(concurring).

With the minor exception hereafter noted I concur in Judge Stephens’ opinion. It is apparent that if the case of Rank v. Krug should ever reach this court on appeal from final judgment, we may then be confronted with a problem similar to that discussed in Larson v. Domestic & Foreign Corp., 337 U.S. 682 , 69 S.Ct. 1457 , 93 L.Ed. 1628 . Our present opinion concerns only the order of April 24, 1953, and that for the reason that we may now move only so far as necessary to protect our appellate jurisdiction against loss of what Judge Stephens calls “the res of Lhc case.” This limitation of the scope of our opinion should not be construed to be an expression of our views as to those questions which we may properly consider if there should be such an appeal.

My own interpretation of the so-called “consent to the order” of April 24 gives it a rather limited effect. When the colloquy quoted in footnote 3 of the opinion took place, Mr. McPherson, the Special Assistant to the Attorney General was representing only Poke, Blote, Roduer and Durant. The United. States was not a party, and neither the Secretary of the Interior nor the Commissioner of Reclamation had been served. And while McPherson, as attorney for those he did rep *310 resent, naturally sought the approval of the Departments of Justice and Interior, the approval was to the effect that Bolee, Blote, Rodner and Durant might consent to the order. These were the four whose previous efforts to have the case dismissed on the ground that it was a suit against the United States, had been denied. In short, as I view it, it was these four defendants alone who consented. I cannot see that the United States, as such, consented.

In my opinion, the extent to which the April 24 order went was such as to raise serious doubts as to the power of the court to issue it, either with or without .the consent of the United States, and regardless of the presence or absence of indispensable parties.

The respondent court, like'the Supreme Court and courts of appeals, is a Constitutional court. Cf. Public Service Commissioner of Puerto Rico v. Havemeyer, 296 U.S. 506, 518 , 56 S.Ct. 360 , 80 L.Ed. 357 . Its jurisdiction is limited to “cases” and “controversies” under Art. III, § 2 of the Constitution. Such courts “share in the exercise of the judicial power defined in that section, can be invested with no other jurisdiction, * * * with no power in Congress to provide otherwise.” Ex parte Bakelite Corp., 279 U.S. 438, 449 , 49 S.Ct. 411, 412 , 73 L.Ed. 789 . The court, in the exercise of its jurisdiction to determine and adjudicate water rights, would of course have power to make any order necessary or appropriate to preserve the status quo. To that end it could exercise its power to grant an interlocutory injunction, or to appoint a receiver. Such are accepted means whereby courts commonly exercise their judicial power. But the order here in question goes far beyond anything which courts, acting in a purely judicial capacity, have traditionally undertaken to do. Here the court, through its agent, is about to tell the Bureau of Reclamation what work is to be done on or near the pumps of the water users. The Bureau may reduce the quantity of water discharged down stream only if the court’s agent agrees that the reduction will allow efficient operation of the pumps, and reduction below 400 second-feet may be made only with the approval of the court. The Bureau must do work on the water users’ pumps as the court’s agent may, in his opinion, think required. 1 '

In substance, the court has undertaken to manage and control the flow from Friant Dam, pendente lite, through the court’s agent. The agent’s functions resemble those of a water master or water commissioner. In California, such an official is appointed by a state administrative agency or department. 2 In Montana, the State district court appoints a water commissioner to distribute the waters adjudicated, or about to be adjudicated by the court, and he adjusts headgates, employs labor and repairs ditches, all under the directions of the judge, given by telephone or otherwise. 3 But the courts of Montana may be invested with administrative powers. Porter v. Investors’ Syndicate, 287 U.S. 346, 347 , 53 S.Ct. 132 , 77 L.Ed. 354 . So may federal legislative courts like those of the District of Columbia. Keller v. Potomac Elec. Co., 261 U.S. 428 , 43 S.Ct. 445 , 67 L.Ed. 731 ; Postum Cereal Co. v. Calif. Fig Nut Co., 272 U.S. 693 , 47 S.Ct. 284 , 71 L.Ed. 478 ; Federal Radio Comm. v. General Electric Co., 281 U.S. 464 , 50 S.Ct. 389 , 74 L.Ed. *311 969 . But in the cases last cited, the Supreme Court, deriving its powers solely from Art. III, § 2, could not entertain them for purposes of review or appeal.

I do not see how the respondent court, likewise limited hy Art. Ill, § 2, could undertake by agent or otherwise, the administrative or executive functions set up in this order. The limitations on a constitutional court were stated by Chief Justice Taft in Old Colony Tr. Co. v. Comm’r. Int. Rev., 279 U.S. 716, 724 , 49 S.Ct. 499, 502 , 73 L.Ed. 918 as follows: “The Circuit Court of Appeals is a constitutional court under the definition of such courts as given in the Bakelite Case, supra, and a case or controversy may come before it, provided it involves neither advisory nor executive action by it.” (Emphasis supplied.)

Such a court may enjoin action where necessary to preserve the status quo, hut it may not create rights, nor administratively execute them. Thus, while a district court may enjoin the collection of a tax based on an arbitrary overvaluation of property, it may not determine what tax would be valid. Rowley v. Chicago & N.W. Ry., 293 U.S. 102, 112 , 55 S.Ct. 55 , 79 L.Ed. 222 , it may cancel a franchise to take water for breach thereof, but not annul it under a power reserved in the grant, Public Service Commission of Puerto Rico v. Havemeyer, 296 U.S. 506, 518 , 56 S.Ct. 360 , 80 L.Ed. 357 , it may set aside a confiscatory public utility rate but not prescribe a valid one, Central Kentucky Natural Gas Co. v. Railroad Comm., 290 U.S. 264, 272 , 54 S.Ct. 154 , 78 L.Ed. 307 .

As it appears to me, the order of April 24, 1953, amounted to putting the district court in the water distributing business. I am not aware of any authority upon this point. The dictum of Judge Bourquin in Sain v. Montana Power Co., D.C., 20 F. Supp. 843, 847 , failed to note that Montezuma Canal Co. v. Smithville Canal Co., 218 U.S. 371, 385 , 31 S.Ct. 67 , 54 L.Ed. 1074 , there cited, dealt with an order of the Arizona territorial courts. So I am reduced from “the high ground of authority to the low ground of principle”. But it seems to me that a district court may not assume the administration here undertaken, any more than such a court, while trying a suit to enjoin an adjoining landowner from excavating so as to cause subsidence of plaintiff’s land and building, could appoint an agent to locate the place and to supervise the work of making the excavation.

However well adapted this order may have been to accomplish a common sense result, I do not see how power to issue it could exist.

The one statement in the opinion of Judge Stephens in which 1 cannot concur is the last sentence in the next to the last paragraph which says: “Therefore, this opinion and decisions indicated are not to be taken as prejudicial to the farther cooperation of United States officials and the trial court, through consent orders or otherwise, to prevent irreparable injury to users of water.” Clearly the United States and the plaintiffs in the suit mentioned are at liberty to cooperate by mutual consent as much as they please. But I cannot agree that they may do so “through consent orders” of the character of that now before us, for I think that the court is without power to participate in such an enterprise.

. Paragraph 1(d) of the order provides in part: “The Bureau of Reclamation will do and perform such work and alterations upon said pumps and/or the area adjacent to them, and such other physical work at other pumps an'd places on the river where pumps are taking water directly from the channel of the -river as in the opinion of the Court’s Agent will permit such pumps to operate as specified in paragraph 1(b) hereof. In the event any other changes or modifications or alterations of pumps pumping directly from the river or of the land or river .adjacent thereto are necessary in the opinion of the Court’s Agent, the Court’s Agent shall notify the Bureau of Reclamation which shall promptly do and perform such repairs, work, or modifications.”

. Water Code, State of California, Deering’s California Codes, § 4050.

. Revised Codes of Montana, 1947, §§ 89-1001 to 89-1024.