United States v. Freeman, 3 How. 556 [11 L. Ed. 724]." And 36 Cyc. p. 1142, lays down the rule thus: "A construction of a statute by the Legislature, as indicated by the language of subsequent enactments, is entitled to great weight."

In this case, in addition to the plain language of the act of 1907, we have as a further guide the construction of the act by a subsequent Legislature, in full accord with the views herein announced, and it seems to me there is no escape from the conclusion that sections 44, 45, and 25 of the act of 1907 apply to old as well as new rights, and include community acequias, as well as all others, and that these causes should be reversed.

this court makes it class legislation, and renders it obnoxious to section 18 of article 2 of the Constitution, which has the usual guaranty of "equal protection of the laws." It would seem to require neither argument nor citation of authority for the proposition that, given a reasonable classification of subjects, "equal protection of the laws" is had, if all within any given class are treated alike. That all such classification must be based upon some reasonable distinction is to be conceded. Counsel for appellant argues, in support of this motion for rehearing, that the classification which results from the construction of the irrigation act by the court is arbitrary and capricious, and has no reasonable basis upon which to rest. We cannot agree to the contention.

In the first place, regulation of any given business, occupation, or right should be provided for only when there is some reason or necessity for the same. Any given right of the citizen ought to be enjoyable without any supervision or restraint, unless the nature of the right, or of its exercise, is of such a character as to require the same in justice to the rest of the public. Applied to the old public community acequias, as is the case here, there seems to us to be no reason or necessity for any such regulation or restraint as is contended for by plaintiff in error. While perhaps without the field of judicial notice, it is nevertheless a matter of common knowledge that these acequias were constructed by the joint efforts of the settlers, whose lands were to be irrigated, without the aid of engineers, or without headgates of anything like a permanent character. There is no storage system in connection with them. They simply are ditches running out into a stream from which the water is taken. The bank of the stream, except at specially favored locations, is constantly subject to erosion in times of high water, and the headgates, such as they are, must each year be renewed or replaced at points either above or below the original point of diversion as the exigencies of the situation arise. The same situation often arises several times during the irrigation season. It therefore becomes a necessity to warn out the people and to reconstruct the headgates at once, or the crops for that season will perish. The situation of such public community acequias appears, therefore, to be unsuited to the regulation contended for, which involves advertisement and delay for at least four weeks. The Legislature is to be presumed, when it passed the act of 1907, to have examined the whole field, and to have determined that there was, by

For the reasons stated, I am compelled to reason of the character of the appropriations dissent.

On Motion for Rehearing.

PARKER, J. The motion for rehearing is

and diversions of water for irrigation theretofore made, no reason for regulations or supervision of the means of diverting and carrying of such water. A singular fact in this

We fully appreciate the force of the argu

records of the state engineer's office discloses | sel do not present the alleged unconstitutionthe fact that not a single permit has been ality of the act, as construed by us, as directgranted by him to a public community ace-ly available to plaintiffs in error, but it is quia to appropriate water since the passage presented more by way of argument against of the act of 1907, from which we infer that the construction adopted by us. the Legislature correctly determined, when it passed the act, that the whole field suitablement, and fully realize the duty of the court to the assertion of such rights as those in this case had been covered, and that in the future waters for irrigation were to be stored in large volumes, conducted over large areas, under one system, and, therefore, that supervision and control of such operations was desirable and necessary in behalf of the public welfare, health, and safety. There was reason, therefore, for the classification made.

The act in terms applies only to such rights as have been initiated, but not perfected, and to the rights which might be initiated and perfected thereunder. It does not apply in terms to perfected rights. Assuming that, under section 24 of the act, public community acequias, as well as all other appropriators, must now apply to the state engineer for a permit to make an appropriation of water, and must submit to the regulation imposed by the act, if, at some future time, a public community acequia shall have applied to the state engineer for a permit to appropriate water, and shall have obtained the same, and shall thereupon object to the regulation feature of the act, the question then may arise as to whether the classification, by the act, of prior appropriators into one class and subsequent appropriators into the other class is capricious and discriminatory. Until such a contingency, the question is not before us for determination. The denial of equal rights or the imposition of unequal burdens can be pleaded only by those who show that they belonged to the class discriminated against. 8 Cyc. 791; Cooley's Const. Lim. (7th Ed.) 232; Kansas City v. Union Pac. R. Co., 59 Kan. 427, 53 Pac. 468, 52 L. R. A. 321; State v. Currens, 111 Wis. 431, 87 N. W. 561, 56 L. R. A. 252; Brown v. Ohio Valley R. Co. (C. C.) 79 Fed. 176. To this class, if the act is indeed discriminatory, the plaintiffs in error in this case do not belong.

Whether a new appropriator, who initiates a right under the act, could ever question its constitutionality as construed, is not before us for decision, and we do not decide the same; but it would seem to be doubtful if a person who accepts the benefit of a state could, under any circumstances, be heard to complain of its unconstitutionality. See Cooley's Const. Lim. (7th Ed.) 554; Ferguson v. Landram, 5 Bush (Ky.) 230, 96 Am. Dec. 350; Moore v. Napier, 64 S. C. 564, 42 S. E. 997; Motz v. Detroit, 18 Mich. 495; Dewhurst v. Alleghany, 95 Pa. 437; Andrus v. Board of Police, 41 La. Ann. 697, 6 South. 603, 5 L. R. A. 681, 17 Am. St. Rep. 411; Dodd v. Thomas, 69 Mo. 364; Ralston v. Oursler, 12 Ohio St. 105; State v. Mitchell, 31 Ohio St. 592, 610. It is to be said, in this connection, that coun

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to so construe an act as to make it constitutional, rather than otherwise. But even assuming, but not admitting, that our construction does render the act open to objection of this kind, the terms of the act, as we read them, preclude us from departing from the construction heretofore adopted.

Strength is added to the argument in support of our construction of the act by reference to some other section not alluded to in the opinion. Section 57 provides that all rules and customs of water users from a "common canal, lateral or irrigation system" shall remain undisturbed by the act, "but nothing in this section shall be taken to impair the authority of the territorial engineer and water master to regulate the distribution of water from various stream systems of the territory to the ditches and irrigation systems entitled to water therefrom under the provisions of this act." Section 58 provides that no water master shall be appointed under this act until the prior rights to the use of water have been determined in one or more stream systems in this territory, under the provisions of the act. Section 12 of the act gives supervisory control over the apportionment of water “according to the licenses issued by him or his predecessor and the adjudications of the courts."

These three sections would seem to provide that when adjudication has been had, under the provisions of the act, of priorities of water rights, and when a water master has been duly appointed for any given water district, then, and not before, does the state engineer acquire jurisdiction to regulate the distribution of water to the various ditches and irrigation systems, both old and new, in said water district. After adjudication, old rights would seem to be subjected to the regulation and control by the state engineer, and the power to regulate the distribution of water to any given irrigation system would seem to include the power to regulate the point and means of diversion. After adjudication, old rights would seem, by the terms of the act, to come into the same general class with new rights initiated and perfected under the terms of the act, at least so far as the regulation feature is concerned.

The wisdom of postponing the jurisdiction of the state engineer until after adjudication of the priorities is at once apparent. Without adjudication there is no evidence before the state engineer, except such as he may gather ex parte in his investigations of the various stream systems, upon which to base his action as to the rights and priorities of water right owners who acquired their rights

prior to the passage of the act. As to all rights initiated under the provisions of the act, he has in his office evidence, complete and satisfactory, as to the relative rights of all of the water right owners in that class. And, after all, the only reason for supervision of the point of diversion, except when large storage, or diversion, or both, might endanger life or property, is to prevent the encroachment of one right upon another. If these rights have not been determined, there is no basis for the exercise of the supervisory

power.

sufficient if it appears that the act was wrongful and unlawful.

Battery, Cent. Dig. § 2; Dec. Dig. § 3.*]

[Ed. Note.-For other cases, see Assault and

2. PHYSICIANS AND SURGEONS (§ 15*)-RIGHT
TO OPERATE CONSENT.
Consent of the patient, either expressed or
implied, is necessary to authorize a physician
of the patient. An operation without such con-
to perform a surgical operation upon the body
sent is wrongful and unlawful, and renders the
surgeon liable in damages. Consent may be im-
plied from circumstances.

and Surgeons, Cent. Dig. § 32; Dec. Dig.
[Ed. Note.-For other cases, see Physicians
15.*]

3. ASSAULT AND BATTERY (§ 6*)-PHYSICIANS
AND SURGEONS (§§ 15, 18*)-OPERATION—
LIABILITY FOR DAMAGES QUESTION

JURY.

FOR

(a) That the plaintiff in error had no authority to remove a sesamoid bone from the defendant in error's foot without her consent, either expressed or implied.

The only other section of the act which might be construed to militate against the conclusion reached by the court is section 46, which provides that every ditch owner is reThe plaintiff in error advised an operation quired, when requested so to do by the state upon the great toe of the defendant in error's engineer, to construct and maintain a sub-right foot. She consented to the operation upstantial headgate at a point where the water be removed. on the express agreement that no bones should She was placed under an anæsis diverted, and a measuring device, of a de- thetic, and the operation performed, and in persign approved by the state engineer, at some forming the operation a sesamoid bone was repracticable point for measuring and appor- the removal of this sesamoid bone, and that its moved. Contending that she did not consent to tioning the water, as determined by the state removal was wrongful and unlawful, and that engineer. At first glance, this section might her foot was permanently injured by reason of seem to authorize the state engineer to re- the removal of this bone, she brought this acquire headgates and measuring devices for tion for assault and battery. It is held: the distribution of waters in all cases. But, as we have heretofore seen, the power to apportion and distribute waters as between old and new water right owner arises only after adjudication of their respective priorities, and hence has no application to old water rights, at least so far as the distribution of water is concerned, until such adjudication is had. It may be that under this section the state engineer has the power to compel the installation of headgates and measuring devices in all ditches in the state, for the purpose of determining the amount of water flowing in such ditches, and thus gather valuable data for future use in his office, or in the courts. But for the purpose of apportionment of water, as before seen, he has no jurisdiction over any old ditch system, until the rights and priorities of the owners of such system have been adjudicated in accordance with the terms of the act.

(b) That she did not expressly consent, and whether or not her consent was implied from the circumstances was a question for the jury to determine under all the evidence. (c) That, if the defendant in error did not consent, the removal of this sesamoid bone from her foot was wrongful and unlawful, and constitutes in law a trespass upon her person, and a technical assault and battery.

[Ed. Note.-For other cases, see Assault and Battery, Cent. Dig. § 3; Dec. Dig. § 6;* Physicians and Surgeons, Cent. Dig. §§ 32, 34-41, 43-46, 48; Dec. Dig. §§ 15, 18.*]

Commissioners' Opinion, Division No. 2. Error from District Court, Oklahoma County; Geo. W. Clark, Judge.

Action by Mattie Inez Strain against J. B. Rolater. Judgment for plaintiff, and defendant brings error. Affirmed.

Flynn, Chambers, Lowe & Richardson, of Oklahoma City, for plaintiff in error. E. G. For the reasons stated, the motion for re- McAdams and A. F. Moss, both of Tulsa, for hearing will be denied.

LEAHY, District Judge, concurs. ROBERTS, C. J., dissents.

(39 Okl. 572)

ROLATER v. STRAIN.

defendant in error.

GALBRAITH, C. This is an appeal from a judgment of the district court of Oklahoma county, rendered upon the verdict of a jury in favor of the defendant in error and against the plaintiff in error, for $1,000, in an action for trespass to the person.

The plaintiff in error is a physician and

(Supreme Court of Oklahoma. Nov. 11, 1913.) surgeon in Oklahoma City, and, at the time

(Syllabus by the Court.)

1. ASSAULT AND BATTERY (§ 3*)-CIVIL ASSAULT-PROOF REQUIRED-SURGICAL OPERA

TION.

In a civil action by a patient against a surgeon for assault and battery, it is not necessary to show that the surgeon intended, by the act complained of, to injure the patient. It is

of the wrong charged, owned and was conducting a sanitarium at Fourth and Stiles streets. The defendant in error, a young lady, was in the employ of the Pioneer Telephone & Telegraph Company, and on Feb ruary 7, 1908, when passing from the building of the company where she was employed,

stepped upon a nail which penetrated the great toe of her right foot. Inflammation set in, and the wound not having healed, some 60 days after the injury, the Pioneer Telephone & Telegraph Company caused the plaintiff in error to make an examination of the injured foot. He advised that an operation was necessary to effect a cure, and that the operation should be made by making an incision in the foot or toe so as to drain the joint and remove any foreign matter that might be found therein. It was agreed that the operation might be made, and the defendant in error was removed to the hospital of the plaintiff in error, an anæsthetic administered, and the operation performed. In performing the operation a sesamoid bone was removed. The cause of action is based on the removal of this sesamoid bone. It is not claimed that the operation was unskillfully performed, but that the plaintiff in error had agreed before the operation that he would not remove any bones from the foot, and that the removal of this sesamoid bone was without the authority or consent of the patient, and constituted a trespass to her person, and a technical assault and battery.

The petition, so far as material, averred that the defendant in error consented to the operation upon the express condition that no bone should be removed from her foot, and that the removal of this sesamoid bone was without her consent, or the consent of any one authorized to act for her, and was wrongful, and that the foot had been permanently injured, and that she had suffered great pain and distress of both body and mind by reason thereof. The defendant in error interposed a general denial, and during the course of the trial, by consent of the court, amended his answer setting out "that he was employed as her physician to drain the first joint of the large toe on the right foot; that at the time the said joint was infected, and it was necessary that the same be drained; that, in compliance with said employment, he made an incision into said toe; that, before reaching the joint so as to drain the same, he found it covered with a sesamoid bone which rendered it impossible to drain the joint without the removal of said sesamoid bone; that the said sesamoid bone was in an unusual place and its presence could not be ascertained by an examination; that, had said sesamoid bone not been removed and the joint properly drained, serious results would have followed; that the removal was necessary to effect a cure; that said sesamoid bone is not considered one of the bones of the human anatomy, and was not within the contemplation of the parties at the time said defendant consented to the operation." To this amended answer a general denial was filed.

[1-3] It is not denied that this bone was removed, and it is not contended that the defendant in error consented to its removal. The plaintiff in error denies that he under

137 P.-7

took the operation with the understanding that no bones were to be removed, but the defendant in error testifies that such was the agreement, and in this she is supported by the testimony of her mother and a sister. This evidence was sufficient to take this question to the jury. It is argued by the plaintiff in error that even if the contract was made as contended, that the sesamoid bone was not within the contemplation of the parties, and that its removal, under the circumstances disclosed by the evidence, was not a violation of the terms of the agreement, and that the jury should have been instructed to bring in a verdict for the plaintiff in error.

This case presents questions that are new, if not novel, not only in this jurisdiction, but there are few cases to be found anywhere on the questions presented here.

In discussing the case of Pratt v. Davis, from the Court of Appeals of Illinois, 118 Ill. App. 166, it was said in 37 Chicago Legal News, p. 213: "Under a free government at least, the free citizen's first and greatest right, which underlies all others—the right to the inviolability of his person, in other words, his right to himself-is the subject of universal acquiescence, and this right necessarily forbids a physician or surgeon, however skillful or eminent, who has been asked to examine, diagnose, advise and prescribe (which are at least necessary first steps in treatment and care), to violate without permission the bodily integrity of his patient by a major or capital operation, placing him under an anæsthetic for that purpose, and operating on him without his consent or knowledge."

In Mohr v. Williams, 95 Minn. 261, 104 N. W. 12, 1 L. R. A. (N. S.) 439, 111 Am. St. Rep. 462, 5 Ann. Cas. 303, involving the same principle as the case at bar, concerning the right to make this kind of contract, the court, after quoting from 1 Kinkead, Torts,

375: "The patient must be the final arbiter as to whether he will take his chances with the operation, or take his chances of living without it. Such is the natural right of the individual, which the law recognizes as a legal right. Consent, therefore, of an individual must be either expressly or impliedly given before a surgeon may have the right to operate"-said: "There is logic in the principle thus stated, for, in all other trades, professions, or occupations, contracts are entered into by the mutual agreement of the interested parties, and are required to be performed in accordance with their letter and spirit. No reason occurs to us why the same rule should not apply between the physician and patient. If the physician advises his patient to submit to a particular operation, and the patient weighs the dangers and risks incident to its performance, and he finally consents, he thereby, in effect, enters into a contract authorizing his physician to operate to the extent of the consent given, but no further."

An attempt is made in the brief to dis.

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